The History of English Law before the Time of Edward I. Frederic William Maitland
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always waive or resign his tenement and so free himself from the duties of service and homage, while the lord cannot waive the homage or refuse the service, and so free himself from the duty of warranty; and the tenant may object if any attempt be made to substitute an insolvent for a solvent warrantor.457
Practice of alienating seignories.On the whole we have little reason to suppose that the rights of the tenants had ever in this country been a serious obstacle to alienations by the lords.458 In the charters we find the lords apparently exercising the fullest power of giving away the homages and the services of their tenants. If there was any reason to suppose that the [p.330] tenant would object to recognizing a new lord, then a fine would be levied, and the tenant would be called on by a writ known as Per quae servitia to show cause why he should not be attorned.459 Fines transferring services are quite common; the subject-matter of the transfer is usually described as the service, or the homage and service of such an one.460 It would be a mistake to suppose that the lofty feudal ladders that we find in the thirteenth century, had been always, or even generally, manufactured only by the process of adding new rungs at their nether ends; new rungs were often inserted in their middles.
Duty of aiding the lord.The duties implied in the relation between man and lord are but slowly developed and made legal duties. There long remains a fringe of vague obligations. The man should come to the aid of the lord in all his necessities; the man’s purse as well as his body should be at his lord’s disposal if the lord is in a strait. Gradually the occasions on which an aid of money may be demanded are determined. Glanvill mentions the aid which helps a lord to pay the relief due to his overlord, the aid for knighting the lord’s eldest son and marrying his eldest daughter; also he raises the question whether the lord may not demand an aid for the maintenance of a war in which he is concerned; such a demand, he thinks, cannot be pressed.461 From the Normandy of Glanvill’s time we hear of the aid for the lord’s relief, for marrying his daughter and knighting his eldest [p.331] son.462 The charter of 1215 mentioned as the three aids, which the king might take without the common counsel of the realm, that for redeeming his body, that for marrying his daughter and that for knighting his son; and such aids were to be reasonable.463 As is well known, the clause which dealt with this matter appeared in no later edition of the charter. During John’s reign the prior of St. Swithin’s took an aid from his freeholders, farmers and villeins for the payment of his debts;464 the Bishop of Winchester took an aid for the expenses to which he had been put in the maintenance of the king’s honour and the dignity of the church;465 the Abbot of Peterborough took an aid to enable him to pay a fine to the king;466 the Earl of Salisbury to enable him to stock his land.467 Nor do such aids cease with the year 1215; in Henry III.’s reign the Bishop of Bath took an aid for the support of his knights in the king’s service.468 In 1217, after a Welsh war, the king’s military tenants who had done their service received permission, not only to collect the scutage from their knights, but also to raise a reasonable aid from all their freemen.469 However, the clause expunged from the charter seems practically to have fixed the law. We learn also that it was next to impossible for the lords to collect aids without obtaining the king’s writ and the sheriff’s assistance. That writ would name no sum; the aid was to be “reasonable.” So late as 1235 we see Henry Tracey, having first obtained the king’s writ, holding a little parliament of his knights in Devonshire; they grant him an aid of 20 shillings on the knight’s fee for the marriage of his eldest daughter.470 Bracton speaks of these aids as due rather of grace than of right; they are the outcome of a personal not of a predial obligation; they are not to be reckoned as “services.”471 This is the ancient theory; but it must already have been obsolescent. A statute of 1275 fixed the rate of the aid to be taken for marrying the eldest daughter and knighting the eldest son at 20 shillings for the knight’s fee and 20 shillings for 20 librates of socage land,472 and thus in effect destroyed the doctrine of the lord’s need and the tenant’s gracious help. This statute bound the mesne [p.332] lords; a later statute was required to bind the king.473 The constitutional side of the history of aids we need not here discuss, but the aid is one of the most widely distributed of the feudal phenomena.474
Escheat.In the background but ever ready to become prominent stands the lord’s right to escheats. This forms as it were a basis for all his other rights. The superiority which he always has over the land may at any time become once more a full ownership of it. Though he has given the land to the tenant and his heirs, still there may well be a failure of heirs, for the tenant cannot institute an heir; only God makes heirs; and in this case the land falls to, escheats (excadere) to the lord. Already in Glanvill’s day a lawyer may sometimes speak of the lord as the tenant’s ultimus heres;475 but such a phrase hardly expresses the law. When land escheats the lord’s superiority swells into simple ownership; all along he has had rights in the land.476 Nor is a failure of heirs the only cause of an escheat. If the tenant is outlawed or convicted of felony then, after the king has exercised the very ancient right of wasting the criminal’s land for year and day, the tenement returns to its lord. A distinction is established between treason and felony; if a tenant commits treason all his lands, of whomsoever they were holden, are forfeited to the king, while the felon’s lands escheat to his lord. How far back this distinction can be traced seems doubtful; but John and his successors apparently insisted upon it when they enriched themselves by seizing the terrae Normannorum, the English lands of those who preferred to be Frenchmen rather than Englishmen when the victories of Philip Augustus forced upon them the choice between two nationalities. As regards felony, we have seen that the idea implied by that [p.333] term had been changing; it now stood for “serious crime,” it had once stood for “breach of the feudal bond.” On the one hand, the lords had gained; they got escheats if their tenants committed such crimes as homicide or theft; on the other hand they had lost. By openly disavowing his lord the tenant might indeed lose his tenement; even in Bracton’s day such a disavowal was sometimes called felonious,477 and in much later times a disavowal and a consequent forfeiture might be found in the fact that the tenant had paid his rent, or done his homage, to a wrongful, instead of to the rightful, claimant of the seignory. But, on the other hand, the lord seems to have had very little power of ejecting a tenant for the mere non-performance, even the wilful and protracted non-performance of his services. This is a matter which requires some examination.
Lord’s remedies against defaulting tenant.In Bracton’s day the lord when the services are in arrear has three courses open to him. (1) We may mention first—though this is not his readiest remedy—an action in the king’s court for the recovery of customs and services. This is a laborious action. It is regarded as proprietary, not possessory. A lord will hardly use it unless there is some dispute between him and his tenant about the nature or quantity of the services.Action in the king’s court. In that case it will conclusively establish the lord’s title, and the victorious lord will have the sheriff’s aid in distraining for the arrears. But, unless there has been some disavowal of the tenure on the tenant’s part, there is no action in the king’s court that will give the lord the land in demesne. Feoffors and feoffees are indeed free to make the express bargain that if the services are in arrear the feoffor may enter once more on the land and take it to himself; but we shall see few such bargains made before the middle of the thirteenth century.478 Such then is our common law, and it is well worthy of remark; it does not turn out the tenant from the land because he cannot or will not perform his services. Two statutes of Edward