OF HOMAGES, AND RELIEFS, AND SERVICES, AND AIDS, AND OF PURPRESTURES, AND BOUNDARIES DISTURBED.
It remains to resume the subject of performing Homages,[324] and receiving Reliefs.[325] Upon the death of the Father, or any other Ancestor, the Lord of the Fee is bound, from the first, to receive the Homage of the Right Heir, whether the Heir has attained his full age, or not, if he be a Male. For, Females cannot by Law perform any Homage,[326] although, generally speaking, they are to do Fealty to their Lords.
But, if they are married, their Husbands ought to do Homage to their Lords for their Fees; I mean, if Homage be due in respect of such Fees. If, however, the Heir be a Male and a Minor, the Lord of the Fee is not entitled by Law to the Custody, either of the Heir, or his Inheritance, until he has received the Homage of the Heir; because, it is a general principle, that no one can exact from an Heir, whether he is of age, or not, any service, consisting in a Relief or otherwise, until he has received the Homage of the Heir, in respect of that Tenement, for which the service is claimed. But a person may perform Homage to several Lords on account of different Fees; but, of these Homages, one should be the chief, and accompanied with allegiance,[327] and this must be made to the Lord, from whom the person performing Homage, holds his Chief Estate. Homage ought to be done in this form, namely, the party performing it shall so become the Man of his Lord, that he shall bear faith to him for the Tenement in respect of which he does Homage,[328] and shall preserve the Lord’s terrene Honor in all things, saving the faith due to the King,[329] and his Heirs.
From this it is evident, that a Vassal cannot injure his Lord, consistently with the Faith implied in Homage; unless, possibly, in his own defence, or unless, in compliance with the King’s precept, he join his Army when it proceeds against his Lord; and, generally speaking, no one can by Law, consistently with the Faith implied in Homage, do any thing which tends to deprive his Lord of his Inheritance, or to affix a personal stain upon him.[330] If, then, a Tenant has in respect of several Fees done Homage to different Lords, who afterwards make war on each other; and the Chief Lord should command the Tenant to accompany him in person against another of his Lords, he ought to yield obedience to this Mandate, saving however the service due to the other Lord for the Fee held of him.
From what has gone before it is evident, that if a Tenant should do any thing to the disinherison of his Lord, and should be convicted of it, he and his Heirs shall according to the Law for ever lose the Fee held of such Lord.[331] The same consequence will follow, if the Tenant lay violent hands on his Lord to hurt him, or to commit any atrocious injury upon him, and this be lawfully proved in Court against the Tenant. But, it may be asked, whether any one can be compelled in the Lord’s Court, to defend himself against the Lord from such charges; and whether his Lord can, by the Judgment of his own Court, distrain the Tenant so to do, without the Precept of the King, or his Justices, or without the King’s Writ, or that of his Chief Justice?
The Law, indeed, permits a Lord by the Judgment of his Court to call upon and distrain his Homager to appear in Court, and, unless he can purge himself against the charge of his Lord by three persons, or as many as the Court should award, he shall be amerced to the Lord, to the extent of the whole Fee that he holds of him.
It may also be enquired, whether a Lord can distrain his Homager to appear in Court, and answer for a service, of which the former complains the Tenant has deforced him, or of which some part is unpaid?
The Lord, indeed, by Law may well do so, even without the precept of the King, or his Justices. And thus the Lord and his Homager may proceed to the Duel, or the Grand Assise, by means of one of the Peers,[332] who chuses to make himself a Witness[333] of the fact, as having seen the Tenant himself, or his Ancestors, perform such service for the Fee in dispute to the Lord or his Ancestors, and is prepared to prove the fact. But, if the Tenant be convicted of this charge, he shall by Law be disinherited of the whole Fee, which he holds of his Lord. If, however, any one is unable to constrain his Tenants, it then becomes necessary to have recourse to the Court.[334] Every free Male person may perform Homage, whether of full age, or otherwise, whether a Clergyman or Layman. But consecrated Bishops are not in the habit of doing Homage to the King, even for their Baronies; but merely Fealty, accompanied with an oath. But Bishops elect are accustomed to do Homage, previous to their Consecration.[335]
But Homage is due only for Lands, free Tenements, Services, Rents in certain, whether in Money, or in other things. But, in respect of Dominion[336] alone, Homage ought not to be rendered to any one, except to the King. Yet Homage is not always performed for every species of Land. Thus, it is not due for Land in Dower, nor for free Marriage-hood, nor from the Fee of Younger Sisters holding of the Eldest, within the third descent on both sides[337]; nor is it due from a Fee given in Free-Alms, nor for any Tenement given in any way in Marriage-hood, as far as concerns the person of the Husband of the Woman to whom the property belongs as her Marriage-hood.
But Homage may be done to any free person, whether Male or Female, whether of full age or otherwise, whether Clergy or Lay. Yet should it be understood, that if a person has done Homage for a Tenement to a Woman who afterwards marries any man, he shall be compelled to repeat it to her Husband for the same Tenement. But, if any one has by Concord made in Court recovered a Tenement against another who had previously paid a Relief for it to the Chief Lord, it may be questioned, whether the person so recovering the Tenement ought to pay any Relief for it.[338]
Reciprocal, indeed, ought to be the Relation of Fidelity between Dominion and Homage.[339] Nor does the Tenant owe more to his Lord, in respect of Homage, than the Lord owes to the Tenant on account of Dominion, Reverence alone excepted. Hence, if one person give to another any Land in return for Service and Homage, which is afterwards recovered against the Tenant by a third person, the Lord shall be bound to warrant such Land to him, or to return him an adequate equivalent. It is different, however, with respect to him who holds a Fee of another, as his Inheritance, and, in this character, has done Homage; because although he lose the Land, the Lord shall not be bound to give him an equivalent.[340] In the case we have formerly mentioned, of the death of the Father or Ancestor, leaving an Heir, a Minor, the Lord of the Fee has no right to the Custody of the Heir, or his Inheritance, unless he has first received the Homage of the Heir. But the Homage having been received, the Heir, with his Inheritance, shall continue in the manner before mentioned, in the Custody of his Lord, until he has attained his full age. Having at last arrived at such age, and received restitution of his Inheritance, he shall, by reason of his having been in Custody, be exempt from the payment of any Relief.[341] But a Female Heir, whether she has attained her full age, or not, shall remain in the Custody of her Lord, until, with his advice, she is married.[342] If, however, she was within age, when the Lord received her into Custody, then, upon her marriage, the Inheritance shall be discharged from the Relief, so far as respects herself and her Husband.[343] But, if she was of full age at that time, although she continue some time in her Lord’s Custody before she is married, her Husband shall pay a Relief. When, however, the Relief has been once paid by the Husband of a Woman, it shall exempt both the Husband and the Wife during their several lives from payment of another Relief, on account of such Inheritance; because, neither the Woman herself, nor her second Husband, if she should espouse a second upon the death of the former, nor her first Husband, should he survive her, shall again pay a Relief for the same Land. But when a Male Heir is left of full age, and known to be the Heir, he shall hold himself in his Inheritance, as we have formerly observed, even though his Lord be unwilling, provided he make a Tender to his Lord, as he ought to do, of his Homage, and reasonable Relief,[344] in the presence of creditable persons. A person’s Relief is said to be reasonable, with reference to the Custom of the Realm, according to which the Relief of a Knight’s Fee is one hundred Shillings,[345] whilst that of Land in Socage is one Year’s Value.[346] But as to Baronies[347] nothing certain is enacted,[348] because Barons holding of the King in Capite are accustomed to pay their Reliefs to the King, according to his pleasure, and indulgence.[349] The same Rule prevails as to Serjeanties.[350] If, however, the Lord will neither receive the Homage nor reasonable Relief of the Heir, then, the latter should safely keep the Relief, and frequently tender it to his Lord, by the hands of respectable persons. If the Lord will by no means receive it, then, the Heir should make complaint of him to the King, or his Justices; and shall have the following Writ.
“The King to the Sheriff, Health.[351] Command N. that, justly and without delay, he receive the Homage, and reasonable Relief of R. concerning the free Tenement which he holds, in such a Vill, and that he claims to hold of him; and, unless he does so, summon him by good Summoners, that he be before me or my Justices on such a day, to shew why he has not done it. And have there the Summoners, and this Writ. Witness &c.”
As to the proceedings which are to be resorted to, in case the Lord should not obey this Summons, and the means by which he shall be distrained to appear in Court, they may be collected from the former part of this Treatise. When, at last, he appears in Court, he will either acknowledge that the Tenant is the right Heir, or deny that he is the Heir, or he will doubt, whether he is the right Heir or not. If he should acknowledge him to be the Heir, he will, then, either deny that the Tenant has tendered him the Homage and reasonable Relief, or he will admit it. If he confess both the one and the other, he shall either immediately receive the Tenant’s Homage and reasonable Relief in Court, or he shall appoint him a fit day for doing it. The same observation may be made, although he deny that the Tenant has proffered to him his Homage or Relief, provided he admit the Tenant to be the Heir. But if in decided terms he denies the Tenant to be the Heir, then, indeed, may the latter, if out of possession, require against his Lord an Assise de morte Antecessoris sui. Should the Tenant, however, happen to be in possession, he may hold himself in it, and patiently await, until it pleases his Lord to accept his Homage; because, no one is previously bound to answer his Lord as to the Relief, until the latter has received his Homage for the Fee, on account of which Homage is due to him. But if the Lord doubts, whether the person tendering the Homage be the right Heir or not,[352] being for example unknown to the Lord himself, or even to the Vicinage in the character of Heir, then the Lord of the Fee may take the Land into his own hands, and retain it, until the point be fully cleared up, a course of proceeding, which the King generally adopts with respect to all his Barons holding of him in Capite.
For, upon the death of a Baron holding of him in chief, the King immediately retains[353] the Barony in his own hands, until the Heir has given security for the Relief, although the Heir should be of full age. But Lords, for a reasonable cause, may sometimes postpone receiving Homage and Relief for their Fees. Suppose, for Example, another person, than the one who asserts himself to be the Heir, should claim a right in the Inheritance. During the pendency of this Suit, Homage ought not to be received, nor a Relief given. Or, if the Lord think that he himself has a right to hold the Inheritance in his own Demesne. And if in such case he should, by force of the King’s Writ or that of his Justices, implead the person in possession, the Tenant may put himself upon the King’s Grand Assise, the form of which proceeding is explained in the second Book, unless in some respects there should be a variation, an Example of which we have in the following Writ for such purpose——
“The King to the Sheriff, Health. Summon, by good Summoners, four lawful Knights, from the Neighbourhood of such a Vill, that they be before me, or my Justices, on a certain day there to elect, upon their oaths, twelve &c. who better know the truth of the thing, and will say, for the purpose of making a Recognition, whether N. has greater right of holding one Hyde of Land in that Vill of I. or whether R. of holding it in his Demesne, which the said R. claims by my Writ against the aforesaid N. and of which N. who holds the Land, hath put himself upon my Assise, and prays a Recognition to be made, whether he has greater right of holding that Land in his Demesne or the aforesaid N. of holding it of him: And summon, by good Summoners, the aforesaid N. who holds the Land, that he be then there to hear that Election. And have there, &c. Witness, &c.”
But after it has been settled between the Lord and the Heir of the Tenant concerning the giving and receiving of the reasonable Relief, the latter may exact reasonable Aids from his Homagers.[354] This, however, must be done[355] with moderation, keeping in view the extent of their Fees, and the circumstances of the Tenants, least they should be too much oppressed, or lose their Contenement.[356] But nothing certain is fixed, concerning the giving or exacting Aids of this description, unless that the form we have mentioned should be inviolably observed. There are also other cases, in which a Lord can exact from his Homagers similar Aids, observing, however, the principle we have laid down: as if his Son and Heir should be made a Knight, or if he should marry off his Eldest Daughter.[357] But, whether Lords can exact these Aids to maintain their own Wars, is doubtful. The opinion that prevails is, that they cannot by right distrain their Tenants for such purpose, unless so far as the Tenants may feel disposed. But, with respect to the rendering of reasonable Aids, Lords may of right, without the King’s precept, or that of his Justices, but by the Judgment of their own Court, distrain their Tenants by such of their chattels as may be found within their Fees, or by their Fees, if necessary; provided the Tenants are dealt with according to the Judgment of the Court, and consistently with the reasonable Custom of it. If, therefore, a Lord may thus distrain his Tenants[358] to render such reasonable Aids, much stronger is the argument in favor of its being lawful for him to distrain in the same manner for a Relief, as also for any other service necessarily due to him, in respect of the Fee. But if a Lord is unable to compel[359] his Tenant to render his services or Customs, then recourse must be had to the Assistance of the King, or his Chief Justice, and he shall obtain the following Writ——
“The King to the Sheriff, Health.[360] I command you that you adjudge N. that, justly and without delay, he render to R. the Customs and right Services which he ought to render him, for the Tenement that he holds of him, in such a Vill, as can be reasonably shewn to be due to him, least he again complains for want of right. Witness, &c.”
When the Plea proceeds by virtue of this Writ, the complainant shall, in the County Court, and before the Sheriff, recover his services, whether they consist in Reliefs or other things, according to the Custom of the County Court. And, if he should prove his right, the Adverse party shall render the reasonable Relief to his Lord, and shall, in addition, be amerced to the Sheriff; it being a general principle, that the Amercement which results from every suit, which has been carried on and determined in the County Court, belongs to the Sheriff. The amount of it, indeed, has been ascertained by no general Assise,[361] but is regulated by the Customs of different Counties; in one County more, in another less.
It follows that we speak concerning Purprestures. A Purpresture, or more properly speaking, a Porpresture,[362] is when any thing is unjustly encroached upon;[363] against the King; as in the Royal Demesnes, or in obstructing public ways, or in turning public waters from their right course; or when any one has built an Edifice in a City upon the King’s Street. And, generally speaking, whenever a Nuisance is committed affecting the King’s Lands, or the King’s High Way, or a City, the suit concerning it belongs to the King’s Crown. But Purprestures of this description are enquired after, either in the King’s Chief Court, or before his Justices sent into the different parts of the Kingdom[364] for the purpose of making such Inquisitions, by a Jury of the Place,[365] or Vicinage. And if, by such Jury, a man be convicted of having made any Purpresture of this kind, he shall be amerced to the King to the extent of the whole Fee that he holds of him, and shall restore that which he has encroached upon; and, if convicted of having encroached by building in a City upon the King’s Street, the Edifices shall belong to the King; those, at least, which are found to be constructed within the Royal District; and, notwithstanding, he shall be amerced to the King.
An Amercement[366] to the King is, when any one has been so far amerced, by the oaths of lawful Men of the Vicinage, as not to lose any part of his Honorable Contenement.[367] When a person has made a purpresture against any other than the King, he will either have made it against his own Lord, or against another. In the former Case, if the offence come not within the Assise,[368] then, the offender shall be distrained to appear in the Lord’s Court, to answer concerning it—I mean, if he holds any other Tenement of the Lord. For this purpose the following Writ shall issue——
“The King to the Sheriff, Health. I command you, that you compel N., that without delay, he appear in the Court of I. his Lord, and there abide by the right concerning his free Tenement, that he hath encroached against him, as he says, least, &c. Witness, &c.”
If the party be convicted of this offence in the Lord’s Court, he shall irrecoverably lose the Tenement he holds of such Lord.
But, if he hold no other Tenement of the same Lord, then, the latter shall implead him in the Court of the Chief Lord by a Writ of Right. In like manner, if any one commit an encroachment in this way upon a person, not being his Lord, and the case fall not within the Assise,[369] the matter shall be decided by Writ of Right. But, if the fact happen within the Assise, then, recourse must be had to a Recognition of Novel Disseisin to recover possession, of which proceeding we shall presently speak. In Purprestures of this description, the Boundaries of Land are sometimes destroyed and encroached upon. In such case, upon a complaint being made in Court by any of the Neighbours, let the Sheriff be commanded, that a View of the Boundaries in question be taken in his presence by Lawful Men of the Vicinage, and, upon their oaths, that he cause the boundaries to be as they ought to be, and were accustomed to be in the time of King Henry the First: for this purpose, the following Writ shall issue——
“The King to the Sheriff, Health.[370] I command you, that justly and without delay, you make reasonable divisions[371] between the Land of R. in such a Vill, and the Land of Adam of Byre, as they ought to be, and were accustomed to be, and as they were in the time of King Henry, my Grandfather, of which R. complains that Adam, unjustly and without judgment, has encroached more than belongs to his free Tenement of Byre, least I again hear complaint for want of Justice. Witness, &c.”