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

The policy of Pepin and his son Charlemagne corresponded with Charles Martel’s views. The former allowed the continuance of inheritances according to the original provision in the creation, but were much fonder of the beneficiary estates, and Charlemagne made several laws to prevent his beneficiaries from converting by any art their interests into inheritances. In his time, a great majority of estates were benefices; but this I presume is not to be understood of France particularly, where, from the detail before mentioned, it could scarce be, but of his whole empire. For in his acquisitions, and especially in Germany, where such a practice was agreeable to the antient customs of the natives, such a regulation was conformable to the sound policy of his father and grandfather; by which they endeavoured to restore the splendour of the old French monarchy, I mean with exception to the large gifts he gave to the church on the borders of the infidels, in atonement for his grandfather’s sacrilege, and in hopes of converting those barbarians, and thereby civilizing them, and making them good subjects.

But the successors of Charlemagne had neither the power nor the understanding of their ancestors. No wonder then, that, under them, the general inclination of the subjects to change their benefices into fiefs gained ground. The division of the empire, and frequent wars between the brothers, weakened the royal authority, and strengthened their vassals; who, at the times of their kings distress, were rather to be entreated than commanded. In the time, therefore, of his grandsons, we find laws, that, conforming to the inclination of the vassals, did in time put an end to beneficiary estates, holden from the king; opened the gate to subinfeudations, and all its extensive consequences; and raised a new kind of polity never before seen in the world, the feudal one, such as it reigned about the year 1050 on the continent, and was introduced into England by William the Conqueror[169].

I speak of the times of Charles the Bald, who reigned about 860. One of his laws gave leave, and an unlimited one, to the allodians, to submit themselves and their estates, in the nature of fiefs, to others besides the kings. Nothing could contribute more to the weakening of the royal power, and the throwing of all the weight into the baron’s scale. Before they could be made Franks, only by becoming the immediate vassals of the king. This was equally for the public benefit of the state, the king, and the allodians. But when once the barrier was thrown down, in those times of confusion, the allodians were glad to gain the protection of the neighbouring lords, and, under colour thereof, detached themselves from their former subjection to the counts, who were the king’s officers over them.

Another law, of equal consequence, was to entitle the fee of a beneficiary, who had only an estate for life, without any express agreement for a longer continuance, to go to the son. This was extorted by the circumstances of the times, and perhaps then was thought of little consequence, as it only continued them for one generation. But the temper and general inclination of the people were not to be controuled. Those grants that had been so long as two generations in a family, it was sometimes dangerous, always invidious not to continue; and thus the successors often obtained permanent estates, when nothing less was intended at the beginning. And this was easily obtained, as the use of letters was not common among these people, and their charters were, by frequent rebellions, liable to be destroyed.

The last law I shall mention, is that declaring, that the sons of counts, who were the king’s officers over the allodianée, and were originally for years, after for life, should succeed to their father. This put the finishing stroke to the beneficiary estates. For though this, in appearance, was, as the former, but for one life, and conditionally; yet, from the prevailing principles, it was impossible they should not grow up into inheritances. And as all inheritances were growing feudal ones, and upon those conditions, and no others given, these counties become fiefs. The demesnes of the crown within them became the demesnes of the count, and all the allodiaries were now become his sub-vassals[170].

We are come to the dawn of a strictly feudal monarchy, and, to shew the gradation, I have, in this lecture, taken in a great compass of time. But before I proceed further downwards, it will be proper to return a little back as to the order of time, and to speak of the consequences that attended the introduction of estates of inheritance. Of one of these, reliefs, I have already spoken in this lecture; but there are many others that must be taken notice of.

LECTURE XII.

Consequences attending the introduction of estates of inheritance—The incident of homage—Differences in England and the Continent, with regard to the ceremonies of homage and fealty—The fine of alienation—Attornment—Warranties—Wardship in chivalry.

Having already, in my last lecture, taken notice of relief which sprung up immediately with estates of inheritance, and was their immediate consequence, it is proper now to proceed to the other fruits of this tenure, which grew up not so soon, but in after times: and the first to be considered, as undoubtedly the next to relief, if not coeval with it, is homage; which, Littleton says, is the most honourable service (that is with respect to the lord, and the most humble service, that is with respect to the tenant, that a freeholder can do to his lord) as upon the introduction of estates for life, the ceremony of fealty was introduced, so was it thought reasonable, when a further step was taken, that of continuing them to heirs, that a new ceremony should be invented, distinct from the former; which being performed publicly, in the presence of the pares curiæ, should, in those illiterate ages, create a notoriety, that the tenant had a more durable estate than a freehold. The manner of performing homage is thus distinctly described by Littleton. When the tenant shall make homage to his lord, he shall be ungirt, (that is, unarmed) and his head uncovered, and his lord shall sit, and the tenant shall kneel before him on both his knees, and hold his hands jointly together between the hands of his lord, and shall say, Thus I become your man (from which word homo, homagium, and hominium are derived) from this day forward, of life and limb, and of earthly worship, and unto you shall be true and faithful, and bear your faith, for the tenements that I claim to hold of you, saving the faith that I owe to our sovereign lord the king; and then the lord so sitting shall kiss him. These are the words of Littleton, and they are just in the case he puts of a tenant doing homage to an inferior lord, and who had no prior lord; but if he had a prior lord, or the homage was to be done to the king, there was a difference in the form; for if the tenant had a former lord, he also was to be excepted, that the new lord might have notice of the tenant’s prior obligation, and that it was not in his power to do absolute personal services at all times to him. And if the homage was done to the king, who acknowledged no superior, then the exception was entirely omitted; but if to a subject, it was so absolutely necessary that an omission of it was looked upon as an attempt against the royal dignity, and done in disherison of the crown. And accordingly we find, that Edward the First, in the sixth year of his reign, brought an action of ten thousand pounds damages, now at least in value thirty thousand pounds, against the bishop of Exeter, for taking homage of thirteen of his bishop’s vassals, without the exception of the king; and, in the end, judgment was given against the bishop[171].