OF HOMAGES, AND RELIEFS, AND SERVICES, AND AIDS, AND OF
PURPRESTURES, AND BOUNDARIES DISTURBED.
CHAP. I.
It remains to resume the subject of performing Homages,[324] and
receiving Reliefs.[325] Upon the death of the Father, or any other
Ancestor, the Lord of the Fee is bound, from the first, to receive
the Homage of the Right Heir, whether the Heir has attained his full
age, or not, if he be a Male. For, Females cannot by Law perform any
Homage,[326] although, generally speaking, they are to do Fealty to
their Lords.
[Footnote 324: _Homage_, the result of the Feudal System, was unknown
to the Romans; and Spelman thinks, it was unknown to the Anglo-Saxons.
(Reliq. p. 34.) However that may be, William the Conqueror is stated
to have received it from the Nobles, immediately after the Battle of
Hastings. (M. Paris.) It is generally derived from the word _homo_,
which, as well as our synonymous term _man_, Spelman asserts, to have
been used for many ages by the German and Western Nations, for a
servant or vassal. (Spelm. ubi supra—sed vide Co. Litt. 64. b.) Homage
is divided into _liege_ and _feudal_: the former was due to the King,
the latter to the Lord, of whom the Tenant held his Fee. “The reason
of Homage,” says Spelman, “was to preserve the memory of the tenure,
and of the duty of the Tenant, by making every new Tenant at his entry
to recognise the Interest of his Lord, lest that the feud, being now
hereditary, and new Heirs continually succeeding to it, they might by
little and little forget their duty and subtracting their services deny
at last the tenure itself.” (Spelm. Reliq. 34.) On Homage in general
see Bracton 78. b. et seq. Fleta l. 3. c. 16. Littleton’s Tenures and
Lord Coke’s Comment. Craig, Spelman, Sullivan, Assises de Jerusalem c.
205. &c. &c. &c.]
[Footnote 325: _Relief_—_quia hereditas, quæ jacens fuit per
antecessoris decessum, relevatur in manus heredum et propter factam
relevationem facienda erit ab herede quædam præstatio, quæ dicitur
relevium._ (Vide Bracton 84. et Fleta l. 3. c. 17. s. 1.) Among the
Laws of Edward the Confessor, there is a singular one, respecting the
Relief of a Tenant who fell in battle. (LL. Edw. Conf. c. 35.) It must,
however, be observed that Spelman questions that Law, and strongly
contends, that Reliefs were not in use among the Saxons. (Reliq. p.
31.) The Reader will find that point controverted in the preface to
Wilkins’s Anglo-Sax. LL. p. 9. The Reader, if desirous of extending
his enquiries on Reliefs in general, may consult Bracton 84. et seq.
Fleta L. 3. c. 17. Co. Litt. 76. a. 83. a. Black. Com. Sullivan, Craig,
Spelman &c. &c. &c.]
[Footnote 326: “Glanville,” observes Lord Coke, “saith, that Women
shall not do Homage: but Littleton saith, that a Woman shall do Homage,
but she shall not say, _Jeo devigne votre feme_, but _Jeo face à vous
homage_; and so is Glanville to be understood, that she shall not do
complete Homage.” (Co. Litt. 65. b.) Having cited this passage, a noble
Historian observes “But I should rather think, that in Glanville’s time
single women did none, and that the alteration in the form, which is
mentioned by Littleton, was an expedient found afterwards to obviate
the objection of an indecency in their Homage: as it was also in the
case of Ecclesiastics.” (3 Litt. Hist. Hen. 2. p. 339.) _Skene_ gives
a reason for the rule as laid down by _Glanville_: _because Homage
especially concerns service in war_, (de verb. sign. ad voc. homagium.)
He also remarks, that consecrated Bishops did no homage. The reason,
says Cowell, may be all one. (Interpreter) But Craig (Jus Feud. 1. 11.
10.) and the Regiam Majestatem (L. 2. c. 60.) expressly coincide with
our Author. Indeed, if any doubt could possibly exist, concerning the
unconditional meaning of the passage in the text, it would be silenced
by the latter part of the present chapter. Having made use of the
expression _liber homo_, our author pointedly adds, _masculus_, as if
solicitous to prevent any possible misconception, especially that very
misconception Lord Coke seems to have fallen into, which is likewise
refuted by a custom mentioned by Lord Littleton. “From the obligation
laid on the Husband to do Homage for the wife, it naturally followed,
that the Barony of a wife, as well as every other Fief requiring
Homage, was in effect made over to the Husband; and, therefore, in
those days many Barons came to Parliament in right of their wives, and
by virtue of their marriage, were accounted Peers of the Realm. It
has been observed, in this History, that the same notion extended to
Dukedoms and Principalities in many parts of the Continent.” (Litt.
Hen. 2. p. 339.)]
But, if they are married, their Husbands ought to do Homage to their
Lords for their Fees; I mean, if Homage be due in respect of such Fees.
If, however, the Heir be a Male and a Minor, the Lord of the Fee is not
entitled by Law to the Custody, either of the Heir, or his Inheritance,
until he has received the Homage of the Heir; because, it is a general
principle, that no one can exact from an Heir, whether he is of age,
or not, any service, consisting in a Relief or otherwise, until he has
received the Homage of the Heir, in respect of that Tenement, for which
the service is claimed. But a person may perform Homage to several
Lords on account of different Fees; but, of these Homages, one should
be the chief, and accompanied with allegiance,[327] and this must be
made to the Lord, from whom the person performing Homage, holds his
Chief Estate. Homage ought to be done in this form, namely, the party
performing it shall so become the Man of his Lord, that he shall bear
faith to him for the Tenement in respect of which he does Homage,[328]
and shall preserve the Lord’s terrene Honor in all things, saving the
faith due to the King,[329] and his Heirs.
[Footnote 327: We have observed, that homage was divided into, _liege_
and _feudal_: it was also divided into, _liege_ and _not liege_, which
division corresponds with the other. _Liege_ is borrowed from the
French, as Thaumas informs us. (Cout. de Beauvoisis p. 255.) and seems
to have meant a service that was personal and inevitable. (Traités Sur
Les Cout. Anglo-Norm. par Houard. p. 511. Tom. 1.)]
[Footnote 328: In performing Homage, the Tenant was to name and specify
the particular Tenement, on account of which he did Homage, in order
that the Lord might not be imposed upon. (Britton 174. Mirror c. 3. s.
36.)]
[Footnote 329: “In the year 1152, the Emperor Frederic Barbarossa
made a Statute, that in every oath of fealty taken to any of his
subjects, there should be a reserve of the faith due to him and his
successors; which immediately was adopted by several other nations,
where the feudal Law was in use, with regard to their sovereigns, and,
the omission of that reserve was punished in England by a judicial
determination under Edward the first.” (3 Litt. Hen. 3. p. 111.) This
reserve was also required by the Book of Feuds L. 2. t. 55. Regiam Maj.
L. 2. and Grand Cust. Norm.]
From this it is evident, that a Vassal cannot injure his Lord,
consistently with the Faith implied in Homage; unless, possibly, in his
own defence, or unless, in compliance with the King’s precept, he join
his Army when it proceeds against his Lord; and, generally speaking, no
one can by Law, consistently with the Faith implied in Homage, do any
thing which tends to deprive his Lord of his Inheritance, or to affix
a personal stain upon him.[330] If, then, a Tenant has in respect of
several Fees done Homage to different Lords, who afterwards make war on
each other; and the Chief Lord should command the Tenant to accompany
him in person against another of his Lords, he ought to yield
obedience to this Mandate, saving however the service due to the other
Lord for the Fee held of him.
[Footnote 330: Vide Mirror c. 4. s. 10. and 11, and Le Grand Cust. de
Norm. c. 14.]
From what has gone before it is evident, that if a Tenant should do
any thing to the disinherison of his Lord, and should be convicted of
it, he and his Heirs shall according to the Law for ever lose the Fee
held of such Lord.[331] The same consequence will follow, if the Tenant
lay violent hands on his Lord to hurt him, or to commit any atrocious
injury upon him, and this be lawfully proved in Court against the
Tenant. But, it may be asked, whether any one can be compelled in the
Lord’s Court, to defend himself against the Lord from such charges; and
whether his Lord can, by the Judgment of his own Court, distrain the
Tenant so to do, without the Precept of the King, or his Justices, or
without the King’s Writ, or that of his Chief Justice?
[Footnote 331: As the Tenant could not injure his Lord, neither could
the Lord injure his Tenant. If the violation of this obligation was
punished on the Tenant’s part, by the loss of his Tenement, the Lord,
when the Aggressor, lost his Dominion. (Fleta L. 3. c. 16.)]
The Law, indeed, permits a Lord by the Judgment of his Court to call
upon and distrain his Homager to appear in Court, and, unless he can
purge himself against the charge of his Lord by three persons, or as
many as the Court should award, he shall be amerced to the Lord, to the
extent of the whole Fee that he holds of him.
It may also be enquired, whether a Lord can distrain his Homager
to appear in Court, and answer for a service, of which the former
complains the Tenant has deforced him, or of which some part is unpaid?
The Lord, indeed, by Law may well do so, even without the precept
of the King, or his Justices. And thus the Lord and his Homager may
proceed to the Duel, or the Grand Assise, by means of one of the
Peers,[332] who chuses to make himself a Witness[333] of the fact, as
having seen the Tenant himself, or his Ancestors, perform such service
for the Fee in dispute to the Lord or his Ancestors, and is prepared
to prove the fact. But, if the Tenant be convicted of this charge, he
shall by Law be disinherited of the whole Fee, which he holds of his
Lord. If, however, any one is unable to constrain his Tenants, it then
becomes necessary to have recourse to the Court.[334] Every free Male
person may perform Homage, whether of full age, or otherwise, whether
a Clergyman or Layman. But consecrated Bishops are not in the habit of
doing Homage to the King, even for their Baronies; but merely Fealty,
accompanied with an oath. But Bishops elect are accustomed to do
Homage, previous to their Consecration.[335]
[Footnote 332: _Parium._ Vide 2 Inst. 42. Spelm. Gloss. ad voc.—_Pares
enim sunt cum unus aliis non subditur Hommagio, Dominatione, vel
Antenatione. Hommagio ut Homo subditur Domino suo cui fecit Hommagium
Dominatione, ut Homo subditur uxoris domino et ejus primogenito filio:
et omnes postnati ratione antenationis._ (Grand Custum. de Norm. c.
126.)]
[Footnote 333: This differed from the Norman code, which, in a tone of
haughty despotism, released the Lord from the necessity of adducing any
testimony. _Vox enim sola Domini Curiæ in iis quæ ad ipsum pertinent
sufficit ad accusationem subditorum._ (Grand Cust. c. 126.) Perhaps a
worse principle never disgraced an Eastern code.]
[Footnote 334: That is, the King’s Court.]
[Footnote 335: “Pope Paschal the 2nd,” observes Lord Littleton,
“allowed the _Bishops elect_ to do Homage, and take the oath of Fealty,
_before they were consecrated_. This was confirmed by the Constitutions
of Clarendon, of which a particular account will be given hereafter;
and, from the words of Glanville, it appears, that about the end of
Henry the 2nd’s reign Homage was accordingly done by _Bishops elect_,
but he tells us, that _after they were consecrated_ they took the oath
of fealty. This was a material difference from what had been settled
by the constitutions of Clarendon: and it is surprising, that we have
no account of it in the History of the Times.” (Litt. Hen. 2. Vol. 3.
113.)]
CHAP. II.
But Homage is due only for Lands, free Tenements, Services, Rents
in certain, whether in Money, or in other things. But, in respect
of Dominion[336] alone, Homage ought not to be rendered to any one,
except to the King. Yet Homage is not always performed for every
species of Land. Thus, it is not due for Land in Dower, nor for free
Marriage-hood, nor from the Fee of Younger Sisters holding of the
Eldest, within the third descent on both sides[337]; nor is it due
from a Fee given in Free-Alms, nor for any Tenement given in any way
in Marriage-hood, as far as concerns the person of the Husband of the
Woman to whom the property belongs as her Marriage-hood.
[Footnote 336: Pro _Domino_ is the expression of the text, which I
have disregarded—but have preferred, what, I submit, must be the
true reading, pro _Dominio_, for so Bracton has it in a passage
corroborative of the doctrine of the text. (79. b.) And with this
concurs the Regiam Majestatem: “Homage is not made to any man for his
_band of maintenance_, but only to the King.” (L. 2. c. 65.)]
[Footnote 337: See Co. Litt. 67. a. The tenure of _parage_ among the
Normans, which seems to have possessed some features in common with
that alluded to in the text, required fealty to be done by the Younger
to the Elder branch at the sixth, and Homage at the seventh, descent.
(Grand Custum. de Norm. c. 30.)]
CHAP. III.
But Homage may be done to any free person, whether Male or Female,
whether of full age or otherwise, whether Clergy or Lay. Yet should it
be understood, that if a person has done Homage for a Tenement to a
Woman who afterwards marries any man, he shall be compelled to repeat
it to her Husband for the same Tenement. But, if any one has by Concord
made in Court recovered a Tenement against another who had previously
paid a Relief for it to the Chief Lord, it may be questioned, whether
the person so recovering the Tenement ought to pay any Relief for
it.[338]
[Footnote 338: He shall not pay any other Relief, says the Regiam
Majestatem. (Vide L. 2. c. 67.)]
CHAP. IV.
Reciprocal, indeed, ought to be the Relation of Fidelity between
Dominion and Homage.[339] Nor does the Tenant owe more to his Lord,
in respect of Homage, than the Lord owes to the Tenant on account
of Dominion, Reverence alone excepted. Hence, if one person give to
another any Land in return for Service and Homage, which is afterwards
recovered against the Tenant by a third person, the Lord shall be bound
to warrant such Land to him, or to return him an adequate equivalent.
It is different, however, with respect to him who holds a Fee of
another, as his Inheritance, and, in this character, has done Homage;
because although he lose the Land, the Lord shall not be bound to give
him an equivalent.[340] In the case we have formerly mentioned, of the
death of the Father or Ancestor, leaving an Heir, a Minor, the Lord of
the Fee has no right to the Custody of the Heir, or his Inheritance,
unless he has first received the Homage of the Heir. But the Homage
having been received, the Heir, with his Inheritance, shall continue
in the manner before mentioned, in the Custody of his Lord, until he
has attained his full age. Having at last arrived at such age, and
received restitution of his Inheritance, he shall, by reason of his
having been in Custody, be exempt from the payment of any Relief.[341]
But a Female Heir, whether she has attained her full age, or not,
shall remain in the Custody of her Lord, until, with his advice,
she is married.[342] If, however, she was within age, when the Lord
received her into Custody, then, upon her marriage, the Inheritance
shall be discharged from the Relief, so far as respects herself and her
Husband.[343] But, if she was of full age at that time, although she
continue some time in her Lord’s Custody before she is married, her
Husband shall pay a Relief. When, however, the Relief has been once
paid by the Husband of a Woman, it shall exempt both the Husband and
the Wife during their several lives from payment of another Relief,
on account of such Inheritance; because, neither the Woman herself,
nor her second Husband, if she should espouse a second upon the death
of the former, nor her first Husband, should he survive her, shall
again pay a Relief for the same Land. But when a Male Heir is left
of full age, and known to be the Heir, he shall hold himself in his
Inheritance, as we have formerly observed, even though his Lord be
unwilling, provided he make a Tender to his Lord, as he ought to do, of
his Homage, and reasonable Relief,[344] in the presence of creditable
persons. A person’s Relief is said to be reasonable, with reference to
the Custom of the Realm, according to which the Relief of a Knight’s
Fee is one hundred Shillings,[345] whilst that of Land in Socage is
one Year’s Value.[346] But as to Baronies[347] nothing certain is
enacted,[348] because Barons holding of the King _in Capite_ are
accustomed to pay their Reliefs to the King, according to his pleasure,
and indulgence.[349] The same Rule prevails as to Serjeanties.[350]
If, however, the Lord will neither receive the Homage nor reasonable
Relief of the Heir, then, the latter should safely keep the Relief, and
frequently tender it to his Lord, by the hands of respectable persons.
If the Lord will by no means receive it, then, the Heir should make
complaint of him to the King, or his Justices; and shall have the
following Writ.
[Footnote 339: The mutuality of obligation created by Homage is
inculcated, not merely by our own, but other writers. (Vide _Assises de
Jerusalem_ c. 99. _Coutumes de Beauvoisis_ c. 58. Mirror c. 4. s. 11.
Bracton 78. Fleta L. 3. c. 16. Britton fo. 170. a.) This has induced
Lord Littleton (3 Hist. Hen. 2. 121.) and Mr. Watkins (Copyholds Vol.
1. p. 2.) to conclude, that the Feudal System was abhorrent from
Tyranny, originated in freedom, and ceased to be free only when it was
corrupted.]
[Footnote 340: The Text seems to allude to _Homage auncestrel_, and
pointedly to inculcate an opposite doctrine. Yet, Lord Coke refers to
this identical chapter of Glanville, in support of the doctrine of
Homage Auncestrel!! (Co. Litt. 101. a.) The Reg. Maj. is rather more
consistent with itself, but assists us not materially. “But it is
otherwise to be understood of him who has Lands as free Heritage, for
the which he is _not_ obliged to make Homage: for, although he lose
that Land, the over-Lord giver thereof is not obliged to warrant the
same.” (L. 2. c. 67.)]
[Footnote 341: Similar is the doctrine of the Grand Norman Custumary c.
33.]
[Footnote 342: _Si autem fœminæ in Custodia fuerint, cum ad annos
nubiles pervenerint, per consilium et licentiam domini sui et consilium
et consensum amicorum suorum et consanguineorum propinquorum prout
generis nobilitas et feudorum valor requisierint debent maritari, et in
contractu matrimonii debet iis feodum custodia liberari._ (Grand Norm.
Cust. c. 33.)]
[Footnote 343: Fleta enumerates the instances in which Reliefs were not
to be paid. 1. None was payable for a Fief, acquired by any species of
purchase. 2. Nor on a change of the Lord. 3. Nor was a Tenant for life
only, to pay a Relief. 4. Nor any man who married a woman who had been
in custody—but this differs from the Text. 5. Nor any one from whom his
Lord had received a remuneration, on account of custody. 6. Nor any one
who had once paid a relief for his Estate. (Fleta L. 3. c. 17. s. 5. et
seq.)]
[Footnote 344: Reliefs were in many parts of Normandy certain and
fixed: thus a Knight’s fee, or, as it is there termed, _feudum loricæ_
was five pounds, a barony one hundred pounds, land twelve pence an
acre, and woody ground 6d. (Grand Cust. c. 34.)]
[Footnote 345: Now, as a Knight’s fee was valued at £20, the sum
mentioned in the text was a _fourth_ of it.]
[Footnote 346: It appears to have been thus settled by a Law of
the Conqueror. (LL. Gul. Conq. c. 40. Ed. Wilkins.) This, as Mr.
Watkins observes, seems to have been no more than accounting to the
Lord for the profits of that year, for which he might under certain
circumstances, have retained the Lands. (Treat. on Copyh. 1. 231.)]
[Footnote 347: Dr. Sullivan accounts for the advantage which the
Knights had obtained, when compared to the great Barons, in having
their Reliefs reduced to a certainty, 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. (Lectures p. 109.)]
[Footnote 348: Statutum. “From the word _statutum_,” says Dr. Sullivan,
commenting upon the Text, “I take it for granted, this change of
Reliefs into money was by Act of Parliament.” (Lectures p. 290.)]
[Footnote 349: This was remedied by Magna Carta cap. 2. The Reader may
consult Lord Coke’s comment on the words _antiquum relevium_, where he
endeavours to prove, the ancient Relief was certain. (2 Inst. 7. and
8.) Lord Coke, in support of his position, cites a MS. in the Library
of Archbishop Parker, which seems almost word for word to coincide with
the Laws of the Conqueror. (LL. Gul. Conq. c. 22. 23. 24.) This is
the more remarkable, as his Lordship cites from a MS. merely, without
describing the nature of it.]
[Footnote 350: Vide Co. Litt. 105. b. and Bracton 84. a.]
CHAP. V.
“The King to the Sheriff, Health.[351] Command _N._ that, justly and
without delay, he receive the Homage, and reasonable Relief of _R._
concerning the free Tenement which he holds, in such a Vill, and that
he claims to hold of him; and, unless he does so, summon him by good
Summoners, that he be before me or my Justices on such a day, to shew
why he has not done it. And have there the Summoners, and this Writ.
Witness &c.”
[Footnote 351: Vide Co. Litt. 101. a.]
CHAP. VI.
As to the proceedings which are to be resorted to, in case the Lord
should not obey this Summons, and the means by which he shall be
distrained to appear in Court, they may be collected from the former
part of this Treatise. When, at last, he appears in Court, he will
either acknowledge that the Tenant is the right Heir, or deny that he
is the Heir, or he will doubt, whether he is the right Heir or not. If
he should acknowledge him to be the Heir, he will, then, either deny
that the Tenant has tendered him the Homage and reasonable Relief, or
he will admit it. If he confess both the one and the other, he shall
either immediately receive the Tenant’s Homage and reasonable Relief
in Court, or he shall appoint him a fit day for doing it. The same
observation may be made, although he deny that the Tenant has proffered
to him his Homage or Relief, provided he admit the Tenant to be the
Heir. But if in decided terms he denies the Tenant to be the Heir,
then, indeed, may the latter, if out of possession, require against his
Lord an Assise _de morte Antecessoris sui_. Should the Tenant, however,
happen to be in possession, he may hold himself in it, and patiently
await, until it pleases his Lord to accept his Homage; because, no one
is previously bound to answer his Lord as to the Relief, until the
latter has received his Homage for the Fee, on account of which Homage
is due to him. But if the Lord doubts, whether the person tendering the
Homage be the right Heir or not,[352] being for example unknown to the
Lord himself, or even to the Vicinage in the character of Heir, then
the Lord of the Fee may take the Land into his own hands, and retain
it, until the point be fully cleared up, a course of proceeding, which
the King generally adopts with respect to all his Barons holding of him
_in Capite_.
[Footnote 352: Fleta tells us, that an examination ought to precede the
Homage, in order to ascertain, whether the person offering himself,
was the natural Son of the man to whom he made himself Heir, both with
respect to the right of possession, and of propriety &c. &c. that the
Lord might not inadvertently be deceived. (L. 3. c. 16. s. 23. 24.)]
For, upon the death of a Baron holding of him in chief, the King
immediately retains[353] the Barony in his own hands, until the Heir
has given security for the Relief, although the Heir should be of
full age. But Lords, for a reasonable cause, may sometimes postpone
receiving Homage and Relief for their Fees. Suppose, for Example,
another person, than the one who asserts himself to be the Heir, should
claim a right in the Inheritance. During the pendency of this Suit,
Homage ought not to be received, nor a Relief given. Or, if the Lord
think that he himself has a right to hold the Inheritance in his own
Demesne. And if in such case he should, by force of the King’s Writ or
that of his Justices, implead the person in possession, the Tenant may
put himself upon the King’s Grand Assise, the form of which proceeding
is explained in the second Book, unless in some respects there should
be a variation, an Example of which we have in the following Writ for
such purpose——
[Footnote 353: The Reader will observe the expression, the King
_retains_, whilst an inferior Lord _seises or takes_, the fee into
his hands. _In manum regis delapsa est_ is the expression of Dial. de
Scacc. speaking of a fee held in chief, upon the death of its owner.
(L. 2. c. 10.) But a passage in Mr. Madox’s Hist. of the Excheq. serves
to throw still more light on the text. “Every Honor originally passed
from the King, and, upon every change, by death, or otherwise, returned
to the King again, and remained in his hand, until he commanded seisin
of it to be delivered to his Homager, according to the custom of noble
fiefs.” As the Law, by the magic of a fiction, cast the Inheritance
on the King the moment his Tenant _in Capite_ died, it was merely
necessary for him to _retain_ it—whilst the Law, not interfering on
behalf of an inferior Lord, obliged him to seise the Land.]
CHAP. VII.
“The King to the Sheriff, Health. Summon, by good Summoners, four
lawful Knights, from the Neighbourhood of such a Vill, that they be
before me, or my Justices, on a certain day there to elect, upon their
oaths, twelve &c. who better know the truth of the thing, and will
say, for the purpose of making a Recognition, whether _N._ has greater
right of holding one Hyde of Land in that Vill of _I._ or whether
_R._ of holding it in his Demesne, which the said _R._ claims by my
Writ against the aforesaid _N._ and of which _N._ who holds the Land,
hath put himself upon my Assise, and prays a Recognition to be made,
whether he has greater right of holding that Land in his Demesne or the
aforesaid _N._ of holding it of him: And summon, by good Summoners, the
aforesaid _N._ who holds the Land, that he be then there to hear that
Election. And have there, &c. Witness, &c.”
CHAP. VIII.
But after it has been settled between the Lord and the Heir of the
Tenant concerning the giving and receiving of the reasonable Relief,
the latter may exact reasonable Aids from his Homagers.[354] This,
however, must be done[355] with moderation, keeping in view the extent
of their Fees, and the circumstances of the Tenants, least they
should be too much oppressed, or lose their Contenement.[356] But
nothing certain is fixed, concerning the giving or exacting Aids of
this description, unless that the form we have mentioned should be
inviolably observed. There are also other cases, in which a Lord can
exact from his Homagers similar Aids, observing, however, the principle
we have laid down: as if his Son and Heir should be made a Knight, or
if he should marry off his Eldest Daughter.[357] But, whether Lords can
exact these Aids to maintain their own Wars, is doubtful. The opinion
that prevails is, that they cannot by right distrain their Tenants
for such purpose, unless so far as the Tenants may feel disposed.
But, with respect to the rendering of reasonable Aids, Lords may of
right, without the King’s precept, or that of his Justices, but by
the Judgment of their own Court, distrain their Tenants by such of
their chattels as may be found within their Fees, or by their Fees,
if necessary; provided the Tenants are dealt with according to the
Judgment of the Court, and consistently with the reasonable Custom of
it. If, therefore, a Lord may thus distrain his Tenants[358] to render
such reasonable Aids, much stronger is the argument in favor of its
being lawful for him to distrain in the same manner for a Relief, as
also for any other service necessarily due to him, in respect of the
Fee. But if a Lord is unable to compel[359] his Tenant to render his
services or Customs, then recourse must be had to the Assistance of the
King, or his Chief Justice, and he shall obtain the following Writ——
[Footnote 354: “Aids were, at first, benevolencies of the Vassals, and
were given during the great festivity, or the great necessity of the
Lord upon three occasions—to wit—when his Son was knighted, when his
Daughter was to be married, and when his person was to be ransomed:
but what originally flowed from regard, Superiors soon changed into a
matter of duty, and on a gratuity erected a right.” (Dalrymp. on feuds,
p. 52.)—Speaking of aids, Mr. Madox informs us, that King William the
First took 6s. of each Hyde through England—King Henry the First took
3s. for each Hyde, as aid _pur fille marier_. But he adds, that, for
want of requisite notices, he could not speak distinctly of them.
(Hist. Exch. c. 15. s. 1.) The Reader may also be referred to _Traités
sur les Coutumes Anglo-Norm. par M. Houard_. 1. 265. 518.]
[Footnote 355: By the Norman Code it was fixed at half the Relief paid
by the mesne to the Chief Lord. (Grand Cust. c. 35.)]
[Footnote 356: _Contenementum_, a word of frequent recurrence in the
old Books and Statutes. “Mr. Selden in his table talk says, that
the word _contenementum_ signifies the same with _countenance_, as
used by the country people, when intending to receive a person with
hospitality, they say—_I will see you with the best countenance_. So
that the meaning of Magna Carta (where this word occurs) is, a man
shall not be so fined, but that he may be able to give his neighbour
good entertainment.” (Barr. Anc. Stat. p. 12. See also 4 Bl. Comm.
378.)]
[Footnote 357: _Aid_ and _relief_ do not always appear to be used by
the old Books, in different senses. Speaking of the aids, mentioned
in the present passage of the text, the Norman Code says, _Hujusmodi
relevia in quibusdam feodis dimidio relevio equalia: et in quibusdam
feodis decem solidos_. Hence, the ancient custom was to be followed.
(Le Grand Cust. de Norm. c. 35.) When Bracton wrote, these aids were
considered as matter of grace, rather than of right, being, as he terms
them, customs, not services, and personal to the Tenant, not prædial.
(36. b.) Judge Blackstone notices the great resemblance, which, in the
particular of aids, the Lord and Vassal of the Feudal Law bore to the
patron and client of the Roman Law: the patron being entitled to three
aids from his client, viz. to marry his Daughter, to pay his Debts, and
to redeem his person from captivity. (2 Com. 63.) Generally, see Co.
Litt. 76. a. and Mr. Hargrave’s note 1. 2 Inst. 231. 232, and Mirror,
c. 1. s. 3.]
[Footnote 358: _Homagers._ Bodln. MS.]
[Footnote 359: _Justiciare._ _Justiciatio_, says the Norman Code,
_est coarctatio super aliquem facta, ut juri pareat_. Having given
this definition, it goes on to observe, that it ought not to precede,
but follow the offence—that there were three things that authorised
it—_transgressio termini prefixi_—_contemptus justiciæ_, and _irrogatio
Injuriæ_. We learn from the same source, that this _Justiciatio_ was
by distraining the goods, or the Fee, or by taking the body. (Le Grand
Custum. de Norm. c. 6.)]
CHAP. IX.
“The King to the Sheriff, Health.[360] I command you that you adjudge
_N._ that, justly and without delay, he render to _R._ the Customs and
right Services which he ought to render him, for the Tenement that he
holds of him, in such a Vill, as can be reasonably shewn to be due to
him, least he again complains for want of right. Witness, &c.”
[Footnote 360: F.N.B. 337.]
CHAP. X.
When the Plea proceeds by virtue of this Writ, the complainant shall,
in the County Court, and before the Sheriff, recover his services,
whether they consist in Reliefs or other things, according to the
Custom of the County Court. And, if he should prove his right, the
Adverse party shall render the reasonable Relief to his Lord, and
shall, in addition, be amerced to the Sheriff; it being a general
principle, that the Amercement which results from every suit, which
has been carried on and determined in the County Court, belongs to the
Sheriff. The amount of it, indeed, has been ascertained by no general
Assise,[361] but is regulated by the Customs of different Counties; in
one County more, in another less.
[Footnote 361: “By the general Assise or Assembly,” meaning the
Parliament, according to Judge Blackstone. 1. 148.]
CHAP. XI.
It follows that we speak concerning Purprestures. A Purpresture, or
more properly speaking, a Porpresture,[362] is when any thing is
unjustly encroached upon;[363] against the King; as in the Royal
Demesnes, or in obstructing public ways, or in turning public waters
from their right course; or when any one has built an Edifice in
a City upon the King’s Street. And, generally speaking, whenever a
Nuisance is committed affecting the King’s Lands, or the King’s High
Way, or a City, the suit concerning it belongs to the King’s Crown.
But Purprestures of this description are enquired after, either in the
King’s Chief Court, or before his Justices sent into the different
parts of the Kingdom[364] for the purpose of making such Inquisitions,
by a Jury of the Place,[365] or Vicinage. And if, by such Jury, a man
be convicted of having made any Purpresture of this kind, he shall
be amerced to the King to the extent of the whole Fee that he holds
of him, and shall restore that which he has encroached upon; and, if
convicted of having encroached by building in a City upon the King’s
Street, the Edifices shall belong to the King; those, at least,
which are found to be constructed within the Royal District; and,
notwithstanding, he shall be amerced to the King.
[Footnote 362: _Purprestura vel Porprestura_—“And because, it is
properly, when there is a House builded or an Enclosure made of any
part of the King’s Demesnes, or of an Highway, or of a common street,
or public water, or such like public thing, it is derived of the French
_pourpris_, which signifieth an enclosure.” (Co. Litt. 277. b.) The
term _purpresture_ seems to have been understood by our old Lawyers in
three senses. 1st. as committed against the King, by a subject. 2d. as
committed by a Tenant, against the Lord of whom he held his fee. 3d.
as committed by one neighbour, against another. (Vide Craig Jus feud.
L. 1. D. 16. c. 10. and L. 3. D. 5. s. 6. 7. Spelm. Gloss. ad voc.
Cowell’s Interp. Manwood’s Forest Laws. p. 169. 176. Grand Norm. Cust.
c. 10. &c. &c. and Traités sur les Coutumes Anglo-Norm. par Houard. 1.
387.)]
[Footnote 363: _Occupatur._ “_Occupationes_,” says Lord Coke, “are
taken for usurpations upon the king, and, it is properly, when one
usurpeth upon the king, by using of liberties and franchises which he
ought not to have; and, as an unjust Entry upon the king into Lands or
Tenements, is called an intrusion, so an unlawful using of franchises
or liberties is said an Usurpation: but _occupationes_ in a large sense
are taken for purprestures, intrusions, and usurpations.” (2 Inst.
272.) The Reader may also consult Dialog. de Scacc. L. 2. s. 10.]
[Footnote 364: Bracton tells us, that it was, in his time, an Article
of the Eyre to inquire, _de purpresturis factis super dominum Regem,
sive in ferru, sive in mari, sive in aqua dulci, sive infra libertatem,
sive extra_. (116.) See also 2 Inst. 272. 4 Chap. Stat. de Bigamis. Co.
Litt. 293. b. 294. a.]
[Footnote 365: _Patriæ._ Vide Spelm. Gloss. ad voc. also 3 Bl. Com.
349. and 375. and Mr. Christian’s Note.]
An Amercement[366] to the King is, when any one has been so far
amerced, by the oaths of lawful Men of the Vicinage, as not to lose
any part of his Honorable Contenement.[367] When a person has made a
purpresture against any other than the King, he will either have made
it against his own Lord, or against another. In the former Case, if
the offence come not within the Assise,[368] then, the offender shall
be distrained to appear in the Lord’s Court, to answer concerning it—I
mean, if he holds any other Tenement of the Lord. For this purpose the
following Writ shall issue——
[Footnote 366: Having already spoken of Amercements, we shall here
merely remark that in the reigns of William the Conqueror and his Son
Rufus, they were no less immoderate, than oppressive. Henry the First
was compelled, by the peculiar difficulties of his situation, to make
many concessions.—One of which was, that amercements should no longer
be assessed, as they had been in his Father’s and Brother’s reigns,
to the extent of the whole property of the offender, but should be
proportionate to the crime—_sicut retro a tempore patris mei et fratris
mei in tempore aliorum antecessorum meorum_. (LL. Hen. 1. c. 1.) If
these words mean any thing, they imply, that Henry merely restored the
Common Law, which his Father and Brother had violated. How ill this
concession was observed, we may conjecture, from its having been felt
necessary to make it part of the great charter. (See 2 Inst. 27.)]
[Footnote 367: _V. Gul. Somn. Notas ad LL. 1. Cap. 1. p. 176._ (Al.
MS.)]
[Footnote 368: _Infra Assisam_—That is, says Skene, within the time
within which his Action should be pursued, or else to be holden as
prescribed. (Reg. Maj. L. 2. c. 74.)]
CHAP. XII.
“The King to the Sheriff, Health. I command you, that you compel _N._,
that without delay, he appear in the Court of _I._ his Lord, and
there abide by the right concerning his free Tenement, that he hath
encroached against him, as he says, least, &c. Witness, &c.”
CHAP. XIII.
If the party be convicted of this offence in the Lord’s Court, he shall
irrecoverably lose the Tenement he holds of such Lord.
But, if he hold no other Tenement of the same Lord, then, the
latter shall implead him in the Court of the Chief Lord by a Writ
of Right. In like manner, if any one commit an encroachment in this
way upon a person, not being his Lord, and the case fall not within
the Assise,[369] the matter shall be decided by Writ of Right.
But, if the fact happen within the Assise, then, recourse must be
had to a Recognition of Novel Disseisin to recover possession, of
which proceeding we shall presently speak. In Purprestures of this
description, the Boundaries of Land are sometimes destroyed and
encroached upon. In such case, upon a complaint being made in Court by
any of the Neighbours, let the Sheriff be commanded, that a View of the
Boundaries in question be taken in his presence by Lawful Men of the
Vicinage, and, upon their oaths, that he cause the boundaries to be as
they ought to be, and were accustomed to be in the time of King Henry
the First: for this purpose, the following Writ shall issue——
[Footnote 369: _Infra Assisam_—lawful time, says Skene, so that the
Action of Novel Disseisin is not prescribed. (Reg. Maj. L. 2. c. 74.)]
CHAP. XIV.
“The King to the Sheriff, Health.[370] I command you, that justly and
without delay, you make reasonable divisions[371] between the Land of
_R._ in such a Vill, and the Land of Adam of Byre, as they ought to be,
and were accustomed to be, and as they were in the time of King Henry,
my Grandfather, of which _R._ complains that Adam, unjustly and without
judgment, has encroached more than belongs to his free Tenement of
Byre, least I again hear complaint for want of Justice. Witness, &c.”
[Footnote 370: Vide F.N.B. 285.]
[Footnote 371: Vide Ante p. 133. Note 1.]