« EdellinenJatka »
[ * 63 ]
wars for forty days in every year, if called upon (n): which attendance was his reditus or return, his rent or service, for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and so in proportion (o). And there is reason to apprehend, that this service was the whole that our ancestors meant to subject themselves to; the other fruits and consequences of this tenure being fraudulently superinduced, as the regular (though unforeseen) appendages of the feodal system (4). This tenure of knight-service had all the marks of a strict Nature and form and regular feud: it was granted by words of pure donation, dedi et concessi (p); was transferred by investiture or delivering corporal possession of the land, usually called livery of seisin; and was perfected by homage and fealty. It also drew after it these seven fruits and consequences, as inseparably incident to the tenure in chivalry, viz. aids, relief, primer seisin, wardship, marriage, fines for alienation, nure. and escheat (5): all which I shall endeavour to explain, and to shew to be of feodal original.
incident to this species of te
(4) Our author (in pp. 48, 50) has assured us that the feudal polity was not imposed by the conqueror, but nationally and freely adopted by the general assembly of the whole realm, upon the principle of self-security. Then, if the system was not imposed, but freely adopted upon principles of self-interest, it seems not very consistent to say, that the regular consequences of that system were fraudulently superinduced. One of the parties to a contract may not have foreseen all its regular consequences; but though by the result he may find out that he has not made so good a bargain as he expected, still, if he was
a free agent in the transaction, (and
(5) If the king had granted lands
1. dids, benevolences granted
by the tenant to the lord
To make his eldest son a knight:
1. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress (q); but in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally To ransom the three: first, to ransom the lord's person, if taken prisoner; a necessary consequence of the feodal attachment and fidelity: insomuch that the neglect of doing it, whenever it was in the vassal's power, was by the strict rigour of the feodal law an absolute forfeiture of his estate (r). Secondly, to make the lord's eldest son a knight; a matter that was formerly attended with great ceremony, pomp, and expense. This aid could not be demanded till the heir was fifteen years old, or capable of bearing arms (s): the intention of it being to breed up the eldest son and heir apparent (6) of the seignory, to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord's eldest eldest daughter. daughter, by giving her a suitable portion: for daughters' [*64] portions were in those days extremely slender; few lords being able to save much out of *their income for this pur
To marry his
(q) Auxilia fiunt de gratia et non de jure, cum dependeant ex gratia tenentium, et non ad voluntatem dominorum.
Bracton, 1. 2, tr. 1, c. 16, s. 8.
by knight-service: for, as a tenure was
Several of the burthens and conse-
(6) If a man had issue two sons, and the eldest died without issue, the father, if surviving, was entitled to aid for the second son, for the statute (Westminst. 1st, c. 36) speaks not of the first-born son. But if aid had been received for the eldest son, it would not be due again for the second; for one aid only was due to one and the same lord to make his eldest son a knight. And if the lord had issue two sons, and the eldest son had issue a daughter and died, the lord was not entitled to aid to make his second son a knight, the second son not being heir apparent to his father's fee. (2nd Instit. 233).
pose; nor could they acquire money by other means, being wholly conversant in matters of arms; nor, by the nature of their tenure, could they charge their lands with this or any other incumbrances. From bearing their proportion to these aids no rank or profession was exempted: and there- To which even fore even the monasteries, till the time of their dissolution, contributed. contributed to the knighting of their founder's male heir (of whom their lands were holden), and the marriage of his female descendants (t). And one cannot but observe in this particular the great resemblance which the lord and vassal of the feodal law bore to the patron and client of the Roman republic; between whom also there subsisted a mutual fealty, or engagement of defence and protection. For, with regard to the matter of aids, there were three which were usually raised by the client, viz. to marry the patron's daughter; to pay his debts; and to redeem his person from captivity (u).
Besides these, the lords exact
ed other aids;
But these exactions were re
stricted by mag
But besides these antient feodal aids, the tyranny of lords by degrees exacted more and more; as, aids to pay the lord's debts, (probably in imitation of the Romans), and aids to enable him to pay aids or reliefs to his superior lord; from which last indeed the king's tenants in capite were, from the nature of their tenure, excused, as they held immediately of the king, who had no superior. To prevent this abuse, King John's magna charta (w) ordained that no aids be taken by the king without consent of parliament, nor in anywise by inferior lords, save only the three antient ones above mentioned. But this provision was omitted in Henry III.'s charter, and the same oppressions were continued till the 25 Edw. I., when the statute called confirmatio chartarum And by 25 Edw. was enacted; which in this respect revived King John's charter, by ordaining that none but the antient aids should be taken. But though the species of aids was thus restrain
(t) Philips's Life of Pole, I, 223. (u) Erat autem haec inter utrosque officiorum vicissitudo-ut clientes ad collocandas senatorum filias de suo conferrent; in aeris alieni dissolutionem
gratuitam pecuniam erogarent; et ab
And completely the stat. Westm.
And 25 Edw.
Fines payable to
at the death of the last tenant.
ed, yet the quantity of each aid remained arbitrary and uncertain. King John's charter indeed ordered, that all aids taken by inferior lords should be reasonable (w); and that the aids taken by the king of his tenants in capite should be settled by parliament (r). But they were never completely ascertained and adjusted till the statute Westm. 1, 3 Edw. I. c. 36, which fixed the aids of inferior lords at twenty shillings, or the supposed twentieth part of the annual value of every knight's fee, for making the eldest son a knight, or marrying the eldest daughter: and the same was done with regard to the king's tenants in capite, by stat. 25 Edw. III. c. 11. The other aid, for ransom of the lord's person, being not in its nature capable of any certainty, was therefore never ascertained.
2. Relief, relevium, was before mentioned as incident. the lord on tak- to every feodal tenure, by way of fine or composition with ing up the estate the lord for taking up the estate, which was lapsed or fallen in by the death of the last tenant. But though reliefs had their original while feuds were only life-estates, yet they continued after feuds became hereditary; and were therefore looked upon, very justly, as one of the greatest grievances of tenure: especially when, at the first, they were merely arbitrary and at the will of the lord; so that, if he pleased to demand an exorbitant relief, it was in effect to disinherit the heir (y). The English ill brooked this consequence of their new-adopted policy; and therefore William the conqueror, by his laws (2) ascertained the relief, by directing (in imitation of the Danish heriots) that a certain quantity of arms, and habiliments of war, should be paid by the earls, barons, and vavasours respectively; and if the latter had no arms, they should pay 100s. William Rufus broke through this composition, and again demanded arbitrary uncertain reliefs, as due by the feodal laws: thereby in effect obliging every heir to new-purchase or redeem his land (a): but his
brother Henry I., by the charter before mentioned, restored
his father's law; *and ordained, that the relief to be paid [ *66 ] should be according to the law so established, and not an arbitrary redemption (b). But afterwards, when, by an or
dinance in 27 Hen. II. called the assize of arms, it was Assize of arms. provided that every man's armour should descend to his heir, for defence of the realm; and it thereby became im- Composition in lieu of knight's practicable to pay these acknowledgments in arms according to the laws of the conqueror, the composition was universally accepted of 100s. for every knight's fee; as we find it ever after established (c). But it must be remembered, that this relief was only then payable, if the heir at the death of his ancestor had attained his full age of one and one. twenty years.
payable only if the heir had at
right of the king, on the death of
tenant in caknight's fee, to
pite seised of a
take certain pro
3. Primer seisin was a feodal burthen, only incident to 3. Primer the king's tenants in capite, and not to those who held of inferior or mesne lords. It was a right which the king had, when any of his tenants in capite died seised of a knight's fee, to receive of the heir (provided he were of full age) one whole year's profits of the lands if they were in immediate possession: and half a year's profits, if the lands were in reversion expectant on an estate for life (d). This seems to be little more than an additional relief, but grounded upon this feodal reason; that, by the antient law of feuds, immediately upon the death of a vassal, the superior was entitled to enter and take seisin or possession of the land, by way of protection against intruders, till the heir appeared to claim it, and receive investiture: during which interval the lord was entitled to take the profits; and, unless the heir claimed within a year and day, it was by the strict law a forfeiture (e). This practice however seems not to have long obtained in England, if ever, with regard to tenure under inferior lords; but, as to the king's tenures in capite, the prima