Thomas de Littleton

His Treatise on Tenures was probably written after he had been appointed to the bench. According to tradition it is addressed to his second son, Richard, who went to the bar, and whose name occurs in the year books of the reign of Henry VII; it has however been argued that the words mon filz (my son) were simply a conventional way of addressing law students. The book, both historically and from its intrinsic merit, may be characterised as the first text-book upon the English law of property. The law of property in Littleton's time was mainly concerned with rights over land, and it was the law relating to this class of rights that Littleton set himself to digest and classify. The time was ripe for the task: ever since the Norman conquest, regular courts of justice had been at work administering a law that had grown out of an admixture of Teutonic custom and of Norman feudalism.[3]

Under Henry II, the courts had been organised, and the practice of keeping regular records of the proceedings had been carefully observed. The centralising influence of the royal courts and of the justices of assize, working steadily through three centuries, had made the rules governing the law of property uniform throughout the land; local customs were confined within certain prescribed limits, and were only recognised as giving rise to certain well defined classes of rights, such, for instance, as the security of tenure acquired by villains by virtue of the custom of the manor, and the rights of freeholders, in some towns, to dispose of their land by will. Thus, by the time of Littleton (Henry VI and Edward IV), an immense mass of material had been acquired and preserved in the rolls of the various courts. Reports of important cases were published in the "year books". A glance at Statham's Abridgment, the earliest digest of decided cases, published nearly at the same time as Littleton's Tenures, is sufficient to show the enormous bulk that reported cases had already attained as materials for the knowledge of English law.[3]

Littleton's treatise was written in that peculiar dialect compounded of Norman French and English phrases called law French. Although it had been provided by a statute of Edward III, that viva voce proceedings in court should no longer be conducted in the French tongue, "which was much unknown in the realm", the practice of reporting proceedings in that language, and of using it in legal treatises, lingered till a much later period, and was, at length, prohibited by a statute passed in the time of the Commonwealth in 1650.[3]

Unlike the preceding writers on English law, Glanville, Bracton, and the authors of the treatises known by the names of Britton and Fleta, Littleton borrows nothing from the sources of Roman law or the commentators. He deals exclusively with English law.[3]

The first two books are stated, in a note to the table at the conclusion of the work, to have been made for the better understanding of certain chapters of the "Ancient Book of Tenures". This refers to a tract called The Old Tenures, said to have been written in the reign of Edward III. By way of distinguishing it from this work, Littleton's book is called in all the early editions "Tenores Novelli".

The book is written on a definite system, and is the first attempt at a scientific classification of rights over land. Littleton's method is to begin with a definition, usually clearly and briefly expressed, of the class of rights with which he is dealing. He then proceeds to illustrate the various characteristics and incidents of the class by stating particular instances, some of which refer to decisions that had actually occurred, but more of which are hypothetical cases put by way of illustration of his principles. He occasionally refers to reported cases. His book is thus much more than a mere digest of judicial decisions; to some extent, he pursues the method that gave to Roman law its breadth and consistency of principle. In Roman law, this result was attained through the practice of putting to jurisconsults hypothetical cases to be solved by them. Littleton, in like manner, is constantly stating and solving, by reference to principles of law, cases that may or may not have occurred in actual practice.[3]

In dealing with freehold estates, Littleton adopts a classification that has been followed by all writers who have attempted to systematise the English law of land, especially Sir Matthew Hale and Sir William Blackstone. It is indeed the only possible approach to a scientific arrangement of the intricate "estates in land" that were known to English law. He classifies estates in land by reference to their duration, or, in other words, by reference to the differences between the persons who are entitled to succeed upon the death of the person in possession or "tenant".[15]

First of all, he describes the characteristics of tenancy in fee simple. In Littleton's time and until the present day, it was the largest interest in land known to the law. Next in order comes tenancy in fee tail, the various classes of which are sketched by Littleton with brevity and accuracy; but he is silent as to the important practice, which first received judicial recognition shortly before his death, of "suffering a recovery", whereby, through a series of judicial fictions, a tenant in tail was enabled to convert his estate tail into a fee simple, thus acquiring full power of alienation.[15]

After discussing, in their logical order, other freehold interests in land, he passes to interests in land that were called by later writers interests less than freehold – namely, tenancies for terms of years and tenancies at will. With the exception of tenancy from year to year, now so familiar to us, but which was a judicial creation of a date later than the time of Littleton, the first book is a complete statement of the principles of the common law, as they, for the most part, existed until 1925, governing and regulating interests in lands. The first book concludes with a very interesting chapter on copyhold tenures, which marks the exact point at which the tenant—by-copy-of-court-roll, the successor of the villein, who, in his turn, represented the freeman reduced to villeinage by the growth of the manorial system, acquired security of tenure.[15]

The second book relates to the reciprocal rights and duties of lord and tenant, and is mainly of historical interest to the modern lawyer. It contains a complete statement of the law as it stood in Littleton's time relating to homage, fealty, and escuage, the money compensation to be paid to the lord in lieu of military service to be rendered to the king, a peculiar characteristic of English as distinguished from Continental feudalism.[15]

Littleton then proceeds to notice the important features of tenure by knight's service with its distinguishing incidents of the right of wardship of the lands and person of the infant heir or heiress, and the right of disposing of the ward in marriage. The non-military freehold tenures are next dealt with: we have an account of "socage tenure", into which all military tenures were subsequently commuted by a now unrecognised act of the Long Parliament in 1650, afterwards reënacted by the well known statute of Charles II (1660), and of "frankalmoign", or the spiritual tenure by which churchmen held.[15]

In the description of burgage tenure and tenure in villeinage, the life of which consists in the validity of ancient customs recognised by law, we recognise survivals of a time before the iron rule of feudalism had moulded the law of land in the interests of the king and the great lords. Finally he deals with the law of rents, discussing the various kinds of rents that may be reserved to the grantor upon a grant of lands and the remedies for recovery of rent, especially the remedy by distress.[15]

The third and concluding book of Littleton's treatise deals mainly with the various ways in which rights over land can be acquired and terminated in the case of a single possessor or several possessors. This leads him to discuss the various modes in which several persons may simultaneously have rights over the same land, such as parceners (daughters who are co-heiresses, or sons in gavelkind), joint tenants and tenants in common.[15]

Next follows an elaborate discussion upon what are called estates upon condition—a class of interests that occupied a large space in the early common law, giving rise, on one side, to estates tail, and, on another, to mortgages. In Littleton's time, a mortgage, which he carefully describes, was merely a conveyance of land by the tenant to the mortgagee, with a condition that, if the tenant paid to the mortgagee a certain sum on a certain day, he might reënter and have the land again. If the condition was not fulfilled, the interest of the mortgagee became absolute, and Littleton gives no indication of any modification of this strict rule, such as was introduced by courts of equity, permitting the debtor to redeem his land by payment of all that was due to the mortgagee although the day of payment had passed, and his interest had become, at law, indefeasible. The remainder of the work is occupied with an exposition of a miscellaneous class of modes of acquiring rights of property, the analysis of which would occupy too large a space.[15]

The work is thus a complete summary of the common law as it stood at the time. It is nearly silent as to the remarkable class of rights that had already assumed vast practical importance—equitable interests in lands. These are only noticed incidentally in the chapter on "Releases". But it was already clear, in Littleton's time, that this class of rights would become the most important of all.[15]

Littleton's own will, which has been preserved, may be adduced in proof of this assertion. Although nothing was more opposed to the spirit of Norman feudalism than that a tenant of lands should dispose of them by will, we find Littleton directing by his own will the "feoffees" (trustees) of certain manors to make estates to the persons named in his will. In other words, in order to acquire over lands powers unknown to the common law, the lands had been conveyed to feoffees who had full right over them according to the common law, but who were under a conscientious obligation to exercise those rights at the direction and for the exclusive benefit of the person to whose "use" the lands were held. This conscientious obligation was recognized and enforced by the Lord Chancellor, and thus arose the class of equitable interests in lands. Littleton was the first writer on English law after these rights had risen into a prominent position, and it is curious to find to what extent they are ignored by him.[15]

The first edition of The Tenures appeared in 1481 or 1482, being one of the earliest books printed in London and the earliest treatise on English law printed anywhere. The second edition was printed about 1483 in London, and the third about 1490 in Rouen. These editions and many others were in the original Law French. In 1766 (second edition 1779) David Hoüard, a Norman advocate, published the Tenures under the title of Anciennes Loix des François conservées dans les coutumes angloises, arguing that they were derived from, and thus the best evidence for, early French customary law. There have also been many editions in English. In 1628 Edward Coke published The First Part of the Institutes of the Lawes of England. Or, a Commentarie upon Littleton, Not the Name of a Lawyer Onely, but of the Law it selfe, commonly called "Coke [up]on Littleton". There have been about 25 editions of Coke upon Littleton and about 90 editions of The Tenures without the commentary. With or without commentary, The Tenures formed an important part of legal education for almost three centuries and a half and is still cited in the courts of England and the United States as an authority on the feudal law of real estate. Eugene Wambaugh wrote a learned introduction to the 1903 edition of The Tenures (Washington).