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

But this method of replevin, by writ out of Chancery, was very inconvenient to the remote parts of the kingdom; as the owner might be put to extraordinary expence and trouble, in maintaining his cattle for a long time. Hence it was provided, by the statute of Marlebridge, cap. 21. Quod si Averia alicujus capiantur, & injuste detineantur, vicecomes post querimoniam sibi factam, ea sine impedimento vel contradictione ejus qui dicta Averia ceperit, deliberare possit[155].

This impowered the sheriff to make replevins without writ, upon the plaint of the plaintiff in replevin; and this he could do out of his county court, because, as that was held only from month to month, were it otherwise, the delay might be as great as in the case of a writ of replevin; but then the sheriff, in order to lay the foundation of the suit, must enter the plaint the next county court, that it may appear on the rolls thereof.

The sheriff’s duty then was, in the first place, to take sufficient security ad prosequendum, that is, that the plaintiff should make out, in due course of law, the justice of his writ or plaint, that is, that the cattle or goods were either taken, or detained unjustly. He was also to take security de retorno habendo, that is, in case he failed, that he would return the same distress, that it might be delivered to the taker; and this is by the statute of West. 2.; and he generally, likewise, took security to indemnify himself from any action that might be brought against him. And then it was his duty immediately to deliver the distress to the plaintiff in replevin.

Then it lies on the taker or defendant in replevin to avow, that is, to set forth the reasons of his caption, to which the plaintiff replies; and so the justice of the cause comes into question, to be legally determined. Thus much is sufficient, at the present, to shew the remedy the lord hath for his services, by virtue of his seignory, and how his tenant is to defend himself if unjustly distressed[156].

I might here treat of another fruit of the lord’s seignory, which is the right of escheat, or the lands falling back to the lord, either for the delictum of the tenant, or the failure of blood; but as, to understand this last properly, we must know who are inheritable, it will be more proper to defer it till after we have treated of inheritances.

LECTURE XI.

The manner in which estates for life came to be enlarged into descendible estates—The nature of Reliefs—Feudal oppressions—The admission of allodial lands into the feudal policy—The extension of the feudal system in France.

The feudal lands having been changed by degrees from tenancies for years into permanent grants for life, partly by the necessities, and partly by the favour of the lords, the matter did not stop here; but, to the advantage of the vassals, their rights were continually gaining ground, and insensibly extending themselves, to a durable continuance in the same family. To this, undoubtedly, the number of allodial estates, which were estates of inheritance in the hands of the Romans, greatly contributed. For it is not to be imagined that it could be an agreeable spectacle to the conquerors, when once they were settled, and secured in the possession of the country, to behold their posterity in a more precarious situation, with regard to property, than the vanquished were. It is true, as by their constitution the lord was obliged to provide every gentleman, that is, every one of their nation, unless he proved unworthy, with a benefice, there was no danger of their issue not being supplied, in some degree or other. But this did not satisfy them[157].

Their roving manner of life being antiquated, and the practice of removing them from place to place every year being superseded by gifts for life, the possessors, by habitude, became fond of their dwellings, and no longer contented with bare necessaries, studied to render their situation commodious and agreeable. They built houses of strength and convenience, and by their socage, tenants and villains planted and improved their lands. And now it began to be thought severe, that the benefit of their improvements, and the fruit of their and their dependants toil and labour, should go to strangers, or even to the lord himself. For before this time it had began, and was now grown into a common practice, for the lords, when they gave an estate for life, not to content themselves merely with future service, but to exact, at the time of their investiture, an honorary fine from the tenant; and this, being but moderate, was generally complied with, in order to gain a permanent estate. The interest of the state, which was concerned in the improvement of particulars, required also a preference of the defendants of those that made them. It is no wonder, therefore, that it grew to be a maxim, and universal opinion among these people, that the not continuing the son in the possession of his deceased father, though it was in the lord’s power to remove him, was a great hardship, and an unworthy act in the lord[158].