1902 Encyclopedia > Thomas de Littleton

Thomas de Littleton
English judge and legal writer
(c. 1407 - 1481)




LITTLETON, THOMAS DE, of Frankley in Worcestershire, judge of the court of common pleas in the reign of Edward IV., and author of the well-known work on Tenures. Littleton's surname was that of his mother, who was the sole daughter and heiress of Thomas de Littleton, lord of Frankley. She married one Thomas Westcote. Thomas was the eldest of four sons of the marriage, and took the name of Littleton, or, as it seems to have been more commonly spelt, Luttelton. The date of his birth appears to be uncertain. He is said by Sir E. Coke to have been a member of the Inner Temple, and to have lectured there on the Statute of Westminster II., De Donis Conditionalibus. His name occurs in the Paston letters about 1445 as that of a well-known counsel. He appears to have been recorder of Coventry in 1450, to have been made king's sergeant in 1455, and afterwards to have been a justice of assize on the northern circuit. In 1466 he was made a judge of the common pleas, and in 1475 a knight of the Bath. He died, according to the inscription on his tomb in Worcester cathedral, on August 23, 1481. He married Joan, widow of Sir Philip Chetwind of Ingestre in Staffordshire, and by her had three sons, through whom he became ancestor of the families in which are the existing peerages of Lyttelton and Hatherton.

The work on tenures was probably written late in his life. 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. The book, both historically and from its intrinsic merit, may be characterized as the first textbook 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 which Littleton set himself to digest and classify. The time was ripe for the task. Ever since the Conquest regular courts of justice had been at work administering a law which had grown out of an admixture of Teutonic custom and of Norman feudalism. Under Henry II. the courts had been organized, and the practice of keeping regular records of the proceedings had been carefully observed. The centralizing 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 recognized as giving rise to certain well-defined classes of rights, such, for instance, as the security of tenure acquired by villeins by virtue of the custom of the manor, and the rights of freeholder; 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 which reported cases had already attained as materials for the knowledge of English law.

Littleton's treatise was written in French, or rather in that peculiar dialect compounded of Norman-French and English phrases called law French. Although it had been provided by a statute of 36 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. 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 purely and exclusively with English law.

The book is written on a definite system, and is the first attempt at something like 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 which had actually occurred, but more commonly they are hypothetical cases put by way of illustration of his principles. He occasionally but rarely refers to reported cases. His book is thus much more than a mere digest of judicial decisions ; to some extent he pursues the method which 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 In dealing with freehold estates Littleton adopts a classification which has been followed by all writers who have attempted to systematize the English law of land, especially Sir M. Hale and Sir William Blackstone. It is indeed the only possible approach to a scientific arrangement of the intricate " estates in land " 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." First of all, he describes the characteristics of tenancy in fee simple, - an interest iu lands which devolves on the death of the tenant to his heir, whether such heir be of the same line or collateral. This is still as it was in Littleton's time the largest interest in land known to the law. Next in order comes tenancy in fee tail, the outcome, as Littleton informs us, of the Statute of Westminster II., 13 Edw. I. c. 1, " De Donis Conditionalibus," which enacted in the interest of the great lords that a gift to a man and "the heirs of his body " should no longer bear the construction which the courts had put upon the words, holding the donee to be thereby invested with full power over the land so soon as he had issue born, but should descend according to the form of the gift to lineal descendants so long as lineal descendants should exist. The various classes of estates tail 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. After discussing in their logical order other freehold interests in land, he passes to interests in land 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 still exist, 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 fall, the successor of the villein, who in his turn represented the freeman reduced to villenage by the growth of the manorial system, acquired security of tenure by the judicial recognition of the fact that the "will of the lord " was controlled by and could only be exercised in accordance with the "custom of the manor."

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 lien of military service to be rendered to the king, a peculiar characteristic of English as distinguished from Continental feudalism.





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 unrecognized Act of the Long Parliament in 1650, afterwards re-enacted by the well-known statute of 12 Charles II. c. 24, and of " frankalmoign," or the spiritual tenureby which churchmen held, their duty being " to make orisons, prayers, masses, and other divine services for the souls of their grantor or feeder, and being bound to no fealty to the lord because that this divine service is better for them before Cod than any doing of fealty." In the description of burgage tenure and tenure in villenage, the life of which consists in the validity of ancient customs recognized by law, we recognize 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 which may be reserved to the grantor upon a grant of lands and the remedies for recovery of rent, especially the remedy by distress.' 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, as parceners: - daughters who are co-heiresses, or sons in gavelkiud ; joint tenants, where the interest does not pass to the heir of the deceased joint tenant, but devolves upon the surviving joint tenant; and tenants in common, where the interest is separate and descends to the heir of each of the co-tenants, though the land over which the right exists is undivided and held in common with one or more other persons. Next follows an elaborate discussion upon what are called estates upon condition, - a class of interests which occupied a large space in the early common law, giving rise on one side to estates tail, 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 reenter 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.

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 which had already assumed vast practical importance - equitable interests in lands. These are only noticed incidentally in the chapter ou " Releases." But it was already clear in Littleton's time that this class of rights would become the most important of all. 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 will the feoffees 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 chancellor, and thus arose the class of equitable interests in lands. Littleton is 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. Unlike their treatment of copyhold interests, the common lawyers wholly refused to recognize the right of the real or beneficial owner, when the legal interest was vested in another, though the latter had then but the semblance without the reality of ownership. Hence it was that the most important class of rights developed outside the common law. After an unhappy attempt to reunite the classes of legal and equitable interests by the Statute of Uses (27 Henry VIII. c. 10), the effect of which was to introduce still greater technicality and complication into the law of real property, the two classes have continued to exist side by side, until in our own time the Judicature Act of 1S73, by uniting in one court the tribunals the difference between which originally gave rise to the distinction between legal and equitable interests, has perhaps paved the way for a simpler and more rational classification of rights over land.

The work of Littleton occupies a place in the history of typography as well as of law. The earliest printed edition seems to be that by John Lettou and William de Machlinia, two printers who probably came from the Continent, and carried on their business in partnership, as their note to the edition of Littleton states, "in eivitate Londoniarum, junta ecelesiam omnium sanctorum." The data of this edition is uncertain, but the most probable conjecture, based on typographical grounds, places it about the latter part of 1481. The next edition is one by Machlinia alone, probably about two or three years later than the former. Machlinia was then in business alone "junta pontem qua yule° dieitur Item brigge." Next came the Rohan or Rouen edition, erroneously stated by Sir E. Coke to•be the earliest, and to have been printed about 1•533. It was, however, of a much earlier date. Tomlins, the latest editor of Littleton, gives reasons for thinking that it cannot have been later than 1490. It is stated in a note to have been printed at Rouen by William le Tailleur "ad instantiam Richardi Pynson." Copies of all these editions ate in the British Museum, In all these editions the work is styled Tenures Xorelli, probably to distinguish it from the " Old Tenures."

There are three early MSS. of Littleton in the University Library at Cambridge. one of these formerly contained a note on its first page to the effect that it was bought in St Paul's Churchyard on July 20, 1480. It was therefore in circulation in Littleton's lifetime. The other two MSS. are of a somewhat later date ; but one of them contains what seems to be the earliest English translation of the Tenures, and is probably not later than 1500.

In the 10th century editions of Littleton followed in rapid succession from the presses of Pynson, Redmayne, Berthelet, Tottyl, and others. The practice of annotating the text caused several additions to be Introduced, which, however, are easily detected by comparison of the earlier copies, In 1581 West divided the text into seven hundred and forty-six sections, which have ever since been preserved. Many of these editions were printed with large margins for purposes of annotation, specimens of which may be seen in Lincoln's Inn Library.

The practice of annotating Littleton was very general, and was adopted by many eminent lawyers besides Sir E. Coke, amongst others by Sir M. lisle. One commentary of this kind, by an unknown hand of earlier date than Sir E. Coke's, was edited by Cary in 1•29. Following the general practice of dealing with Littleton In the great authority on tire law of England, "the most perfect and absolute work that ever was written in any human language," Sir E. Coke makes it the text of that portion of his work which he calls the first part of the institutes of the law of England, In other words, tire law of property.

The first printed English translation of Littleton was by Rastell, who seems to have combined the professions of author, minter, and set avant-at-law, bet ween 1514 and 1533. Many English editions by various editors followed, the best of which is Tottyrs in 1556. Sir E. Coke adopted some translation earlier than this, which has since gone by the name of Sir E. Coke's translation. Ile, however, throughout comments not on the translation but on the French text; and the reputation of the commentary has to some extent overlaid and obscured the intrinsic merit of the original. (K. E. D,)







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