Thomas Littleton

English legal scholar

• Born: 1422
• Birthplace: Frankley, Worcestershire, England
• Died: August 23, 1481
• Place of death: Frankley, Worcestershire, England

Littleton’s fame rests on a short treatise titled Tenures, in which he gives a full and clear account of the several estates, tenures, and doctrines pertaining to landholding that were then known to English law. This work is the primary source of the land law of medieval England, and it is considered to be the first great book on English law not written in Latin and wholly uninfluenced by Roman law.

Early Life

Thomas Littleton was one of four sons and four daughters born to Thomas Westcote of Westcote, near Barnstaple, England, a courtier to the king, and Elizabeth de Littleton, daughter and sole heir of Thomas de Littleton, lord of the manor of Frankley and esquire of the body to three kings: Richard II, Henry IV of Castile, and Henry V. It was agreed at the time of the marriage that, since the estate that would ultimately come to Elizabeth was large and that it was desirable to maintain the Littleton name, the firstborn son would have the name Littleton rather than Westcote. Therefore, although the other children of the marriage used the name Westcote, Thomas, the eldest son, was named Thomas de Littleton (spelled Luttleton prior to the reign of Henry VI).

What is known of Littleton’s early personal life is very spare. He received his training in law at the Inns of Court, where he was a member of the Inner Temple. Between the years 1440 and 1450, in addition to his marriage to Joan, the widow of Sir Philip Chetwynd, of Ingestrie, Staffordshire, and one of the daughters and coheirs of Sir William Burley of Bromscroft Castle, he started to gain considerable prominence in the county of Worcestershire: His professional services were requested against the famous family of the Pastons; he became in 1444 escheator of the county, undersheriff of that county from 1447 to 1448, and in 1450 recorder of the town of Coventry, who had the honor of receiving Henry VI when that king came to visit in 1450. On his appointment as reader of the Inner Temple in or about 1450, he began to study and explain the great Statute of Westminster II, otherwise known as De donis conditionalibus, which in 1285 had revolutionized the alienation of land, and in 1451 or 1452, he was granted for life, as a result of his great and good counsel, the manor of Sheriff Hales in Staffordshire by Sir William Trussel.

On July 2, 1453, about the time when the Wars of the Roses were beginning in England, Littleton was called to the degree of serjeant-at-law, and then on May 13, 1455, was appointed Henry VI’s serjeant, where he rode the northern circuit as a justice of assize. Although this appointment did not bring him an increase in legal business, it did bring him an advance in dignity and responsibility. The king’s serjeants were actually advisers to the Crown, standing at the head of the legal profession, and even outranking, according to the historian Eugene Wambaugh, the attorney general. He was under the protection of Richard of York (Richard III ), one of the contenders for the throne in the Wars of the Roses, and must have been of high repute, for he was placed on a commission under the privy seal for raising funds for the defense of Calais, was one of the commissioners of array for Warwickshire, and was justice of the county palatine of Lancaster. High in favor with Edward IV , who came to the throne in 1461, Littleton was first reappointed as king’s serjeant and then raised to the position of justice of the Court of Common Pleas in Westminster on April 27, 1466, retaining that position until his death. It was in that position that he was drawn particularly close to the matter of land questions, because the Court of Common Pleas largely dealt with real estate issues.

Life’s Work

According to Sir John Fortescue, the noted judge of the Court of King’s Bench, in his De laudibus legum Angliæ (wr. 1470, pb. 1537; Learned Commendation of the Politique Lawes of Englande , 1567), the judges of England sat in the king’s courts only about three hours in the day, from eight in the morning until eleven, the courts being closed in the afternoon so that the judges would have time to study the laws, read the Holy Scriptures, and busy themselves with other “innocent amusements,” so that the life of a judge appeared to be one of contemplation. Therefore, Littleton’s appointment as a judge gave him the opportunity to devote himself to the writing of his work on tenures. Also, the position gave Littleton a certain freedom from care; even though the Crown changed hands two times, the judges of the Courts of Common Pleas and the Court of the King’s Bench were not affected, being given new patents to retain their positions.

Honors came to Littleton fairly rapidly, for he was employed on a commission to arbitrate a dispute between the bishop of Winchester and several of the bishop’s tenants with regard to their services and the quality of their tenure under him; he was chosen to be trier of petitions from Gascony in the parliaments of 1467 and 1472; he was made a Knight of the Bath on April 18, 1475; and he was allowed extensive expenditures for salary and personal expenses. He executed his will on August 22, 1481, died the following day, August 23, 1481, and was interred in the Cathedral Church of Worcester, “under a fair tomb of marble, with his statue or portraiture on it, together . . . with a memorial of his principal titles,” in the words of the great English jurist Sir Edward Coke . Out of the mouth of the statue, which Littleton had finished while yet alive, was inscribed the prayer “Fili Dei miserere mei” (Jesus Christ have mercy on me).

According to Coke, Littleton had a “grave and reverend countenance,” as he observed from the figure of Littleton shown kneeling in coif and scarlet robes that adorned the east window of the chancel of the Chapel of St. Leonard, Frankley, and a portrait of him in one of the windows of the church at Halesowen, both of which were destroyed at some point after Coke’s observation. There is, however, an engraving of the Frankley portrait in Coke’s second (1629) edition of his The First Part of the Institutes of the Law of England: Or, A Commentary upon Littleton (1628). One can also view the effigy on his tomb in the nave of Worcester Cathedral, which Littleton erected himself. The chances are that the effigy is more a stereotype of how distinguished men of that time wanted to appear than an actual portrait of Littleton. The portrait of Littleton on the brass plate set on top of his tomb disappeared during the Puritan Revolution in England (1642-1660).

Littleton’s work on Tenures (c. 1480) is one of the five great books on the history of English law, the others being those of Ranulf de Glanville, Henry de Bracton, Coke, and William Blackstone. Written originally as a source of information for one of his sons, Richard, a lawyer, it was composed in the law French of Littleton’s day and translated into English by John Rastell, an author, printer, and serjeant-at-law (1514-1533). It must have been accepted as a classic from the very first, because the poet John Skelton, who died in 1529, remarked on one occasion that Littleton was well known in his own time.

Although the book gives little hint of new developments that characterize the land law, such as uses and contingent remainders, it does present a fine summary of the medieval English land law and was so admired by Sir Edward Coke that he referred to Littleton’s Tenures in the preface to his Institutes (1628-1644), in which he wrote a commentary on Littleton, as “a work of as absolute perfection in its kind, and as free from error, as any book that I have known to be written of any humane learning, shall to the diligent and observing reader of these Institutes be made manifest.” Coke also touched on the real reason for Littleton’s fame, claiming that “by this excellent work which [Littleton] had studiously learned of others, he faithfully taught all the professors of the law in succeeding ages.” What Littleton did was to make sense and order out of the growing chaos of the land law of the preceding 150 years, thereby giving future generations of lawyers a point of departure from which to develop a land law in conformity with changing social and political conditions.

The work is divided into three books: book 1, dealing with the types of holdings or estates; book 2, with the rights by which these estates are held and their incidents of holding; and book 3, with holdings by more than one person, and miscellaneous items.

Much of what Littleton wrote about at the end of the fifteenth century is no longer valid today, because Littleton’s land law was based on the feudal system, a system that no longer operates, but whatever of Littleton pertains to modern practice, such as his doctrines on joint tenancies and tenancies in common, remains generally valid at the core of the land law. As more than one historian has noted, Littleton summed up the medieval land law and passed it on to future generations of lawyers before that land law was altered by the needs of the Industrial Revolution and the rise of equity, just as Blackstone’s Commentaries on the Laws of England (1765-1769) summed up and passed on the common law as developed to his time by the work of lawyers before it was remodeled by the direct legislation inspired by the teachings of Jeremy Bentham. No mere collection of decisions, Littleton’s Tenures is rather a creative work based on the practical knowledge and needs of the time. Trying to get beneath the surface of the decisions, Littleton studied and assessed the arguments of the lawyers and the reasoning of the judges to construct a coherent body of legal knowledge.

Before Littleton wrote his Tenures, the land law, despite its importance as the major portion of the English law during medieval times, had given rise to a small treatise generally known as The Old Tenures, probably composed during the preceding, fourteenth century, which gives brief descriptions, among other things, of the various tenures and their incidents, of villeinage, villein tenure, and creditors’ rights. Its main claim to fame is that its brevity suggested to Littleton that he might write an expansion of this little treatise.

The exact date when Littleton’s book was published is not known, but it is known that during Littleton’s lifetime, two complete manuscripts were available. The first edition, or editio princeps, of the work is a folio published at London by Lettou and Machlinia without date or title, which was followed by an edition issued by Machlinia alone, also without date or title. Many other editions followed, although Coke’s remains the most famous.

Significance

Littleton provided, in a reasonably easy-to-understand work, a clear and full account of the various estates known to English law through the fifteenth century in England, together with the incidents of ownership and the legal doctrines pertinent to them. The first great book on English law not written in Latin and generally uninfluenced by Roman law, his Tenures served as the foundation on which, gradually, succeeding generations of lawyers and courts of law fashioned what are today the modern concepts of the land law. Although the book was founded on the Year Books, which are the law reports of the Middle Ages in England, Littleton’s work is not merely a compilation of court decisions. Rather, it is a study of the judicial decisions with interpretations and commentary by its author. There can be no understanding of the development of the English feudal system without an understanding of the land law as described by Littleton on which that feudal system was based.

Bibliography

Coke, Sir Edward. The First Part of the Institutes of the Laws of England: Or, A Commentary upon Littleton. London: Societie of Stationers, 1628. 17th ed. 2 vols. London: W. Clarke and Sons, 1817. Although written in rather florid seventeenth century style, Coke’s preface is an excellent introduction to the life of Littleton. Coke’s commentary on Littleton’s work is, however, difficult reading.

Foss, Edward. The Judges of England, with Sketches of Their Lives and Miscellaneous Notices Connected with the Courts at Westminster from the Time of the Conquest. 9 vols. London: Longman, Brown, Green and Longmans, 1848-1864. Reprint. New York: AMS Press, 1966. Like most of the early sketches of judges of England, Foss’s sketch of Littleton is relatively brief, giving only the barest details of his life and no presentation of the material contained in Littleton’s book. It does, however, give some information on Littleton’s descendants.

Hicks, Michael. Bastard Feudalism. New York: Longman, 1995. Exploration of the feudal structure and land tenure in England from 1150 to 1650 is especially strong in its discussion of the fifteenth century. Includes bibliographic references and index.

Holdsworth, Sir William. The Mediaeval Common Law. 3 vols. Reprint. London: Methuen, 1977-1980. Constitutes the first three volumes of Holdsworth’s great multivolume History of English Law. Both a very readable presentation of the life of Littleton and an excellent digest of the estates, incidents of tenure, and doctrines of law emanating from these estates and tenures, as given by Littleton. At times difficult for the general reader. Probably the best introduction to Littleton.

Kynell, Kurt von S. Lyttleton: His Treatise of Tenures in French and English. Edited by Thomas Ellyne Tomlins. London: S. Sweet, 1841. Rev. ed. New York: Russell and Russell, 1970. This work is important to the general reader for the editing of Coke’s preface. Tomlins annotates the preface with commentary on Coke’s presentation of Littleton’s life. Also provides Littleton’s will and other pertinent documents, and an account of the various editions of Tenures.

Kynell, Kurt von S. Saxon and Medieval Antecedents of the English Common Law. Lewiston, N.Y.: Edwin Mellen Press, 2000. Traces the development of common law in England from Saxon times to the nineteenth century. Includes bibliographic references and index.

Littleton, Sir Thomas. Littleton’s Tenures. Edited by Eugene Wambaugh. Washington, D.C.: J. Byrne, 1903. Reprint. Littleton, Colo.: Fred B. Rothman, 1985. This book is most valuable because it gives the most complete presentation of Littleton’s life and the editions of his Tenures. Also, although it gives no commentary or explanation of Littleton’s work, it does give the student the opportunity to read what Littleton himself wrote in as correct a translation as possible, Wambaugh having spared no effort to introduce what he believed to be an accurate translation of French law of the fifteenth century.

Maitland, Frederic W., and Francis C. Montague. A Sketch of English Legal History. Edited by James F. Colby. Reprint. Union, N.J.: The Lawbook Exchange, 1998. Reprints a series of essays on the major epochs in English legal history by one of the major scholars of the turn of the twentieth century.