Thomas de Littleton
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This article is about the 15th century jurist; for the 18th century statesman, see Thomas Littleton.
Sir Thomas de Littleton (1407-1481), was an English judge and legal author.
He was born, it is supposed, at Frankley Manor House, Worcestershire, England in about 1407. 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, Lyttelton. The date of his birth is uncertain; a MS. pedigree gives 1422, but it was probably earlier than this. If, as is generally accepted, he was born at Frankley Manor, it could not have been before 1407, in which year Littleton’s grandfather recovered the manor from a distant branch of the family.
It is likely he attended the grammar school at Worcester (Royal Grammar School Worcester) and he is said by Sir Edward Coke to have "attended one of the universities", but there is no corroboration of this statement. He was probably a member of the Inner Temple, and lectured there on the statute of Westminster., ie Donis Conditionalibus. His name occurs in the Paston Letters (ed. J. Gairdner, p. 60) about 1445 as that of a well-known counsel and in 1481/2 he received a grant of the manor of Sheriff Hales, Shropshire, from a Sir William Trussel as a reward for his services as counsel.
He appears to have been recorder of Coventry in 1450; he was made Escheator of Worcestershire, and in 1447/8 was under-sheriff of the same county; he became sergeant-at-law in 1453 and was afterwards 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 in about 1444, Joan, widow of Sir Philip Chetwind of Ingestrie in Staffordshire, and by her had three sons, through whom he became ancestor of the families holding the peerages of Cobham (formerly Lyttelton) and Hatherton.
His Treatise on Tenures was probably written after he had been appointed to the bench. 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 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 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 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 which reported cases had already attained as materials for the knowledge of English law.
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.
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.
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 which had actually occurred, but more commonly they 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 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 by them. Littleton, in like manner, is constantly stating and solving by reference to principles of law cases which may or may not have occurred in actual practice.
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 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".
First of all, he describes the characteristics of tenancy in fee simple. Until the 1920s it was in Littleton’s time 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.
After discussing in their logical order other freehold interests in land, lie 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 roll, 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.
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.
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 Charles II (1660), and of "frankalmoign", or the spiritual tenure by which churchmen held.
In the description of burgage tenure and tenure in villeinage, 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 parcener's daughters who are co-heiresses, or Sons in gavelkind; joint tenants and tenants in common.
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 re-enter 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 - quitable 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. Littleton’s own will, which has been preserved, may be adduced in proof of this assertion.
These 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 hook is called in all the early editions "Tenores Novelli".