LECTURE X.

The right of Seignory and its consequences—The right of Reversion—Rent seck—Rent charge—The nature of distress, as the remedy for recovering feudal duties. Observations on distresses in general.

Having spoken of tithes and advowsons, two kinds of incorporeal benefices that arose in those antient times, I come now to treat of seignories and their consequences. A seignory is an incorporeal right and interest still remaining in the lord, when he parts with his lands, in benefice to a tenant. Now the rights of a lord, in respect of his seignory, may be considered in two ways, either as the services were due to the lord from the person of the tenant, or from the lands. He hath therefore, in virtue of his seignory, a right to all those personal duties which flow impliedly from the oath of fealty; such as to receive warning from his tenants of any injury done, or impending danger to his person, his dignity, or seignory, to receive faithful advice from them when called upon, and to have his secrets faithfully kept by them; to be the judge of their controversies, and the leader in war of such of them as hold by military service. For these barbarous people had no idea of dividing power, but always entrusted the civil and military sword in the same hands; whereby they avoided the dangers and disorders that more polished and richer nations have ever been exposed to, namely, of having the civil and legal authority subverted by the military power. And so strict was the bond between lord and tenant, that the latter could in no wise, in point of judgment, decline his lord’s jurisdiction, by refusing him as judge on account of partiality. Such a charge was a breach of fealty on the vassal’s part, and no such presumption could be admitted by that law, which looked upon the lord as equally bound by the oath of fealty, though not taken by him, as the tenant was[147].

By the Roman law, a suspected judge might be refused by the suitors for almost all the same causes, and grounded mostly upon the same reasons, for which jurors, who in our law are judges of the fact, may be challenged at this day. But the feudal customs admitted no such suspicions as to the lord, and therefore in the English law, no judge, however clearly interested in the cause, can be challenged. This maxim once established, it was necessary, however, for the sake of justice, that it should admit of some qualification. The assessors in Germany, who assisted the lord in judgment, from whom came, in after time, the pares curiæ, were this qualification. But as these were not judges in all feudal causes, but in some the lord alone continued sole judge; some remedy was here to be applied, and on the continent and in England, they proceeded differently. On the continent, the king, or superior lord, appointed a cojudge, or assessor. In England the suitor, by applying to the king’s courts was empowered to remove the cause thither; which hath been one great occasion of these inferior courts of the lords dwindling to nothing[148].

As to the right the lord had in the land by virtue of his seignory, the principal, and upon which his other rights out of the land depended, was his reversion. A reversion is that right of propriety remaining in the lord, during the continuance of the particular estate of possession of the tenant; whereby he is entitled to the service during the duration of the term, and to the possession itself, when it is either expired, or forfeited. Hence it appears that the fealty and services of the tenant are incident to the lord’s reversion. Out of these reversions may be carved another incorporeal estate, called a remainder, which is a particular estate dependant upon, and consequent to a prior particular estate; as if lands be granted to A. for five years, and afterwards to B. for life. In this case A. hath a lease for years, B. a remainder for life, and the reversion remains in the grantor. In our law, remainders, and the particular precedent estate on which they depend are considered as making but one estate; and so, in truth, they are with respect to the reversioner, though not to each other. Therefore they must both pass out of the grantor at the same time, though it is not absolutely necessary that the remainder should vest in the grantee at the creation of the precedent particular estate; for a remainder may be good which depends on a contingency, as if a remainder, after a lease for life or years to A, is limited to the eldest son of J. S. This is a good remainder, but a contingent one, depending on the birth of J. S.’s son during the continuance of the term of A; for the remainder being but one estate with the precedent particular one, and only a continuation of it, must commence instantly when it determines. Or, if after a lease to A, a remainder is limited to the heirs of J. S. this is a good contingent remainder, depending on the event of J. S. dying during the particular estate. For it is a maxim of the English law, Nemo est hæres viventis.

To return to reversions, I mentioned fealty and services as incidents of a reversion; but we must distinguish that fealty is an inseparable one, which the services are not; for the tenure being from the reversioner, and fealty necessarily incident to every tenure, it is impossible they should be separated. A grant, therefore, of fealty, without the reversion, is void; and the grant of the reversion carries the fealty with it. But the case is otherwise as to the services; for the services may be granted without the reversion, and although the reversion be granted, the services, by special words, may be excepted[149].

It will be now proper to speak of the remedy the reversioner hath for the recovery of his services, if they are not paid. In the antient times the tenant was, at all the due times, at his peril obliged to perform his service; for as each the smallest failure was a breach of his fealty, his tenancy was thereby absolutely forfeited, and this long continued to be the case in military tenures. But as the defence of the realm was not concerned in the socage holdings, but only the immediate interest of the lord, it was thought too hard, that every, perhaps involuntary omission, should induce an absolute forfeiture; when the lord, where his dues were certain, might receive an adequate recompence. Custom, then, introduced the method of distress, in imitation of the Roman law, as the proper method to recover an equivalent for the damages he sustained by the non-performance of the duties. And afterwards, when the personal service of the military tenants came to be commuted into a sum of money called escuage, distress came to be the regular method of recovering that and the other fruits of the military tenure; the damage the lord sustained being now capable of a reduction to a certainty[150].

The introduction of distress on socage tenants was thus: When the absolute forfeiture was thought too severe, the first step was, that the lord should enter, and hold the lands till his tenant had satisfied him as to his damages; but as this seizure frequently disabled the tenant from making that satisfaction, especially if he had no other lands, this, after some time, was thought still too rigorous, and in its stead was substituted the seizure of the cattle, and other moveables found on the land, and the detention of them as a pledge, until the damages were answered; which is what we call distraining. This was a sufficient security to the lord, as it rarely happened but that there was sufficient found to answer his demand for one failure; and the tenant was not (as not being deprived of his possession) reduced to an incapacity of paying his rent of services, and thereby recovering his pledges. Hence all feudal rents, or, as our law calls them, rent services, (being the service the tenant pays to the lord, in consideration of the land he holds from him) are distrainable[151].

But there was another species of rents in our law not distrainable; which, therefore was called redditus siccus, or rent seck. This was not a feudal service, not being paid from a tenant to his lord, and was thus: When a man, keeping still his land in himself, grants a rent thereout to a stranger, the grantor is justly bound by his grantee; but the grantee, not being his lord, cannot have this remedy. For the remedy of distress being substituted in the place of the lord’s right of entry, could not be extended to a stranger, who never had that right. And this was originally the only kind of rent seck; but the statute called quia emptores terrarum, introduced another species of rents not distrainable, by converting rent services into rents seck. The liberty of alienation without the consent of the lords having been allowed before that statute, it became customary for a tenant who sold his land, and parted with his whole estate in it, to reserve the tenure of the vendee, not to his superior lord and his heirs, but to himself and his heirs; whereby he retained many advantages to himself, by continuing the vendee’s lord, such as the right of escheat, if the tenant died without heirs, and the benefit of the wardship and marriage, if it was held by knight’s service. Now a rent reserved upon such a sale to the vender, was, as he continued the vendee’s lord, a rent service, and consequently distrainable[152].

But this practice, though highly useful to the sellers, was of considerable detriment, not only to their lords, who thereby frequently lost the fruits of their tenures, but indeed to the whole military policy of the kingdom. It was enacted, therefore, in the eighteenth of Edward the First, by the statute above mentioned, that whenever a man aliened his whole estate, the alienee should not hold from him, and be his tenant, but from the superior lord, and be the lord’s tenant directly; and that by the same services, by which the alienor had holden. The alienor, then, by this statute, ceasing to be lord, and his right of reversion clearly gone, if he reserves a rent on such alienation, he cannot distrain for it, and it is a rent seck.

These rents seck, therefore, were of two kinds, one arising by grant, which was the most antient, the other by reservation, when a man aliened his whole estate. For if the whole estate was not gone, but a reversion remained in him, a rent reserved was still, on account of that reversion, a rent service; as if A. gave lands to B. and the heirs of his body, reserving rent. As this estate tail, although it might continue for ever, yet was capable of determination by the failure of that issue, such rent was distrainable, for that reason, and also because, by the statute which gave force to such estates tail, the reversion was saved to the donor. But if he had made a lease of life or years, or a gift in tail, and had, at the same time, conveyed over the remainder in fee, so that his reversion was gone, a rent reserved on such a grant was seck.

The inconvenience attending these rents seck, in their not being distrainable, introduced another species of rents called rent charges. These are rents seck, armed with a power of distress by the special agreement of the parties; and are of two kinds, as the former are created either by grant, or reservation. Those by grant, which were the only species of rent charges before the statute, were thus; as if I grant out of my lands, keeping them still in myself, a rent for years, life, fee tail, or fee simple, and give my grantee a power to enter and distrain for the rent. It will be by reservation; if I reserve to myself a rent upon a conveyance in fee simple, or upon a gift in tail with a remainder over in fee, or upon a lease for life or years, with a remainder over in fee, and it is covenanted that I shall have a right to enter and distrain for the rent. The power of distress, therefore, in rent charges is good only by the express provision of the parties, not by the force of the general law[153].

Antiently it was a doubt whether a rent charge could be reserved upon a deed poll; to understand which, it will be necessary to explain the difference between a deed poll and an indenture. A deed poll is a grant from one man to another, and is all and every part of it the act and words of the grantor only; and therefore the deed belongs to the grantee, and there is no counterpart in the hands of the grantor; because the grantee binds himself to nothing towards him. Whereas, in an indenture, every clause is the act and words of both. They are mutually bound to each other, and therefore there is a counterpart in the hands of each party. Now if A. by deed poll, granted lands in fee to B. reserving rent, with a clause of distress, it was doubted whether this clause was not void, and the rent a rent seck; because as the lands by A’s grant was in B. it was apprehended they could not be charged with it without an express covenant from him; as in the deed poll he was a party merely passive. But it is now held, and that very equitably, that such a reservation can raise a good rent-charge; for his acceptance of the deed upon the delivery is an act sufficient to shew his assent to take it on the terms therein contained; and nothing can be more reasonable than that whosoever takes a benefit shall take it under such conditions, and no other than such as the donor intended.

Thus have I endeavoured to explain the nature of the three several kinds of rents in our law, of which only rent service is properly feudal; but upon account of the affinity of their nature, I thought proper to join them here. It will be proper now to say something concerning the nature of distress, as it was the remedy for recovering the feudal duties in these kingdoms.

Distresses were not only taken for rents, and other services reserved, but also to oblige persons to appear in courts of justice, or to raise fines, and amerciaments inflicted on them. This likewise arose from the feudal law, as by that the doing suit and service at the lord’s court was one of the duties attendant on fealty.

But there is another kind of distress allowed by our law, arising neither from the feudal contract, nor the express stipulation of the parties, but from the delictum, or negligence of a stranger. It is called a distress for damage feasant, and is a seizure of the cattle, or any other moveable of a stranger, trespassing upon or damaging my ground. The law in this case will not put me to my action against the proprietor, whom perhaps I may never discover; but has provided a festinum remedium for me, by way of distress; and this distress is more privileged than others, for it may be taken in the night-time, which other distresses cannot; because, otherwise, the cattle might escape, and the goods be removed, and so the party injured remain without remedy.

Many and grievous were the extortions and oppressions of the antient English lords in their taking distresses, during the troublesome reign of Henry the Third, for the remedying which many wise regulations were made by the statute of Marlebridge and others. For they not only distrained in a most unreasonable manner for the smallest duties, but distrained where nothing was due; and frequently even out of their fees; and to deprive the parties injured of legal remedy, drove them into another county, or inclosed them in a castle, or would not suffer their bailiffs to permit a replevin[154].

Since I am on this head of distresses, it will be proper to make a few observations, what may be legally distrained, when, and where, and how a distress is to be demeaned, and what remedy the person wrongfully distrained hath to recover his property.

First then, nothing can be distrained but moveables, and such as may be restored in the same plight. For the distress is in the nature of a pledge to be restored on due satisfaction made; therefore nothing fixed to the freehold is distrainable, as doors, windows, furnaces, &c. for these being affixed thereto, are part of the freehold, and cannot be separated thence without damage. Therefore, a smith’s anvil, though not actually fixed, or a millstone removed in order to be picked, are not subject to distress; for the one is, in law, still part of the shop, as the other is of the mill. Hence, likewise, money is not distrainable, unless it be in a bag; because, otherwise, it cannot be known, so as to return it in the same plight. For the same reason, by the old law, corn in sheaves, or in stacks, or in a barn, or hay in cocks, or in a loft, could not, for fear of damage in removing. That however hath been since altered by statute, but corn or hay on a cart could be distrained by the old law; for they being, in such a case, found in a situation fit for removal, might be transported from place to place without any probable danger of damage, or diminution.

Secondly, The instruments of a man’s livelihood, as the tools of a tradesman, the books of a scholar, the plough-cattle of a ploughman, &c. cannot be distrained where any other distress is to be found; and this for the particular safety and benefit of individuals. But this holds not in the case of damage feasant; for there the identical thing that did the trespass, and that only, must answer for it.

Thirdly, Things sent to public places of trade are privileged, for the public benefit of the realm, as cattle in a market, corn sent to a mill, cloth in a taylor’s shop, yarn in a weaver’s house. For it would put a total stop to commerce if these were answerable for the rents of such places.

Fourthly, What is in the custody of law is not distrainable, for it would be an absurdity that a man should have a right by law, to take things out of the custody of the law itself, such as goods already distrained, or goods taken in execution, or seized by process at the suit of the king.

Fifthly, Things in manual possession of another, are, for the time, privileged, as an ax in a man’s hand, or the horse I ride on. But for damage feasant, as I said before, every thing is distrainable; for the thing itself which did the damage, is the pledge of the satisfaction, and the only one.

Next let us see how and where they may be taken. The distress, then, should not be excessive, as an ox should not be taken for twelve pence, where other sufficient distress might be had, or two sheep where one was sufficient; but for damage feasant, though ever so little, the whole may be taken; and likewise for homage, fealty, or the wages of members in parliament. As the interest of the whole community is concerned in these, no distress can be excessive. No distress can be taken in the king’s highway, for it is privileged for the public use of the nation. Neither can any distress be taken by night, unless for damage feasant; for as no tender of rent, or other duty, can be made, or acceptance enforced but in the day-time, perhaps the tenant may, in such case, be provided, and ready to tender his duties the succeeding morning, and thereby save his chattels. Lastly, by the common law, no man could distrain out of his fee, unless when coming to distrain he had the view of them, and they were driven off to prevent him. But this hath been altered by statute, and now a landlord may follow his tenant’s cattle, if conveyed by his lessee off the land, and distrain them within twenty days.

As to the manner of demeaning or managing the distress, it is the duty of the distrainor to carry them to a pound, that they may be in the custody of the law. Pounds are of two kinds, overt, or covert; the one for living cattle, the other for other goods that might take damage by the weather. The reason why living cattle should regularly be put into a pound overt, is, that, as they are but a pledge, from which, in itself, the taker is to receive no benefit; and as the proprietor, therefore, must be at the sole expence of feeding them, he should have the freest access to them for that purpose; and, in such case, if they perish, the loss is his; but if they be put into a covert pound, there, because the owner cannot have access, the taker is to feed them, and answer for them at his peril.

In antient times, the lords used to drive the distresses into foreign counties, whereby the tenants knew not where to resort to feed their beasts. This was forbidden by Marlebridge, cap. 4. However, that act received this construction, that if a manor lay in two counties, and its pound in one of them, the lord might distrain in the other county, and impound them in his manor pound; because the tenant, by attending the manor court, was presumed to know every thing transacted in the manor. But now, by later acts, no distress of cattle shall be impounded out of the hundred, or barony where taken, except in a pound overt, in the same county, within three miles of the place; nor shall distresses be divided, and impounded in several places. Dead chattels must be impounded likewise within three miles, and that in a pound covert, otherwise the taker is answerable for them, if damaged or stolen.

As to the remedy for taking an unjust distress, the tenant might, if there was nothing due, rescue them before they were put in pound, and justify it; but when once impounded, they were in the custody of the law, and must be delivered by law. Or if there was any thing due, he might, before they were impounded, make a tender of satisfaction; which, though the caption was just, rendered the detention unlawful; and therefore if the beasts, after such tender, were put in pound, and died there, the taker was answerable.

When the goods were once impounded, the remedy was by replevin, which is a judicial writ out of Chancery, directed to the sheriff, who is Judge in this case, complaining of the unjust taking and detention, and commanding the sheriff to deliver them back to the owner, upon security given to make out the injustice of the taking or detention, or else to return the goods and chattels.

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.