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].

Our antient authors tell us, that the lands for which the homage was done ought to be specified in the doing homage; and the reason given is, Ne in captione homagii contingat dominum, per negligentiam, decipi, vel per errorem. But it was better to say, that it was for the benefit both of lord and tenant, and for the information of the pares curiæ, who were to judge in case of any controversy between them.

In England the two ceremonies of homage and fealty were kept distinct; the homage, as being for the most durable estate, was performed first, and afterwards the fealty; but, on the continent, at least in some countries, I find they were blended together, by the homage being done upon oath.

Another difference between England and the continent was, that, in England, no homage was repeated to the lord’s heir, by a tenant who had himself performed it to the ancestor, but homage once from the tenant was sufficient for his life; whereas, in France, new homage by the same tenant was done on the death of the lord, as we may see plainly by many instances, in the case of the kings of England and France, for the lands the former held in the latter country. Homage was the symbol of a strict and indissoluble bond between the bloods of the lord and tenant, by which they, and the heirs of their blood, were mutually disabled from doing any thing to the prejudice of the other party. The tenant, therefore, could not alien, either by last will or by deed, in his life-time, without the previous consent of the lord. This maxim was established partly in favour of the blood of the first tenant, which was, in fact, often the consideration of the original grant, as when the lord gave lands in marriage with his daughter, or to a son or a brother, (and even where it was not in truth so, the law presumed the blood of the first tenant was in contemplation on the strength of this maxim, fortes creantur fortibus et bonis, and the probability that a gallant warrior would, by a proper education, qualify his son for the same profession) and partly also in favour of the lord, that he should not be obliged to receive, as his tenant, a person that was inexpert in war; or that, if qualified, was, perhaps, an enemy to the lord, or that was previously vassal and bound to another lord who was an enemy. For in those troublesome times, the power of the crown of France, where these rules began, being greatly diminished, every lordship made a little kind of state in itself, frequently at open war; and when not so, at least in a state of suspicious peace with its neighbours; and from this state of things it happened, that the word feud has come in our common language, to signify a mortal quarrel, as being almost inseparable from the greater, or even lesser fiefs[172].

In those times, the lord, when things grew into a more settled state, took advantage of this maxim, that the tenant should not alien without licence, and the tenants readily acquiesced, under the subsistence of the rule, as it permitted them, in their turn, to exact a fine from their under tenants, or the alienees of such in all cases of subalienation; by which means this fine at length became an established fruit of tenure. In England, however, it ceased in the case of lords that were subjects from the time of the statute called Quia emptores terrarum, which gave every person a free liberty to sell his lands: but the king not being named in that statute, according to the well-known legal maxim, was not bound thereby; and of course was paid fines for alienation, or by subsequent statutes a commutation for such fines by his military tenants in capite, to the time of the Restoration, when these tenures were entirely abolished. On the other hand, the lord was not permitted to alien, even with the consent of his superior, without the consent also of his tenant, and that for a similar reason. For if he, the lord, might so do, he might subject his tenant to one who was the tenant’s mortal enemy, and perhaps for no other reason than for serving his former lord faithfully against the new one[173].

This last maxim once established, introduced the practice of tenants attorning to their lords grants of the seignory. Attornment is an act of notoriety, originally performed in the presence of the pares curiæ, signifying the tenant’s consent, and turning over from his former lord to the new one, and the putting him, the new one, in the seizin of his services. This, at first, was merely voluntary in the tenant; but when, in England, free alienations were allowed by the aforesaid act, it was not thought reasonable that it should be in the tenant’s power to defeat his lord’s grant, by refusing to attorn. He was therefore obliged, by an action called Quid juris clamat, to appear, and to shew forth what title he had in the said lands, and whether he had any sufficient cause why he should not attorn to the grantee; and if he could not shew any, he was obliged by the judgment of the court to attorn[174].

Another effect of this homage was warranty, which is the obligation on the lord to defend his tenant in the lands holden of him; or, if he cannot, to give him a recompence of equal value in other lands, our law went no farther; but the feudal law, if the warrantor had no lands to give in exchange, obliged him to pay the value in money. Warranty is derived from the word war, because, in those real actions, the trial was of old by combat. This obligation, indeed, subsided, as I have already hinted, long before the introduction of hereditary estates; but when these hereditary estates became common, and all the military tenures were of this sort, and estates for lives and years were only, or for the most part, socage, these last had no warranty annexed to them by law, but only by special agreement; and the warranty I am now speaking of was confined to inheritances, and of those only to such as were held by homage auncestrel, that is, where the tenant and his ancestors had, from time immemorial, done homage to the lord and his ancestors. Here, on account of the continued connection between the blood of both families, the law obliged the lord and his heirs to warrant the lands to the tenant and his heirs[175].

The manner of taking advantage of this obligation of the lords by voucher, which still remains in our law, (the other method by disuse being antiquated) was shortly thus: When the tenant in possession is impleaded for the lands by a stranger, who claims them as his inheritance, he, the tenant appears, defends his right, and vouches, that is, calls in his lord to warrant the lands to him. If the lord appears gratis, and enters into the warranty, as he ought, if he is bound to warranty, the tenant hath no more to do in the defence of the suit. It is the lord’s business. Against him the stranger declares, and prosecutes the suit. He defends, and it is found against him, either by legal trial, or default, for want of appearing; and the judgment the court gives is, that the demandant or stranger shall recover the lands demanded against the tenant, and that the tenant shall recover lands of equal value from the lord, or voucher, as he is termed, because he is vocatus, or called in to take upon himself the defence. If the lord, who is to warrant, doth not appear, he is summoned till he does; or if he appears, and will not enter gratis into the warranty, the tenant is to shew how the person he calls in is bound to warrant; which must be either by homage auncestrel, or by his, or his ancestors express covenant, as I shall hereafter shew; and until this was determined, the suit of the demandant was suspended; because as yet it was uncertain who was obliged to defend the lands. So we see in the judgment of this kind, there were in fact two judgments, one against the tenant, who was to give up the lands, another against the lord, who was to give lands equal in value. But there might be three, or more judgments, as there might be two or more vouchers. As if there be in respect to land, A, B, and C. A, lord paramont or superior, B mesne, that is, tenant to A, and to lord C; and C tenant paravaile, that is, the actual possessor of the land. Here, if D, a, stranger, brings his action against C, the tenant, who vouches his lord B the mesne, who enters into warranty, and vouches A the lord paramont, who enters into warranty, and fails, D recovers the lands from C, C recovers in value from B, and B recovers in value from A, and so on, if there be more vouchers.

Warranties, as I hinted before, are of two kinds, warranties in law or by homage auncestrel, or by words in the deed, which the law construes to import warranty (which stood upon a feudal footing), and warranties in deed, that depend on a special covenant. These last were substituted in the place of the former. For as by every alienation, either of the lord or tenant, the mutual connection between the two bloods was extinguished, and warranty by homage auncestrel consequently gone (insomuch that now, by frequent alienations, there is no such thing left) the tenant would not attorn to his lord’s grant when the lord aliened, nor a new tenant accept of a grant from an old tenant of his tenancy, without an express warranty, binding in the first case the new lord and his heirs; in the latter the old one and his heirs. Afterwards the making of these warranties was extended to persons between whom there was no feudal connection; as if a man aliened lands to hold of his lord. Here the grantee held of the lord of the grantor, not of the grantor; and therefore, as he had nothing to bind the lord to warranty, would insist on an express warranty from the grantor and his heirs[176].

One species of these warranties, namely, that which is called collateral warranties, was made use of, and it was the first invention that was made use of, to elude the statute of Edward the First, De donis, which gave birth to, or rather restored to life that antient kind of feudal estate, which we call Fee tail. But it must be owned this intention was both against the words and intention of that law. A judge in his grandson’s, Edward the Third’s, reign, says, they were wise men that made this statute, and that the king that passed it was the wisest king that ever was in England, and both assertions must be allowed. The nobles who made it were wise men in their generations. For, by making effectual these gifts in tail, they secured their estates in their families, free from any forfeitures, arising from their own misconduct; which before their estates were liable to. But at the same time it was a destructive law for the nation. It put the great lords of England, who were before too powerful, in a condition, by this security of the inheritance’s descending to the heirs, to beard and awe the crown, and it likewise discouraged industry and commerce, which then began to rear their heads in England. Perhaps the wisdom of the sagest of the kings of England, as he is universally called, may by some be doubted in this, that he consented to this act; but he was a sage king, and did wisely in consenting to it. The barons had been so oppressed in his father’s reign, and their estates so often confiscated, that a mutual jealousy subsisted at that time between them and the crown. They had been restored, because the crown was otherwise in danger. They were jealous likewise of Edward himself, for one or two of his actions: In short, his barons were too powerful to be refused this law, however contrary to the interest of the crown and the lower people, and there was more to be said in its favour, it being entirely agreeable to the feudal principles, that he who received an estate to him and the heirs of his body, should not have it in his power to contravene, by any act of his, the gift of the donor. He complied therefore with a good grace; but his wisdom, if it was seen in his complying, was farther seen, and in a stronger light, in the construction his judges and their successors made of this act, that collateral warranty, without an equivalent, should be a bar. However, this was but a feeble defence against the mischiefs of entails, which every day happened, to the weakening of the public estates, and collateral warranties, were not on every occasion so easy to be got[177].

At length, in Edward the Fourth’s reign, under pretence of warranties, and those entirely fictitious, a method was found out, under the form of legal proceedings, to defeat estates tail, and all remainders thereon, and that in the manner following: A, who was tenant in tail, was impleaded by collusion, by a person who pretended to claim title to the lands antecedent to the estate tail, and who was, in fact, the man to whom A, by his private agreement, was to alienate it, in destruction of the estate tail. A appears, and takes defence, but vouches to warranty B, a man who has not a foot of land, nor is likely to have any: B very readily enters into the warranty; and when the day comes, that he should defend the suit, makes default; in consequence whereof, the court gives judgment, that the demandant should recover the lands against A, and A’s lands of equal value against B the vouchee, who hath none; and yet this was judged a good bar to the entail, upon the possibility that B might purchase lands equivalent, and so A, and the other persons entitled in tail, might receive satisfaction. And that is what, under the name of a common recovery, is grown to be one of the common assurances of the realm; and though, for about seventy years, the justice and conscientiousness of it was disputed, yet being constantly asserted as law by the judges, and taken notice and approved of by acts of parliament, it is the now most effectual bar to an estate tail. To speak candidly about these recoveries, as to their application to this purpose, they were notorious breaches of the statute De donis, under the colour of legal proceedings. Yet what could be done? the law could not be repealed; for all members of parliament had their estates entailed. It could only be eluded, and both for the king and all who had not estates tail, it was necessary it should[178].

Another consequence of estates becoming hereditary, and, in respect of military tenures, a fruit of seignory, is wardship, or guardianship. For it must now frequently happen, by the death of ancestors, that estates would descend to heirs incapable to do the service, to manage their affairs, or to educate themselves. It was necessary, therefore, that the law should make provision both for the doing the services, and the benefit of the heir, until he arrived at a proper age. And the law proceeded in a different manner, as the lands were holden either by knights service or socage; tenure, in the first case, having in view principally the defence of the realm; in the second, the benefit of the heir. With respect to military tenures, the time of age was twenty-one years compleat; at which time the law presumed the heir was qualified, both by skill and strength of body, to perform the part of a soldier. At this age, therefore, he was out of the ward. If his ancestor died before he had attained that age, his lord had by law the guardianship both of his lands and person till then, and took the profits of the lands to himself for his own use, being only obliged to educate and maintain the heir in a condition suitable to his rank and station. The reason of this was, that it was a principle in the feudal law, as the profits and the military duties were equivalents for each other, that he who was obliged to the duty should enjoy the profits, which, in the first instance, was the lord, he being obliged to answer the king, or other superior lord, for all the military duties comprised in his seignory.

He had the guardianship, likewise, of the heir’s person; first, that, because of the bond under which he lay to the tenant and his heirs, the law had entire confidence in the care he would take of the minor; secondly, because the lord was certainly well qualified to instruct him in the art of war; and thirdly, his own interest obliged him to do this carefully, that his vassal might be enabled to perform to him the future services. But this, as to the person, is to be understood, if the minor’s father was not living. For if he was, he was guardian by nature, and intitled to the custody of the person, as in the case put by Littleton, where there is a grandfather by the mother’s side, tenant, by knight service, father, and mother, and son; and the mother dies, leaving the grandfather, and then the grandfather dies, and his land descends to the son of his daughter, then a minor, the minor’s father still alive; here the guardianship shall be divided. The grandfather’s lord shall have the ward of the lands, and the father shall have the ward of the person of his minor son. So it is if a lord gives land in fee by military service to the son of A, by which son’s dying without issue the lands descend to his brother, a minor. Here A, the father, shall have the custody of the body, and the lord, of the lands. There was another case, likewise, wherein the guardianship, I cannot say was divided, but where the wardship of the person was extinct. Antiently, although twenty-one years was the regular time, yet, if the minor was knighted by the king, and thereby adjudged capable of service in person, the guardianship ceased. For here, the legal presumption of unfitness was refused by a positive act of the king to the contrary. But the lords obtained an act of parliament, that, notwithstanding such knighthood in minority by the king, the lords should retain the lands of the minor so knighted, till he was twenty-one years of age; and so, after this act, the wardship of the lands continued, though that of the person, who was by the king’s act declared sui juris, was gone[179].

The term of twenty-one years, which I have mentioned was confined, as may appear by what I said concerning it, to heirs minor, that were males; but with respect to heirs female, minors, as almost all of our fiefs soon after the conquest were feminine feuds, as the lawyers on the continent call them, that is, descendable to females in the next degree, if males in that degree failed, the limitation of minority was different. In these fiefs it was impossible the woman herself should do personal service: She was, therefore, allowed a substitute; but in time of minority, as she could not appoint a proper one, the lord who was bound to perform the service to his superior, had the lands in the same manner as in case of an heir male. However, there was no reason that the minority of a woman in wardship should continue so long as that of a man, namely, to twenty-one years; for as the law of God declared that man and wife should be one flesh; so the canon law, and ours in consequence, have decreed, that, in law, the man and wife are one person, and that the husband in all respects is bound to perform the obligations she lies under. Hence, in case of a female heir, the term of the lord’s guardianship was, by the common law, limited to fourteen years; by which time it was presumed she might have a husband capable, and obliged to do the duty for her. But this age of fourteen years was, in a particular case, extended, by act of parliament, to two years farther. However, as the reason of that depends on the lord’s right to the marriage of the heiress, it will be better to defer speaking thereof, until we come to that head.

It remains to be mentioned, what was the nature of this interest the lord had in the estate of this minor tenant, by virtue of the feudal institutions, and so contrary to the general and the original tenure of them. For, simply, the lord had only the propriety, and in consequence the right of reversion or escheat, with the render of the services; whilst the tenant had the possession and the profits. But, in this case, all these seem to be blended, particularly the right of original propriety and possession, so essentially to be distinguished in the feudal system. For the lord has not only his propriety in right of his seignory, but also the absolute possession, and permanency, or taking of the profits, and the minor heir apparently nothing. However, the law, in this case, did justice, and created in the lord a temporary interest, an estate for years, namely, for the number of years till the majority was compleated, contrary to all the other feudal maxims. For the fee and inheritance of the estate remained in the minor, though he had neither possession or profits. This interest of the lord could not be called, at least with strict propriety, a tenancy for years, because, in this case, the lord possesses the tenant’s lands, not the tenant. The lords had therefore no tenure, but an estate for years, created by the law; and that it was originally considered as an estate for years, or a chattle interest in lands, appears from two things. First, that in the early times, when alienations were scarce allowed, it was assignable over to another, without any licence or form. Secondly, that instead of going to the heir, in case of the lord’s death, during the minority of the ward, it went to the lord’s executors, as other estates for years did[180].

As the lord was bound to his vassal and his heirs by the homage done to him, it certainly followed, that it was not lawful for him to do, during the wardship, any actual waste (that is, any permanent damage) to the estate of his minor ward, or to suffer any to be done by others. He was also obliged to repair and keep in condition, out of the profits of the estate, the houses and improvements thereon; yet so great was the misbehaviour of the English lords, soon after the conquest, that many severe and restrictive laws were, from time to time, made in favour of the minor wards[181].

In my next I shall treat of guardians in socage, reserving the article of marriage, though it appertained to military service, to a place by itself; as it was of a distinct nature, and went on its own particular ground in a great measure.