0521806461 cambridge university press the fee tail and the common recovery in medieval england 1176 1502 oct 2001

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THE FEE TAIL AND THE COMMON RECOVERY IN MEDIEVAL
ENGLAND 1176 ± 1502

Fee tails were a basic building block for family landholding from the end
of the thirteenth to the beginning of the twentieth century. The classic
entail was an interest in land that was inalienable and could only pass at
death by inheritance to the lineal heirs of the original grantee.
Biancalana's study describes the development of the fee tail from the
late twelfth to the ®fteenth century, and the invention, development, and
early use of the common recovery, a reliable legal mechanism for the
destruction of entails, from 1440 to 1502. His discussion includes the law
governing maritagium and the duration of fee tails before De Donis (1285),
and the decisions taken by Chancery to extend the statutory restraint on
alienations of land in fee tail until the creation of `perpetual' entails in the
®fteenth century. He also discusses the uses of fee tails by tracing the
change from maritagium to marriage portion and the turn to jointure, and
by surveying transactions in which fee tails were created. Biancalana's
discussion of the common recovery begins with other methods of barring
entails ± chie¯y the doctrines of assets by descent and collateral warranty.
He then traces the procedural and doctrinal development of the common
recovery, closing with a consideration of the transactions in which
common recoveries were used as well as the complicated attitudes towards
ending fee tails.
The Fee Tail and the Common Recovery in Medieval England includes a
calendar of over three hundred common recoveries with discussions of
their transactional contexts. It is a major work of great interest to legal
and social historians.

JOSEPH BIANCALANA is Professor in the College of Law at the
University of Cincinnati. He has published articles in journals including
The Cambridge Law Journal, the Columbia Law Review, and the Law and
History Review.



CAMBRIDGE STUDIES
IN ENGLISH LEGAL HISTORY

Edited by
J. H. BAKER

Downing Professor of the Laws of England
Fellow of St Catharine's College, Cambridge

Recent series titles include
Roman canon law in Reformation England
R. H. HELMOLZ

Law, politics and the Church of England
The career of Stephen Lushington 1782±1873
S. M. WADDAMS

The early history of the law of bills and notes
A study of the origins of Anglo-American commercial law
JAMES STEVEN ROGERS

The law of evidence in Victorian England
CHRISTOPHER ALLEN

A history of the county court, 1846±1971
PATRICK POLDEN

John Scott, Lord Eldon, 1751±1838
The duty of loyalty
ROSE MELIKAN

Literary copyright reform in early Victorian England
The framing of the 1842 Copyright Act
CATHERINE SEVILLE

Aliens in medieval law
The origins of modern citizenship
KEECHANG KIM



THE FEE TAIL AND THE
COMMON RECOVERY IN
MEDIEVAL ENGLAND
1176±1502

JOSEPH BIANCALANA


         
The Pitt Building, Trumpington Street, Cambridge, United Kingdom
  
The Edinburgh Building, Cambridge CB2 2RU, UK

40 West 20th Street, New York, NY 10011-4211, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
Ruiz de Alarcón 13, 28014 Madrid, Spain
Dock House, The Waterfront, Cape Town 8001, South Africa

© Joseph Biancalana 2004
First published in printed format 2001
ISBN 0-511-02892-X eBook (Adobe Reader)
ISBN 0-521-80646-1 hardback


To the memory of
Samuel Edmund Thorne
1907±1994
lo mio maestro



CONTENTS

Acknowledgments
List of abbreviations and abbreviated citations

page xi
xiii

Introduction
1 Fee tails before De Donis
1 Grants in fee tail
2 The transformations of maritagium

3 Maritagium and fee tails in the King's Court:
the development of the formedon writs

1
6
9
37

2 The growth of the ``perpetual'' entail
1 Reading De Donis
2 The statutory restraint on alienation and the
descender writ
3 The duration of entails for reversions and remainders

83
85
89
122

3 Living with entails
1 The change from maritagium to jointure
2 The frequency and use of entails

141
142
160

4 Barring the enforcement entails other than by common
recovery
1 The doctrine of assets by descent

2 The doctrine of collateral warranty
3 Barring entails by judgment

195
196
212
242

5 The origin and development of the common recovery
1 The origin and growth of common recoveries
2 Development of procedure and doctrine
3 The double voucher recovery

250
251
261
299

ix

69


x

Contents

6 The common recovery in operation
1 The uses of recoveries
2 Social acceptance of the common recovery

313
313
337

Appendix to Chapter 6
I Sales
II Transfers into mortmain
III Dispute resolution
IV Resettlements and uses

352
353
389
391
400

Bibliography
Subject and selected persons index
Index to persons and places in Appendix to Chapter 6
Persons
Places

440
454
461
461
480

ACKNOWLEDGMENTS

This book, too long in the making, would not have been ®nished
were it not for the encouragement, comments, and criticisms of a
number of scholars. The late Samuel Edmund Thorne ®rst
encouraged me to undertake a study of the common recovery. He
was seconded by Professors S. F. C. Milsom and John Baker.
I am grateful to John Baker, not only for his patience and quiet
encouragement, but also for his comments on drafts of Chapters 1
and 5. Professor Charles Donahue, especially encouraging at one
dark moment, was frequently willing to read drafts of chapters
and to discuss the work in its slow progress. Dr. Paul Brand and
his wife Vanessa provided their friendship, encouragement, and
much-needed relief from the sometimes lonely hours in the Public
Record Of®ce. Dr. Brand also gave me rigorous and meticulous
criticisms of Chapters 1, 2, 4, and 5, which made me frequently
return to the sources and rethink my arguments. Although I did
not always agree with him, Brand's generous yet demanding
criticisms made me make the book far better than it would
otherwise have been. Professors Tom Green, Richard Helmholz,
and Robert Palmer showed interest and expressed encouragement
in the course of the project.
An early version of Chapter 6 was presented at the Plea Roll
Conference organized by Professor Sue Sheridan Walker, who
also took an interest in the progress of the work. I began the
project as a Golieb Fellow at New York University Law School.
Professor William Nelson of that law school permitted me as a
Golieb Fellow to present a very early version of Chapter 6 to his
NYU Law School Legal History Colloquium. Not having learned
better, Professor Nelson permitted me on a later occasion to

present a version of Chapter 1 to his Legal History Colloquium.
I am grateful for the comments of the participants in the
xi


xii

Acknowledgments

colloquium, especially those of Professors William Nelson, John
Baker, and William La Piana.
I am also grateful for the assistance of the staff of the British
Library and the Public Record Of®ce, especially the assistance of
Dr. David Crook of the PRO who made the writ ®les of Henry
VII's reign presentable and available to me. The staff of the
Robert S. Marx Law Library at the University of Cincinnati,
especially Cynthia Aninao, James W. Hart, and Mark R. Dinkelacker, provided valuable assistance.
Finally, I am grateful to Mrs. Connie Miller of the University
of Cincinnati College of Law for her indefatigable wordprocessing of the numerous drafts of the manuscript.


ABBREVIATIONS AND
ABBREVIATED CITATIONS

Ames The Ames Foundation (Yearbooks of Richard II).
Ancient Deeds A Descriptive Catalogue of Ancient Deeds in the
Public Record Of®ce, 6 vols. (London: HMSO, 1890±1915).
BNB F. Maitland (ed.), Bracton's Note Book, 3 vols. (London:
C. J. Clay & Sons, 1887).
Baker, Serjeants J. H. Baker, The Order of Serjeants at Law

(London: Selden Society, 1984).
Basset Charters W. T. Reedy (ed.), Basset Charters 1120±1250
(Pipe Roll Society, n.s., vol. 50, 1995).
Beauchamp Cartulary E. Mason (ed.), The Beauchamp Cartulary
Charters 1110±1268 (Pipe Roll Society, n.s., vol. 43, 1980).
Bedfordshire Fines G. H. Fowler (ed.), A Calendar of the Feet of
Fines for Bedfordshire . . . of the reigns of Richard I, John, and
Henry III (Bedfordshire Historical Record Society, vol. 4,
1919); A Calendar of the Feet of Fines for Bedfordshire . . . of the
reign of Edward I (Bedfordshire Historical Record Society, vol.
12, 1928).
Berkshire Eyre M. T. Clanchy (ed.), The Roll and Writ File of
the Berkshire Eyre of 1248 (Selden Society, vol. 90, 1972±3).
BL British Library
Boarstall Cartulary H. E. Salter and A. H. Cooke (eds.), The
Boarstall Cartulary (Oxford Historical Society, vol. 88, 1930).
The Book of M. Clough (ed.), The Book of Bartholomew
Bolney Bartholomew Bolney (Sussex Record Society, vol. 63,
1964).
Bracton Bracton de Legibus et Consuetudinibus Angliae, 4 vols.,
G. Woodbine (ed.), S. Thorne (trans.) (Selden Society and
Harvard University Press, 1968 (vols. I and II) and 1977 (vols.
III and IV)).
xiii


xiv

List of abbreviations

Brevia Placitata G. J. Turner (ed.), Brevia Placitata (Selden
Society, vol. 66, 1947).
Brooke R. Brooke, La Graunde Abridgement (London: Richard
Tottell, 1576).
Brooke's New Cases R. Brooke, Sir Robert Brooke's New Cases in
the Time of Henry VIII, Edward VI and Queen Mary collected
out of Brooke's Abridgement and Chronologically Arranged
(London: Richard Best & John Mace, 1651).
Buckinghamshire Fines M. H. Wyndham (ed.), A Calendar of the
Feet of Fines for the County of Buckingham, 7 Richard I to 44
Henry III (Buckinghamshire Archeological Society, vol. 4,
1940); A Calendar of the Feet of Fines for Buckinghamshire,
1259±1307; with an Appendix, 1179±1259 (Buckinghamshire
Record Society, vol. 25, 1989).
Calverley Charters W. B. Baildon and S. Margerison (eds.), The
Calverley Charters, vol. I (Thoresby Society, vol. 6, 1904).
Cambridge Fines W. M. Palmer (ed.), Feet of Fines for
Cambridgeshire (Norwich, 1898).
Cartulary of St. John's Colchester S. A. Moore (ed.),
Cartularium Monasterii Sancti Johannis Baptiste de Colecestria
(Roxburghe Club, 1897).
Cartulary of Blythburgh Priory C. Harper-Bill (ed.), Cartulary
of Blythburgh Priory, 2 vols. (Suffolk Record Society, vols. 2
and 3, 1980 and 1981).
Cartulary of St. Frideswide S. R. Wigram (ed.), Cartulary of the
Monastery of St. Frideswide at Oxford, 2 vols. (Oxford
Historical Society, vols. 28 and 31, 1895 and 1896).
Casus Placitorum W. Dunham Jnr. (ed.), Casus Placitorum, and
Reports of Cases in the King's Courts 1272±1278 (Selden Society,
vol. 69, 1950).

Charter Rolls Calendar of the Charter Rolls preserved in the
Public Record Of®ce, 6 vols. (London: HMSO 1903±27).
Charters of the Earls of Chester G. Barraclough (ed.), The
Charters of the Anglo-Norman Earls of Chester, c. 1071±1237
(Record Society of Lancashire and Cheshire, 1988).
Charters of Norwich Cathedral Priory B. Dodwell (ed.), The
Charters of Norwich Cathedral Priory, Part II (Pipe Roll
Society, n.s., vol. 46, 1985).
Chatteris Cartulary C. Breay (ed.), The Cartulary of Chatteris
Abbey (Woodridge: The Boydell Press, 1999).


List of abbreviations

xv

Christopher Hatton's Book of Seals C. Hatton, Sir Christopher
Hatton's Book of Seals, F. M. Stenton (ed.) (Oxford: Clarendon
Press, 1950).
Close Rolls Calendar of the Close Rolls Preserved in the Public
Record Of®ce, 1227±1272, 14 vols. (London: HMSO, 1902±38);
Calendar of the Close Rolls Preserved in the Public Record Of®ce,
1272±1307, 5 vols. (London: HMSO, 1900±8); Calendar of the
Close Rolls Preserved in the Public Record Of®ce, 1307±1327, 4
vols. (London: HMSO, 1892±8); Calendar of the Close Rolls
Preserved in the Public Record Of®ce, 1399±1509, 18 vols.
(London: HMSO, 1927±63).
Coke, Reports E. Coke, Les Reports de Sir Edward Coke
(London: J. Streater, 1672).
Complete Peerage V. Gibbs, H. A. Doubleday, et al. (eds.), The

Complete Peerage, 13 vols. (London, 1910±40).
Cornwall Fines J. H. Rowe (ed.), Cornwall Feet of Fines, 2 vols.
(Devon and Cornwall Record Society, 1914, 1950).
CUL Cambridge University Library
CRR Curia Regis Rolls, 18 vols. (London: HMSO, 1922± ).
Dale Abbey Cartulary A. Saltman (ed.), The Cartulary of Dale
Abbey (London: HMSO, 1967).
Danelaw Charters F. M. Stenton (ed.), Documents Illustrative of
the Social and Economic History of the Danelaw, from Various
Collections (Oxford: Oxford University Press, 1920).
Derbyshire Fines H. J. H. Garrett and C. Rawcliffe (eds.),
Derbyshire Feet of Fines, 1323±1546 (Derbyshire Record
Society, vol. 11, 1985).
Devonshire Fines O. J. Reichel (ed.), Devon Feet of Fines (Devon
and Cornwall Record Society, 1912); O. J. Reichel, F. B.
Prideaux, and H. Tapley-Soper (eds.), Devon Feet of Fines
(Devon and Cornwall Record Society, 1939).
Doctor and Student C. Saint German, Doctor and Student, T. F.
T. Plucknett (ed.) (Selden Society, vol. 91, 1974±5).
Dyer's Reports J. Dyer, Reports of Cases in the Reigns of Henry
VIII, Edward VI, Queen Mary and Queen Elizaeth, J. Vaillant
(trans.), 3 vols. (London: Butterworths, 1794).
EYC Early Yorkshire Charters, 11 vols., W. Farrer (ed.), vols.
I±III (1914±16), C. T. Clay (ed.), vols. IV±XI (1935±63).
Earldom of Gloucester Charters R. Patterson, Earldom of
Gloucester Charters: The Charters and Scribes of the Earls and


xvi

List of abbreviations

Countesses of Gloucester to A.D. 1217 (Oxford: Clarendon Press,
1973).
Earliest English Law Reports P. Brand (ed.), The Earliest English
Law Reports, 2 vols. (Selden Society, vols. 111 and 112, 1995
and 1996).
Early Lincoln Wills A. W. Gibbons (ed.), Early Lincoln Wills
(Lincoln: J. Williamson, 1888).
Early Northamptonshire Charters F. M. Stenton (ed.), Facsimiles
of Early Charters from Northamptonshire Collections
(Northamptonshire Record Society, vol. 4, 1930).
Early Records of Coventry P. Coss (ed.), The Early Records of
Medieval Coventry (Oxford: Oxford University Press, 1986).
Early Registers of Writs E. de Haas and G. D. G. Hall (eds.),
Early Registers of Writs (Selden Society, vol. 87, 1970).
Essex Fines R. E. G. Kirk and E. F. Kirk (eds.), Feet of Fines for
Essex [1182±1422], 3 vols. (Essex Archeological Society,
1899±1949); P. Reaney and M. Finch (eds.), Feet of Fines for
Essex [1423±1540] (Colchester: Essex Archeological Society,
1964).
Feet of Fines Feet of Fines of the Tenth Year of the Reign of
Richard I, A.D. 1198 to A.D. 1199 (Pipe Roll Society, vol. 24,
1900).
Fitzherbert A. Fitzherbert, La Graunde Abridgement (1577).
Glanvill G. Hall (ed. and trans.), Tractatus de Legibus et
Consuetudines Regni Anglie Qui Glanvilla Vocatur (Selden
Society, 1965).
Gloucs. D. M. Stenton (ed.), Rolls of the Justices in Eyre for
Gloucestershire, Warwickshire, and Staffordshire [Shropshire],

1221, 1222 (Selden Society, vol. 59, 1940).
Haughmond Cartulary U. Rees (ed.), The Cartulary of
Haughmond Abbey (Cardiff: Shropshire Archeological Society
and University of Wales Press, 1985).
Hunter, Fines J. Hunter (ed.), Fines, sive Pedes Finium: sive
Finales concordiae in Curia Domini Regis: ab anno septimo regni
regis Ricardi I. ad annum decimum sextum regis Johannis, A.D.
1195±A.D. 1214 (London: G. Eyre & A. Spotteswoode,
1835±44).
Huntingdon Fines G. J. Turner (ed.), Feet of Fines relating to the
County of Huntingdon, 1194±1603 (Cambridge Antiquarian
Society, vol. 37, 1913).


List of abbreviations

xvii

Hylle Cartulary R. W. Dunning (ed.), The Hylle Cartulary
(Somerset Record Society Publications, vol. 68, 1968).
IPM Calendar of Inquisitions Post Mortem and other Analogous
Documents Preserved in the Public Record Of®ce, 20 vols.
(London: HMSO, 1904± ).
IPM, Henry VII Calendar of Inquisitions Post Mortem . . .
Preserved in the Public Record Of®ce, Henry VII, 3 vols.
(London: HMSO, 1898±1955).
JUST 1 Rolls of Itinerant Justices on Eyre (Public Record
Of®ce).
Kent Eyre The Eyre of Kent, 1313±1314, F. W. Maitland, L.
Harcourt and W. Bolland (eds.) (Selden Society, vols. 24, 27

and 29, 1909, 1912, and 1913).
Kent Fines I. Churchill, R. Grif®n, and F. W. Sardman,
Calendar of Kent Feet of Fines to the End of Henry III's
Reign (Kent Archeological Society: Kent Records, vol. 15,
1956).
Lancashire Fines W. Farrer (ed.), Final Concords of the County of
Lancashire, from the Original Chirographs, or Feet of Fines . . ., 4
vols. (Lancashire and Cheshire Record Society, vols. 39, 46, 50,
60, 1899±1910).
Langley Cartulary P. Coss (ed.), The Langley Cartulary
(Dugdale Society, vol. 32, 1980).
Lincs. D. M. Stenton (ed.), The Earliest Lincolnshire Assize
Rolls, 1202±09 (Lincolnshire Record Society, vol. 22, 1926).
Lincs. & Worcs. D. M. Stenton (ed.), Rolls of the Justices in Eyre
for Lincolnshire (1218±19) and Worcestershire (1221) (Selden
Society, vol. 53, 1934).
Littleton Tenures T. Littleton, Tenures (1481).
Luf®eld Charters G. R. Elvey (ed.), Luf®eld Priory Charters,
Part I (Northamptonshire Record Society, vol. 22, 1958).
Missenden Cartulary J. G. Jenkins (ed.), The Cartulary of
Missenden Abbey, 3 vols. (Buckingham Record Society, vols. 2
and 10, 1938 and 1946; London: HMSO, 1962).
Northamptonshire Eyre D. Sutherland (ed.), The Eyre of
Northamptonshire 1329±1330, 2 vols. (Selden Society, vols. 97
and 98, 1981 and 1982).
Northants. D. M. Stenton (ed.), The Earliest Northamptonshire
Assize Rolls, 1201±3 (Northamptonshire Record Society, vol. 5,
1930).

xviii

List of abbreviations

Novae Narrationes E. Shanks and S. F. C. Milsom (eds.), Novae
Narrationes (Selden Society, vol. 80, 1963).
Oxfordshire Fines H. E. Salter (ed.), The Feet of Fines for
Oxfordshire, 1195±1291 (Oxford Record Society, vol. 12, 1930).
PKJ D. M. Stenton (ed.), Pleas Before the King or his Justices,
4 vols. (Selden Society, vols. 67, 68, 83, and 84, 1948±9,
1966±7).
Patent Rolls Calendar of the Patent Rolls Preserved in the Public
Record Of®ce, 1216±1272, 6 vols. (London: HMSO, 1901±13);
Calendar of the Patent Rolls Preserved in the Public Record
Of®ce, 1272±1307, 4 vols. (London: HMSO, 1893±1901);
Calendar of the Patent Rolls Preserved in the Public Record
Of®ce, 1399±1509, 17 vols. (London, HMSO, 1903±16).
RCR F. Palgrave (ed.), Rotuli Curiae Regis, 2 vols. (London:
G. Eyre & A. Spottiswoode, 1835).
Readings and Moots Readings and Moots at the Inns of Court in
the Fifteenth Century, 2 vols., vol. I, S. E. Thorne (ed.) (Selden
Society, vol. 71, 1954); vol. II, S. E. Thorne and J. H. Baker
(eds.) (Selden Society, vol. 105 1990).
Register Registrum Omnium Brevium (1531).
Register of Henry Chichele E. F. Jacob (ed.), The Register of
Henry Chichele, 4 vols. (Oxford: Clarendon Press, 1938, 1943,
1945, and 1947).
RS Rolls Series.
Rot. Parl. Rotuli parliamentorum, 6 vols. (London, 1783).
Shropshire Eyre A. Harding (ed.), The Shropshire Eyre Roll of

1256 (Selden Society, vol. 96, 1960).
Somerset Fines E. Green (ed.), Pedes Finium for the County of
Somerset, 4 vols. (Somerset Record Society, vols. 6, 12, 17, and
22, 1892, 1898, 1902 and 1906).
Spelman's Reports J. H. Baker (ed.), Spelman's Reports, 2 vols.
(Selden Society, vols. 93, 94, 1976, 1977).
Staffordshire Fines G. Wrottesley (ed.), Calendar of Final
Concords or Pedes Finium, Staffordshire 1327±1547 (Wm. Salt
Archeological Society, vol. 11, 1900).
Stonor Letters C. L. Kingsford (ed.), The Stonor Letters and
Papers, 1290±1483, 2 vols. (Camden Society, 3rd ser., vols. 29
and 30, 1919).
Statutes of the Realm A. Luders, T. Tomlins, J. France,


List of abbreviations

xix

W. Tauton, and J. Raithby (eds.), The Statutes of the Realm, 10
vols. (London, 1810±28).
Stoke-by-Clare
Priory
Cartulary C.
Harper-Bill
and
R. Mortimer (eds.), Stoke-by-Clare Priory Cartulary, 3 vols.
(Suffolk Record Society, vols, 4, 5, and 6, 1982±4).
Sussex Fines L. F. Salzman (ed.), An Abstract of the Feet of ®nes
Relating to . . . Sussex, from 2 Richard I to 24 Henry VII, 3 vols.

(Sussex Record Society, vols. 2, 7, and 23, 1903±16).
Sussex Inquisitions M. Halgate (ed.), Sussex Inquisitions (Sussex
Record Society, vol. 33, 1927).
Testamenta Eboracensia J. Raine et. al. (eds.), Testamenta
Eboracensia, 6 vols. (Surtees Society, vols. 4, 30, 45, 53, 79, and
106, 1836±1902).
Testamenta Vetusta N. H. Nicolas (ed.), Testamenta Vetusta, 2
vols. in one (London, 1826).
TreÂs Ancien Coutumier E. J. Tardiff (ed.), Coutumiers de
Normandie, vol. I, Le TreÂs Ancien Coutumier de Normandie, Part
I: Texte Latin, Paris, 1881; Part II: Textes Francais et Normand
(Rouen and Paris, 1903).
Tropenell Cartulary J. D. Davies (ed.), Tropenell Cartulary, 2
vols. (Wiltshire Archeological and Natural History Society,
1908).
V.C.H. Victoria History of the Counties of England (1900, in
progress).
Warwickshire Fines L. Drucker (ed.), Feet of Fines of
Warwickshire, 1345±1509, vol. III (Dugdale Society
Publications, vol. 18, 1943).
Wiltshire Fines J. L. Kirby (ed.), Abstracts of Feet of Fines
relating to Wiltshire, 1377±1549 (Wiltshire Record Society, vol.
41, 1986).
YB Yearbooks. Unless otherwise indicated citations are to Les
Reports des Cases (ed.) J. Maynard (1678±80) by term, regnal
year, folio, and plea.
Yorks. D. M. Stenton (ed.), Rolls of the Justices in Eyre for
Yorkshire in 3 Henry III (1218±19) (Selden Society, vol. 56,
1937).

INTRODUCTION

This book began as a study of the common recovery, a feigned
action in the Court of Common Pleas. A holder of land in fee tail
could transfer land free of the entail by means of a common
recovery. The aim of the study was threefold: to discover when
lawyers invented the device, to trace subsequent re®nements and
elaborations, which made the device at once more powerful and
more ef®cient, and to determine the kinds of transactions in which
landholders used the device in its ®rst decades of existence.
Research on that initial project revealed that lawyers invented the
device in the 1440s and that by 1502 they had developed the
common recovery into pretty much its ®nal form. By 1502
common recoveries were used in over 200 transactions annually.
By reconstructing the contexts of the recoveries gleaned from the
plea rolls between 1440 and 1502 one could determine the kinds of
transactions in which landholders used the common recovery.
That initial study grew backwards into the present book.
Because the common recovery was a device for barring fee tails, I
became curious about other methods lawyers had developed for
conveying land free of entails. But then it seemed inadequate to
speak of various devices for the barring of entails without speaking
of fee tails themselves. Where did they come from? When and how
did grants in fee tail come to be perpetual? And under what
circumstances and for what purposes did landholders put their
land in fee tail? For the origins of entails one had to go back to
1176, when the royal of®cials of Henry II invented the assize of
mort d'ancestor, a rapid action that enforced royal, common law

rules of inheritance. Fee tails were invented as a means of avoiding
the doctrines that enabled royal government to enforce common
law rules of inheritance. As much as I would have liked to
summarize existing accounts of the origin, development, and use
1


2

Introduction

of fee tails in a chapter introductory to a study focused on the
common recovery, that strategy was not available. There was no
adequate account of the origin, development, and use of fee tails.
Thus I found myself working on a project which could fairly bear
the title ``The Fee Tail and the Common Recovery in Medieval
England.''
The long period covered by the book has required a severe
selection of topics. Although the personal and social circumstances
of the use of fee tails and common recoveries are important to
understanding the practical import of the relevant legal rules and
doctrines, the focus has been more on the legal than on the social
history of fee tails and the common recovery. I have selected
topics in the legal history of fee tails and the common recovery
with a view to ®lling the gaps left by earlier legal historians and to
placing their work in the larger picture permitted by new research.
The result has been the form of connected essays. The reader
might be assisted by having a general view or plan of the book in
advance.
Chapter 1 traces the history of fee tails from about 1176 to the

statute De Donis Conditionalibus in 1285. In this period there are
three main subjects: the origin of fee tails and the law governing
succession to and alienation of lands held in fee tail, the complicated relation between fee tails and maritagium; and the development of writs to secure the different interests ± reversion,
remainder, and the fee tail itself ± created by a grant in fee tail. In
this period, and indeed for most of the period covered by the
book, the courts treated succession to land held in fee tail
differently from alienations of land held in fee tail. The courts
would not upset a grant made by a grantor who had received land
in fee tail if the grantor had had a child who survived him. In
1281, however, the court changed its view: it would upset a grant
if the grantor had a child, whether or not the child survived the
grantor. This new position provoked the statute De Donis. The
relation of fee tails to maritagium was complicated because it was
reciprocal. Certain features of maritagium ± the exclusion of
collateral heirs and the retention of a reversion ± served as models
for grants in fee tail. But the law governing fee tails when applied
to maritagium transformed customary understandings of maritagium until by 1285 maritagium came to be understood as merely a
type of fee tail. Tracing the development of the formedon writs,


Introduction

3

which secured the interests created by a grant in fee tail, is a
matter of ®lling a few gaps left by Milsom and Brand.
Chapter 2, covering the period from the enactment of De Donis
in 1285 to the third decade of the ®fteenth century, traces the
development of the inde®nitely enduring fee tail. Lawyers ®rst
read De Donis as barring alienations by the grantee of land in fee

tail whether or not he had a child and whether or not the child
survived him. The primary focus of Chapter 2 is on the extension
of this statutory restraint on alienation to every generation of the
®rst grantee's lineal heirs. The Council and Chancery took discrete
decisions to extend the statutory restraint on alienations and, what
is not the same thing, the reach of the formedon in the descender
writ. Not until the third decade of the ®fteenth century was the
statutory restraint on alienation perpetual. In the absence of an
alienation, fee tails became perpetual probably as early as the third
decade of the fourteenth century. This meant that, in the absence
of an alienation, reversions or remainders limited after a fee tail
would not be destroyed by the mere passage of time.
Chapter 3 turns to the use of fee tails and some of the
consequences of holding land in fee tail. The chapter begins with
the transformation of marriage settlements from grants of land in
maritagium by the bride's father to his payment of a money
marriage portion in exchange for the groom's or his father's grant
of land to the groom and bride in joint fee tail. This transformation in marriage settlements took place during the period from
almost 1220 to 1350. The increasing indebtedness of gentry,
knights, and nobles drove the change from maritagium in land to
marriage portion in money in exchange for jointure. The importance of jointures to the history of fee tails is con®rmed in the next
part of the chapter. The ways in which landholders used fee tails is
explored by a study of ®nal concords from seven counties from
1300 to 1480. The vast majority of fee tails were created in one of
three situations: as jointure upon marriage, later in life when a
landholder wished to give his wife jointure and plan the devolution of his property, and, after the invention of uses, by last will.
Understanding the use of fee tails is helped by distinguishing
between planning and litigation. The extension of fee tails traced
in Chapter 2 did not affect planning. It prolonged the life of
claims for litigation. Estate planners used fee tails, not with the

hope of creating dynasties, but with the more realistic aim of