[335] “Pope Paschal the 2nd,” observes Lord Littleton, “allowed the Bishops elect to do Homage, and take the oath of Fealty, before they were consecrated. This was confirmed by the Constitutions of Clarendon, of which a particular account will be given hereafter; and, from the words of Glanville, it appears, that about the end of Henry the 2nd’s reign Homage was accordingly done by Bishops elect, but he tells us, that after they were consecrated they took the oath of fealty. This was a material difference from what had been settled by the constitutions of Clarendon: and it is surprising, that we have no account of it in the History of the Times.” (Litt. Hen. 2. Vol. 3. 113.)
[336] Pro Domino is the expression of the text, which I have disregarded—but have preferred, what, I submit, must be the true reading, pro Dominio, for so Bracton has it in a passage corroborative of the doctrine of the text. (79. b.) And with this concurs the Regiam Majestatem: “Homage is not made to any man for his band of maintenance, but only to the King.” (L. 2. c. 65.)
[337] See Co. Litt. 67. a. The tenure of parage among the Normans, which seems to have possessed some features in common with that alluded to in the text, required fealty to be done by the Younger to the Elder branch at the sixth, and Homage at the seventh, descent. (Grand Custum. de Norm. c. 30.)
[338] He shall not pay any other Relief, says the Regiam Majestatem. (Vide L. 2. c. 67.)
[339] The mutuality of obligation created by Homage is inculcated, not merely by our own, but other writers. (Vide Assises de Jerusalem c. 99. Coutumes de Beauvoisis c. 58. Mirror c. 4. s. 11. Bracton 78. Fleta L. 3. c. 16. Britton fo. 170. a.) This has induced Lord Littleton (3 Hist. Hen. 2. 121.) and Mr. Watkins (Copyholds Vol. 1. p. 2.) to conclude, that the Feudal System was abhorrent from Tyranny, originated in freedom, and ceased to be free only when it was corrupted.
[340] The Text seems to allude to Homage auncestrel, and pointedly to inculcate an opposite doctrine. Yet, Lord Coke refers to this identical chapter of Glanville, in support of the doctrine of Homage Auncestrel!! (Co. Litt. 101. a.) The Reg. Maj. is rather more consistent with itself, but assists us not materially. “But it is otherwise to be understood of him who has Lands as free Heritage, for the which he is not obliged to make Homage: for, although he lose that Land, the over-Lord giver thereof is not obliged to warrant the same.” (L. 2. c. 67.)
[341] Similar is the doctrine of the Grand Norman Custumary c. 33.
[342] Si autem fœminæ in Custodia fuerint, cum ad annos nubiles pervenerint, per consilium et licentiam domini sui et consilium et consensum amicorum suorum et consanguineorum propinquorum prout generis nobilitas et feudorum valor requisierint debent maritari, et in contractu matrimonii debet iis feodum custodia liberari. (Grand Norm. Cust. c. 33.)
[343] Fleta enumerates the instances in which Reliefs were not to be paid. 1. None was payable for a Fief, acquired by any species of purchase. 2. Nor on a change of the Lord. 3. Nor was a Tenant for life only, to pay a Relief. 4. Nor any man who married a woman who had been in custody—but this differs from the Text. 5. Nor any one from whom his Lord had received a remuneration, on account of custody. 6. Nor any one who had once paid a relief for his Estate. (Fleta L. 3. c. 17. s. 5. et seq.)
[344] Reliefs were in many parts of Normandy certain and fixed: thus a Knight’s fee, or, as it is there termed, feudum loricæ was five pounds, a barony one hundred pounds, land twelve pence an acre, and woody ground 6d. (Grand Cust. c. 34.)