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

measure we hear nothing. In Normandy, as in England, the relief sometimes consisted of the dead man’s armour, and was therefore, in the oldest sense of the word, a “heriot.”³¹⁰ But that Henry observed, or promised to observe Cnut’s law, we may not infer; its terms were fast becoming obsolete. Perhaps he considered, and was justified by Norman law in considering, that, at least in the case of earldoms and baronies, there was no fixed rule. The reliefs mentioned in the one Pipe Roll of his reign that has come down to us suggest that he allowed himself a liberal discretion and paid little regard to the antique rules about heriots.

Heritability of fees in the Conqueror’s reign.We are thus led to the question whether the followers of the Conqueror who received great gifts of English lands held those lands heritably. It is certain that they did; but this answer may require qualification and the difficulty of the question should be seen. As a matter of fact, their heirs in some cases succeeded them, and we even find women succeeding to baronies and military fees. But the number of tenures existing at a later day that can be traced back to the Conqueror’s reign by an unbroken thread of inheritance might easily be exaggerated. The great honours were frequently falling into the king’s hand by way of escheat. True, that in all or most cases the cause why the heir did not inherit may have been the treason or felony of his ancestor, or something that the king chose to treat as such.³¹¹ But this practical precariousness of tenure would check the formation of a law of inheritance applicable to military fees, and we have to remember that new canons of inheritance, primogenitary canons, were being evolved. Primogeniture was new in England, perhaps it was not very old in Normandy; near the end of the twelfth century both in England and in Normandy some of the most elementary points in the new system were still unsettled.³¹² [p.296] Any uncertainty about the rules of descent would give an opening for the king’s interference.³¹³ Add to this that the line between office and property is long an uncertain, fluctuating line. Are the earldoms, the counties, comitatus, to be hereditary; are the sheriffdoms, the vice-counties, vice-comitatus, to be hereditary; is the comes to be the successor of the ancient ealdorman; is the sheriff to be like the Norman viscount?³¹⁴ And what of the new castles that the king has erected? The very caput honoris, is it not a royal fortress? Any reminiscence of precarious beneficia that was latent in Norman law would bear fruit when such questions as these had to be answered by a conquering king who was building up a kingdom for himself and his heirs. No doubt his followers believed that they obtained hereditary estates, though we do not know that they had any warrant for this belief on parchment. But they knew that their heirs must relieve their lands. What would be the measure and conditions of the relief, time would show.

Mesne lords and heritable fees.And as with the king, so with the mesne lords. The Abbot of Abingdon soon after the Conquest enfeoffed knights to fill the places of the thegns who fell at Hastings, regardless of any rights that the heirs of those thegns might have. Perhaps they were disinherited on the score of what was accounted the felony of their ancestors. This, however, is not the defence relied on by the chronicler of the abbey, who was not without patriotism; the thegns, he thinks, had little enough right to the possession of lands that had been given to the church. Then in the days of Rufus one of the new knights died leaving three daughters; the abbot of the day stoutly denied that there had been any hereditary feoffment, and at last [p.297] would only admit the heiresses and their husbands as tenants for life on their abjuring all heritable rights.³¹⁵ Dare we say that he was obviously in the wrong? A historian of law may easily credit his characters with too much foresight; the truth is that men gave lands and took lands and left the terms of the tenure to be decided thereafter by the course of events and their own strong wills.³¹⁶ And so the feoda of the Norman reigns are indubitably hereditary: the very word is beginning to imply, even if it does not already clearly denote, heritability; but the lord has rights and to define them is difficult. The past history of the precaria which became beneficia, the beneficia which became feoda, the evolution of primogenitary rules, the conquest of England and consequent clash of laws, the ever renewed “treasons” and “felonies” perpetrated by the barons, all tended to keep the matter in uncertainty, and when finally the king’s rights emerge into clear daylight, they are large: the heir of the baron must make the best bargain that he can. To ascribe the law of reliefs and primer seisins to the covetousness of Rufus and the cunning of Flambard is to look only at the surface.

History of the heriot.The heriot was not suppressed by the relief, though in course of time it underwent a transformation. Glanvill tells us that the freeman who makes a will is bound to “recognize” his lord with the best and principal thing that he has and then to “recognize” the church.³¹⁷ Bracton repeats this: the lord should have the best chattel, the church the second best, or the third best, or it may be the church is entitled to nothing, for customs vary.³¹⁸ This will remind us of the gifts of arms and money made to the king by his thegns in the old days with a request that their wills may be allowed “to stand.” Elsewhere Bracton calls these testamentary gifts to the lords “heriots”; he tells us that the lord gets them by grace rather than by right, that they are regulated by local customs, that they do not touch the inheritance and that they must not be compared to reliefs. Britton adds that in general they are paid rather by villeins than by [p.298] freemen.³¹⁹ Turning to manorial surveys, we find it among the commonest of customs that when a tenant in villeinage dies, the lord shall have the best beast; sometimes a similar due is taken from the goods of the dead freeholder, and it is to these customary dues that the name “heriot” permanently attaches itself. Occasionally we still hear of the freeholder’s horse and armour going to his lord; but far more commonly the tenement that is burdened by a heriot is a peasant’s holding, the lord gets the best ox, and in this case the term heriot must in the eyes of the etymologist be inappropriate.³²⁰ We may guess that in the heriot of the later middle ages no less than four ancient elements have met:—(1) the warrior who has received arms from his lord should on his death return them; (2) the peasant who has received the stock on his farm from his lord should return it, and if his representatives are allowed to keep it, they must recognize the lord’s right to the whole by yielding up one article and that the best; (3) all the chattels of a serf belong in strictness of law to his lord and the lord takes the best of them to manifest his right; (4) in the infancy of testamentary power it has been prudent, if not necessary, that the would-be testator, however high his rank, should purchase from the king or some other lord that favour and warranty without which his bequests will hardly “stand.” But at any rate in course of time the heriot is separated from the relief.

Relief on the lord’s death.If a relief is payable when the original tenant dies and his heir takes up the inheritance, should not a similar payment be made when the original lord dies? We are told that, in the early days of the vassalic beneficium, the death of either party to the contract put an end to the tenancy, and on the continent the new lord on succeeding to his ancestor could often exact a payment from the tenant.³²¹ A remarkable document has come down to us in which William Rufus fixes the relevamen which is to be paid to him by the knights of the episcopal barony of Worcester; Hugh de Lacy is to pay £20, Gilbert FitzTurold 100 shillings, the Abbot of Evesham £30, and so forth. The occasion of the relief seems this, that the Bishop [p.299] of Worcester is dead and Rufus chooses to regard himself as the successor of St. Wulfstan, since the temporalities of the see are in his hand; “for he would be the heir of every man whether hallowed or lay.”³²² This we may regard as an act of oppression, but the legal excuse for it probably is that a relief is due from the tenants to their new lord. Of such payments we do not hear much more under the name of reliefs; but in Normandy one of the regular “aids” payable to the lord was an aid towards helping him to pay his own relief; half the relief that he had to pay he might obtain from his tenants by way of aid.³²³ In England we do not reckon this among the regular aids, but Glanvill distinctly sanctions the lord’s claim,³²⁴ and we may see that the new bishop or