absolute forfeiture was thought too severe, the first step was, that the
lord should enter, and hold the lands till his tenant had satisfied him
as to his damages; but as this seizure frequently disabled the tenant
from making that satisfaction, especially if he had no other lands,
this, after some time, was thought still too rigorous, and in its stead
was substituted the seizure of the cattle, and other moveables found on
the land, and the detention of them as a pledge, until the damages were
answered; which is what we call _distraining_. This was a sufficient
security to the lord, as it rarely happened but that there was sufficient
found to answer his demand for one failure; and the tenant was not (as
not being deprived of his possession) reduced to an incapacity of paying
his rent of services, and thereby recovering his pledges. Hence all
feudal rents, or, as our law calls them, _rent services_, (being the
service the tenant pays to the lord, in consideration of the land he
holds from him) are distrainable[151].
But there was another species of rents in our law not distrainable;
which, therefore was called _redditus siccus_, or _rent seck_. This was
not a feudal service, not being paid from a tenant to his lord, and
was thus: When a man, keeping still his land in himself, grants a rent
thereout to a stranger, the grantor is justly bound by his grantee; but
the grantee, not being his lord, cannot have this remedy. For the remedy
of distress being substituted in the place of the lord’s right of entry,
could not be extended to a stranger, who never had that right. And this
was originally the only kind of rent seck; but the statute called _quia
emptores terrarum_, introduced another species of rents not distrainable,
by converting rent services into rents seck. The liberty of alienation
without the consent of the lords having been allowed before that statute,
it became customary for a tenant who sold his land, and parted with his
whole estate in it, to reserve the tenure of the _vendee_, not to his
superior lord and his heirs, but to himself and his heirs; whereby he
retained many advantages to himself, by continuing the vendee’s lord,
such as the right of escheat, if the tenant died without heirs, and the
benefit of the wardship and marriage, if it was held by knight’s service.
Now a rent reserved upon such a sale to the vender, was, as he continued
the vendee’s lord, a rent service, and consequently distrainable[152].
But this practice, though highly useful to the sellers, was of
considerable detriment, not only to their lords, who thereby frequently
lost the fruits of their tenures, but indeed to the whole military policy
of the kingdom. It was enacted, therefore, in the eighteenth of Edward
the First, by the statute above mentioned, that whenever a man aliened
his whole estate, the alienee should not hold from him, and be his
tenant, but from the superior lord, and be the lord’s tenant directly;
and that by the same services, by which the alienor had holden. The
alienor, then, by this statute, ceasing to be lord, and his right of
reversion clearly gone, if he reserves a rent on such alienation, he
cannot distrain for it, and it is a rent seck.
These rents seck, therefore, were of two kinds, one arising by grant,
which was the most antient, the other by reservation, when a man aliened
his whole estate. For if the whole estate was not gone, but a reversion
remained in him, a rent reserved was still, on account of that reversion,
a rent service; as if A. gave lands to B. and the heirs of his body,
reserving rent. As this estate tail, although it might continue for ever,
yet was capable of determination by the failure of that issue, such rent
was distrainable, for that reason, and also because, by the statute which
gave force to such estates tail, the reversion was saved to the donor.
But if he had made a lease of life or years, or a gift in tail, and
had, at the same time, conveyed over the remainder in fee, so that his
reversion was gone, a rent reserved on such a grant was _seck_.
The inconvenience attending these rents seck, in their not being
distrainable, introduced another species of rents called _rent charges_.
These are rents seck, armed with a power of distress by the special
agreement of the parties; and are of two kinds, as the former are created
either by _grant_, or _reservation_. Those by grant, which were the only
species of rent charges before the statute, were thus; as if I grant out
of my lands, keeping them still in myself, a rent for years, life, fee
tail, or fee simple, and give my grantee a power to enter and distrain
for the rent. It will be by reservation; if I reserve to myself a rent
upon a conveyance in fee simple, or upon a gift in tail with a remainder
over in fee, or upon a lease for life or years, with a remainder over in
fee, and it is covenanted that I shall have a right to enter and distrain
for the rent. The power of distress, therefore, in rent charges is good
only by the express provision of the parties, not by the force of the
general law[153].
Antiently it was a doubt whether a rent charge could be reserved upon a
_deed poll_; to understand which, it will be necessary to explain the
difference between a _deed poll_ and an _indenture_. A deed poll is
a grant from one man to another, and is all and every part of it the
act and words of the grantor only; and therefore the deed belongs to
the grantee, and there is no counterpart in the hands of the grantor;
because the grantee binds himself to nothing towards him. Whereas, in an
indenture, every clause is the act and words of both. They are mutually
bound to each other, and therefore there is a counterpart in the hands
of each party. Now if A. by deed poll, granted lands in fee to B.
reserving rent, with a clause of distress, it was doubted whether this
clause was not void, and the rent a rent seck; because as the lands by
A’s grant was in B. it was apprehended they could not be charged with it
without an express covenant from him; as in the deed poll he was a party
merely passive. But it is now held, and that very equitably, that such a
reservation can raise a good rent-charge; for his acceptance of the deed
upon the delivery is an act sufficient to shew his assent to take it on
the terms therein contained; and nothing can be more reasonable than that
whosoever takes a benefit shall take it under such conditions, and no
other than such as the donor intended.
Thus have I endeavoured to explain the nature of the three several kinds
of rents in our law, of which only rent service is properly feudal; but
upon account of the affinity of their nature, I thought proper to join
them here. It will be proper now to say something concerning the nature
of _distress_, as it was the remedy for recovering the feudal duties in
these kingdoms.
Distresses were not only taken for rents, and other services reserved,
but also to oblige persons to appear in courts of justice, or to raise
fines, and amerciaments inflicted on them. This likewise arose from the
feudal law, as by that the doing suit and service at the lord’s court was
one of the duties attendant on fealty.
But there is another kind of distress allowed by our law, arising neither
from the feudal contract, nor the express stipulation of the parties,
but from the _delictum_, or negligence of a stranger. It is called a
_distress for damage feasant_, and is a seizure of the cattle, or any
other moveable of a stranger, trespassing upon or damaging my ground. The
law in this case will not put me to my action against the proprietor,
whom perhaps I may never discover; but has provided a _festinum remedium_
for me, by way of distress; and this distress is more privileged than
others, for it may be taken in the night-time, which other distresses
cannot; because, otherwise, the cattle might escape, and the goods be
removed, and so the party injured remain without remedy.
Many and grievous were the extortions and oppressions of the antient
English lords in their taking distresses, during the troublesome reign of
Henry the Third, for the remedying which many wise regulations were made
by the statute of Marlebridge and others. For they not only distrained in
a most unreasonable manner for the smallest duties, but distrained where
nothing was due; and frequently even out of their fees; and to deprive
the parties injured of legal remedy, drove them into another county, or
inclosed them in a castle, or would not suffer their bailiffs to permit a
replevin[154].
Since I am on this head of distresses, it will be proper to make a few
observations, _what_ may be legally distrained, _when_, and _where_, and
_how_ a distress is to be demeaned, and what remedy the person wrongfully
distrained hath to recover his property.
First then, nothing can be distrained but moveables, and such as may
be restored in the same plight. For the distress is in the nature of a
pledge to be restored on due satisfaction made; therefore nothing fixed
to the freehold is distrainable, as doors, windows, furnaces, &c. for
these being affixed thereto, are part of the freehold, and cannot be
separated thence without damage. Therefore, a smith’s anvil, though not
actually fixed, or a millstone removed in order to be picked, are not
subject to distress; for the one is, in law, still part of the shop, as
the other is of the mill. Hence, likewise, money is not distrainable,
unless it be in a bag; because, otherwise, it cannot be known, so as to
return it in the same plight. For the same reason, by the old law, corn
in sheaves, or in stacks, or in a barn, or hay in cocks, or in a loft,
could not, for fear of damage in removing. That however hath been since
altered by statute, but corn or hay on a cart could be distrained by the
old law; for they being, in such a case, found in a situation fit for
removal, might be transported from place to place without any probable
danger of damage, or diminution.
Secondly, The instruments of a man’s livelihood, as the tools of a
tradesman, the books of a scholar, the plough-cattle of a ploughman, &c.
cannot be distrained where any other distress is to be found; and this
for the particular safety and benefit of individuals. But this holds not
in the case of _damage feasant_; for there the identical thing that did
the trespass, and that only, must answer for it.
Thirdly, Things sent to public places of trade are privileged, for the
public benefit of the realm, as cattle in a market, corn sent to a mill,
cloth in a taylor’s shop, yarn in a weaver’s house. For it would put a
total stop to commerce if these were answerable for the rents of such
places.
Fourthly, What is in the custody of law is not distrainable, for it would
be an absurdity that a man should have a right by law, to take things out
of the custody of the law itself, such as goods already distrained, or
goods taken in execution, or seized by process at the suit of the king.
Fifthly, Things in manual possession of another, are, for the time,
privileged, as an ax in a man’s hand, or the horse I ride on. But for
damage feasant, as I said before, every thing is distrainable; for the
thing itself which did the damage, is the pledge of the satisfaction, and
the only one.
Next let us see _how_ and _where_ they may be taken. The distress, then,
should not be excessive, as an ox should not be taken for twelve pence,
where other sufficient distress might be had, or two sheep where one was
sufficient; but for damage feasant, though ever so little, the whole may
be taken; and likewise for homage, fealty, or the wages of members in
parliament. As the interest of the whole community is concerned in these,
no distress can be excessive. No distress can be taken in the king’s
highway, for it is privileged for the public use of the nation. Neither
can any distress be taken by night, unless for damage feasant; for as no
tender of rent, or other duty, can be made, or acceptance enforced but
in the day-time, perhaps the tenant may, in such case, be provided, and
ready to tender his duties the succeeding morning, and thereby save his
chattels. Lastly, by the common law, no man could distrain out of his
fee, unless when coming to distrain he had the view of them, and they
were driven off to prevent him. But this hath been altered by statute,
and now a landlord may follow his tenant’s cattle, if conveyed by his
lessee off the land, and distrain them within twenty days.
As to the _manner_ of demeaning or managing the distress, it is the duty
of the distrainor to carry them to a pound, that they may be in the
custody of the law. _Pounds_ are of two kinds, _overt_, or _covert_; the
one for living cattle, the other for other goods that might take damage
by the weather. The reason why living cattle should regularly be put into
a pound overt, is, that, as they are but a pledge, from which, in itself,
the taker is to receive no benefit; and as the proprietor, therefore,
must be at the sole expence of feeding them, he should have the freest
access to them for that purpose; and, in such case, if they perish, the
loss is his; but if they be put into a covert pound, there, because the
owner cannot have access, the taker is to feed them, and answer for them
at his peril.
In antient times, the lords used to drive the distresses into foreign
counties, whereby the tenants knew not where to resort to feed their
beasts. This was forbidden by Marlebridge, cap. 4. However, that act
received this construction, that if a manor lay in two counties, and its
pound in one of them, the lord might distrain in the other county, and
impound them in his manor pound; because the tenant, by attending the
manor court, was presumed to know every thing transacted in the manor.
But now, by later acts, no distress of cattle shall be impounded out of
the hundred, or barony where taken, except in a pound overt, in the same
county, within three miles of the place; nor shall distresses be divided,
and impounded in several places. Dead chattels must be impounded likewise
within three miles, and that in a pound covert, otherwise the taker is
answerable for them, if damaged or stolen.
As to the _remedy_ for taking an unjust distress, the tenant might, if
there was nothing due, rescue them before they were put in pound, and
justify it; but when once impounded, they were in the custody of the law,
and must be delivered by law. Or if there was any thing due, he might,
before they were impounded, make a tender of satisfaction; which, though
the caption was just, rendered the detention unlawful; and therefore if
the beasts, after such tender, were put in pound, and died there, the
taker was answerable.
When the goods were once impounded, the remedy was by _replevin_, which
is a judicial writ out of Chancery, directed to the sheriff, who is
Judge in this case, complaining of the unjust taking and detention, and
commanding the sheriff to deliver them back to the owner, upon security
given to make out the injustice of the taking or detention, or else to
return the goods and chattels.
But this method of replevin, by writ out of Chancery, was very
inconvenient to the remote parts of the kingdom; as the owner might be
put to extraordinary expence and trouble, in maintaining his cattle for a
long time. Hence it was provided, by the statute of Marlebridge, cap. 21.
_Quod si Averia alicujus capiantur, & injuste detineantur, vicecomes post
querimoniam sibi factam, ea sine impedimento vel contradictione ejus qui
dicta Averia ceperit, deliberare possit_[155].
This impowered the sheriff to make replevins without writ, upon the
plaint of the plaintiff in replevin; and this he could do out of his
county court, because, as that was held only from month to month, were
it otherwise, the delay might be as great as in the case of a writ of
replevin; but then the sheriff, in order to lay the foundation of the
suit, must enter the plaint the next county court, that it may appear on
the rolls thereof.
The sheriff’s duty then was, in the first place, to take sufficient
security _ad prosequendum_, that is, that the plaintiff should make out,
in due course of law, the justice of his writ or plaint, that is, that
the cattle or goods were either taken, or detained unjustly. He was
also to take security _de retorno habendo_, that is, in case he failed,
that he would return the same distress, that it might be delivered to
the taker; and this is by the statute of West. 2.; and he generally,
likewise, took security to indemnify himself from any action that might
be brought against him. And then it was his duty immediately to deliver
the distress to the plaintiff in replevin.
Then it lies on the taker or defendant in replevin to _avow_, that is,
to set forth the reasons of his caption, to which the plaintiff replies;
and so the justice of the cause comes into question, to be legally
determined. Thus much is sufficient, at the present, to shew the remedy
the lord hath for his services, by virtue of his seignory, and how his
tenant is to defend himself if unjustly distressed[156].
I might here treat of another fruit of the lord’s seignory, which is the
_right of escheat_, or the lands falling back to the lord, either for the
_delictum_ of the tenant, or the failure of blood; but as, to understand
this last properly, we must know who are inheritable, it will be more
proper to defer it till after we have treated of _inheritances_.
LECTURE XI.
_The manner in which estates for life came to be enlarged
into descendible estates—The nature of Reliefs—Feudal
oppressions—The admission of allodial lands into the feudal
policy—The extension of the feudal system in France._
The feudal lands having been changed by degrees from tenancies for years
into permanent grants for life, partly by the necessities, and partly
by the favour of the lords, the matter did not stop here; but, to the
advantage of the vassals, their rights were continually gaining ground,
and insensibly extending themselves, to a durable continuance in the same
family. To this, undoubtedly, the number of allodial estates, which were
estates of inheritance in the hands of the Romans, greatly contributed.
For it is not to be imagined that it could be an agreeable spectacle
to the conquerors, when once they were settled, and secured in the
possession of the country, to behold their posterity in a more precarious
situation, with regard to property, than the vanquished were. It is true,
as by their constitution the lord was obliged to provide every gentleman,
that is, every one of their nation, unless he proved unworthy, with a
benefice, there was no danger of their issue not being supplied, in some
degree or other. But this did not satisfy them[157].
Their roving manner of life being antiquated, and the practice of
removing them from place to place every year being superseded by gifts
for life, the possessors, by habitude, became fond of their dwellings,
and no longer contented with bare necessaries, studied to render their
situation commodious and agreeable. They built houses of strength and
convenience, and by their socage, tenants and villains planted and
improved their lands. And now it began to be thought severe, that
the benefit of their improvements, and the fruit of their and their
dependants toil and labour, should go to strangers, or even to the lord
himself. For before this time it had began, and was now grown into a
common practice, for the lords, when they gave an estate for life, not to
content themselves merely with future service, but to exact, at the time
of their investiture, an _honorary fine_ from the tenant; and this, being
but moderate, was generally complied with, in order to gain a permanent
estate. The interest of the state, which was concerned in the improvement
of particulars, required also a preference of the defendants of those
that made them. It is no wonder, therefore, that it grew to be a maxim,
and universal opinion among these people, that the not continuing the son
in the possession of his deceased father, though it was in the lord’s
power to remove him, was a great hardship, and an unworthy act in the
lord[158].
With these general sentiments, the lords, for their own interest, were
obliged to comply, and especially the kings; who, by the frequent
divisions of the monarchy in France, had competitors to guard against;
and were, therefore, enforced to attach their vassals to them in the
strongest manner, by complying with their inclinations. The sons,
therefore, or one of them, generally succeeded; not in virtue of any
inherent right, but by a new gift, through the favour of the lord. For,
upon the death of his vassal, the estate being expired, the lord took
possession, and, upon receiving a fine, made a new grant, by investiture,
as of a new estate, to such an one of the sons as he chose; or he divided
it among them at his pleasure. These fines for continuing the fiefs in
the same family were called _relevia_ or _reliefs_, from the Latin word
_relevare_, which signified a second lightening, or removing the hand of
the lord, who had seized the benefice upon its vacancy, by the death of
the former possessor. Hence the son had no right to continue his father’s
possession. He was obliged to petition for a new investiture, and to
tender his relief, and himself ready to take the oath of fealty. These
reliefs were originally paid in arms, being the most valuable property
these military people had, and afterwards were converted into money. The
_quantum_ was originally at the lord’s will; but his own interest, from
the motives already hinted, commonly prevented him from being exorbitant.
This preference to a succession being at first a matter of favour, not
of right, some vassals, by degrees, obtained of their lord, in their
investitures, an absolute right of succession to their sons; which bound
the lord and his heir; and that in these two different manners. It was
either by a grant to the vassal, and one or more of his sons by name; and
then those omitted were excluded; or _to him and his sons_ generally; and
then, by the feudal law abroad, they were all admitted to enjoy in equal
portions, in imitation of the Roman law, which admits all the children in
that manner.
But the words of the grant were not extended, by a favourable
construction, to take in grandsons by the name of sons, for the following
reason. When a grant was made to a man and one or more of his sons by
name, the sons were originally, at the time of the investiture, capable,
or supposed capable, by the lord’s admission, of doing the services of
the feud; and their ability and merit was in the contemplation of the
grantor, and part of the consideration of the grant; and where it was
given to a man and his sons generally, the law presumed the same thing,
the same capacity in them, the same intention in the grantor. But in the
case of grandfather and grandson, the law could not presume so, it being
contrary to the ordinary course of nature, that both should, at the time
of investiture, be capable of doing the services in person; and therefore
the grandsons, unless specially provided for, were excluded[159].
Thus a right of succession for one step was gained by the express
provision of the parties, in particular cases. But as the lord, where
he continued the succession out of favour, entered into the lands, and
parted not with them without payment of his relief by the son, it was
reasonable in this case, where he positively bound himself, that these
advantages should be reserved to him. Therefore the heir could not enter,
but was obliged to petition his lord _humiliter_ and _devotè_, and to
offer his fealty and relief; and the interest of the lord and of the
state requiring the place of the deceased vassal to be speedily filled
up, a year’s and a day’s time was allowed for this application; within
which space, if the heir did not apply, unless prevented by inevitable
necessity, he forfeited his right of succession, and the lord was at
liberty to dispose of it to a stranger.