The History of English Law before the Time of Edward I. Frederic William Maitland
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of rules about warranty and so forth; but we have just seen how in 1225 such a disavowal was still spoken of as a felony.270
Homage, by whom done and received.In other quarters we may see that homage has been losing its meaning. It has been connected with military tenure. According to Bracton it is due if the tenement is held by knight’s service, even though but one half-penny of scutage be payable; it is due also if the tenure is a serjeanty, at all events if the serjeanty be one that concerns the king; but it is not due from tenants in socage, though as a matter of fact they sometimes do it; if the tenure were villeinage, it would be dangerous to take the tenant’s homage, as this might imply an enfranchisement.271 Glanvill gives us an important clue when he says that a woman cannot do, though she may receive homage;272 in Bracton’s day this is otherwise, a woman may well do homage.273 Homage has implied a willingness to fight if need be, and even when it had become admitted that women might hold military fiefs—here in England they seem, as will be remarked hereafter, to have held such fiefs from the Conquest onwards—they could not say the words which imported an obligation to risk life itself in the lord’s service.274 But all this was passing away, and, despite what Bracton says, it seems to have been common for the socage [p.287] tenant to do homage.275
The lord’s obligation.The contract was not one-sided. The lord was bound to defend and warrant his gift. When we hear of “warranty,” we are wont to think of a mere institute of private law common enough at the present day, the obligation of a seller to compensate a buyer who is evicted by superior title, and the covenants for title expressed or implied in our modern purchase deeds appear as the representatives of the ancient warranty. But the primary obligation of the warrantor in old times was not that of making compensation. His obligation to give his tenant a tenement equal in value to that whence he had been ejected was but a secondary obligation arising upon the breach of the primary obligation, namely, the duty of defending the tenant in his possession “against all men who can live and die.” If the tenant was attacked by process of law, he vouched his lord, he called upon his lord to defend the action, and the lord if he did his duty defended it. Now here we see a great force at work. Do what we may to make all men equal before the law, a rich man has and must always have advantages in litigation; he can command the best advice, the best advocacy. But in the middle ages the advantages of the rich and powerful must have been enormous. Happy then was the tenant who could say to any adverse claimant:—“Sue me if you will, but remember that behind me you will find the earl or the abbot.” Such an answer would often be final. We must understand this if we are to understand the history of commendation. The owner of land who gives it up to a great man and takes it back to hold by rent and services receives a “valuable consideration” for the surrender and submission. This is so even within the sphere of law and litigation; he has made his hold upon the land secure, for he has at his back a warrantor whom no one will rashly sue. We must add that he has a lord who may use carnal weapons or let loose the thunders of the church in defence of his tenant.276
[p.288]The incidents of tenure.The lord’s rights cannot be summed up by saying that he is entitled to service of one kind or another from his tenant. Blackstone in a well-known passage enumerates “seven fruits and consequences inseparably incident to the tenure in chivalry, viz aids, relief, primer seisin, wardship, marriage, fines for alienation and escheat.”277 Of all of these we must speak, but we shall speak of them in a somewhat different order, and in the course of our discussion we must point out how far they were peculiar to military tenure.
Heritable rights in land.In the thirteenth century the rights of a person who holds land are usually heritable; when he dies the land will descend to his heir. We must not here discuss the canons of inheritance; it will be sufficient if we notice a few salient points. In the first place, the “heir” of English law is an essentially different person from the Roman “heres”:—he never claims under a will. With few exceptions, the broad rule holds good that no one can give rights in land by his will, and even in those cases in which such rights are thus given the person who gets them does not get them as “heir.” Only God, says Glanvill, can make an heir, not man.278 A distinction between land and movables is thus established; even when the dead man has not bequeathed his movables, the heir as such has no claim to them. In the second place, one main rule of the law of inheritance is the primogenitary rule:—among males of equal degree only the eldest inherits. This rule has been gradually extending itself; once appropriate to the military tenures, it is becoming the common law for all. Women can inherit even though the tenure be military; they are postponed to males of equal degree; several women of equal degree will share the inheritance between them, will be co-heiresses, coheredes. Lastly, though the rights of a tenant of land are usually heritable, this is not always the case: A may give land to B merely for his (B’ s) life; on the death of this tenant for life there will be nothing for his heir; the land will “return” or “revert” to A. But more, to make the rights of the donee heritable rights, the giver must use [p.289] words which make this plain; if he merely gives the land “to B, ” then B is only a tenant for life; he must give it “to B and his heirs.”279
Reliefs.But the heir, whom we will suppose to be of full age, does not come to his inheritance without having to pay for it; he has to pay to his lord—and this is what concerns us here—a relief (relevium, or in earlier documents relevatio or relevamen). In Glanvill’s day the relief for a knight’s fee is fixed at 100 s.; for socage land it is one year’s rent; as to baronies and serjeanties, there is no settled rule; the heir must make the best bargain that he can.280 The Dialogue on the Exchequer tells us that the relief for the knight’s fee is 100 s.; that for the barony is in the king’s discretion.281 Excessive reliefs stood foremost amongst the grievances alleged by the barons in 1215; they asked that the heir should have his inheritance by “the ancient relief,” which relief was to be defined by the charter. And by the charter of 1215 it was defined; the heir of an earl’s barony was to pay £100, the heir of a baron’s barony £100, the heir to a knight’s fee 100 s.282 This was repeated in the charters of 1216, 1217 and 1225; but at some time or another the relief for a baron’s barony was reduced by one-third, namely, from £100 to 100 marks, and thus the notion that a barony consists of 131⁄3 knights’ fees was engendered. The change, however and whenever it was introduced, was sanctioned by the charter of Edward I.283 Bracton states the law as to earldoms, baronies and knights’ fees in its final form; the relief for serjeants is still in the discretion of the lords.284 As to socage, he seems to doubt whether anything that can properly be called a relief is payable; for the lord has no wardship of the sokeman’s heir, and in general relief and wardship are connected rights. However, the heir has to make a certain payment (quaedam praestatio), namely, an additional [p.290] year’s rent. Then as to fee farm, Bracton says that no fixed rule has been established; but a reasonable payment should be made, regard being had to the needs of the lord and the means of the tenant.285 In Normandy the relief seems to have had much the same history. In the oldest statement of Norman law the reliefs of counts, barons and knights are mentioned but their amount is not defined, while tenements that are not held by military service are rated at 5 shillings for the capital messuage and 12 pence per acre for the land.286 A little later we read that baronies pay £100 and knights’ fees £15.287 As in England, so in Normandy a relief was payable by every heir, even though he were the direct descendant of the dead tenant. This is noteworthy, for, according to a very common French custom, a relief was only exigible when the land descended to a collateral heir; but in France, as in England, we often find that one