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

With these general sentiments, the lords, for their own interest, were obliged to comply, and especially the kings; who, by the frequent divisions of the monarchy in France, had competitors to guard against; and were, therefore, enforced to attach their vassals to them in the strongest manner, by complying with their inclinations. The sons, therefore, or one of them, generally succeeded; not in virtue of any inherent right, but by a new gift, through the favour of the lord. For, upon the death of his vassal, the estate being expired, the lord took possession, and, upon receiving a fine, made a new grant, by investiture, as of a new estate, to such an one of the sons as he chose; or he divided it among them at his pleasure. These fines for continuing the fiefs in the same family were called relevia or reliefs, from the Latin word relevare, which signified a second lightening, or removing the hand of the lord, who had seized the benefice upon its vacancy, by the death of the former possessor. Hence the son had no right to continue his father’s possession. He was obliged to petition for a new investiture, and to tender his relief, and himself ready to take the oath of fealty. These reliefs were originally paid in arms, being the most valuable property these military people had, and afterwards were converted into money. The quantum was originally at the lord’s will; but his own interest, from the motives already hinted, commonly prevented him from being exorbitant. This preference to a succession being at first a matter of favour, not of right, some vassals, by degrees, obtained of their lord, in their investitures, an absolute right of succession to their sons; which bound the lord and his heir; and that in these two different manners. It was either by a grant to the vassal, and one or more of his sons by name; and then those omitted were excluded; or to him and his sons generally; and then, by the feudal law abroad, they were all admitted to enjoy in equal portions, in imitation of the Roman law, which admits all the children in that manner.

But the words of the grant were not extended, by a favourable construction, to take in grandsons by the name of sons, for the following reason. When a grant was made to a man and one or more of his sons by name, the sons were originally, at the time of the investiture, capable, or supposed capable, by the lord’s admission, of doing the services of the feud; and their ability and merit was in the contemplation of the grantor, and part of the consideration of the grant; and where it was given to a man and his sons generally, the law presumed the same thing, the same capacity in them, the same intention in the grantor. But in the case of grandfather and grandson, the law could not presume so, it being contrary to the ordinary course of nature, that both should, at the time of investiture, be capable of doing the services in person; and therefore the grandsons, unless specially provided for, were excluded[159].

Thus a right of succession for one step was gained by the express provision of the parties, in particular cases. But as the lord, where he continued the succession out of favour, entered into the lands, and parted not with them without payment of his relief by the son, it was reasonable in this case, where he positively bound himself, that these advantages should be reserved to him. Therefore the heir could not enter, but was obliged to petition his lord humiliter and devotè, and to offer his fealty and relief; and the interest of the lord and of the state requiring the place of the deceased vassal to be speedily filled up, a year’s and a day’s time was allowed for this application; within which space, if the heir did not apply, unless prevented by inevitable necessity, he forfeited his right of succession, and the lord was at liberty to dispose of it to a stranger.

Reliefs, however, being, in their original creation, arbitrary, it should seem to be in the power of the lord, where the quantity was not specified in the tenor of the investiture, to defeat his own grant, by demanding, under that name, more than the value of the land, or otherwise grievously to distress his tenant. This, in England particularly, occasioned many struggles. It appears from the laws of William the Conqueror, that, in those times, the reliefs were fixed according to the different ranks of the persons, and paid in horses and armour, in imitation of heriots in the Saxon times; but his avaricious and tyrannical son William Rufus laid claim to, and exacted arbitrary reliefs, to the great discontent of all, and to the impoverishment of many of his subjects[160]. This was redressed in Henry the First’s charter, where the first chapter says, Si quis baronum, comitum, sive aliorum qui de me tenent mortuus fuerit, heres suus non redimet terram suam sicut faciebat tempore fratris mei, sed legitima, & certa relevatione relevabit eam, similiter & homines baronum meorum, legitima, & certa relevatione relevabunt terras suas de dominis suis[161]. Henry the First, however, was a man little inclined to keep any engagements with his people that he could free himself from; and therefore reliefs went on in an arbitrary way, for the most part, under him, though not in so oppressive and extorting a manner as his brother William had used. For in his grandson Henry the Second’s reign, in whose time the feudal payments became generally converted into money, we find, from Glanville, that the relief of a knight’s fee, indeed, was reduced to a certainty, but that of a noble fee was not. Dicitur autem rationabile relevium alicujus, juxta consuetudinem regni, de feodo unius militis, centum solidos;—de baroniis vero nihil certum statutum est, quia juxta voluntatem & misericordiam domini regis solent baroniæ capitales de releviis suis domino regi satisfacere[162].

It seems a little odd, that the lower military people had got such an advantage above the great and powerful lords; but this may be accounted for from the number of the knights, who made the strength of the kingdom, and were not to be disobliged; and also from the precarious situation many of the great lords were in, who had been attached to the cause of Stephen. However, the wisdom and moderation of this great prince was such, that we find no complaints on this head, during his reign, or that of his son Richard; but when John ascended the throne, a prince who hated, and was hated by his nobles, the old oppressions were renewed, and aggravated to such a degree, that the remedying thereof is the first article of temporal concern in Magna Charta[163].

There it is provided, Si quis comitum, vel baronum nostrorum, sive aliorum tenentium de nobis in capite per servitium militare, mortuus fuerit, & cum decesserit, heres ejus plenæ ætatis fuerit & relevium nobis debeat, habeat hereditamentum suum per antiquum relevium; scilicet, heres, vel heredes comitis de comitatu integro per centum libras, heres vel heredes baronis de baronia integra per centum marcas; heres vel heredes militis de feodo militis integra per centum solidos ad plus: Et qui minus habuerit minus det, secundum antiquam consuetudinem feodorum[164]. And now were all reliefs reduced to a certain sum of money, namely, the fourth part of what was then reckoned the value of the inheritance; for a knight’s fee was then reckoned at twenty pounds, a barony at four hundred marks, and an earldom at four hundred pounds per annum. And by the gradual sinking of the value of money, and the rising of lands, these payments continuing the same, came in a few centuries to be not the twentieth part of the value. We see by the words per antiquum relevium, & secundum antiquam consuetudinem feodorum, how careful the lords were to have this certainty of relief acknowledged as their antient right, and not to accept it as a concession from the crown. When the military lords began, in imitation of the estates they themselves had, to grant inheritances to their socage tenants, they likewise exacted, in the nature of a relief, from every new possessor a year’s value; or, in other words, the rent of the first year was doubled. For a year’s value was what was, in France, at the beginning, paid for military tenures, by the name of rachat, or repurchase, answering to our relief, until at length they were reduced to a certainty in money; and, consequently, from the same causes as in England, though remaining nominally the same, they sunk to be very inconsiderable[165].

Estates of succession, as I observed, arose first from private grants, and that for one generation only; but they were continually extending to further lengths, and encreasing in number; insomuch that, fiefs falling vacant much seldomer than before, the king had it not in his power to gratify his deserving soldiers so frequently as he should, and the crown was consequently enfeebled. This then started the notion of such grants being good only during the life of the king or lord who made them, and not binding on his successors. Upon this plan, Brunechild, in her regency, during the minority of her infant son, attempted to revoke them, and actually did revoke several; which at length raised that flame, and caused that revolution, in which her son and herself miserably perished. What shews the violent indignation her venturing on this step occasioned, was the horrid manner of her death, that of being torn asunder by four wild horses. Clothair the Second, who succeeded, was wise enough by law to confirm these estates; and then, namely about the year 613, the former doubt was removed, and all these estates of inheritance confirmed to continue against the successor, according to the terms of the original investiture. New grants were continually made, and for more generations than had been formerly practised. But yet this rule of descent was not general; but all grants, unless heirs were specially named, were but for life; as it is in our law, in which a feofment to a man for ever, is but an estate for life for want of words of inheritance[166].

What greatly contributed to the extending these grants to indefinite generations, was the inclination that now seized the Romans and Gauls who held allodial lands to be admitted into the feudal policy, by becoming vassals to the king. They had long lain under very humiliating distinctions. They were no members of the state. The loss of their lives, and other injuries, were compensated only by half the satisfaction to a Frank. For neglect, or contumacy, when called into the king’s courts, they were reputed guilty, and forfeited their estates; whereas a Frank was only imprisoned to oblige him to answer. When accused of the lightest crimes, they were put to the ordeal; whereas the Franks were only subjected thereto in case of murder. And many other were the distinctions between the allodial and feudal tenants. No wonder then the former were very desirous of enrolling themselves among the conquerors, which when they had at length obtained, their liberty was effected, by their giving their allodial lands, or a part of them, to the king, and receiving them back, subject to the feudal rules. Now were they immediate vassals of the king, and, as such, became Franks to all intents and purposes. But these people were not so foolish, nor could it be expected from them, to part with absolute inheritances, and take back only an estate for life. They insisted upon grants for a perpetuity, at least for as long as the issue male of the person resigning lasted. When once these donations were become common, we may be assured the Franks were very ready to follow the example, and to take all advantages either of the favour, or the weakness of their kings; and to such a number did these inheritances increase, that, about the year 730, the kingdom was near being lost to the Saracens, for want of a sufficient number of beneficiary or life-estates, to encourage the soldiery[167].

At the time the kings of France were merely nominal, and the whole administration in the hands of the maires du palais, of whom the second, who had obtained this unlimited authority, Charles Martel, was so happy as to save the kingdom from those African invaders in a battle near Tours, wherein they were routed with a slaughter almost incredible. It remained to reward the victorious soldiers, who were at least as much animated to their exploits by his previous promises, as by their affection to the antient constitution of the state, which was now in truth destroyed, the kings of the royal race being mere phantoms, whose names he and his father had made use of at their pleasure. But this family had not acquired sufficient weight and authority to act as masters. The fund of lands, out of which benefices had been formerly given, was almost exhausted, and the major part of the lands that were not still allodial, was alienated either in perpetuity to the church, as atonements for the vices of the former kings, or what was near a perpetuity to the lords, for many descents. These last he could not despoil. They were too firmly established by custom and law; and he and all his predecessors had paved their way to greatness, by supporting these hereditary grants at the expence of the crown. Necessity therefore obliged him to make free with the lands of the church; for which, in their visions, they lodged him in a chamber, the very lowest in hell. Of these lands the greatest part he converted into benefices of the antient kind, for life only; and by means of the number of those new ones, added, to the old ones, that were in the same state, some kind of a balance was formed; which for a time supported the government, and checked the growth of inheritances. But it is remarkable, that, of those church lands, several he gave as allodial ones. I will not pretend to say, that, in this distinction, he considered the antient nature of the lands of the church, some of which came from feudal, others from allodial proprietors. It seems rather probable, as the allodial estates were greatly decreased, by being turned into fiefs of inheritance, he was inclinable to form a kind of equality between the feudal tenants, the beneficiaries, and the allodians; that, by managing them, he might advance his family to the title, as well as power of royalty; which we find was soon afterwards accomplished by his son Pepin[168].