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Published online by Cambridge University Press: 16 January 2009
In recent discussion, gifts to the religious have been perceived as exercising a formative influence in the forging of some norms and customs of feudal tenure during the twelfth century. On the one hand, it has been suggested that gifts to the church assisted the clarification in the mind of lay feudal society of the concept of heritability—that is, the future enjoyment of inheritance—since donors could not alienate in perpetuity that which was not already heritable. This suggestion is extremely important in view of the different perceptions of political and legal historians concerning the development of heritability of tenures and tenant right during the twelfth century, which are seen variously to have existed as social or legal norms from varying times and from different causes. A related argument runs that, whilst the warranty clause in charters (but not warranty per se) was initially conceived within the framework of the personal relationship between lord and man, its more widespread diffusion in charters was stimulated largely through the auspices of these religious beneficiaries of gifts in frankalmoign. The introduction of warranty into charters at the instance of religious beneficiaries is thus related to their concern to secure their own perpetual rights in the land at a time of a nascent realisation of hereditary tenant right, and the religious were thus foremost in the insertion of warranty clauses in charters which they, as beneficiaries, wrote or influenced, to secure their own unbridled tenure in perpetuity.
1 Holt, J.C., “Feudal Society and the Family in Early Medieval England: II. Notions of Patrimony” (1983) 5th ser. 33 Transactions of the Royal Historical Society 200–204;Google ScholarTabuteau, E.Z., Transfers of Property in Eleventh-Century Norman Law (University of North Carolina Chapel Hill 1988), pp. 102–3.Google Scholar For the debate about heritability, see below and n.50
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32 Cartulary of the Abbey of Eynsham, passim; see also, Kaye, J.M. (ed.), The Cartulary of God's House, Southampton (2 vols. Southampton Record Society 19–20 1976) vol. I, passim, in which warranty was unusual, pledge more usual: e.g. vol. I pp.174–175 (c. 1198);Google Scholar warranty fails to appear in charters to Stoke by Clare before c. 1180–98, and then only infrequently—Stoke by Clare Cartulary II, p.360 (no. 557); the charters of the earldom of Hereford to religious houses do not include warranty, but those to the laity do: “Hereford Charters” 49–50, 66–67, 71 (nos. 89, 109, 117) (from c. 1160). The charters to Blyth Priory have warranty clauses inconsistently by the late twelfth century; a charter in favour of the house in c. 1189–94 could still, however, include a pledge of faith tantamount to warranty: quia eas sicut liberam et perpetuam elemosinamfide interposita erga omnes homines ego et heredes mei defendere debemus. This clause may have related simply to exonerating the house from secular services. Timson, R.T. (ed.). The Cartulary of Blyth Priory (London 1973), p.260, no. 404.Google Scholar
33 Stenton, , Gilbertine Charters, pp.xxx and 3,126–128,340 (nos. 2,186,461);Google ScholarHoldsworth, , Rufford Charters I, p.lxii;Google Scholar see also, Cartulary of Worcester Cathedral Priory, p.96Google Scholar (no. 198). Rufford Charters includes examples of hand-fast between lay men. A charter of three sisters to William telarius in the late twelfth century intermixes pledge of faith and warranty between lay parties, although the gender of the donors may have been the reason for the spiritual sanctions: Stenton, , Facsimiles … Northants Charters, p. 114,Google Scholar no. XLII. The gift of Gerard de Stirap to Blyth Priory of a wood was secured by a warranty against all men, but which (the warranty) Gerard swore to uphold (et hoc affidaui tenendum): Blyth Priory Cartulary, p.82, no. 107.
34 White, S.D., Custom, Kinship and Gifts to Saints. The Laudatio Parentum in Western France 1050–1150 (University of North Carolina Chapel Hill 1988).Google Scholar
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36 Newington Longeville Charters, pp. 23–25 (nos. 19, 21–22).Google Scholar
37 Ibid., passim. Charters to Newington Longeville Priory had either oaths or warranty and occasionally both. Charters of c. 1175 had oaths on gospels or the altar, those of c. 1167–73 warranty, and one of c. 1184–97 warranty pro posse nostro (the latter at p.48 no. 52). Postles, “Securing the Gift”.
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39 Ibid. pp.119–20, 191 (nos. 176 and 256). See also the warranty in the charter of Richard son of John de Hemminctona to St Neot's Priory in 1185, sicut meant et antecessorum meorum propriam elemosinam: Stenton, , Facsimiles … Northants Charters, p.72 (no. XXV).Google Scholar
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46 Ibid. p. 100.
47 Earldom of Gloucester Charters, p.78Google Scholar (no. 71). Moreover, it is known in these cases that the charters were predominantly not written by the beneficiaries, but by scriptores employed by the Earls, however casually: ibid, pp.25–30. I am also grateful to Michael Clanchy, who has pointed out to me the possibility that some charters may have been written in the county court where they were proclaimed, rather than by the beneficiaries or a baronial scriptor. Dr. Clanchy and Dr. Geoffrey Martin are undertaking a project into the identification of writers of charters before c. 1400
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