The History of English Law before the Time of Edward I. Frederic William Maitland

named and expressed in the gift, and vice versa whereby the tenant is “really” bound (re obligatur) to keep faith to his lord and do the due service; and such is the connexion by homage between lord and tenant that the lord owes as much to the tenant as the tenant to the lord, save only reverence.²⁵⁵ Such a definition tends to bring the whole matter within the legitimate province of the law of contract: there is a bargain about a tenement; the lessee is to do certain services, the lessor is to warrant the title. Warranty is still an important matter, and the doing and receipt of homage still have important results in the law about warranty; but even here the courts are beginning to neglect homage and to lay stress merely on the relation which exists, whether homage has [p.282] or has not been done, between a feoffor and his feoffee. And, as Bracton here hints, the feoffee’s obligation to perform the services is beginning to be conceived rather as the outcome of a “real” contract than as an outcome of the act of homage. To this point we may return hereafter, since it lies within the domain of private law. What had been the public, the political or anti-political, force of homage may best be seen by comparing passages in the text-books which deal with the problems which may arise when a man holds different tenements of different lords and those lords quarrel.

Homage and private war.Such problems were possible even at the beginning of the twelfth century, for a man might hold land of divers lords.²⁵⁶ Glanvill, though he distinctly says that the tenant may have to fight against his lord at the king’s command, says also that if a man has done divers homages for his divers fees to divers lords who “infest” each other, and if his chief lord orders him to go in his proper person against another of his lords, he must obey the command, “saving the service to that other lord from the fee that is held of him.”²⁵⁷ This can hardly be read otherwise than as a statement that private warfare may conceivably be lawful. Bracton dealing with a like case uses more ambiguous words:—If enmities arise between his different lords, the tenant must in his proper person stand with him (stabit cum eo) to whom he has done ligeance, while he must stand with his other lords by attorney.²⁵⁸ There is a great difference between Bracton’s stare cum and Glanvill’s ire contra. Bracton’s words may be satisfied by supposing a tenant bound to do suit to the courts of two lords who have quarrelled; he must go in person to the one court, by attorney to the other. In Britton’s book, however, or at least in some manuscripts thereof, it is written that the tenant may have to serve one lord “against the other”;²⁵⁹ and we are hardly entitled to say that this doctrine, even as a legal doctrine, was of no force. [p.283] It is probable that even the king’s courts would have held that the man was justified, or at least excused, in defending his lord and his lord’s property against hostile attacks, and such defence might easily become defensive warfare. The great case which proves that Edward I. had the will and the power to put down private war with a heavy hand, even when it was levied between the most powerful men of his realm, the case in which he sent an Earl of Gloucester and an Earl of Hereford to prison, proves also that in the eyes of contemporaries the full enormity of their offence was found in their having gone on with the war contrary to a royal prohibition, and that the morality of the time would hardly suffer any severe punishment to be inflicted upon those of their men who had followed their banners in ignorance of the king’s command. Such persons, if guilty of homicide, robbery, arson or the like, might doubtless be dealt with as common criminals; but for the mere fact that they had gone out with banner displayed, it would be hard to bring to bear upon them that prerogative procedure which was set in motion in order to crush the disobedient earls. At any rate, private war was an offence which might be enormously exaggerated by breach of a royal prohibition.²⁶⁰

Sanctity of homage.The same feeling may be seen in another quarter. That a lord should make an attack on his man or a man on his lord, even under the forms of law, is scarcely to be tolerated. If the man will bring an appeal, a criminal charge, against his lord, he must first “waive the tenement.”²⁶¹ When a king is going to declare war upon his barons [p.284] he first defies them, for there should be no attack while there is affiance. Henry III. in 1233 defied the Marshal, who then was no longer his man, but “outside his homage;”²⁶² before the battle of Lewes he defied the earls of Leicester and Gloucester, who thereupon renounced homage and fealty.²⁶³ We can hardly say that all this lies outside the sphere of law, for rebellions and wars are conducted on quasi-legal principles: that is a characteristic of the time. Bracton fully admits that a man who holds land both in England and in France may be bound to aid both kings when they make war on each other; his liege lord he must serve in person, but none the less he must discharge the service due to his other lord.²⁶⁴

Homage and felony.But the most curious limitation to the force of vassalism will be found in the fact that a man can hardly “go against” any one at his lord’s command without being guilty of the distinctively feudal crime, without being guilty of “felony.” Common law, royal and national law, has, as it were, occupied the very citadel of feudalism. Whatever may be the etymology of felony (and of this we shall speak hereafter), there can be no doubt that the word came to us from France, and that in France and elsewhere it covered only the specifically feudal crimes, those crimes which were breaches of the feudal nexus and which would work a forfeiture or escheat of the fief, or as the case might be, of the lordship; for the lord might be guilty of felony against his man just as the man might be guilty of felony against his lord. A mere common crime, however wicked and base, mere wilful homicide, or theft, is not a felony; there must be some breach of that faith and trust which ought to exist between lord and man. Now it would seem that for a while the word was used here as well as elsewhere in this restricted sense; in the Leges Henrici felonia is one among many crimes.²⁶⁵ A little later it seems to cover every crime of any considerable gravity, and seems to have no reference whatever to the feudal bond, save in one respect, namely, that the felon’s land escheats to his lord; nay, a charge of felonia has become an indispensable part of every charge of every [p.285] crime that is to be punished by death or mutilation.²⁶⁶ The details of this process are obscure. Possibly the lords saw no harm in a change which brought them abundant escheats; but an attack had been made upon vassalism at its very centre. To be true to your lord when there was any real strain on the feudal bond, to go out with him when he “went against” some one else, would end, like enough, in your finding that you had committed a felony. This of course is no superficial change in the use of words; it bears witness to a deep change in thought and feeling. All the hatred and contempt which are behind the word felon are enlisted against the criminal, murderer, robber, thief, without reference to any breach of the bond of homage and fealty.

Feudal felony.We can find traces of an older way of thinking. So late as 1225 William Blunt brought an action against Roger Gernon demanding homage, relief and scutage; Roger denied holding of the demandant and asserted that he held of William Briwere; the demandant replied “with words of felony”—wickedly and in felony had Roger denied his service and done homage to another.²⁶⁷ Such a use of the term felonia may have been belated, still felony in its more modern sense is not the only cause for an escheat. Glanvill speaks briefly:— the tenant will break the bond of homage if he does anything that may turn to the disherison of his lord or the disgrace of his lord’s person.²⁶⁸ Bracton’s phrase is “anything that may turn to the disherison of the lord or any other atrocious injury.” We cannot prove from decided cases that any delict falling short of a “felony” in the modern sense of that term, and unconnected with the tenure of the land, would have been regarded by the king’s courts of the thirteenth century as a cause of escheat; but it would be rash to deny that the tenant might lose the land by reviling his lord, particularly [p.286] if the lord kept a court and the tenant were duly forjudged the land by his peers; and Bracton distinctly says that any violent laying of hands upon the lord will cause a loss of the tenement.²⁶⁹ As to the dealings with the tenement which might work a disherison, lord or tenant might well lose his rights in the land by disavowing the tenure.