Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

LECTURE X.

The right of Seignory and its consequences—The right of Reversion—Rent seck—Rent charge—The nature of distress, as the remedy for recovering feudal duties. Observations on distresses in general.

Having spoken of tithes and advowsons, two kinds of incorporeal benefices that arose in those antient times, I come now to treat of seignories and their consequences. A seignory is an incorporeal right and interest still remaining in the lord, when he parts with his lands, in benefice to a tenant. Now the rights of a lord, in respect of his seignory, may be considered in two ways, either as the services were due to the lord from the person of the tenant, or from the lands. He hath therefore, in virtue of his seignory, a right to all those personal duties which flow impliedly from the oath of fealty; such as to receive warning from his tenants of any injury done, or impending danger to his person, his dignity, or seignory, to receive faithful advice from them when called upon, and to have his secrets faithfully kept by them; to be the judge of their controversies, and the leader in war of such of them as hold by military service. For these barbarous people had no idea of dividing power, but always entrusted the civil and military sword in the same hands; whereby they avoided the dangers and disorders that more polished and richer nations have ever been exposed to, namely, of having the civil and legal authority subverted by the military power. And so strict was the bond between lord and tenant, that the latter could in no wise, in point of judgment, decline his lord’s jurisdiction, by refusing him as judge on account of partiality. Such a charge was a breach of fealty on the vassal’s part, and no such presumption could be admitted by that law, which looked upon the lord as equally bound by the oath of fealty, though not taken by him, as the tenant was[147].

By the Roman law, a suspected judge might be refused by the suitors for almost all the same causes, and grounded mostly upon the same reasons, for which jurors, who in our law are judges of the fact, may be challenged at this day. But the feudal customs admitted no such suspicions as to the lord, and therefore in the English law, no judge, however clearly interested in the cause, can be challenged. This maxim once established, it was necessary, however, for the sake of justice, that it should admit of some qualification. The assessors in Germany, who assisted the lord in judgment, from whom came, in after time, the pares curiæ, were this qualification. But as these were not judges in all feudal causes, but in some the lord alone continued sole judge; some remedy was here to be applied, and on the continent and in England, they proceeded differently. On the continent, the king, or superior lord, appointed a cojudge, or assessor. In England the suitor, by applying to the king’s courts was empowered to remove the cause thither; which hath been one great occasion of these inferior courts of the lords dwindling to nothing[148].

As to the right the lord had in the land by virtue of his seignory, the principal, and upon which his other rights out of the land depended, was his reversion. A reversion is that right of propriety remaining in the lord, during the continuance of the particular estate of possession of the tenant; whereby he is entitled to the service during the duration of the term, and to the possession itself, when it is either expired, or forfeited. Hence it appears that the fealty and services of the tenant are incident to the lord’s reversion. Out of these reversions may be carved another incorporeal estate, called a remainder, which is a particular estate dependant upon, and consequent to a prior particular estate; as if lands be granted to A. for five years, and afterwards to B. for life. In this case A. hath a lease for years, B. a remainder for life, and the reversion remains in the grantor. In our law, remainders, and the particular precedent estate on which they depend are considered as making but one estate; and so, in truth, they are with respect to the reversioner, though not to each other. Therefore they must both pass out of the grantor at the same time, though it is not absolutely necessary that the remainder should vest in the grantee at the creation of the precedent particular estate; for a remainder may be good which depends on a contingency, as if a remainder, after a lease for life or years to A, is limited to the eldest son of J. S. This is a good remainder, but a contingent one, depending on the birth of J. S.’s son during the continuance of the term of A; for the remainder being but one estate with the precedent particular one, and only a continuation of it, must commence instantly when it determines. Or, if after a lease to A, a remainder is limited to the heirs of J. S. this is a good contingent remainder, depending on the event of J. S. dying during the particular estate. For it is a maxim of the English law, Nemo est hæres viventis.

To return to reversions, I mentioned fealty and services as incidents of a reversion; but we must distinguish that fealty is an inseparable one, which the services are not; for the tenure being from the reversioner, and fealty necessarily incident to every tenure, it is impossible they should be separated. A grant, therefore, of fealty, without the reversion, is void; and the grant of the reversion carries the fealty with it. But the case is otherwise as to the services; for the services may be granted without the reversion, and although the reversion be granted, the services, by special words, may be excepted[149].

It will be now proper to speak of the remedy the reversioner hath for the recovery of his services, if they are not paid. In the antient times the tenant was, at all the due times, at his peril obliged to perform his service; for as each the smallest failure was a breach of his fealty, his tenancy was thereby absolutely forfeited, and this long continued to be the case in military tenures. But as the defence of the realm was not concerned in the socage holdings, but only the immediate interest of the lord, it was thought too hard, that every, perhaps involuntary omission, should induce an absolute forfeiture; when the lord, where his dues were certain, might receive an adequate recompence. Custom, then, introduced the method of distress, in imitation of the Roman law, as the proper method to recover an equivalent for the damages he sustained by the non-performance of the duties. And afterwards, when the personal service of the military tenants came to be commuted into a sum of money called escuage, distress came to be the regular method of recovering that and the other fruits of the military tenure; the damage the lord sustained being now capable of a reduction to a certainty[150].

The introduction of distress on socage tenants was thus: When the absolute forfeiture was thought too severe, the first step was, that the lord should enter, and hold the lands till his tenant had satisfied him as to his damages; but as this seizure frequently disabled the tenant from making that satisfaction, especially if he had no other lands, this, after some time, was thought still too rigorous, and in its stead was substituted the seizure of the cattle, and other moveables found on the land, and the detention of them as a pledge, until the damages were answered; which is what we call distraining. This was a sufficient security to the lord, as it rarely happened but that there was sufficient found to answer his demand for one failure; and the tenant was not (as not being deprived of his possession) reduced to an incapacity of paying his rent of services, and thereby recovering his pledges. Hence all feudal rents, or, as our law calls them, rent services, (being the service the tenant pays to the lord, in consideration of the land he holds from him) are distrainable[151].

But there was another species of rents in our law not distrainable; which, therefore was called redditus siccus, or rent seck. This was not a feudal service, not being paid from a tenant to his lord, and was thus: When a man, keeping still his land in himself, grants a rent thereout to a stranger, the grantor is justly bound by his grantee; but the grantee, not being his lord, cannot have this remedy. For the remedy of distress being substituted in the place of the lord’s right of entry, could not be extended to a stranger, who never had that right. And this was originally the only kind of rent seck; but the statute called quia emptores terrarum, introduced another species of rents not distrainable, by converting rent services into rents seck. The liberty of alienation without the consent of the lords having been allowed before that statute, it became customary for a tenant who sold his land, and parted with his whole estate in it, to reserve the tenure of the vendee, not to his superior lord and his heirs, but to himself and his heirs; whereby he retained many advantages to himself, by continuing the vendee’s lord, such as the right of escheat, if the tenant died without heirs, and the benefit of the wardship and marriage, if it was held by knight’s service. Now a rent reserved upon such a sale to the vender, was, as he continued the vendee’s lord, a rent service, and consequently distrainable[152].