LITMIR.BIZ

Скачать книгу

and could bequeath them as chattels.²³¹ So we must not think that each man fills but one place in the legal structure of feudalism. In a remote past this may have been so; but it is not so in the age that defines the various tenures. Often enough the man who holds of the king in chief will hold also of other lords; he will hold by knight’s service, by serjeanty, in fee farm, in socage and in burgage.

§ 6. Homage and Fealty

Homage and fealty.Very generally the mere bond of tenure is complicated with another bond, that of homage and fealty; the tenant either has done homage and sworn fealty, or is both entitled and compellable to perform these ceremonies. The right and the duty go together; in one particular case it may be the lord, in another it may be the tenant, who will desire that these solemnities should be observed, for each of them may thereby gain something.

Legal and extra-legal effects of homage.When we read what the law-books say of these matters, we feel that they are dealing with institutions, the real importance of which lies but partly within the field of law. The law of homage as administered, or even as tolerated, by the king’s court of the thirteenth century is but a pale reflection of moral sentiments which still are strong but have been stronger. Glanvill and Bracton seem to lower their voices to a religious whisper when they speak of homage; it is in this context that Glanvill introduces a word very rare in English legal documents, the antique word vassallus.²³² The ceremony of homage is as solemn as ceremony can be. But when we ask for the effects of homage, we get on the one hand some rules of private [p.278] law about warranty and so forth, rules which may seem to us of no great importance, and on the other hand some vague though impressive hints that these legal rules express but a small part of what is, or has been, the truth.

The ceremony of homage.The ceremony of homage (in some of the older books hominium, hominatio,²³³ but usually homagium) is much the same all Europe over.²³⁴ According to Bracton, the tenant puts his hands between the hands of the lord—this symbolical subjection seems from the first to have been the very essence of the transaction²³⁵ —and says: “I become your man of the tenement that I hold of you, and faith to you will bear of life and member and earthly worship [or, as some say, of body and chattels and earthly worship], and faith to you shall bear against all folk [some add, who can live and die], saving the faith that I owe to our lord the king.”²³⁶ Britton adds that the lord shall then kiss his tenant;²³⁷ Littleton adds that the lord sits, while the tenant kneels on both knees, ungirt and with his head uncovered; and these we may accept as ancient traits.²³⁸ Everything seems done to tell us that the man has come helpless to the lord and has been received into the lord’s protection.

The oath of fealty.Homage is “done,” fealty is “sworn,” and it is worthy of observation that the oath is conceived as less solemn than the symbolic act and can be exacted in many cases in which homage is not exigible. The tenant now stands up with his hand on the gospels and says: “Hear this my lord: I will bear faith to you of life and member, goods, chattels and earthly worship, so help me God and these holy gospels of God”; some add an express promise to do the service due for the tenement.²³⁹ Bracton does not here mention any saving clause for the faith due to the king; but doubtless this was added.²⁴⁰ The oath of fealty thus omits the words “I become your man,” a significant omission. Fealty, of course, is the Latin fidelitas; but it is interesting to notice that on manorial rolls written by clerks who [p.279] were no great Latinists, the word becomes feodelitas or feoditas, so close is the connexion between faith and fee.

Liegeance.The forms that have here been given are those of liege homage and of fealty sworn to a liege lord. The word liege seems to mean simple, unconditional, though very likely at a quite early time a false derivation from the Latin ligare (to bind) began to obscure this.²⁴¹ The man who has but one lord does unconditioned homage. If now he acquires a fee from another lord, his homage must be conditioned, he must save the faith that he owes to his first lord.²⁴² If tenements held of several lords descend to one heir, his liege homage seems due either to the lord from whom he claims his principal dwelling-place— cuius residens et ligius est²⁴³—or to that lord who made the oldest of those feoffments under which he claims.²⁴⁴ The person to whom liege homage is done is by no means necessarily the king; but the king has been insisting with ever greater success that there is a direct bond between him and every one of his subjects; the growth of national feeling has favoured this claim.²⁴⁵ Not only has he insisted that in every expression of homage or fealty to another there shall be a saving for the faith that is due to him,²⁴⁶ but [p.280] he has insisted that every male of the age of twelve years shall take an oath of fealty to him and his heirs, an oath “to bear faith and loyalty of life and limb, of body and chattels and of earthly honour,” an oath which of course makes no reference to any tenement, an oath which promises a fealty so unconditioned that it becomes known as the oath of ligeance or allegiance (ligeantia).²⁴⁷ William the Conqueror, it would seem, had exacted, not only an oath of fealty, but an act of homage from all the considerable tenants of his kingdom, no matter whose men they were, for so we may fairly construe the words of the chronicler, “they bowed themselves and were this man’s men”;²⁴⁸ later kings as well as earlier had exacted the oath of fealty from their subjects in general. But this is a strong testimony to the force of vassalism. It suggests that an oath is necessary in order to constitute the relation between ruler and subject; it suggests that the mere omission of a saving clause might make it a man’s duty to follow his lord even against the king; it makes the relation between king and subject look like a mere copy of the relation between lord and vassal. This we can see even if we look back to the first days of incipient feudalism: “All shall swear in the name of the Lord fealty to King Edmund as a man ought to be faithful to his lord”;²⁴⁹ the obligation of man to lord is better known, more strongly felt, than the obligation of subject to king. At the accession of Edward I. the danger seems past, at least for a while; the feudal force seems to have well-nigh spent itself; but obviously homage and fealty, liege homage and liege fealty, have meant a great deal.

Vassalism in the Leges Henrici.In the Leges Henrici we may find the high-water-mark of English vassalism. Every man owes faith to his lord of life and limb and earthly worship, and must observe his lord’s command in all that is honourable and proper, saving the faith due to God and the ruler of the land; but theft, treason, murder, or anything that is against God and the catholic faith, such things are to be commanded to [p.281] none, and done by none. Saving these, however, faith must be kept to lords, more especially to a liege lord, and without his consent one may have no other lord.²⁵⁰ If the lord takes away his man’s land or deserts him in mortal peril, he forfeits his lordship; but the man must be long suffering, he must bear with his lord’s maltreatment of him for thirty days in war, for year and day in peace.²⁵¹ Every one may aid his lord when attacked and obey him in all things lawful; and so too the lord is bound to help his man with aid and counsel in all things, and may be his warrant—at least in certain cases—if he attacks or molests another.²⁵² To kill one’s lord is compared to blasphemy against the Holy Ghost; it is a crime to be punished by a death cruel enough to seem a fit beginning for the torments of hell.²⁵³ If, on the other hand, the lord slays his man who has done no wrong, the offence can be paid for with money.²⁵⁴

Bracton on homage.Bracton defines homage thus:—Homage is a bond of law (vinculum iuris) by which one is holden and bound to warrant, defend and acquit the

Скачать книгу