seem to be in the power of the lord, where the quantity was not specified
in the tenor of the investiture, to defeat his own grant, by demanding,
under that name, more than the value of the land, or otherwise grievously
to distress his tenant. This, in England particularly, occasioned many
struggles. It appears from the laws of William the Conqueror, that, in
those times, the reliefs were fixed according to the different ranks of
the persons, and paid in horses and armour, in imitation of heriots in
the Saxon times; but his avaricious and tyrannical son William Rufus
laid claim to, and exacted arbitrary reliefs, to the great discontent of
all, and to the impoverishment of many of his subjects[160]. This was
redressed in Henry the First’s charter, where the first chapter says,
_Si quis baronum, comitum, sive aliorum qui de me tenent mortuus fuerit,
heres suus non redimet terram suam sicut faciebat tempore fratris mei,
sed legitima, & certa relevatione relevabit eam, similiter & homines
baronum meorum, legitima, & certa relevatione relevabunt terras suas de
dominis suis_[161]. Henry the First, however, was a man little inclined
to keep any engagements with his people that he could free himself from;
and therefore reliefs went on in an arbitrary way, for the most part,
under him, though not in so oppressive and extorting a manner as his
brother William had used. For in his grandson Henry the Second’s reign,
in whose time the feudal payments became generally converted into money,
we find, from Glanville, that the relief of a knight’s fee, indeed, was
reduced to a certainty, but that of a noble fee was not. _Dicitur autem
rationabile relevium alicujus, juxta consuetudinem regni, de feodo unius
militis, centum solidos;—de baroniis vero nihil certum statutum est, quia
juxta voluntatem & misericordiam domini regis solent baroniæ capitales de
releviis suis domino regi satisfacere[162]._
It seems a little odd, that the lower military people had got such an
advantage above the great and powerful lords; but this may be accounted
for from the number of the knights, who made the strength of the kingdom,
and were not to be disobliged; and also from the precarious situation
many of the great lords were in, who had been attached to the cause of
Stephen. However, the wisdom and moderation of this great prince was
such, that we find no complaints on this head, during his reign, or that
of his son Richard; but when John ascended the throne, a prince who
hated, and was hated by his nobles, the old oppressions were renewed,
and aggravated to such a degree, that the remedying thereof is the first
article of temporal concern in Magna Charta[163].
There it is provided, _Si quis comitum, vel baronum nostrorum, sive
aliorum tenentium de nobis in capite per servitium militare, mortuus
fuerit, & cum decesserit, heres ejus plenæ ætatis fuerit & relevium nobis
debeat, habeat hereditamentum suum per antiquum relevium; scilicet,
heres, vel heredes comitis de comitatu integro per centum libras,
heres vel heredes baronis de baronia integra per centum marcas; heres
vel heredes militis de feodo militis integra per centum solidos ad
plus: Et qui minus habuerit minus det, secundum antiquam consuetudinem
feodorum_[164]. And now were all reliefs reduced to a certain sum of
money, namely, the fourth part of what was then reckoned the value of the
inheritance; for a knight’s fee was then reckoned at twenty pounds, a
barony at four hundred marks, and an earldom at four hundred pounds per
annum. And by the gradual sinking of the value of money, and the rising
of lands, these payments continuing the same, came in a few centuries to
be not the twentieth part of the value. We see by the words _per antiquum
relevium, & secundum antiquam consuetudinem feodorum_, how careful the
lords were to have this certainty of relief acknowledged as their antient
right, and not to accept it as a concession from the crown. When the
military lords began, in imitation of the estates they themselves had,
to grant inheritances to their socage tenants, they likewise exacted, in
the nature of a relief, from every new possessor a year’s value; or, in
other words, the rent of the first year was doubled. For a year’s value
was what was, in France, at the beginning, paid for military tenures, by
the name of _rachat_, or _repurchase_, answering to our relief, until at
length they were reduced to a certainty in money; and, consequently, from
the same causes as in England, though remaining nominally the same, they
sunk to be very inconsiderable[165].
Estates of succession, as I observed, arose first from private grants,
and that for one generation only; but they were continually extending to
further lengths, and encreasing in number; insomuch that, fiefs falling
vacant much seldomer than before, the king had it not in his power to
gratify his deserving soldiers so frequently as he should, and the
crown was consequently enfeebled. This then started the notion of such
grants being good only during the life of the king or lord who made them,
and not binding on his successors. Upon this plan, Brunechild, in her
regency, during the minority of her infant son, attempted to revoke them,
and actually did revoke several; which at length raised that flame, and
caused that revolution, in which her son and herself miserably perished.
What shews the violent indignation her venturing on this step occasioned,
was the horrid manner of her death, that of being torn asunder by four
wild horses. Clothair the Second, who succeeded, was wise enough by law
to confirm these estates; and then, namely about the year 613, the former
doubt was removed, and all these estates of inheritance confirmed to
continue against the successor, according to the terms of the original
investiture. New grants were continually made, and for more generations
than had been formerly practised. But yet this rule of descent was not
general; but all grants, unless heirs were specially named, were but for
life; as it is in our law, in which a _feofment to a man for ever_, is
but an estate for life for want of words of inheritance[166].
What greatly contributed to the extending these grants to indefinite
generations, was the inclination that now seized the Romans and Gauls
who held allodial lands to be admitted into the feudal policy, by
becoming vassals to the king. They had long lain under very humiliating
distinctions. They were no members of the state. The loss of their lives,
and other injuries, were compensated only by half the satisfaction to a
Frank. For neglect, or contumacy, when called into the king’s courts,
they were reputed guilty, and forfeited their estates; whereas a Frank
was only imprisoned to oblige him to answer. When accused of the lightest
crimes, they were put to the ordeal; whereas the Franks were only
subjected thereto in case of murder. And many other were the distinctions
between the allodial and feudal tenants. No wonder then the former were
very desirous of enrolling themselves among the conquerors, which when
they had at length obtained, their liberty was effected, by their giving
their allodial lands, or a part of them, to the king, and receiving them
back, subject to the feudal rules. Now were they immediate vassals of
the king, and, as such, became Franks to all intents and purposes. But
these people were not so foolish, nor could it be expected from them, to
part with absolute inheritances, and take back only an estate for life.
They insisted upon grants for a perpetuity, at least for as long as the
issue male of the person resigning lasted. When once these donations were
become common, we may be assured the Franks were very ready to follow the
example, and to take all advantages either of the favour, or the weakness
of their kings; and to such a number did these inheritances increase,
that, about the year 730, the kingdom was near being lost to the
Saracens, for want of a sufficient number of beneficiary or life-estates,
to encourage the soldiery[167].
At the time the kings of France were merely nominal, and the whole
administration in the hands of the _maires du palais_, of whom the
second, who had obtained this unlimited authority, Charles Martel,
was so happy as to save the kingdom from those African invaders in a
battle near Tours, wherein they were routed with a slaughter almost
incredible. It remained to reward the victorious soldiers, who were at
least as much animated to their exploits by his previous promises, as
by their affection to the antient constitution of the state, which was
now in truth destroyed, the kings of the royal race being mere phantoms,
whose names he and his father had made use of at their pleasure. But
this family had not acquired sufficient weight and authority to act as
masters. The fund of lands, out of which benefices had been formerly
given, was almost exhausted, and the major part of the lands that were
not still allodial, was alienated either in perpetuity to the church,
as atonements for the vices of the former kings, or what was near a
perpetuity to the lords, for many descents. These last he could not
despoil. They were too firmly established by custom and law; and he and
all his predecessors had paved their way to greatness, by supporting
these hereditary grants at the expence of the crown. Necessity therefore
obliged him to make free with the lands of the church; for which, in
their visions, they lodged him in a chamber, the very lowest in hell. Of
these lands the greatest part he converted into benefices of the antient
kind, for life only; and by means of the number of those new ones, added,
to the old ones, that were in the same state, some kind of a balance was
formed; which for a time supported the government, and checked the growth
of inheritances. But it is remarkable, that, of those church lands,
several he gave as allodial ones. I will not pretend to say, that, in
this distinction, he considered the antient nature of the lands of the
church, some of which came from feudal, others from allodial proprietors.
It seems rather probable, as the allodial estates were greatly decreased,
by being turned into fiefs of inheritance, he was inclinable to form a
kind of equality between the feudal tenants, the beneficiaries, and the
allodians; that, by managing them, he might advance his family to the
title, as well as power of royalty; which we find was soon afterwards
accomplished by his son Pepin[168].
The policy of Pepin and his son Charlemagne corresponded with Charles
Martel’s views. The former allowed the continuance of inheritances
according to the original provision in the creation, but were much
fonder of the beneficiary estates, and Charlemagne made several laws to
prevent his beneficiaries from converting by any art their interests into
inheritances. In his time, a great majority of estates were benefices;
but this I presume is not to be understood of France particularly,
where, from the detail before mentioned, it could scarce be, but of his
whole empire. For in his acquisitions, and especially in Germany, where
such a practice was agreeable to the antient customs of the natives,
such a regulation was conformable to the sound policy of his father
and grandfather; by which they endeavoured to restore the splendour of
the old French monarchy, I mean with exception to the large gifts he
gave to the church on the borders of the infidels, in atonement for his
grandfather’s sacrilege, and in hopes of converting those barbarians, and
thereby civilizing them, and making them good subjects.
But the successors of Charlemagne had neither the power nor the
understanding of their ancestors. No wonder then, that, under them, the
general inclination of the subjects to change their benefices into fiefs
gained ground. The division of the empire, and frequent wars between the
brothers, weakened the royal authority, and strengthened their vassals;
who, at the times of their kings distress, were rather to be entreated
than commanded. In the time, therefore, of his grandsons, we find laws,
that, conforming to the inclination of the vassals, did in time put an
end to beneficiary estates, holden from the king; opened the gate to
_subinfeudations_, and all its extensive consequences; and raised a new
kind of polity never before seen in the world, the _feudal_ one, such as
it reigned about the year 1050 on the continent, and was introduced into
England by William the Conqueror[169].
I speak of the times of Charles the Bald, who reigned about 860. One of
his laws gave leave, and an unlimited one, to the allodians, to submit
themselves and their estates, in the nature of fiefs, to others besides
the kings. Nothing could contribute more to the weakening of the royal
power, and the throwing of all the weight into the baron’s scale. Before
they could be made Franks, only by becoming the immediate vassals of the
king. This was equally for the public benefit of the state, the king,
and the allodians. But when once the barrier was thrown down, in those
times of confusion, the allodians were glad to gain the protection of the
neighbouring lords, and, under colour thereof, detached themselves from
their former subjection to the counts, who were the king’s officers over
them.
Another law, of equal consequence, was to entitle the fee of a
beneficiary, who had only an estate for life, without any express
agreement for a longer continuance, to go to the son. This was extorted
by the circumstances of the times, and perhaps then was thought of little
consequence, as it only continued them for one generation. But the
temper and general inclination of the people were not to be controuled.
Those grants that had been so long as two generations in a family, it
was sometimes dangerous, always invidious not to continue; and thus
the successors often obtained permanent estates, when nothing less was
intended at the beginning. And this was easily obtained, as the use of
letters was not common among these people, and their charters were, by
frequent rebellions, liable to be destroyed.
The last law I shall mention, is that declaring, that the sons of counts,
who were the king’s officers over the _allodianée_, and were originally
for years, after for life, should succeed to their father. This put
the finishing stroke to the beneficiary estates. For though this, in
appearance, was, as the former, but for one life, and conditionally; yet,
from the prevailing principles, it was impossible they should not grow up
into inheritances. And as all inheritances were growing feudal ones, and
upon those conditions, and no others given, these counties become fiefs.
The demesnes of the crown within them became the demesnes of the count,
and all the allodiaries were now become his sub-vassals[170].
We are come to the dawn of a strictly feudal monarchy, and, to shew the
gradation, I have, in this lecture, taken in a great compass of time. But
before I proceed further downwards, it will be proper to return a little
back as to the order of time, and to speak of the consequences that
attended the introduction of estates of inheritance. Of one of these,
_reliefs_, I have already spoken in this lecture; but there are many
others that must be taken notice of.
LECTURE XII.
_Consequences attending the introduction of estates of
inheritance—The incident of homage—Differences in England and
the Continent, with regard to the ceremonies of homage and
fealty—The fine of alienation—Attornment—Warranties—Wardship in
chivalry._
Having already, in my last lecture, taken notice of _relief_ which sprung
up immediately with estates of inheritance, and was their immediate
consequence, it is proper now to proceed to the other fruits of this
tenure, which grew up not so soon, but in after times: and the first to
be considered, as undoubtedly the next to relief, if not coeval with
it, is _homage_; which, Littleton says, is the most honourable service
(that is with respect to the lord, and the most humble service, that is
with respect to the tenant, that a freeholder can do to his lord) as
upon the introduction of estates for life, the ceremony of fealty was
introduced, so was it thought reasonable, when a further step was taken,
that of continuing them to heirs, that a new ceremony should be invented,
distinct from the former; which being performed publicly, in the presence
of the _pares curiæ_, should, in those illiterate ages, create a
notoriety, that the tenant had a more durable estate than a freehold. The
manner of performing homage is thus distinctly described by Littleton.
When the tenant shall make homage to his lord, he shall be ungirt, (that
is, unarmed) and his head uncovered, and his lord shall sit, and the
tenant shall kneel before him on both his knees, and hold his hands
jointly together between the hands of his lord, and shall say, _Thus I
become your man_ (from which word _homo_, _homagium_, and _hominium_
are derived) _from this day forward, of life and limb, and of earthly
worship, and unto you shall be true and faithful, and bear your faith,
for the tenements that I claim to hold of you, saving the faith that I
owe to our sovereign lord the king_; and then the lord so sitting shall
kiss him. These are the words of Littleton, and they are just in the
case he puts of a tenant doing homage to an inferior lord, and who had
no prior lord; but if he had a prior lord, or the homage was to be done
to the king, there was a difference in the form; for if the tenant had
a former lord, he also was to be excepted, that the new lord might have
notice of the tenant’s prior obligation, and that it was not in his power
to do absolute personal services at all times to him. And if the homage
was done to the king, who acknowledged no superior, then the exception
was entirely omitted; but if to a subject, it was so absolutely necessary
that an omission of it was looked upon as an attempt against the royal
dignity, and done in disherison of the crown. And accordingly we find,
that Edward the First, in the sixth year of his reign, brought an action
of ten thousand pounds damages, now at least in value thirty thousand
pounds, against the bishop of Exeter, for taking homage of thirteen of
his bishop’s vassals, without the exception of the king; and, in the end,
judgment was given against the bishop[171].
Our antient authors tell us, that the lands for which the homage was done
ought to be specified in the doing homage; and the reason given is, _Ne
in captione homagii contingat dominum, per negligentiam, decipi, vel per
errorem_. But it was better to say, that it was for the benefit both of
lord and tenant, and for the information of the _pares curiæ_, who were
to judge in case of any controversy between them.
In England the two ceremonies of homage and fealty were kept distinct;
the homage, as being for the most durable estate, was performed first,
and afterwards the fealty; but, on the continent, at least in some
countries, I find they were blended together, by the homage being done
upon oath.
Another difference between England and the continent was, that, in
England, no homage was repeated to the lord’s heir, by a tenant who had
himself performed it to the ancestor, but homage once from the tenant
was sufficient for his life; whereas, in France, new homage by the same
tenant was done on the death of the lord, as we may see plainly by many
instances, in the case of the kings of England and France, for the lands
the former held in the latter country. Homage was the symbol of a strict
and indissoluble bond between the bloods of the lord and tenant, by which
they, and the heirs of their blood, were mutually disabled from doing any
thing to the prejudice of the other party. The tenant, therefore, could
not alien, either by last will or by deed, in his life-time, without
the previous consent of the lord. This maxim was established partly in
favour of the blood of the first tenant, which was, in fact, often the
consideration of the original grant, as when the lord gave lands in
marriage with his daughter, or to a son or a brother, (and even where
it was not in truth so, the law presumed the blood of the first tenant
was in contemplation on the strength of this maxim, _fortes creantur
fortibus et bonis_, and the probability that a gallant warrior would, by
a proper education, qualify his son for the same profession) and partly
also in favour of the lord, that he should not be obliged to receive, as
his tenant, a person that was inexpert in war; or that, if qualified,
was, perhaps, an enemy to the lord, or that was previously vassal
and bound to another lord who was an enemy. For in those troublesome
times, the power of the crown of France, where these rules began, being
greatly diminished, every lordship made a little kind of state in
itself, frequently at open war; and when not so, at least in a state
of suspicious peace with its neighbours; and from this state of things
it happened, that the word _feud_ has come in our common language, to
signify a mortal quarrel, as being almost inseparable from the greater,
or even lesser fiefs[172].
In those times, the lord, when things grew into a more settled state,
took advantage of this maxim, that the tenant should not alien without
licence, and the tenants readily acquiesced, under the subsistence of the
rule, as it permitted them, in their turn, to exact a fine from their
under tenants, or the alienees of such in all cases of subalienation; by
which means this fine at length became an established fruit of tenure. In
England, however, it ceased in the case of lords that were subjects from
the time of the statute called _Quia emptores terrarum_, which gave every
person a free liberty to sell his lands: but the king not being named
in that statute, according to the well-known legal maxim, was not bound
thereby; and of course was paid fines for alienation, or by subsequent
statutes a commutation for such fines by his military tenants _in
capite_, to the time of the Restoration, when these tenures were entirely
abolished. On the other hand, the lord was not permitted to alien, even
with the consent of his superior, without the consent also of his tenant,
and that for a similar reason. For if he, the lord, might so do, he might
subject his tenant to one who was the tenant’s mortal enemy, and perhaps
for no other reason than for serving his former lord faithfully against
the new one[173].
This last maxim once established, introduced the practice of tenants
_attorning_ to their lords grants of the seignory. _Attornment_ is an act
of notoriety, originally performed in the presence of the _pares curiæ_,
signifying the tenant’s consent, and turning over from his former lord
to the new one, and the putting him, the new one, in the seizin of his
services. This, at first, was merely voluntary in the tenant; but when,
in England, free alienations were allowed by the aforesaid act, it was
not thought reasonable that it should be in the tenant’s power to defeat
his lord’s grant, by refusing to attorn. He was therefore obliged, by
an action called _Quid juris clamat_, to appear, and to shew forth what
title he had in the said lands, and whether he had any sufficient cause
why he should not attorn to the grantee; and if he could not shew any, he
was obliged by the judgment of the court to attorn[174].
Another effect of this homage was _warranty_, which is the obligation
on the lord to defend his tenant in the lands holden of him; or, if he
cannot, to give him a recompence of equal value in other lands, our law
went no farther; but the feudal law, if the warrantor had no lands to
give in exchange, obliged him to pay the value in money. _Warranty_ is
derived from the word _war_, because, in those real actions, the trial
was of old by combat. This obligation, indeed, subsided, as I have
already hinted, long before the introduction of hereditary estates; but
when these hereditary estates became common, and all the military tenures
were of this sort, and estates for lives and years were only, or for the
most part, socage, these last had no warranty annexed to them by law,
but only by special agreement; and the warranty I am now speaking of
was confined to inheritances, and of those only to such as were held by
homage _auncestrel_, that is, where the tenant and his ancestors had,
from time immemorial, done homage to the lord and his ancestors. Here, on
account of the continued connection between the blood of both families,
the law obliged the lord and his heirs to warrant the lands to the tenant
and his heirs[175].