Sivut kuvina

tion of inferior to superior, of mann to hlaford, in the Anglo-Saxon books, the purely personal relation which beginning with the comitatus, and continued in the form of commendation, belonged to socage tenure as well as to knight-service, and even survived to take the form of allegiance to the king or commonwealth in our own day. Homage, on the other hand, only made its appearance when the relation became one of land as well as of persons. It was the recognition of service due to the lord, not merely as superior, but as the giver of a benefice or fee. It was rendered for each several holding, while fealty was personal. All other differences were merely consequences of this. We cannot doubt that the development of homage was coincident with the change from personal to territorial law, from sovereignty of the tribe to sovereignty of the territory, and especially with the introduction of feudalism into England. It also marked an important difference between the system there and elsewhere.

The importance given to the livery of seisin, the actual transfer of the tenement, the freehold by the feoffor, in English law, in contrast to its neglect on the continent, has attracted general attention. Of course it has been attributed to Roman influence, like everything else not easily explicable; and it is surprising that Gundermann even has copied this explanation, although elsewhere he has expressly stated the true reason, or rather the fact which forms the complementary effect, that the English law places no weight on investiture, because it coalesced with homage. (Englisches Privatrecht, 10, p. 202.)

Livery by the feoffor became important for the very reason that livery by the lord, i. e., investiture, did not. Morging in homage, an act subsequent to the traditio, and presupposing the latter, investiture could not well be the constitutive fact that gave the new estate, and livery of seisin must occupy its place. The contrast in

2 BLACKST.-10.

this respect of common freeholds to copyholds, wherein an investiture by the lord or his steward always remained the form, and to the form which Edward II. tried to establish for tenants in capite, shows us plainly why investiture was deemed incompatible with the rights of freemen.

Fealty, fidelitas, had become a duty of the subject generally, without reference to the comitatus, at least as early as the ninth century. In the Capitulum instructing the Missi how they were to proceed in their investigations, A. D. 828 (Walter, C. J. G. ii. 374), it is expressly provided that they are to begin by selecting the better and more veracious men of each county, and if any of them be found not to have promised fealty already to the emperor, he is to do so. They are then to be instructed in their duties, and that they are to report delinquencies, as they desire to keep whole their faith and promise, knowing that if one be found to have spoken aught but truth he is to be reckoned untrue to his fealty-infidelis.



In this chapter we shall take a short view of the antient tenures of our English estates, or the manner in which lands, tenements and hereditaments might have been holden; as the same stood in force, till the middle of the last century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other; being fruits of, and deduced from, the feodal policy.*

Almost all the real property of this kingdom is by the policy of our laws supposed to be granted by, dependent upon and holden of some superior3 lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore stiled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. [See note 18, page 133.] Thus tall the land in the kingdom is supposed to be holden, mediately or immediately, of the king; who is stiled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king; and thus partaking of a middle nature, were called mesne, or middle, lords. So that if the king granted a manor to A, and he granted a portion of the land to B, now B was said to hold [60] of A, and A of the king; or in other words, B held his lands immediately of A, but mediately of

3 Prior editions insert here, "or."

*Cited, 2 Duval, 222,

the king. The king therefore was stiled lord paramount; A was both tenant and lord, or was a mesne lord; and B was called tenant paravail, or the lowest tenant; being he who was supposed to make avail, or profit, of the land.a* In this manner are all the lands of the kingdom holden, which are in the hands of subjects: for according to sir Edward Coke, in the law of England we have not properly allodium; which, we have seen is the name by which the feudists abroad distinguish such estates of the subject, as are not holden of any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the feodal nature.‡

All tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the most honourable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures did. This distinction ran through all the different sorts of tenure; of which I now proceed to give an account.

I. There seem to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced: the grand criteria of which were the natures of the several services or renders, that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services;

a 2 Inst. 296.

b 1 Inst. 1.

c pag. 47.

d In the Germanic constitution, the electors, the bishops, the secular princes, the imperial cities, etc., which hold directly from the emperor, are called the immediate states of the empire; all other landholders being denominated mediate ones. Mod. Un. Hist. xlii.


5 First, second, and third editions read "is." Fourth edition omits.

+-* Quoted, 6 N. Y. 498; 57 Am. Dec. 479.

* Cited, 6 Conn. 500, to show that lands in that state are allodial.

in respect of their quantity and the time of exacting them, were either certain or uncertain. Free services *were such as were not unbecoming the character of a soldier, or a freeman to perform; as to serve [61] under his lord in the wars, to pay-a sum of money, and the like. Base services were such as were fit only for peasants, or persons of a servile rank; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies: as, to do military service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm; which are free services: or to do whatever the lord should command; which is a base or villein service.

From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England, till the middle of the last century; and three of which subsist to this day. Of these Bracton (who wrote under Henry the third) seems to give the clearest and most compendious account, of any author antient or modern;e of which the following is the outline or abstract.! "Tenements are of two kinds, frank-tenement, and villenage. And, of franktenements, some are held freely in consideration of homage and knight-service; others in free-socage with the service of fealty only." And again,s" of villenages

e l. 4. tr. 1. c. 28.

f Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenetur libere pro homagio et servitio militari; aliud in libero socagio cum fidelitate tantum, § 1.

g Villenagiorum aliud purum, aliud privilegiatum. Qui tenet in puro villenagio faciet quicquid ei præceptum fuerit, et semper tenebitur ad incerta. Aliud genus villenagii dicitur villanum socagium; et hujusmodi villani socmanni -villana faciunt servitia, sed certa et determinata, & 5.

« EdellinenJatka »