« SebelumnyaLanjutkan »
the parent (as Mr. Justice Blackstone has observed) of our oath of allegiance (a), the tenant (or vasal), after the ceremony of corporal investiture, a form imitated in our modern feoffments of land, usually did homage to his lord, which differed from the former in this respect, namely, that the fealty was a profession of fidelity, and the homage an acknowledgment of tenure (b). Homage was taken in the following manner, viz. the tenant being ungirt and uncovered, and kneeling before the lord, holding his hands close together between the hands of his lord, spoke thus ;—" I become your man from this day “ forth for life and member, and for worldly honour, and shall “ owe you my faith for the land I hold of you, saving the “ faith I owe unto the sovereign Lord my King, and to my “ other Lords.” (c)
And this mode of taking a pledge from each tenant signified protection and warranty on the part of the lord (d). But this in later times was held to be peculiar to homage auncestrel (e).
holds immediately by grant or lease
Lit. tit. Homage.' from the lord of the manor, but not (d) Bract. f. 80. Co. Lit. 67 b. by tenant at will, except by custom.
n. (1). Kitch. 260. Co. Lit. $ 84. Ib. $ (e) Ib. 2 Inst. 11. And see Co. 132. Ib. 93 a. n. 1. And even as to Lit. $ 113. F. N. B. 134 F. tenant for years, see the year-books Littleton in treating of Homage referred to in n. (2), Co. Lit. 67 b. AUNCESTREL tells us that such hom(a) And see Sulliv. Feud. L.p. 283.
is where the tenant and his an. (6) Homage of every kind, as far cestors, whose heir he is, have held as it relates to tenures, is now wholly the same lands of the same lord, and at an end. 12 Car. 2. c. 24. Co. Lit. his ancestors, whose heir the lord is, 105 a. n. (1). See a general observ- time out of memory of man, by ation on the reason for discharging homage, and have done to them tenures from homage, and on the ad. homage, which seems to be a strange vantages arising from it whilst it
and unusual tenure, and scarce posremained, both to the lord and te- sible to continue between the same nant, particularly to the latter where lord and tenant, and their ancestors, the homage was auncestrel. Ib. 67 b. and of the same lands, and this time n. (1).
out of mind : And Lord Coke doubt(c) Bract. f. 80. Glanv. 1. 9. c. 1. ed whether, even in his time, there Britt. f. 173. Flet. 1. 3. c. 16. Co. was any relique of this tenure in
Homage was performed only when the grant was of an estate of inheritance, that is, in fee-simple, or fee-tail (a); but fealty is to be done by tenant for life (6), or even for years if he hold immediately by grant or lease from the lord, but not by tenant at will, except by custom (c).
If required fealty is to be iterated on every change of the lord, and on every new purchase or descent, it differing in this respect from homage, which, except in special cases, is only due once, so that if other lands held of the same lord, descended to a person who had already done homage to the lord, no further homage could be required (d).
It should seem that homage as well as fealty was done by women when of age (e), but that homage was not exacted from femes covert, the husband doing both fealty and homage to the lord for the lands of his wife, if they had issue when livery was sued; and doing fealty (f), but not homage, if they had no issue (g). And therefore until there was issue intitling the husband to curtesy, the homage seems to have been suspended (1).
An infant, though he might have performed homage, cannot do fealty it should seem, as that is only to be done upon
England, because of this double pre- (e) F. N. B. 257 F. Co. Lit. 65 scription, both in the blood of the
b. 66 a.
But see contra, Glanv. lib. lord and the tenant. Co. Lit. § 143. 9. c. 1. Ib. 67 b. n. 1. 105 a. n. (1). At (f) Mr. Watkins was of opinion all events the tenure of homage aun- that the wife only should do fealty cestrel, as implied in the general for copyhold lands, she alone being words “ all tenure by homage,” was admitted tenant. Ante, pt. 1. p.
away by the stat. of 12 Car. 2. And see Combe's case, 9 Co. 76 a. c. 24. Co. Lit. 105 a. n. (1).
() F. N. B. 257 F. Kitch. 260. (a) Co. Lit. § 90.
(1) Br. Fealtie & Homage, pl. (6) Co. Lit. $ 93.
10, 16. F. N. B. 257 F. (n. b). But (c) Kitch. 260. Co. Lit. § 84. see Co. Lit. 66 a. &c., where LittleIb. § 132. Ib. 93 a. n. (1). Even as ton gives an instance of joint homage to tenant for years, see the year-books by the husband and wife, the husreferred to in n. (2). Co. Lit. 67 b. band alone repeating the words,
(d) 21 H. 8. Fealty 8. Kitch. which Lord Coke says must mean 260. Co. Lit. 68 b. n. (5).
before issue had between them.
oath (a); and as no man can swear by attorney, fealty must necessarily be done in person (b).
The lord, in his own person, could alone receive the tribute of homage (c), and for this reason a corporation, who can appear only by attorney, could not take homage (d); but fealty might always be received by the steward of the lord's court, or the bailiff (e).
The oath of fealty or pledge of fidelity, (and which was consequential to homage,) used always to be made immediately after the tenant had performed his homage, and was formerly deemed of the first importance, the seisin of fealty being a sufficient seisin of all other services (f). The oath is now usually administered, or rather respited, and an entry thereof made on the manor rolls (8), at the first court after the new tenant's title accrues, and the latter is not only the more general, but the more advisable mode, except, indeed, in those instances, if any exist, where fealty is the only service rendered (h).
« In a per que
(a) Bract. 78. Co. Lit. 65 b. 2 Inst. 11. But Kitch. p. 260, says
servitia an infant was constrained to attorn, and to make fealty, notwithstanding his non-age, cites 20 Ed. 3, tit. 19. And see 24 E. 3. 63-4. Hal. MISS, cited N. 5. Co. Lit. 65 b. (6) Co. Lit. 68 a.
Combe's case, 9 Co. 76. See a singular instance of fealty by attorney, Hal. MSS, cited Co. Lit. 68 a. n. 5. In France, both homage and fealty may be done by proxy, if the lord consents, and by the custom of some of the provinces even without. Ib.
(c) Bract. 1. 2. f. 80. Co. Lit. $ 92.
(d) Kitch. 260.
(e) Co. Lit. $ 92. Co. Cop. $ 20. Tr. 15. Ante, pt. 1. p. 429.
(f) Bevil's case, 4 Co. 8. Co. Lit.
68 b. That seisin of fealty doth not estop the tenant from traversing the seisin of other services, vide 41 E. 3, 25. 50. Lilburne's case, Hal. MSS. Co. Lit. 68 b. n. (6).
(8) See ante, pt. 1. p. 429.
(h) Co. Lit. 68 b. n. (5). And see further as to fealty, Sulliv. 68. Ante, pt. 1. ch. 8. Vide also as to the lord's remedy for fealty, post. p. 736. It appears by Kitch. p. 261, that the lord is not constrained to avow on a feoffee, even in case of the death of his tenant, without notice of the feoffment, but may distrain the feoffee and avow upon the feoffor, and in the case of the tenant's death after such alienation, the lord may distrain the issue, and avow upon
him. And indeed, by stat. 21 H. 8. c. 19, he need not avow or justify of any person certain. As to the remedy for
Suit of COURT.--I have already shown that a court baron is incident to every manor; and at this court the freehold tenants were anciently and are still compellable to perform their suit and service, as well to inquire of and maintain the rights of the lord, as to form a jury for the trial of matters in dispute between their fellow-tenants (a); which duty led, in the early feudal institutions, to their designation of peers of the court,
We have also seen that suit of court by freeholders may be done by attorney, but that such attorney cannot be appointed by parol (6): And that joint-tenants and coparceners shall do but one suit, the eldest sister performing the suit in the latter instance, and the other joint-tenants or coheirs being contributory for the suit done for them (c). But if there be two coparceners and the eldest will not do suit, then the lord may compel the youngest to make suit, who shall have contribution against the eldest (d).
It has likewise been already stated, that a woman is not allowed to sit on the homage to try issues in a court baron, where the suitors are the judges, nor even to make presentment, unless the husband die without an heir, but that the husband, and not the wife, is to perform all the services to the lord, in respect of the wife's freehold lands (e).
The remedy for neglect of suit of court, as well as for refusal to do fealty, is by distress infinite of the beasts or other personal property of the party distrained upon (f); but the
neglect of fealty, see infra n. (f). And see F. N. B. 156 D. Kitch. And, N.B., it was held in Bevil's 293. Ante, pt. 1. p. 431. case, 4 Co. 10 b, and in Bennet v.
(c) Ante, pt. 1. p. 105, 433. 2 King, 3 Lev. 21, that fealty and Inst. ) 16. See also Fitz. Abr. 162. such casual services as might not 1 H. 4. 3 a. Kitch. 29). happen within the periods mentioned (d) Fitz. Abr. 159 E. Kitch. 291. in the act, were not within the stat. (e) Ante, pt. 1. 432. But see, of limitation, 32 H. 8. And see Co. as to copyholds, ante, p. 734. n. (f). Lit. 115 a. Ante, pt. 1. p. 573.
(f) F. N. B. 158 et seq. Kitch. (a) See ante, pp. 716, 717, 719, tit. · Suit.' 3 Bl. Com. 231. See re720.
ference to the late stat. of limitation, (6) Stat. Merton. 20. H. 3. c. 10. post. p. 737. n. (e).
distress is considered as a pledge only for the performance of the services, and cannot be sold; for which reason I apprehend that it can in no case be deemed immoderate or excessive (a), under the statute of Marlborough (6).
But it should seem that for suit to a hundred court one cannot distrain, except by prescription, and in the lands charged with the suit, although a hundred court is no more than a court baron, and the suitors there are judges (c).
And it is to be recollected, that suit of court is not incident to tenure, unless it be suit service, so that if it should appear that the tenure was created subsequently to the stat. of quia emptores, I apprehend that the lord could not distrain for the subtraction of suit, except under a special reservation of the remedy of distress, or by prescription.
RENTS OF Assize, &c.—HERIOTS.— These subjects are already treated of at some length in our consideration of the services due to the lord of the manor from his copyhold tenants (d), to which I must beg to refer the reader, being anxious to avoid any unnecessary repetition in a work which I feel has much less pretensions to novelty of matter than of arrangement.
I am induced, however, to offer an additional observation with reference to the provisions of the late act of parliament for the limitation of actions and suits relating to real property (e). By the second section it is enacted that after the 31st of December 1833, no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years after the right to do so accrued to the party himself, or to some person through whom he claims; and the third section enacts that the right shall be deemed to have accrued, in cases of dispossession or discontinuance of
pos(a) Co. Lit. 68 b. n. (5). Finch. (e) 3d & 4th W. 4. c. 27. N.B.By L. 285. Bevil's case, 4 Co. 8 b. 3 Bl. the first sect. the word · rent' is deCom. 12, 231,
clared to extend to heriots, and all (6) 52 H. 3. c. 4.
services and suits for which a dis(c) F. N. B. 161 D. n. (a).
tress may be made. (d) Ante, pt. 1. ch. 8.