By Scott L. Waugh
The English Historical Review, Vol. 101, No. 401 (Oct., 1986)
Introduction: English historians have increasingly stressed the underlying continuity between feudalism and ‘bastard feudalism.’ Indentured retaining is no longer seen as a corrupted and disruptive form of feudalism, but instead as its ‘logical successor.’ Yet this emphasis on continuity raises new problems about the evolution of social relations in medieval England. To begin with, the nature of the continuity itself has not been clarified. Indentures certainly differed from homage and fealty, and those differences, as well as similarities, need to be specified. Furthermore, historians have not reached any agreement about the origins of written contracts and the factors that drove lords to use them. It has been variously argued, for instance, that indentures and indentured retinues descended from flef-rentes, household knights, lord/bachelor relations, or brotherhood-in-arms. Others have seen Quia Emptores (1290) as marking the critical social divide, for by eliminating subinfeudation, it is argued, the statute made it impossible to use land to form new lord-tenant relationships in the manner of feudalism. Finally, nearly all these arguments concentrate narrowly on the needs of lords in retaining, specifically on their need for military service, and do not consider the role that retainers played in encouraging lords to take on dependents. Military contracts were widely used after the 1270s, but they appeared in a sophisticated form that suggests a preceding period of legal development. It is still not clear, in other words, when and why English lords began to adopt written contracts on a wide scale and why contracts took the legal form that they did.
Most arguments about the origins of bastard feudalism view the adoption of written contracts as the result of pressures exerted on feudal relations by forces outside those relations; that is, to ‘expansionist wars’, the rise of a money economy, or to legislation.’ They fail to consider the alterations within tenurial lordship itself that created a need for new methods of retaining service and that determined the form that retaining took. In order, therefore, to understand why lords turned to written contracts, it is essential first to understand the problems that lords faced at the close of the first century of English feudalism. Two profound structural changes occurred in the second half of the twelfth century, particularly in the critical decades between 1180 and 1220, which seriously weakened tenurial lordship. The first was legal. Feudal lordship had been based on a conditional reciprocity: a lord granted land to a tenant on condition that he loyally perform the required services. As Professor S. F. C. Milsom has demonstrated, the effectiveness of lordship depended on the lord’s ability to use his seigneurial court to accept or reject prospective tenants and to discipline them by dispossession when they failed to fulfil the conditions of their land tenure.