such large grants would prove to the authority of the crown, and he
accordingly moderated them as well as his circumstances would permit.
That the king might not be too far removed from the view of the lower
people, by the interposition of the great lords, their immediate
superiors, he did not, as in France, leave the whole judicial power,
and the profits of the county courts in the earls; but justice was
administered in the king’s name by his sheriffs; who, as being deputies
of the earls, were called _Vice Comites_, and who accounted for the
profits to the king, except as for the one third, which in England was
the earl’s proportion; and in after times, upon new creations, the third
also was referred to the king, and only a certain stipend out of it,
generally twenty pounds a year, assigned to the earl[226].
Another means he used of disarming them of the too great powers
immoderate estates would have given them, was avoiding the rock the
French court had split on, the giving vast territories, lying contiguous
to each other, in fief, whereby all the followers were immediately in
the view and at the call of the lords. William acted more prudently. He
generally gave to an earl twenty knights fees, which was the proportion
of an English earldom in the county, whose title he bore; perhaps
thirteen, or a barony, in another county; and the remainder, he was to
give, either in baronies in distant counties, or more generally in single
knights fees, dispersed through all England. This was his general method,
except to a few of his near relations, to whom he gave palatinates with
_jura regalia_, which were exactly in the nature of the French dutchies
and counties[227].
Another prudent step he took for the benefit of his successors, was the
making all his grants _feminine fiefs_. For as, in a course of several
descents, it must happen that lineal males would frequently fail, by
admitting the daughters in that case, these vast inheritances were
frequently broken, as females succeeded equally. His successors followed
his plan, and for that purpose, not only permitted, but encouraged their
great vassals to alien, and dismember their properties; and whenever a
great escheat fell, were always sure, unless there was a prince of the
blood to be provided for, to divide it into many hands.
Both kings and people received the advantages, and would have received
more, if this policy had continued. The immediate tenants of the crown
being encreased in number, and lessened in wealth, were not able to
confederate so easily against the crown; and, sensible of their being
weakened, had occasion for the support of the lower rank of the people,
whom, consequently, they treated with more gentleness and equality than
before. But this statute of entails put a stop to the progress that
course of things were in; estates became unalienable, and indivisible.
The property of no lord could lessen; and if it happened, as it
frequently did, that they acquired, either by descent or marriage,
or the purchase of an estate not tied up, a new entail connected it
inseparately with the old one; and thus the lords, towards the end of
the Plantagenet line, grew up to such a pitch of power, as was dangerous
to the constitution, and when they were divided into the factions of the
York and Lancaster, deluged the land with blood.
The king saw the mischief betimes, but the mischief was done. The act was
passed, and to get it repealed was impossible. They had nothing left, but
to find means to elude it by construction of law, wherever they could.
The scheme was readily embraced by the judges and lawyers, who had raised
great outcries against these fettered inheritances, and were joined by
all the trading and industrious people, and even by the younger branches
of these great families, whose fathers were thereby disabled to provide
for them.
The first means found out was by _collateral warranty_. Before this
statute all warranties by an ancestor bound the heir at law, although
no land descended from that ancestor, upon the presumption that no man
would disinherit his heir, without leaving him a recompence. But this
could be no longer the law in general; for, if so, the ancestor in tail
might, by his warranty, defeat the tail, contrary to the statute, which
says, _The will of the donor shall be observed_. They therefore made now
a distinction between a lineal warranty and a _collateral_ one. Lineal
warranty is that which is made by tenants in tail; collateral, that
which is made by one who is a stranger to the entail. In the first case
they held it no bar, unless assets descended; that is, an estate in fee
simple, equal in value. But in the latter case, that no assets descended,
they held it at bar as at common law[228].
To illustrate this by an example, If lands are given to A. and the heirs
male of his body, and A. aliens with warranty, this is lineal warranty,
and shall not bind the son; but if B. the brother of A. who has nothing
to say to the entail, joins in the alienation with warranty, or releases
to the alienee with warranty, or disseizes A, and then aliens with
warranty, and dies without issue, so that A’s son is his heir, this
warranty is collateral to the entail, and without assets should bind the
son of A, as at common law. At first view it may seem surprising how this
construction gained ground against the express words of the statute,
_Voluntas donatoris de cætero observetur_; for the will of the donor was
certainly as much defeated by a collateral, as by a lineal warranty; but
the judges took advantage of the preamble of the act, which, reciting
the mischief, speaks only of the alienation of the tenant in tail, that
is, of lineal warranty. They restrained, therefore, out of disfavour
to these fettered estates, the general words in the enacting part, to
the particular case mentioned in the preamble, on this ground, that the
common law was not to be altered without it appeared undeniable that the
legislator intended it; and here, as to collateral alienation, they are
silent. This was the first device used to defeat estates tail, namely, by
getting a collateral relation, whose heir the issue in tail was to be,
to concur in the alienation, and to bind himself and heirs to warranty;
which was generally obtained for a small consideration, as such person
could never be a gainer by the estate tail, since it could in no case
come to him.
When once this rule of collateral warranty barring an estate tail,
was settled, attempts were made to prevent its taking effect, and to
continue such estate notwithstanding. Jude Richel, in Richard the
Second’s time, led the way; he having settled lands on his eldest son
in tail; remainder to his second son in tail; adds, that the lands are
given on this condition, that, if the eldest son should alien, that
instant his estate should cease and determine, and the land remain to
the second son and the heirs of his body. Here he imagined he had got
clear of collateral warranty, because the first estate was to determine,
and the second to commence immediately on the alienation, and before
any collateral warranty could descend on the second. But the judges
determined this condition to be void; for which Littleton gives three
reasons, drawn rather from the art of law, than from the principles of
plain reason[229]. The true ground seems to be this:
In every reign, from Edward the First down to Edward the Fourth, bills
were brought into parliament to repeal the statute _De Donis_, as Coke
informs us, but had constantly miscarried, as the estates of the majority
in parliament were entailed. The only relief found out at that time
against their mischiefs was this collateral warranty; and if Richel’s
conditions were to be adjudged good, all estates tail would have been
made with such conditions, and there would have been an end of that
method of defeating them. The same was the fate of a similar settlement
of Judge Thirning, who took the advice of his cotemporary judges, in
wording his condition so as to make it effectual; but their successors
were of a different opinion, and rejected it. However, these collateral
warranties not being to be got in all cases, the relief was but partial,
and extended only to particular cases. And the tenant in tail himself
could by no act of his, in concurrence with any other person, except a
collateral ancestor of the issue in tail, bar them.
At length the judges found out a device, by a fiction in law, to enable
him to bar his issue, and all remainders, and reversions. A. brings his
action real against B, tenant in tail, and alledges the lands in tail to
be his A’s right and inheritance, when in truth he hath no title thereto;
B. comes in, and voucheth C. to warranty, who enters into warranty, and
after, when he should defend, makes default, so judgment is given for A.
against B. and for B. to recover in value against C. Here, though C. has
no land to render in value, the judges have construed B, and all that
should come after him, to be barred; because if C. ever after purchased
lands, these lands might be recovered from him, by virtue of the former
judgment; and so there was a possibility of a recompence. Though this
decision at first created great outcries, and even in Henry the Eighth’s
reign was but weakly defended in equity and conscience, by the author of
_Doctor and Student_, yet the judges, for the public good, constantly
adhering to it, and these common recoveries being taken notice of and
approved of by subsequent acts of parliament, are at length grown to be
common assurances of lands, and, passing in the court of record, are the
best securities of estates[230].
The bearing of estates tail, _by fine_ passed in the king’s courts, grew
up another way, and is founded on an act of parliament in Henry the
Seventh’s reign, and is indeed, properly speaking, a partial repeal of
the statute _De Donis_, since it puts it in the tenant in tail’s power to
destroy it, by observing certain solemnities. Though common recoveries
had been invented some years before, yet as they had not had time to grow
up to such a degree of firmness as to be sufficiently depended upon,
their legality was still doubted, and it was not certain that future
judges would give them the same construction which their predecessors had
done. Therefore, that politic prince Henry the Seventh, who saw, in all
its lights, that superiority which the preservation of landed property in
their families gave to the nobles, a superiority which had cost some of
his predecessors their lives and crowns, freed lawyers from the trouble
of inventing future devices against entails, by getting the famous
act passed in the fourth year of his reign, which made a fine, with
proclamations to conclude all persons, strangers as well as privies[231].
It was the purport of, and so it is expressed in the statute _De Donis_,
that a fine levied of entailed lands should be _ipso jure_ null, and it
is the intent of this act, on the contrary, that a fine, levied with
the prescribed solemnity, should be valid to bar the persons therein
intended to be barred. There is a clause, indeed, in this act, saving the
right and interests of all persons, which accrued after the ingrossing
of the fine, they pursuing their rights within a certain time after
they accrued. This clause was apparently thrown in to make the act pass,
and to deceive the enactors into an opinion, that it would not affect
estates tail; and on this clause a doubt occurred in that reign, whether
the issue of tenant in tail could be barred by this statute, and that,
notwithstanding by the tenor of it, privies were barred. The question
was, whether the statute meant privies to the fine, or privies to the
estate of the person levying it? The issue were not privies in the first
sense, but were in the latter. The judges embraced the opportunity this
ambiguity gave them, of defeating entails, and bound the issue by the
fine. A statute of the succeeding prince approved of that construction,
gave it retrospect, and prevented all ambiguity for the future[232].
Thus were estates tail no longer certain perpetuities, but defeasible
upon performing certain requisite solemnities. Still however they
continued not to be forfeitable for crimes, which was a point not to be
got over without an act of parliament, and there was little likelihood
of obtaining such an one; but Henry the Eighth snatched the lucky
opportunity his situation gave him, of gaining this important point, in
the 26th year of his reign, when he had quarrelled with the Pope, and
all hope of accommodation vanished; when a sentence of excommunication
was denounced against him, and numbers of his subjects, many of them of
great fortunes, bigotedly attached to the old religion, were known to
meditate rebellion. The parliament, the majority of which were of the new
profession, seeing no other means to preserve the security of the state,
and the protestant religion, yielded at length to the passing of an act
for that purpose[233].
However, there were not wanting persons after this, willing to create
perpetuities, in which they were always disappointed by the decision of
the judges. The first device was by giving estates upon condition, that
if tenants in tail should levy a fine, or suffer a recovery, the estate
should cease, and go over to the next issue intitled. But the judges
rejected such condition, for the same reason as in Richel’s case. They
adjudged the right of barring by a fine or recovery to be an incident
inseparable to a fee tail, and all conditions repugnant thereto idle
and void; for how could the law suffer that an estate, by previous act
of the donor, should, upon a judgment at law, become vested in any other
person than him who recovered? These ingenious conveyancers, finding that
the limitation upon breach of the condition came too late, as the estate
had already gone in another channel, framed the condition thus; that _if
tenant in tail should go about to levy_, &c. _or make any covenant to
levy, or hold any communication about levying_, &c. _the estate should
then_, &c. But these were all condemned upon the old principle, and still
more for their vagueness and uncertainty.
LECTURE XVIII.
_The constitution of a feudal monarchy—The dignity and revenues
of the King—An examination of his power as to the raising of
taxes and subsidies._
As, in my former lectures, I drew a general sketch of the nature and
form of the governments that prevailed among the northern nations whilst
they remained in Germany, and what alterations ensued on their being
removed within the limits of the Roman empire, it will be now proper to
shew, in as brief a manner as may consist with clearness, the nature and
constitution of a feudal monarchy, when estates were become hereditary,
the several constituent parts thereof, and what were the chief of the
peculiar rights and privileges of each part. This research will be of
use, not only to understand our present constitution, which is derived
from thence, but to make us admire and esteem it, when we compare it with
that which was its original, and observe the many improvements it has
undergone. From hence, likewise, may be determined that famous question,
whether our kings were originally absolute, and all our privileges only
concessions of theirs; or whether the chief of them are not originally
inherent rights, and coeval with the monarchy; not, indeed, in all the
subjects, for that, in old times, was not the case, but in all that were
_freemen_, and, as all are such now, do consequently belong to all.
To begin with the king, the head of the political body. His dignity
and power were great, but not absolute and unlimited. Indeed, it was
impossible, in the nature of things, even if it had been declared so by
law, that it could have continued in that state, when he had no standing
force, and the sword was in the hand of the people. And yet it must be
owned his dignity was so high, as to give a superficial observer some
room, if he is partially inclined, to lean to that opinion. All the lands
in his dominions were holden of him. For, by degrees, the _allodia_ had
been changed into, and supposed to have been derived from, his original
grant, and consequently revertible to him. But then, the land proprietors
had (on fulfilling the conditions they were bound to) a secure and
permanent interest in their possessions. He could neither take them
away at pleasure, nor lay taxes or talliages on them by arbitrary will,
which would have been little different. Since, in Magna Charta, we find
the people insisting that the king had no right to assess the quantity
of escuage, which was a pecuniary commutation for military service,
nor to lay talliages on his other subjects, but that both must be done
in parliament. He was a necessary party to the making new laws, and to
the changing and abrogating old ones; and from him they received their
binding force, insomuch that many old laws, tho’ passed in parliament,
run in the king’s name only. For, in those days, persons were more
attentive to substance than forms; and it was not then even suspected,
in any nation of Europe, that any king would arrogate to himself a power
so inconsistent with the original freedom of the German nations. Nay, in
France, to this day, the king’s edicts are not laws, until registered in
parliament, which implies the consent of the people, tho’ that consent is
too often extorted by the violent power that monarch has assumed over the
persons and liberty of the members of that body[234].
The dignity of the king was supported, in the eyes of the people, not
only by the splendor of his royalty, but by the lowly reverence paid
him by the greatest of his lords. At solemn feasts they waited on him
on the knee, or did other menial offices about his person, as their
tenures required, and did their homage and fealty with the same lowly and
humiliating circumstances that the meanest of their vassals paid to them.
His person likewise was sacred, and guarded by the law, which inflicted
the most horrible punishment for attempts against him; neither was he to
be resisted, or accountable for any private injury done personally by
himself, on any account whatsoever. For the state thought it better to
suffer a few personal wrongs to individuals, than to endanger the safety
of the whole, by rendering the head insecure.
But the greatest of the kingly power consisted in his being entirely
entrusted with the executive part of the government, both at home and
abroad. At home justice was administered in his name, and by officers of
his appointment. He had, likewise, the disposal of all the great offices
of the state, with an exception of such as had been granted by his
predecessors in fee, and of all other offices and employments exercised
in the kingdom immediately under him. Abroad he made war and peace,
treaties, and truces as he pleased. He led his armies in person, or
appointed commanders; and exercised, in time of war, that absolute power
over his armies that is essential to their preservation and discipline.
But how was he enabled to support the expence of the government, or to
provide for the defence of the kingdom, or carry on a foreign war; since,
if he was not furnished in that respect, these high-sounding prerogatives
had been but empty names, and the state might have perished? and if he
could at pleasure levy the necessary sums, he being sole judge of the
necessity, both as to occasion and quantity, as Charles the First claimed
in the case of ship-money, the state of the subject was precarious, and
the king would have been as absolute a monarch as the present king of
France or Spain[235].
But abundant provision was made on this head, and that without
over-burdening the subject, for supporting the ordinary expences of the
government. A vast demesne was set apart to the king, amounting, in
England, to one thousand four hundred and twenty-two manors, as also
many other lands, which had not been erected into manors. Besides these,
he had the profits of all his feudal tenures, his worships, marriages,
and reliefs; the benefit of escheats, either upon failure of heirs or
forfeiture; the goods of felons and traitors; the profits of his courts
of justice; besides many other casualties, which amounted to an immense
revenue; insomuch, that, we are informed, that William the Conqueror
had L. 1061: 10s. a-day, that is, allowing for the comparative value of
money, near four millions a-year; so that Fortescue might well say, that,
originally, the king of England was the richest king in Europe. Such a
sum was not only sufficient for the occasions of peace, but out of it he
might spare considerably for the exigencies of war[236].
This revenue, however great, was not sufficient to support a war of
any importance and continuance, besides the extraordinary expence
of government. It remains, therefore, to see what provision this
constitution made, in addition to what the monarch might spare, for the
defence of England, as it might be attacked either by land or sea. For
the former, every sea-port was, in proportion to its ability, obliged to
find, in time of danger, at their own expence, one or more ships properly
furnished with men and arms; which, joined to such other ships as the
king hired, were, in general, an overmatch for the invaders. But if the
enemy had got footing in the country, the defence at land was by the
knights or military tenants, who were obliged to serve on horseback in
any part of England; and by the socage tenants, or infantry, who, in case
of invasion, were likewise obliged to serve, but not out of their own
country, unless they themselves pleased, and then they were paid by the
king.
With respect to carrying on _offensive_ war into the enemy’s country, the
king of England had great advantages over any other feudal monarch. In
the other feudal kingdoms the military vassals were not obliged to serve
in any offensive war, unless it was just, the determination of which
point was in themselves; but William the Conqueror obliged all to whom
he gave tenures to serve him _ubicunque_; and though he had not above
three hundred, if so many, immediate military tenants under him, yet
these were obliged, on all occasions, to furnish sixty thousand knights
compleatly equipped, and ready to serve forty days at their own expence.
If he wanted their service longer, he was obliged to obtain it on what
terms he could. There is, therefore, no reason to wonder that the king
of England, though master of so comparatively small a territory, was, in
general, an overmatch, in those early times, for the power of France. As
for _infantry_ in his foreign wars, he had none obliged to attend him.
Those he had were socage tenants, whose services were certain; so that
he was obliged to engage, and pay them, as hired soldiers. As the socage
tenants in his dominions had a good share of property, and enjoyed it
without oppression, it is no wonder the English archers in those days had
a gallant spirit, and were as redoubtable as the English infantry is at
present.
To support these military tenants, who served after the necessary time,
and likewise his infantry (as the surplus of his ordinary revenue would
not suffice) he had _customs_ and _talliages_, and _aids_ and _subsidies_
granted by parliament. These customs, or so much paid by merchants on the
exportation of goods, were of two kinds; as paid either by _merchant
strangers_, or by _merchant denizens_[237].