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Mabel entered upon his lands, and Richard, her father's nephew, claimed them in the king's court. He met the plea that the daughter took precedence of the nephew in succession by a denial that Mabel was daughter in the eye of the law. The case turning on the validity of the first marriage, was then referred to the ecclesiastical courts. Richard proved a divorce, and produced a copy, not impossibly forged, of the letter from the papal curia to Henry of Winchester. This document stated explicitly the true doctrine of Roman law, that marriage lay in the voluntary promise before witnesses; and that William's contract with Albreda illegitimatized the children by Adeliza. Mabel's answer was threefold. She said that the contract had not been in the most binding form, but conditional, allowing either party to recede; that Albreda's father had assented to William's breaking off the engagement; had taken his daughter's dowry back, and promoted the marriage with Adeliza. Secondly, it was urged that the divorce had been unfairly obtained in Stephen's disorderly times; that Adeliza had been driven by force from her husband's house, and Henry of Winchester corrupted by money to promote an unjust sentence. William de Sackville, it was added, expressed his repentance on his death-bed for the injustice he had connived at, and acknowledged Mabel for his heir. Thirdly, it was said that, in a case where the parents were bonâ fide ignorant that their marriage was illegal, the issue was not bastardized; that accordingly no sentence had been given against Adeliza's children; and that Theobald, count of Blois, had decided on this principle with respect to the fiefs held of him by William de Sackville. It is clear that Mabel had a strong case in equity, and even by canon law, if she could establish her parent's bonâ fide ignorance of an impediment. She seems to have given a bad impression of her claims by putting in frequent essoins. At last the papal curia gave sentence against her as born in adultery (Dec. 1162 A.D.), and a few months later the king's court adjudged the litigated lands to Richard of Anesty.

This suit lasted altogether more than four years. Richard of Anesty has left in writing the record of his expenses; and it


appears that the costs of journeys and pleadings amounted to over two thousand pounds of our present value; that the court fees and presents to the king and queen and their physician were about two thousand two hundred pounds additional.1 Even this does not represent his total expenses, for he had been forced to borrow money largely at from sixty to eighty per cent. To this and to the influence of his relations the decision may have been partly attributable. Most of this expenditure was undoubtedly due to the delays resulting from a divided jurisdiction. The issue had been what now appears the triumph of wrong over right. These facts deserve to be borne in mind, that we may appreciate the resolute stand which the English barons made against any extension of the civil law. Its philosophical value did not concern them: as practical men, they saw what England suffered under two tribunals. "We will not suffer the ancient and approved laws of England to be changed," was no irrational cry in the thirteenth century: it meant that no fresh intricacies should be introduced into law; that the foreign priest should not win another domain from the English citizen. Theoretically, it was of course possible, (since the church would never give up its canons,) that England should exchange its inconsistent, sensible common law for the civil law, which prevailed over much of Europe. But where was the man who could persuade a whole nation to give up its conceptions of legal right, and that nation the English?

1£138 148. 1d. for expenses; £146 13s. 4d. for fees. I have multiplied by fifteen, and taken the mark of gold as equal to ten marks of silver: partly on Adam Smith's authority; partly because the queen in some other instances took ten per cent. upon the king's profits. - Wealth of Nations, p. 97; Madox's Exchequer, vol. i., p. 350. The queen was entitled to a mark of gold for every hundred marks of silver paid to the king.—Dial. de Scac., lib. ii., cap. 26.

2 When Vacarius first brought over treatises on the civil and canon laws, the feeling against them was so strong that many persons tore up or burned any copies they could find. - Joan. Sarisb. Polycrat., lib. viii., c. 22. A century later, Bacon declared that there was more wisdom in Aristotle's few chapters on laws than in the whole body of the civil law.-Opera Minora, vol. i., p. 422.



THE origin of feudalism is as difficult to trace as the source of the Niger. The relation of chief and clansman among barbarians, the oath of Roman soldiers to the emperor, the civic responsibility of a father for his children, transferred to a lord for his dependents, are all elements in the system which overspread Europe in the middle ages. Men in those times commonly regarded it from the practical point of view, as service for reward. But it came to have a higher meaning to the state. The feudal baron was the representative of kingship on his domain; rendering justice, maintaining police, and seeing that military service was performed. As a viceroy, he was accountable for the just performance of these duties to the crown. Above all, he was a link in the great chain that bound the lowest peasant and the successors of Charlemagne together. Roman imperialism had divided the world into master and slave. The juster theory of the middle ages, no doubt influenced by Christianity, regarded mankind as a great family, and sought to strengthen the bonds of union by engagements taken solemnly before man and God. The oath of homage was the most binding that could be taken; the love of a father to his son, the duty of a wife to her husband, were regarded as of less force.1

"Homage," in the beautiful language of Littleton, "is the

I Thus, in 1175 A.D., prince Henry refused to trust himself with his father till his homage had been renewed and accepted.



most honourable service, and most humble service of reverence, that a frank-tenant may do to his lord. For when the tenant

shall make homage to his lord, he shall be ungirt and his head uncovered, and his lord shall sit, and the tenant shall kneel before him on both his knees, and hold his hands jointly together between the hands of his lord, and shall say thus: "I become your man from this day forward of life and limb and of earthly worship, and unto you shall be true and faithful, and bear to you faith for the tenements (M. N.) that I claim to hold of you, saving the faith that I owe unto our sovereign lord the king;' and then the lord so sitting shall kiss him."1 In order to avoid mistake, the tenements for which homage was paid were enumerated. The whole ceremony was performed before wit nesses, and was a record of the lord's title-deeds. It was no doubt partly intended to obviate the danger of fiefs becoming freeholds, as a life-interest in them had passed into a hereditary tenure. In the time of Henry II., a woman could not perform any homage; the oath was too peremptory to be taken by the sex. Where a fief was held by a married woman, her husband took her place towards the lord. But the exception in favour of single women was inconvenient, and in later times a modified form of oath was introduced, in which all mention of personal duty was omitted. Again, bishops-elect did homage for their baronies, but, after consecration, they only took the oath of fealty. The clerical oath of homage (like that of the woman) omitted the words "I become your man," on the ground that the priest had professed himself to be only the man of God. Lastly, homage was restricted to the holders of estates which they could bequeath to their heirs generally, or the heirs of their body.

The distinction of homage and fealty is important. Fealty

1 The oath given in Bracton is slightly different in words.-Bracton, fol. 80. 2 “Et non debet fieri homagium privatim, sed in loco publico et communi coram pluribus in comitatu," &c.-Bracton, fol. 80.

3" For females cannot by law perform any homage, although, generally speaking, they are to do fealty to their lords."-Glanville, lib. ix., cap. 1; Coke upon Littleton, 65 b.



was more sacred, because confirmed with an oath; less dignified, as it could be done by attorney; more general, as it extended to all freeholders and villeins; less personal, as it did not include the obligation to become the lord's man; and less binding, as, unlike those who held by homage, the tenant by fealty was not bound to sell or pledge everything for his lord's ransom. Hence, apparently, tenants for a term of life did fealty, but not homage. The difference between fealty and the allegiance which every subject owed to the crown, lay in the fact that fealty was done in respect of a tenure, implied a direct benefit enjoyed, and was legal evidence of the lord's rights.1

Homage and fealty being the relations of service, the vassal's condition was determined by the nature of his tenure. Every tenure implied some service, either fixed, and then more or less honourable, or arbitrary, and so a mark of servitude. The church taking precedence of the state, tenure in frankalmoigne that is, by the services of religion-came first. This was the tenure of lands that were given without the obligation of any secular service. The churchmen endowed, were however bound to offer up prayers and masses for the soul of their benefactor, and he or his heirs might distrain on them if this duty were neglected. Tenure by homage ancestral was merely tenantcy-in-chief by immemorial prescription in the family. It carried with it the ordinary feudal burdens to the tenant; but in return, his lord was bound to warrant him the possession of his estate. Tenure by grand serjeanty implied the performance of some personal service to the king, to be his chamberlain or champion. Tenure by petty serjeanty was the yearly payment of some implement of war to the king. These were the tenures of tenants-in-chief; below them, scutage and socage

1 Coke upon Littleton, 68, a, b. Glanville, p. 156, note by Beamish.

2 Hence a very just claim was set up at the dissolution of monasteries, that lands granted in frank-almoigne should revert to the families of their original donors, since the services for which they were given, could no longer be rendered.-Wright, Suppression of Monasteries, Letters 39, 52. Grants in frank-almoigne were abolished under Edward I., by the statute of "Quia emptores;" 18 Edw. I.

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