The History of English Law before the Time of Edward I. Frederic William Maitland
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Rights of the lord on the tenant’s death.The amount of the due relief is not the only, perhaps not the most important, point that has been in debate. A tenant dies: his heir was living in the same house with him: or his heir was not living on the tenement but at once presents himself: or his heir has gone to the wars, or has gone on pilgrimage: or two claimants appear, each asserting that he is heir: or a stranger intrudes himself into the tenement, setting up a claim as heir, or relying on some title adverse to the ancestor, or on his strong right arm: what in all these cases are [p.291] the rights of the lord? To simplify the question, What is the general notion of the lord’s right—is he entitled to take the land and hold it until the true heir asks for it, does homage and pays relief, or is he only entitled to receive the relief having no concern with the land? There has been a conflict between inconsistent theories representing inconsistent interests. Already in Glanvill’s day it is settled that if the heir is in seisin the lord may not turn him out; the heir may resist the lord. Still the lord is entitled to a certain recognition of the fact that, though the tenement belongs to the tenant, it belongs also to the lord; he may enter and go through the ceremony of taking seisin, but he must do no damage.289 Bracton repeats this: in the case just put the lord may have “a simple seisin” of the land which does not disturb the heir’s seisin. But other cases must be discussed:—for example, at the ancestor’s death the heir may be absent, the tenement left vacant. In this case the lord may enter, and then the heir when he appears must not oust the lord by force; if he does so, the lord will have an action against him and will be restored to possession. So again, if there are two rival claimants of the inheritance neither of whom is yet in possession, the lord may enter and hold the land until one of the two has proved his right.290 We must remember that if no heir appears, the tenement will belong to the lord for good and all; also that if there is a dispute between several would-be heirs, the lord’s court is, at least in theory, the proper tribunal for its decision, and the lord who takes homage from a pretender runs great risk in so doing: he may have to warrant that pretender’s seisin, unless he has been careful to declare that the homage is received without prejudice to the rights of other claimants. A conflict between two sets of proprietary rights, those of the lord and those of the tenant, is thus complicated by the lord’s jurisdictional powers. In the struggle which precedes the Barons’ War the grievances of the tenants who stand low in the feudal scale become audible; and this is one chief grievance—on the tenant’s death the lord enters the tenement and wastes it; the heir can get [p.292] no damages. An attempt to redress this grievance was made by the Provisions of 1259; a more successful attempt by the Statute of 1267; the heir is to have damages if the lord does any harm, for if the heir is forthcoming and in possession of the land, the lord is entitled to no more than “a simple” or as we should say a formal, “seisin.”291
Prerogative rights of the king.But here, as in many other cases, the king is outside the common law. This is fully recognized by the Statute of Marlborough (1267)292 and made yet clearer by the document known as Praerogativa Regis.293 When a tenant in chief of the crown dies, the king’s escheator seizes the land and inquires who is next heir (inquisitio post mortem); not until the heir’s right has been established by inquest, not until he has done homage, and paid, or given security for, his relief, will he be put in seisin; and if, impatient of delay, he puts himself in seisin, this will be a mere intrusion upon the king; for the king is entitled to the primer seisin (prima seisina).294 The machinery for enforcing this right seems to have been slowly perfected under Henry III.; but there is no room for doubt that the right itself had been enforced, though perhaps with less regularity, at a much remoter time.295 On the Pipe Roll of 1130 the reliefs that are mentioned are in some cases high,296 and the payment of relief is spoken of as though it were a condition precedent to the enjoyment of the land.297
[p.293]Earlier history of reliefs. We are thus brought within seventy years of the Conquest. As to what had happened in that interval, we have two emphatic declarations. Henry I. in his coronation charter said, “When any of my barons, earls or others, who hold of me shall die, his heir shall not redeem, or buy back (heres suus non redimet) his land, as he used to do in the time of my brother, but shall relieve it with a just and lawful relief; and in like wise the men of my barons shall relieve their lands from their lords by a just and lawful relief.”298 In the second place, the chronicler when telling how Rufus kept bishoprics and abbeys vacant and made profit out of their temporalities, adds that he desired to be the heir of every man in England hallowed or lay.299 We see then that there already was an idea of a just and lawful relief, that William Rufus had exceeded its measure, and had in effect required the heir to purchase his ancestor’s land.300 In order to discover what was the just and lawful relief, we naturally turn to the Leges of the time, and we find that the compilers of them consider that the modern relief is but the ancient English heriot under a new name.
Relief and heriot.We are told that the ancient heriot (heregeatu, military apparel) had at one time consisted of the horses and arms lent by the lord to his man which on the man’s death were returned to the lord. In the laws of Cnut it is said that if by negligence or in consequence of sudden death any one quits this life intestate, the lord shall take no more of his property than his rightful heriot. The heriot of an earl is eight horses, four saddled and four unsaddled, four helms, four hauberks, eight spears, as many shields, four swords and 200 mancusses of gold; that of a king’s immediate thegn (cyninges þe-genes þe him nyhste syndon) is four horses, two swords, four spears, as many shields, helm, hauberk and 50 mancusses of gold; that for a mesne thegn (medemra þegna) a horse and harness, his weapons, and a sum of money.301 If a man falls before his lord in battle, no heriot is to be demanded.302 We see from this and from other evidence that it was expected of the thegn that he would make provision for the heriot in his will. Now it is likely that for a long time [p.294] before William’s landing the old theory had ceased to describe the facts; the lord no longer provided armour for his dependent warriors; he gave them land instead, and very possibly the horses, arms and money rendered to the lord on his man’s death were by this time considered as a due paid by the heir in respect of the land. At all events the Normans had no difficulty in regarding the heriot as a relief. On the first page of Domesday Book we read how, when a Kentish alodiarius dies, the king has the relevationem terrae, except on the lands of certain great lords.303 In Berkshire when a king’s own thegn or knight died he used to leave as a relief to the king all his arms and one saddled and one unsaddled horse.304 In Nottinghamshire a thegn who has more than six manors pays £8 for the relief of his land to the king; if he has but six or fewer, he pays 3 marks to the sheriff;305 a similar rule prevailed in Yorkshire.306 But the most instructive entry is that which concerns the English (as opposed to the French) burgesses of Hereford. When a burgess who did service on horseback died, the king used to have his horse and arms; from one who had no horse the king had either 10 shillings or his land with the houses. If he died without a will, the king had all his movables (pecuniam).307 Probably if we could now unravel the knot of the old English land tenures, we should find that several different “death duties”—to use a large phrase—proceeding from different principles were becoming intermixed and consolidated, and that this process was hastened by the Norman Conquest. However, it is on the basis of Cnut’s law about heriots that the compilers of the Leges attempt to construct a law of reliefs. The Leges Henrici define the relevationes of the earl, the king’s thegn and the mediate thegn (mediocris thayni) by translating the words of Cnut.308 The Leis Williame follow the same model, but add that the relief of the villein is his best beast, and that a year’s rent is the relief of one who holds land at a yearly rent.309 Passing by for the moment this mention of the agricultural classes, we seem entitled to the inference [p.295] that Cnut’s law appeared as the only measure by which the “just and