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

First, then, the Saxon lands in general, were inheritances, descendable to heirs; and were all subject to military service. An Heriot, which is contended to be the same as the Norman relief, was paid upon the death of the ancestor, and all landholders took the oath of allegiance, or of fealty, as they would have it; and therefore, Coke and others conclude that their lands were feudal, and held by knight service; and tho’ there are no traces either of wardship or marriage to be met with in those times, they insist that they, as fruits of knight service, must have been in use tho’ from the paucity of the Saxon records remaining, they cannot be discovered[321].

This reasoning seems to have great strength, and yet, if we examine with a little attention, perhaps, these very arguments, when well considered, will prove the contrary, viz. that most of the Saxons lands were allodial.

First, then, as to their being hereditary: This, singly, is far from being a proof of their being held by a feudal tenure. The lands of the Greeks, of the Romans, I may say of all nations, except the conquering Germans, nay, the allodial lands in their conquests, were hereditary. Their being so seems rather a proof of their not being founded on the feudal policy; for the military benefices did not become inheritances any great length of time before the conquest; whereas there is no ground to believe that the Saxon lands were ever otherwise. Besides, they had some qualities that are utterly incompatible with the feudal system. They were not only inheritances, but were alienable at the pleasure of the owner, without any leave from the superior, and were, likewise, devisable by will; so that the Saxons were absolute masters of their land, and not obliged to transmit to the blood the donor intended to favour, contrary to the feudal law abroad, and to our law after the conquest. I shall observe, by the way, that some lands in England in particular places, being by custom devisable by will after the conquest, was a relict of the old general Saxon law, those places not having, along with the rest of the kingdom, embraced the feudal maxim[322].

Another striking difference is, that the Saxons’ lands were not forfeitable for felony, which still remains by custom in the gavelkind lands in Kent, whence that country proverb, the father to the bough and the son to the plough. Their lands likewise were equally divisable among all the sons, as were gavelkind lands; which is a customary relict of the Saxon law, contrary to general rule, since the conquest, where, at first, the king chose one, and afterwards, as at this day, the eldest alone succeeded. But this last I will not urge against their being of feudal origin, for that was the antient law of fiefs; it only shews there was a considerable alteration introduced at the conquest. However, though their being inheritances singly will not prove them fiefs, yet, when that is joined to the military tenure, to the payment of reliefs, and to the oath of fealty, we must allow them to be such. Let us see then, whether any of them, singly, or taken all together, will enable us to draw that conclusion[323].

Certain it is, then, that all the lands in England were, in the Saxon times, liable to military service; but this will not prove that they were feudal. For, as I have observed in a former lecture, the allodial lands in France were subject to the same. Every man who held land as an allodial tenant, was, according to the quantity, either to find a foot soldier equipped for the wars, or to join with another to find one, if he had not land sufficient. These allodial lands were subjected by law to three sorts of duties. The first I have mentioned, the other two were building, and repairing bridges, and furnishing waggons and carriages for the conveyance of arms and the king’s provisions, or money[324].

The Saxon lands were, likewise, subject to what they called trinoda necessitas, the three knotted obligation. The first was, furnishing a foot soldier; the second, which was not in the allodial lands abroad, was arcis constructio the building and keeping in repair castles and forts, where the king, for the public good, ordered them to be erected; and lastly, pontis constructio the building and repairing of bridges. As to furnishing carriages, the Saxon freemen were exempted; these being supplied, in that constitution, by the lower tenants in ancient demesne; or the king had a right to seize any man’s carriages by his purveyors, and use them upon paying for them. This right of purveyance of carriages, and of timber, and of provisions for the king’s household, which was intended for the king’s benefit, and by which no loss was to accrue to the subject, as he was to be paid the value, became, in the hands of the greedy purveyors, an occasion of great grievances; those officers seizing, often more than was wanted, often where nothing was wanted, merely to force the proprietor to a composition of money on restoring them. The manner of payment, too, became very oppressive. The rates were fixed at first at the due value, but as the rate of money changed, and the prices of things rose, it came to be under the half, and as it was not paid for on the spot, but by tickets on the treasurer, the owners, were frequently put to more trouble and expence in attendance than the value of their demand. This the purveyors well knew, and therefore turned their office into an engine of extortion. Many were the proclamations issued by the king; many the acts of parliament made to regulate it; But the evil was inveterate, and proved very heavy even under the best princes. The complaints of these oppressions were as great under Elizabeth as under her successor James, and indeed, the evil was so inveterate, that nothing but cutting it up by the roots, the destroying purveyance itself, could cure it[325].

But to return to the military duty done by the Saxons in general for their lands. In the first place, then, they served as foot soldiers, and not on horseback, and in compleat armour, as the feudal tenants were obliged. Again, the feudal tenants attended not but when called upon, whereas, the Saxons had regular times of meeting and mustering, though not summoned, in order to see that the men were well trained, and properly armed. But the great difference lay in this, that no particular person was bound to military duty, in consideration of his tenure in the lands. The lands themselves were liable. Every hide of land found a man, whether it was in the hands of one, or more persons. There was then no personal attendance, and, consequently, no commutation for it. The hide of land supported its soldier, while he continued fighting in his own county; but if in another, he was to be maintained either by that county, or the king; whereas, the military tenants, by the feudal law, were obliged to serve forty days at their own expence, wherever the king pleased, if the war was a just, or a defensive one; and indeed, as William the Conqueror modelled it, if the war was even unjust, or offensive. These differences, added to what I have already observed, concerning their lands not being escheatable for felony, being alienable, and being devisable by will, I think, shew plainly that, though the lands were subject to military service, it was upon grounds and principles very different from the feudal ones, and that they were rather in the nature of the allodial lands on the continent.

As to Herriots, which Coke and his followers insist much upon, as being reliefs, they also, when thoroughly considered, will, perhaps, be found to be of a different nature. A Herriot was a title the landlord had from his tenants, and the king, as supreme landlord, from his, of seizing, the best beast of his dead tenant, or his armour, if he was a military man. These being due upon the death of the tenant, certainly bore some resemblance to the reliefs on the continent, and are in king Canute’s law, which was written in Latin, called by the name of relevatio. To shew what they were in that time, the relevatio, or Herriot of an earl, was eight horses, four saddled, four unsaddled, four helmets, four coats of mail, eight lances, eight shields, four swords, and two hundred marks of gold; of the king’s thane four horses, two saddled, two unsaddled, two swords, four lances, four shields, his helmet and coat of mail, and fifty marks of gold; of the middling thane, a horse with his furniture, with his arms. But, then, Spelman justly observes, that these were not paid by the heir, as a relief to the lords, to entitle him to enter on the inheritance. The heir had the lands immediately and was not obliged to defer his entry till he had paid them, as he was his relief by the feudal law, and by the law of England after the conquest. Nay, they were not paid by the heir at law, but by the executor or administrator, as a perquisite out of the tenant’s personal fortune[326].

However, William the Conqueror, finding these perquisites in use, and that in Latin they were called relevationes, took advantage thereof, and as the forfeited lands he bestowed on his Normans were given upon the terms, and with the same burthens as lands on the continent, so were the reliefs he exacted from such in the same manner, made payable by the heir, not the executor; and as to the unforfeited lands, which remained to the Saxons, and were very inconsiderable in number, he, in the manner I shall shew in the next lecture, converted them, into real fiefs, such as were then in use in France; from whence the reliefs came, likewise, to be exacted from the heir, and to be considered as redemptions of the inheritance, which, upon the principles of the feudal policy, could not be entered upon by the heir till the relief was paid. This alteration it was not in the Saxon landholders power to oppose, on the account before-mentioned; nor, indeed, was the burthen on the heir such, if no consequences were to be apprehended from it, as deserved opposition; for William fixed the reliefs at a certainty, at the same rate, or with very little addition, as the Herriots were in Canute’s law.