III. Glanvill
Glanvill is a legal treatise written around 1188, probably not by anyone named
Glanvill. The treatise is organized around the writs and details procedure; in
a few instances, the author abandons the writs and seems to write in terms of
substantive law, detailing common custom. There had been other books on English
law before, preeminently The Laws of Henry I, but they were not organized
treatises, nor did they reflect anything more than diversity of law. Glanvill
is carefully organized and reflects a growing centralized court. Moreover, if
examined in excruciating detail, it shows the law in transition from the
discretionary justice before 1176 to adherence to rules of law, from tenures as
contractual arrangements to tenures as property. Glanvill is, finally, our best
look at early law. The king's court has left written records (plea rolls) from
1194; although a bit sparse at the beginning, by 1200 the records have survived
almost intact down to the twentieth century, constituting the longest run of
European secular court records. Glanvill is an overview of the law written
about six years before the plea rolls begin. Information from the early plea
rolls is difficult to glean; the author of Glanvill was both literate and
knowledgeable about the law and is of immense help in gaining insight into what
was happening at the beginnings of English common law. The information, as
always, is not without ambiguity. There is currently much debate about the
interpretation of much of Glanvill. (If you are interested in seeing the
difference between schools of thought about the origins of the law, see Palmer,
"The Feudal Framework of English Law," 79 Michigan Law Review 1130-1140
(1981).)
III.A. Procedure in the King's Court for Land
Given the nature of Glanvill, questions will be interspersed with the text. The
text, as always, is indented; the numbered paragraphs are the traditional
citation references to the text.
Here begins the discussion of pleas
1.5. When anyone complains to the lord king or his justices concerning his fee
or free tenement,[68] and the case is such that it ought to be, or the lord
king is willing that it should be, tried in the king's court, then the
complainant shall have the following writ of summons:
The writ for making the first summons
1.6. The king to the sheriff, greeting. Command [Precipe] N. to render to R.
justly and without delay one hide of land in such-and-such a vill, which the
said R. complains that the aforesaid N. is withholding from him. If he does not
do so, summon him by good summoners to be before me or my justices on the day
after the octaves of Easter, to show why he has not done so. And have there the
summoners and this writ. Witness Ranulf Glanvill, at Clarendon.
1. Glanvill I.6 we shall simply call the precipe (pray-ki-pay) for land, after
the first word succeeding the salutation. It is a standardized writ, with
Chancery really only having to fill in the blanks with the right sheriff, the
right names, the place and the amount of land, and the appropriate return day.
The "return day" here is octaves of Easter; that is the date on which
the writ physically must be returned to the king's court with a report from the
sheriff endorsed (written on the back) concerning what he was able to do. Since
it was returned, this is a returnable writ, as distinct from other writs which
ordered sheriffs or others to do something but did not require a report.
Returnable writs are a prerequisite for a regularly functioning central court;
the court had to have some means of communication with the sheriffs who were
executing the process. The existence of returnable writs that were also
standardized indicates the existence of a central court developing a legal
bureaucratic routine.
2. For whom is this writ appropriate? Why would one use this writ to claim a
parcel of land, rather than the writ of right retailed in assignment II.C?
Would it be appropriate for any claimant of land, or simply for those claimants
who claim to hold directly of the king? Could there be any doubts about land
tenures held directly from the king? What difference does the answer make,
concerning the appropriate purchasers of the writ?
What the law is when the party summoned neither comes nor sends an essoiner in
response to the first summons
I.7. On the appointed return day the party summoned either comes or does not.
If he does not come, then he sends a representative or an essoiner,[69] or
neither. If he neither comes nor sends anyone, the other party who is claiming
against him should appear before the justices on the appointed return day and
present his case against the tenant: and he shall wait three days in court. If
the tenant does not come on the fourth day, but the summoners appear and allege
that he has been properly summoned and offer to prove this in whatever way the
court may decide, then the court shall direct that the tenant be summoned again
by a further writ to come on a return day at least a fortnight later. This
writ[70] shall direct him to come and answer both as to the principal plea and
as to his not coming at the first summons.
Three summonses shall be sent out in this way. If the tenant neither comes nor
sends anyone at the third summons, then the land shall be taken into the lord
king's hand, and shall remain thus for a fortnight; if the tenant does not come
within the fortnight, seisin shall be adjudged to the other party, and the
tenant shall not be allowed to reopen the issue except on the question of
property by means of a writ of right. If, however, the tenant comes within the
fortnight and wishes to replevy the tenement, he shall be ordered to come on
the fourth day, when he shall have justice done to him; and so, if he comes
then, he can get back his seisin.
[The treatise then continues to retail the different essoins (excuses for
non-appearance) that the tenant can cast. This consumes 22 chapters; some
essoins can easily delay the plea for a whole year, as with the essoin of
bed-sickness.]
The Presence of both parties
2.1. When both demandant and tenant appear together in court and the demandant
claims the disputed tenement from the tenant, the tenant can ask for a view of
the land. To decide whether this postponement can be allowed to him it is
necessary to distinguish whether the tenant has other lands in the vill where
the disputed land lies or not. For if he has no other lands there, this delay
shall not be granted him. If, however, he has other lands there, a postponement
shall be allowed to him, and another day assigned him to be in court. In such a
case, when the tenant has left the court he can again have three reasonable
essoins, and the sheriff of the county wherein the tenement lies shall be
commanded by the following writ to send free men from his county to view the
land: [here omitted].
The demandant's claim
2.3. When both parties appear again in court after the three reasonable essoins
and the view, the demandant sets out his claim and suit as follows [this oral
rendition of the claim is called the "count"]: "I claim against
this N. the fee of half a knight and two carucates of land in such-and-such a
vill as my right and my inheritance, of which my father (or grandfather) was
seised in his demesne as of fee in the time of King Henry the First[71] (or
since the coronation of the lord king),[72] and from which he took profits to
the value of five shillings at least, in corn and hay and other profits; and
this I am ready to prove by this free man of mine, H., and if any evil befalls
him then by this other man or by this third man, who saw and heard it."
(He can name as many as he likes but only one of them shall wage battle.) Or
the claim may be in other words, thus: "And this I am ready to prove by
this free man of mine, H., whose father in his last minutes enjoined him, by
the faith binding son to father, that if ever he heard of a suit concerning
this land, he should offer to prove it as something seen and heard by the dying
man."
When the suit and claim of the demandant have been heard, it is for the tenant
to choose whether he will defend himself against the demandant by battle or
will put himself upon the assize of the lord king and seek a recognition to
determine which of the parties has the greater right in the land. If he chooses
to defend himself by battle, then he himself, or some suitable person on his
behalf, must deny the right of the demandant word for word as he has set it
out. It should be noted that once the battle has been waged [i.e., once
security has been given for proceeding with the battle], the tenant must defend
the land by battle, and cannot any longer put himself upon the [grand] assize.
. . .
When the battle has been fought, the vanquished champion is liable to a penalty
of sixty shillings for crying craven and shall lose also his law. Moreover, if
the tenant's champion is defeated, his principal shall restore the disputed
land with the fruits and profits found on the fee at the time when seisin is
delivered and shall never again be allowed to bring this same plea in court.
For those matters which have been determined in the lord king's court as the
result of a battle are settled forever.[73]
. . .
The Grand Assize
2.6. If the tenant chooses to defend himself by battle against the demandant,
then the procedure is as stated above. But if the tenant prefers to put himself
upon the lord king's Grand Assize, then the demandant will either do the same,
or he will not. Once the demandant has stated in court that he has put himself
upon the assize, and has expressly said this to the justices sitting on the
bench, he cannot afterwards retract, but must stand or fall by the assize. But
if he is unwilling to put himself upon the assize he must show some cause why
there should be no assize between them, for example, that they are of the same
blood, and descended from the same parentelic stock from which the inheritance
has descended. If the demandant makes this objection, the tenant will either
admit it or not.
If he admits it in court, then the assize shall not proceed, and the case shall
be verbally pleaded and determined in court by means of a due enquiry as to
which of them is nearer to the original stock and therefore the more rightful
heir. . . .
If nothings happens to prevent the assize from proceeding, then the case will
be as conclusively settled by assize as by battle.
The nature of the GRAND ASSIZE
2.7. This assize is a royal benefit granted to the people by the goodness of
the king acting on the advice of his magnates. It takes account so effectively
of both human life and civil condition that all men may preserve the rights
which they have in any free tenement, while avoiding the doubtful outcome of
battle. In this way, too, they may avoid the greatest of all punishments,
unexpected and untimely death, or at least the reproach of the perpetual
disgrace which follows that distressed and shameful word which sounds so
dishonourably from the mouth of the vanquished ["craven"]. This legal
constitution is based above all on equity;[74] and justice, which is seldom
arrived at by battle even after many and long delays, is more easily and
quickly attained through its use. Fewer essoins are allowed in the assize than
in battle, as will appear below, and so people generally are saved trouble and
the poor are saved money. Moreover, in proportion as the testimony of several
witnesses in judicial proceedings outweighs that of one man, so this
constitution relies more on equity than does battle; for whereas battle is
fought on the testimony of one witness, this constitution requires the oaths of
at least twelve men.
1. The grand assize, then, was an alternative to battle, but equally
determinative. It was introduced in 1179 and shows the speed with which the
king and his advisors began improving legal procedures. Much of the procedure
detailed above had to have been derived in substantial part from customary
practice, but it has here become a routine, and there was nothing so clearly
defined in medieval English law as civil procedure; most of the law, in fact,
was procedure. You should be able to see, even with this brief excerpt, the way
in which procedure dominated and the speed with which the law was becoming
bureaucratic. In 1176 as a consequence of the Assize of Northampton the king's
court ceased being a communal court and began to utilize its justices not only
as presiding officers but also as judgment-givers. You should be able to see
the effect that this alteration, in addition to the increased caseload and the
standardization of writs, has on the character of law. Pay particular attention
to this part of the argument in Paul Brand's article "Multis
Vigiliis."
2. Proceedings in feudal (little evidence) and county courts concerning land
and originated by a writ of right (as above in assignment II.C: "hold full
right to x") also utilized battle. The grand assize was also made
available for these cases, but was reserved solely for the king's court, so
that such cases had to be removed. The procedure was cumbersome. The tenant had
to purchase a writ of peace directed to the feudal or county court presiding
officer, whereupon proceedings would be stayed. The demandant would then have
to purchase another writ to begin the process again, but now in the king's
court. This writ was identical then to what the demandant would do if he had
begun in the king's court by virtue of the precipe; his writ now summoned four
knights to Westminster, there to elect twelve knights to serve on the grand
assize. After the four knights had elected the twelve, the following writ
issued out:
2.15. The king to the sheriff, greeting. Summon by good summoners the following
twelve, namely A. and B. and so on, to be before me or my justices at
such-and-such a place on a certain day, ready to declare on oath whether N. or
R. has the greater right in one hide of land (or other things claimed) which
the aforesaid R. claims against the aforesaid N., who is tenant, and in respect
of which the aforesaid N., who is tenant, has put himself upon my assize and
has sought a recognition to determine which of them has the greater right in
the things claimed. And meanwhile the twelve shall view the land (or tenements
from the services are demanded). And summon by good summoners N., who is
tenant, to be there to hear the recognition. Witness etc.
. . .
2.17. When the assize reaches the stage where the recognition is made, then
either the true legal position is well known to all the jurors, or else some
know and some do not, or else none of them knows. If none of them knows the
truth of the matter, and they have stated this on their oath in court, recourse
shall be had to others until such as do know the truth of it are found. If,
however, some know the truth of the matter and some do not, those who do not
shall be rejected and others summoned to court until at least twelve can be
found to agree on it. If some of them declare in favour of one party and some
in favour of the other, then further jurors are to be added until at least
twelve agree together in favour of one party. Each juror summoned for this
purpose must swear that he will not declare falsely, nor knowingly suppress the
truth. The knowledge required from the jurors is that they shall know about the
matter from what they have personally seen and heard, or from statements which
their fathers made to them in such circumstances that they are bound to believe
them as if they had seen and heard for themselves.
1. The grand assize is obviously something like a jury: it is a panel of twelve
men sworn to tell the truth. Are they impartial? What does the issue put to the
assize entail: "who has greater right"? Is "right" clear
and uncomplicated; is all the right on one side? Is there a clear distinction
between law and fact contemplated? Are there any questions of law that cannot
go to the grand assize? Is there any room here for witnesses?
2. What is the trial? Which part of the litigation demands more legal skill,
the trial or the possible pleading about who is closer heir? Trial by battle is
often referred to as a proof, not a trial, since there is no way to weigh
evidence. The grand assize is a straight substitute for battle; to what extent
is it a trial?
3. Book 3 of Glanvill concerns warrantors. Figure out who a warrantor might
usually be. Specifically, look to see if the warrantor is really the lord, who
must stand to, be loyal to, the commitment he made in taking the man's homage.
3.1. . . .
When the tenant in court vouches another to warranty, a reasonable return day
is assigned him in court on which to have there this warrantor of his; and thus
he can again have recourse to his essoins, namely three for himself and another
three for his warrantor. When the vouchee to warranty eventually appears in
court he will either warrant the thing for the tenant or not. If he is willing
to warrant it for him, then the demandant shall plead solely with the
warrantor, in whose name, from that moment, all the requisite pleading shall be
done. . . .
If the warrantor is present in court and defaults in his warranty to the tenant
who brought him there to warrant, then there shall be a plea between them,
which may, in consequence of the formal words alleged therein, result in
battle; and this is so whether the tenant who vouched him to warranty has a
charter of his or not, provided that he has a witness who is suitable for
proving the case and is willing to do so. Note also that when it is established
that he who is brought to warrant is bound to warrant the thing, then from that
moment he for whom he ought to warrant it cannot lose it, because, if the
demandant proves in court that the thing is his, the warrantor shall be bound
to give to him who vouched him an equivalent in exchange
["ESCAMBIUM"], if he has property out of which he can do this.
. . .
3.6. Moreover, a case is often delayed by the absence of lords; for example,
when the demandant claims that the tenement in question belongs to the fee of
one lord, and the tenant says that he himself holds it as of fee of another
lord. In such a case both lords shall be summoned to court, so that the case
may be heard and determined in due form in their presence, lest in their
absence some injustice may seem to be done them. On the return day for which
they are summoned to come to court, both or either of the lords may lawfully
cast essoins, and can do this on three successive return days in the customary
manner.
. . .
3.7. When both lords are present the tenant's lord will either warrant that the
land in question is of his fee, or he will deny it. If he warrants it, then he
shall have a choice between undertaking the denial himself and committing it to
the tenant; whichever he does his rights and those of his tenant will be
preserved if they are successful in the plea; but if they are defeated, then
the lord shall lose his service and the tenant the land without any right to
reopen the issue.
If, however, the tenant's lord is present in court and fails to make good to
the tenant his warranty, then the plea can be changed into a plea between
tenant and lord: for this to happen the tenant must say that his lord unjustly
fails to make good to him as lord of that fee the warranty
--"unjustly" because the tenant performed for him in respect of the
land a specified service of such-and-such an amount (or because his ancestors
performed it for him or his ancestors) -- and must produce persons who heard
and saw this and some person suitable for proving it, or else some other
suitable and sufficient proof of whatever kind the court may direct.
1. Understanding warranty is crucial to understanding the social basis of the
common law of property. Warranty will seem to a modern as a contractual matter
tangential to the actual ownership. Consider the following however. When a lord
took homage from a man, the man's undertaking was good and loyal service; the
lord's obligation to him was protection and maintenance. The ordinary form of
maintenance was a fee: an agricultural estate that would produce sufficient
income for the man to train as a knight and to be available to fight. The
relationship was one of mutual obligations. If the relationship was primary,
warranty was an embodiment of that primary obligation. The tenant can call the
lord into court to take over the plea, as it were, to defend him. If he loses,
the lord's obligation remains and takes the form of escambium.
2. A modern will think of land transfers in a property context: the new tenant
will assume the exact same position as the old tenant. That is what will be
referred to as a grant by substitution: new tenant substitutes for old tenant,
holding of the same lord with the same obligations. Such things were rare in
the twelfth century. More frequent were grants by subinfeudation: a downward
grant of a part of one's holding in return for services. The lord/grantor then
held the land only in lordship, but had a continuing interest and
responsibility for the fee granted; the tenant was bound to the grantor and
held the land in demesne. These social relationships implicating land were the
primary bonds of organized society and were "vertical" relationships,
not the "horizontal" relationships of property. A helpful analogy is
that of modern landlord and tenant, except one must remember that in the
twelfth century the landlord himself held further of another lord, from whom he
held by certain services, and so on until one reached the king, who was
ultimate lord. Stop at this point, and perhaps re-read the material on warranty
until you can see how it was not horizontal, but vertical, how it mirrored the
vertical relationships of land tenure and the mutual obligations of lord and
man.
[Traditionally, these methods of granting were considered merely possible
alternatives for conveyance, not as embodying substantial power differentials
and actual distributions of portions of control over land and people.]
3. There follows a section on status, which we shall not cover. Note, however,
that about 2/3 of the English population were villeins holding in villeinage:
they were not free men, nor were the lands they inhabited protected by the
common law. They did not give and could not give homage. They were not slaves
but were bound to the land and, on flight, could be brought back. Their lives
were governed by manorial courts. Manorial courts, dominated by the lord of the
manor, however, supervised their holdings in much the same way as did the common
law, so that with great regularity sons did succeed fathers in the same
"peasant" holding. Nonetheless, we are not here concerned with
villeins or villeinage holding. Likewise, many small free farmers did not give
homage, but only fealty. They were not fighting men but farmers; they held in
what came to be known as socage: protected by the common law, but not much
thought about. They had access, for instance to the assize of novel disseisin,
the assize of mort d'ancestor, and the grand assize. Likewise, there were
growing but still very small towns, that during the late twelfth century were
establishing themselves as relatively independent jurisdictional units; there
tenures were not military and were diverse, but irretrievably local. There were
also matters such as tenure in free alms, for lands given to the church in
return for spiritual services such as prayers; each form of tenure at common
law had its own rules. The classical shape of property law, however, developed
around the holdings of that 5% or so of the English population that held in a
military fashion with homage or in ways that derived from homage; that is where
we concentrate.
The doing of homage and receipt of relief
9.1. The doing of homage and receipt of relief must now be discussed further.
When anyone's father or ancestor dies, the lord of the fee is immediately bound
to receive the homage of the right heir, whether the heir is a minor or of full
age, provided that he is male. For women may not by law do homage, though they
generally swear fealty to their lords; but, if they are married, their husbands
ought to do homage for their wives' fees to their lords:[75] I say this on the
assumption that the fees in question owe homage. If the heir is male and a
minor, the lord ought not by law to have wardship either of the heir or of his
tenement until he has received the homage of the heir.[76] For it is generally
true that no one may demand service, whether it be relief or something else,
from an heir, whether of full age or a minor, until he has received his homage
for the tenement in respect of which he claims to have the service. A man may
do several homages to different lords for different fees held of those lords;
but there must be a chief homage, accompanied by an oath of allegiance, and
this homage is to be done to that lord of whom he holds his chief tenement.
Homage should be done in the following form: he who is to do homage shall
become the man of his lord, swearing to bear him faith of the tenement for
which he does his homage, and to preserve his earthly honor in all things,
saving the faith owed to the lord king and his heirs. It is evident from this
that a vassal may not attack his lord without breaking the faith of his homage,
except perhaps in self-defence or when he goes by royal command with the king's
army against his lord. In general it is true that he may not, without breach of
the faith of homage, do anything which works to the disinheritance or bodily
dishonour of his lord.[77] If anyone has done several homages for different
fees to different lords who are attacking each other, and his liege lord
commands him to personally with him against another of his lords, he must obey
his command in this matter, but saving to that other lord the service for the
fee which he holds of him.
It is clear from what has been said above that if anyone does anything to the
disinheritance of his lord and is convicted of it, he and his heirs shall by
law lose the fee which he holds of him.[78] It will be the same if anyone lays
violent hands on his lord to hurt him or to do him a dreadful injury, and this
is lawfully proved against him in the proper court. But I put this question: is
anyone bound to defend himself on such charges against his lord in his lord's
court; and may his lord distrain him to do so by award of his court without a
command from the lord king or his justices, or without a writ from the lord
king or his chief justice? The answer is that anyone may lawfully bring his man
to trial and distrain him to come to his court by judgment of his court; and,
unless he can clear himself against his lord by swearing three-handed [i.e.,
his own oath and that of two others] or with as many as the court shall direct,
the whole of the fee which he holds of that lord shall be at the lord's mercy.
I also put this question: may a lord distrain his man to come to his court to
answer a complaint by the lord that he is withholding service, or that some of
the service is in arrears? The answer is that he may lawfully do so, even
without a command from the lord king or his justices; and the proceedings
between lord and man may result in battle or the grand asize if one of the
man's peers offers himself as a witness who has seen the tenant or his
ancestors do such service for that fee to the lord or his ancestors, and is
ready to prove it. If the tenant is convicted of the charge, he shall by law be
disinherited of the whole fee which he holds of that lord. Where, however,
anyone is unable to justice his tenants, it is then necessary to resort to the
Curia [king's court].*
Any free male may do homage, whether he is of full age or a minor, and whether
a clerk [i.e., cleric] or a layman. Consecrated bishops do not do homage to the
lord king even for their baronies, but swear fealty accompanied by an oath; but
bishops-elect do homage before their consecration.
1. In regard to the passage preceding * above, first, what does this mean? If
your rent is in arrears, or if you disagree with your lord about part of your
rent or services, can you lose the whole tenement? Why not just that part that
is disputed (when you have as your fee, say, two manors, and you and the lord
are agreed on the services due from one, but not on the other)? What does this
indicate about tenant's claim to "own" land?
[Traditonally, homage was only seen as the ritual for initial receipt of
property in land, and thereafter only as a relatively useless ritual that each
further generation had to perform, without actual relevance for relationships
or power: a merely "legal" act.]
2. In regard to the same passage, as will appear in the next few classes, the
fact that the tenant will have to answer in the lord's court without the lord
having to obtain a writ of right must mean that such matters as are here listed
are not considered "answering for the free tenement." There is no
dispute here over who the proper tenant is, but only as to whether he might
have forfeited the tenement for failure to perform his obligations. The
distinction drawn here has been labelled by modern historians as that between
proprietary matters (who is the rightful tenant)(matters that cannot be brought
into question without a writ) and disciplinary matters (which could still be
handled in the lord's court without a writ. What relevance here is the assize
of novel disseisin?
[Traditionally, "no man need answer for his free tenement without a royal
writ" was seen as only a royal rule requiring a licence purchased from the
king before initiating a property dispute, poorly stated early on, better
understood toward the end of the reign of Henry II, but not related originally
to any feudal duty of the lord's adherence to his accepted tenants.]
3. It will be apparent that because of the Assize of Northampton, c. 4 and the
workings of the writ of right, the king's court considers the determination of
the heir a matter of law, not of fact:
a. eldest son excludes other sons and all daughters
b. daughters will divide an inheritance when there is no male descendant
c. lacking a descendant of x, the decedent, one will refer to x's father's (or,
later on, if the land came from mother's side, mother's) descendants; lacking
which to that father's father's descendants and so on, ruled then by a and b.
d. after 1216 it rapidly becomes true that a child's descendants will represent
him, that is, son A predeceases father B but leaves a child C; C will succeed
to B's land in the same way that A would have, had he not predeceased B.
e. ascendants are excluded: that is, a father will never inherit from his son;
although one will revert back to parents then to seek descendants as in c, land
almost must in some way descend (back to grandfather but then down to
grandfather's second son).
4. What sense does this make socially? If a lord has a personal relationship
with his men, and if this is vital to power, is not the decision about who will
be accepted as new tenant and heir the most vital decision possible? Or is that
decision relatively uncontroversial? Can loyalty pass down the generations as
easily as land? And does it make any difference who gets the land if the lord
can, with the approval of his court, disinherit any tenant who proves
unsatisfactory? Which is more important to the lord: proprietary matters or
disciplinary matters? Does the existence of disciplinary jurisdiction influence
your decision about whether or not tenants owned property? As long as the lords
retained their disciplinary jurisdiction so that they could evict unreliable
tenants in their own court, then the imposition of mort d'ancestor was not
vital, nor did it defeat the lord's fundamental position of power.
9.2 Homage is only done for lands, for free tenements, for services, and for
rents precisely fixed in money or in kind. But for mere lordship no homage is
done except to the king. Moreover, homage is not invariably due for all lands:
it is not due for dower;[79] nor is it due, until the third heir, either for
free maritagium[80] or for the fee of younger sisters holding of the eldest;
nor is it due for a fee given in free alms, or from the husband of a woman to
whom a tenement is given in any way as a marriage portion.
Persons to whom homage is due
9.3. Homage may be done to any free person whether male of female, whether of
full age or a minor, whether a clerk or a layman. It should be known, however,
that if anyone does homage for a certain tenement to a woman who afterwards
marries, he is bound to do homage for the same tenement to the husband.
But it is uncertain whether one who, by a concord made in court, recovers a
certain tenement against another who has previously paid relief for that
tenement to the chief lord ought to pay a further relief for that tenement.
9.4. The bond of trust arising from lordship and homage should be mutual so
that the lord owes as much to the man on account of lordship as the man owes to
the lord on account of homage, save only reverence.[81] Therefore if anyone
gives to another a tenement in return for service and homage, and a third party
afterwards proves his right to it against the tenant, the lord will be bound to
warrant him that tenement or give him equivalent lands in exchange. But it is
different in the case of a person who holds his fee as his inheritance from
another to whom he has done homage for it, for even if he loses the land the
lord will not be bound to give him equivalent lands in exchange.
. . .
Lords may sometimes, for reasonable cause, postpone the receipt of homage and
relief for their fees, for example, if a person other than he who asserts
himself to be heir claims the right in the inheritance: for homage should not
be received nor relief given while the case is in progress. Again, if the lord
thinks that he himself has a right to hold the inheritance in demesne, and
impleads the person in seisin by a writ of the lord king or his justices, the
tenant may put himself upon the grand assize of the lord king;[82] the form of
procedure in such a case was explained [above], subject to variation on a
number of points as appears from the following appropriate writ:
[the issue is whether "N has the greater right to hold of R. or R. to hold
as his demesne"]
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[68] All fees are free tenements, that is, all heritable estates are held at
least for life. A life estate, however, is a free tenement without being a fee,
since it is obviously not heritable (being held only for life.)
[69] An essoiner is not a representative like an attorney (who stands
completely as the party in the eyes of the court), but someone who comes to
give the party's excuse for not attending on the day.
[70] Note that the original writ, the writ that originates the case, issues
from chancery, whereas succeeding writs that order the mesne (middle) process
to get the defendant or tenant into court to answer issue from the court
itself. Thus the order that gives the court jurisdiction comes from chancery;
once the court has jurisdiction it issues the further commands necessary to
proceed with the case. The first writ is the original writ; succeeding writs
are judicial writs.
[71] This specification, the year 1135, retains the result of the compromise
between Henry II and Stephen to restore the disinherited. Succeeding years
until 1154 are irrelevant.
[72] That this is a remedy for more than the compromise is clear from the
specification here of years since 1154.
[73] Judicial combat as a method of trial is more than simply letting the
stronger contestant take. Like trial by ordeal (of which more later), it is a
method of putting the matter before God. One literary judicial combat, between
Sir Gawain and Sir Lancelot concerned Lancelot's killing of Gawain's honorable
brother. Lancelot had done the deed, but without knowing who it was he was
killing. Lancelot had apologized and offered to do homage to Gawain and go on pilgrimage
alone: a powerful offer from such a proud knight. Gawain refused to accept such
an offer. That refusal put Lancelot in the right, although marginally. Thus
when they went into combat they fought all day, fairly evenly, with Lancelot
only prevailing at the end of the day. In the same way, judicial combat about
appropriate tenancy would weigh all matters relevant, theoretically, in God's
determination of who should prevail.
[74] There were no courts of equity at this point and no separate system of equity
law. "Equity" here simply means fairness.
[75] Why should a husband do homage to the lord for his wife's fee, that is,
when she "inherits". Whose land is it if he does homage to the lord?
What if the marriage is annulled by reason of consanguinity or prior contract?
Would the husband claim by inheritance or as a new grant from the lord? Could
the lord be bound to warranty in such a situation? Should he be?
[76] Mort d'ancestor would result in putting the heir on the land even if the
lord did not want to receive his homage. The lord could not take the services
until he had taken homage. If a lord took this tenant's homage, however, he
would be obliged on a writ of right then to warrant that tenant and thus might
be bound to provide escambium. A lord might well resist taking the homage of
the tenant who had won by mort d'ancestor. The most reliable title, however,
was the lord's receipt of homage. Thus tenants would often initiate a suit (de
homagio capiendo) seeking to compell the lord to take homage.
[77] Does this passage might it difficult for a tenant to engage in judicial
combat against his lord? Might this account for as much of the popularity of
the grand assize as the "superior rationality" of the grand assize.
[78] This is the lord's disciplinary jurisdiction. Note that the offense need
not be related to any part of the land, but is simply a breach of the duties of
homage. The relationship is primary; a tenant's claim on land was still more
contractual than property-like. The lord's proprietary jurisdiction has to do
with deciding who should be tenant; it is exercised only at the beginning of a
person's tenure. The lord's disciplinary jurisdiction concerns a decision about
whether an acknowledgedly appropriate tenant should forfeit his fee because he
has violated his obligations.
[79] If a second husband did homage for his wife's dower, the lord would be
recognizing the dower land as heritable in the new husband, whereas the land
should revert to the heir of the first husband.
[80] Maritagium is a way of establishing a cadet line from daughters. Taking
homage would mean that the husband was being treated as a stranger and thus
would have the land heritably. Maritagium, however, was designed rather to
revert back to the grantor or his heirs if the line failed. Only at the third
heir (the fourth generation to hold) was the tenant actually a stranger by
their social mores, that is, no longer part of the family, so that homage would
be taken.
[81] Note that the homage relationship is one of mutual benefit. This mutuality
is one source of the social conviction in Anglo-American constitutional law
that government must also be beneficial for the governed, even at those times
when still the governing power was vested firmly in the king.
[82] Consider this carefully. A lord considers that the decedent only had a
life estate, but the assize of mort d'ancestor has put the heir onto the land.
The lord feels he has a claim and must bring a writ. The only writ available
for him would be the writ of right (if he claimed to hold it from another lord)
or the precipe of first summons (if he claimed to hold it directly for the
king). Would the tenant want to do judicial combat with the lord from whom he
claimed to hold? Might this explain why no example of mort d'ancestor appears
before 1179, when the grand assize was made available in the writ of right?
That is, the lord's recourse after the heir's recovery might have seemed so
unjust if battle was the only option that mort d'ancestor could not be
implemented. Plausibly, had judicial combat been pursued, the tenant, even
winning, might have been disseised (or might have been at least greatly
disadvantaged) for striking his lord. This consideration also might explain why
the grand assize was only available in the king's court (either for cases begun
there, or removed by the process into the king's court). In all such cases, the
writ of right would have gone to the lord's lord, who would have no interest in
the case and would only observe that the lord was in possession of the land,
albeit only in the possession of the service from the land from the tenant. He
would naturally always default, prompting removal first to county and then to
the king's court if not directly to the king's court by initiation of the grant
assize procedure.