Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

Involuntary alienations of feudal land—Talliage—Edward I. introduces the first involuntary attachment of lands—Statutes enacted for this purpose—Their effects—The origin of estates Tail.

The involuntary alienation of feudal land, namely, the attaching, and afterwards the selling it for debt, kept pace pretty much, but not strictly, with the voluntary alienation already treated of. It first began in cities and trading boroughs, which were either the remains of old Roman towns, and where, consequently, the estates were allodial; or else new towns, founded either by the kings, or other great lords; or their demesnes, for the benefit of trades and arts within their own districts. External commerce, during those confused times, was little known or practised, the Barbarians of the North infesting the coasts of the ocean, and the Saracens and Moors, those of the Mediterranean. It was the interest, therefore, of every lord who had such a town on his territory, to give it such privileges as would make it flourish, and outrival the towns of like nature on the lands of the king, or the neighbouring lords. For the natives of such towns were no part of the feudal society, but were in the nature of socage tenants in the early times, removeable, and consequently subject to be taxed, or, as our law calls it, talliagable, from the French word tailler to cut[214].

Talliage, consequently, was the cutting out a part from the whole of the tenant’s substance, at the will of the lord. Yet this very power of talliage, which the lords were not for a long time inclined to part with, joined to their desire to make their towns flourish (that they might be able to bear a greater talliage) put them under a necessity of making such provisions, and granting such privileges, as were necessary for the use of trade and commerce, and at length, in effect, destroyed that absolute power of taxation, which the king and lords had all along claimed and exercised, and which at first, for their own interests sake (which no doubt they well understood) they had used with great moderation. But after the discovery of the civil law at Amalfi in Italy, in the reign of our Stephen, the kings of Europe, who found therein an unlimited power of taxation in the emperor, were desirous to establish the like authority in themselves; and for that purpose began with oppressing their nobles with arbitrary scutages, or commutations for military services; and the towns of their demesne with talliages, not only arbitrary, but extravagantly beyond their power to pay without ruin[215].

John of England was particularly famous for these extraordinary charges; for though his title to the crown was, at that time, by many of his subjects, and by others abroad, much doubted (as in prejudice of his elder brother’s son Arthur then a minor) and his only just claim could be but by parliamentary authority, the omnipotence of which was not then so universally admitted, never was there a prince who carried his prerogative to such extravagant and oppressive heights. This, at length, occasioned the making Magna Charta; partly to assert and restore the ancient liberties of the nation, which had been invaded; partly to alter the old law, in such particulars as had been the engines of oppression. One of the chief of these latter remedies was the taking away the right of talliage, unless consented to in parliament. And now were the boroughs emancipated, and the burgesses made freemen, which before they could hardly be called, while their effects lay wholly at the mercy of the lord[216].

In the next reign they advanced in importance; for as the treasure of the kingdom was in their hands, they were sure to be favoured and courted on both sides, during the fierce contests between the king and the barons. And in the latter end of this reign it appears they had got admission into parliament, which not a little increased their consequence. Edward the First was a great favourer of merchants, and, for the security of their debts, introduced the first involuntary attachment of lands by the act called statute merchant, in the thirteenth year of his reign[217].

Before this time, no lands, except in boroughs by custom, were attachable for debt, but only in the case of the king, who, by right of his prerogative, could enter on the lands of his debtor, and receive the profits, until he was paid. For the same political reason, the surety also for a debt to the king, if he paid the debt, was allowed to come in the king’s place, and enjoy the same privilege; but in all other cases, the chattles were the only mark for the debt. This statute, after reciting that merchants had fallen into poverty, for want of a speedy remedy for recovering their dues, provides, that, in every city or great town, which the king should appoint, there should be kept a recognizance, that is, the acknowledgement or confession of debts due to merchants, and of the day of payment; and that, in case payment was not made at the day, they may, or should, on the application of the merchant, and inspection of the roll, imprison the body of the debtor until payment; and if no payment was made within three months, (which time the debtor was allowed to sell his chattles or lands) his chattles and lands were to be delivered to the merchant creditor, at a reasonable valuation, or extent, as it is called; that out of the profits he might satisfy himself. And in case the debtor could not be found within the jurisdiction of the city or town, or had no chattles or lands therein, then was the mayor to send into chancery the recognizance of the debt, and the chancellor was to issue a writ to the sheriff in whose bailiwick the debtor was or had effects, to act in like manner. And so greatly was the merchant favoured, that tho’ this was but an estate for years (it being certain, from the valuation, in what time the debt would be paid), yet had he, with regard of maintaining actions to recover his possession when deprived of it, the privileges of a free-holder given him, by express provision in the act. Such was the favour shewn to merchants to recover their just demands, nor were other creditors at this time left totally unprovided for, in cases where there was a deficiency of chattles.

In the same year a law was made for attaching the lands of persons, in favour of creditors who were not merchants, but in a different manner, called an elegit. I shall here use the words of the statute, as they are sufficiently plain, and easy to be understood. “When debt is recovered or acknowledged in the king’s courts, or damages awarded, it shall be, from henceforth, in the election of him that sueth for such debt or damages, to have a writ to the sheriff of fieri faciat of the lands and goods” (which was the old remedy against the chattles) “or that the sheriff shall deliver to him all the chattles of the debtor, saving only his oxen and beasts of his plough, and the one half of his land, until the debt be levied upon a reasonable price or extent.” After this the act gives the same privilege as in case of statute merchant, to the creditor dispossessed. From his making his election for the extending the lands, the writ directed to the sheriff for that purpose got the name of elegit. The difference of execution just mentioned shews clearly in how superior a light the legislature regarded the interests of commerce. That the debts to merchants, in whose prosperity the whole community was concerned, might be levied as soon as possible, the security by statute merchant gave possession of the whole of the land to the creditor; but the writ of elegit gave him possession of no more than one half. Originally men could not alien lands at all. Afterwards they were allowed to alien, but not beyond the half of the fief; and this principle or maxim was strongly regarded at the time the writ of elegit was framed, which was before the statute of Quia emptores terrarum, which allowed alienation of the whole. So that whatever stretches might be found necessary, from the circumstances of merchandize, yet, with regard to the kingdom in general, a small deviation only was made from the common law, and the elegit was allowed to affect no more by operation of law than a man was supposed capable of alienating by his own deed[218].

Two reigns after, namely, the 27th of Edward the Third, when the mart, or market of the standing commodities of England, namely, wool, woolfels, hides, lead and tin, was removed from Flanders into England, and a court merchant was erected in all such places where the staple was fixed, to be held by the mayor of the staple, he had power given him to take recognizances on the debts contracted at the staple, called statute staple, in the same manner as of statute merchant; and as the effect thereof was the same as of statute merchant, it need not be particularly repeated. However in some time afterwards, statute merchant was, by custom, extended to others beside merchants, and became one of the common assurances of the realm. The statute staple was likewise extended upon surmise of the debt being contracted at the staple; and though an act of Henry the Eighth in England restrained this latter to its ancient bounds, yet, the same act framed a new kind of security in imitation of it, common to all the subjects, called a recognizance on that act, which had all the effects and advantages of it[219].

The statutes of Elizabeth and those since her time, concerning bankrupts, have gone much further. They not only, in the cases they extend to, laid the whole land open to the creditor, but, instead of a possession, and gradual discharge of the debt, which was all that was given by the statute merchant, elegit, or statute staple, they gave him a more speedy satisfaction, by enabling him to procure a sale of the lands[220]. But these later acts having never been enacted in this kingdom, I shall content myself with having barely hinted at them, and their effects.