Succession on Intestacy-Laws of Inheritance. 23 Dr. Hickes observes, that there is no Anglo-Saxon will to be found *with the appointment of an executor charged with a fidei commissum (u). [*24] If a man died intestate, the whole of his personal property, as money and goods, became divisible amongst his wife, (that is, as it is presumed if she had not been endowed,) and his children or nearest relatives, subject only to the claim of the "Hlaford," or lord of the deceased to his heriot (x). In some places the ancient Roman doctrine of the quota pars or legitima being reserved for the widow and children against the will of the testator, of which there is some notice in Bede (y), appears to have prevailed. There was frequently a legacy to the lord, particularly when the king or the queen stood in that relation, which may have been in lieu of their claim by way of heriot, or to secure the lord's assistance in the due performance of the will (2). In case of intestacy the land which the deceased enjoyed under any boc or charter would either descend or revert, according to the terms of the charter under which he held it. Nothing can be stated with certainty as to the laws of descent of lands unaffected by previous dispositions further than that, as a general rule, the children, if any, took the whole; but whether sons took in preference to females universally, or only where a custom prevailed to that effect, is uncertain. The AngloSaxon codes are silent on this subject, unless Canute's law regarding intestacy is to be construed as including land, which is the received opinion (a); but in that case the widow would have been brought in. The 36th section of the code of Will. I., before mentioned, which probably embodied what was then the general custom, gives the inheritance to all the children, "enfans," "liberi" (b). By the ancient laws of inheritance of the continental states, usually relatives of every branch including the ascending line were let in, a preference being given to males of the same degree; females, however, were excluded from that portion of the alodial land of the Francs that was called salic land (c). *Gavelkind lands in Kent, and in other places, that is, lands held by ceorls and others (d), on condition of rendering rent and (u) Dissert. p. 57. By the Roman law the witnesses were to be present at the opening of the will before the judge, Savigny, ii. p. 117, a practice that has been adopted in principle in our ecclesiastical coorts; see C. B. Gilbert's Reports, p. 204. By the Roman law there could be no will without the appointment of an "hæres" to represent the testator. After the Conquest, if not before, this doctrine was introduced in England, as will be noticed hereafter, Godolphin, Orp. Leg. p. 3. 75. (x) Heregat. As to the nature of the heriot, and the character of lord, v. inf. Chapt. ix. particularly the additional note, p. 42. (y) Lib. v. c. 13. Paterfamilias in regione Northun hymbrorum, &c.; and see Somner, Gavelk. 92. [*25] (z) See the wills of Ethelgue, and of Beotric and Elfswyth, Kemble, ii. 380. (a) Code of Cnut. § 71; see 1 P. W. 49; Robinson on Gavelkind, p. 26; v. infra, p. 42. (b) Hæredes successores que sui cuique liberi, Tac. de Mor.; the will of Alfred, ed. Pickering, rather leads to the same conclusion. (c) Sal. tit. 62; Rip. tit. 56. Daughters, however, had the preference as regards the mother's inheritance, Baluze, 1. p. 514, Cap. Car. Mag. The preference of males seems to have been wholly irrespective of feudality; see Allen, p. xxxix. (d) Socmanni, Hist. Eliens. cap. cvi. temp. Edw. Confess.; and see Glanville, vii. c. 3. The condition of the Ceorls, and the nature of their tenure, will be noticed in a subsequent Chapter. 25 Gavelkind Tenure-Institution of Tithes.-Royal Domains. base services, such as ploughing and manuring the lord's land, and the like, or what was afterwards called socage tenure, went to the sons, they alone being able to perform the services (e). Great part of the lands between the Ribble and the Mersey was held of the king on similar services; there also it was the son who was entitled to succeed his father, he paying a certain sum by way of relief; if the son did not choose to take to the land, the king seized together with the land all the father's money (f). In the time of Athelstan the payment of tithes was imposed on all landowners throughout the kingdom (g). A thane might pay one-third of his tithe to his own church if it had a burying place (h); but in general tithe was payable to the mother church "eald minster." By a law made at a synod held by King Edmund between A.D. 929 and 952, every landholder was ordered to pay church scot as well as tithes on pain of excommunication (i). It was declared by Ethelred and his "witan,” A.D. 1013, that one-third of the tithe should be devoted to the reparation of the church, another third to the servants of God, the remaining third to the poor, and to needy persons in thraldom (k). CHAPTER V. THE ROYAL DOMAINS. Accessions to the Royal Domains-Escheat for Felony, Outlawry and for Default of HeirsEach Vill and Burgh presided over by a Gerefa or Prefect-Appropriation of the Revenues. Royal Forest and Chaces-Forest Laws. It has been observed that at the time when Anglo-Saxon legislation commenced, the kings were in possession of ample domains. These *domains (a) received frequent accessions by the operation of the [*26] royal prerogative of escheat, or the right which the kings universally claimed of seizing the alodial lands of all persons who were convicted of theft, or any crime by which the penalty of outlawry was incurred (b). By the edict of Theodoric, which was founded entirely on (e) Somner on Gavelkind, p. 25, 43, et seq. Sir W. Blackstone, 1. p. 74, seems to bave considered that this was the general law. (f) Domesday, 269 b; and see Domesday, 84 a, terræ Tainorum; 84, b, terræ Servientium. (g) Ethelst. Anc. L. 197, founded on the Law of Moses; Edmund, ib. 245. (h) On his bocland, Cnut. Ecc. § 11. p. 367; Repeating Edg. § 2. ib. p. 263. (i) See Edmund's Eccles. Laws, Anc. L. i. p. 245; but it would appear that church scot was not levied for repairs of the churches, Leg. Ethelr. § 6. 11; Anc. L. p. 343. (k) "The king and his witan have chosen and decreed, as is just, that," &c. Ethel. § 6. Anc. L. i. 343. It would appear from Edmund's Eccles. Laws, § 5, that the bishop was bound to see that the funds destined for the purpose of repairing the churches were so applied, Anc. Laws, i. 247. (a) The patrimonial domains, and those of the state, as before observed, ultimately became amalgamated. (b) Kemble's Charters, i. pref. p. lix. lx. No. viii. p. 1; Cnut. Anc. L. p. 383-5; Text. Roffens, p. 44; Domesday quoted Heming, p. 312, “forisfacturas præter illas iv. quas rex habet per totam terram." the text Roffens, p. 137, is a grant in the usual way of land forfeited to the crown by the outlawry of the owner; and see Allen, In Escheats-Inquests of Office-Forest Laws. 26 the Roman law (c), the fisc succeeded to those who died without heirs (d); and there can be little doubt it was the same in England. Various edicts were issued by the emperors, from Constantine downwards, for holding inquests of office in regard to lands which came to the crown by escheat, from which it can hardly be doubted that our inquests of office held on similar occasions were derived (e). The private domains of the king were occasionally augmented by grants from individuals and ecclesiastical bodies (ƒ). A gerefa, or prefect, presided over each vill or manor which was held by the king in demesne (g), and unless some particular custom prevailed, over each of the king's burghs (h). Canute expressly ordered that his gerefas should justly provide him of his own, and maintain him therewith, and they were not to make any unjust exactions (i). The royal domains consisted in part of extensive forests and chaces. Canute published a code of forest laws, under which four superior thanes were appointed to superintend the royal forests and chaces, and to take cognizance of all offences against the forest laws. They had under them a certain number of lesser thanes, servants, and slaves; who by such appointment became, ipso facto, free. There were certain animals, as stags, which the Anglo-Saxon kings, like the Roman emperors (k), reserved to themselves as royal game. Even bishops, abbots, and persons of noble rank were prohibited from hunting these animals. Foxes and wolves might be killed by any one, provided it were not within the precincts of a royal forest. Every freeman might hunt on his own lands, not within a royal forest or chace (1). *CHAPTER VI. THE PUBLIC DOMAIN-GRANTS TO THE CLERGY. [*27] The Public Domain disposed of by the King by the Advice or with the Authority of his Council, Witan, Optimates, &c. or Synod-Grants to the Clergy, Regular and SecularTerms of the Grants-Grants to King's Thanes, which introduce the subject of Tenure and the FEUDAL SYSTEM-Roman Doctrines as to Tenure first to be considered. THE kings claimed and exercised the right of disposing of the public domain (a), though this, as every other prerogative, was exercised by p. 155. Lænland, or land which the con. vict was only in possession of as vassal, or for a definite term or estate, reverted to the lord or donor, whether the king or a subject, Kemble, ubi sup. (e) Savigny, Mid. Ag. ii. 104-6. (d) Savigny, tom. ii. p. 106. (e) See the Edicts, which Gibbon has a little distorted, Inquiry, p. 36-7. (f) V. int. al. Kemble, ii. p. 33, ▲. D. 849, a grant for five lives. (g) V. Leg. Ethelst. 1. § 3; Brompt. 841, 49; Anc. Laws, ii. 487. It was one of 27 Public Domain-Grants to the Clergy. the king with the advice, sometimes expressly by the authority (b), of his council, or at least of an ecclesiastical synod (c). The temporal wants of the clergy, regular and secular, caused a large demand to be made upon these possessions. The church of Rochester, and other churches, as St. Paul's in London, were built and largely endowed by Ethelbirht shortly after his conversion, by the advice of Laurence, his bishop (d). This process continued during each succeeding reign. A journey to Rome usually produced large donations of this kind (e); some of them are recorded to have been made after a royal feast, prepared for the king and his optimates by the bishop or ecclesiastical body on whom the gift was conferred (f). The grants were usually in the largest and most comprehensive terms (g), and generally there was a clause exempting the grantees from all secular tributes, services, and burdens, and a denunciation against the king's successors, and all earls, princes, lords, and judices, who should in any way infringe upon or impair the privileges conferred (h). Frequently some stipulation on the part of the Church was exacted, as that the patrocinium of the see or church should belong to the king (i). In some of these grants *the trinoda necessitas, before noticed (k), is expressly excepted; [*28] in one of the charters the number and description of soldiers (vasallos) to be sent by the monastery on military expeditions is defined (1). The exemption from the duty of entertaining the king on his progresses, which is to be found in some of the grants, would imply that this was a duty to which a grantee of land from the crown was liable in ordinary cases (m). Another demand on the public domain arose from the claims of those who, by their temporal services, had deserved well of the king, or the state of which he was the head. This introduces to our consideration the relation of lord and man-or vassalage-and with it the feudal sysThis system, the essential principle of which was a mutual contract of support and fidelity, accompanied by tenure of land (n), demands tem. -"Istæ sunt consuetudines regum inter Anglos-carta alodii ad æternam hereditatem." See Allen, p. 142-148, and the references, Sax. Chron. ad A. D. 694, &c. Many of the grants are for a money consideration received by the king, v. int. al. Thorn. p. 1776, temp. Ethelbert, &c.; Kemble, ii. p. 10, A. D. 841; but it was to the Church, perhaps, in later times at least, that strictly alodial grants were confined, v. infra, Grants to Vassals. (b) "Licencia et consensu totius nostræ gentis et unanimitate omnium optimatum," is the language of one of Egbert's grants at a great council, A. D. 835, Kemble, i. 312. 'Sceptris fretus regalibus-consensu et assensu Episcoporum et Principium"Athelst. Kemble, ii. p. 163, " cum consensu heroicorum virorum," Edg. a. n. 958; ib. ii. 379. 393; "optimatum," ib. ii. 359; v. infra, Councils. (c) Offa, A. D. 791; Kemble, i. 204, a. D. 787; ib. 182; v. inf Synods. (d) Text. Roffens. p. 63, Lingard. before the " proceres totius terræ, aliorum (g) "In propriam substantiam," Kemble, i. 73, A. p. 712, and the like. (h) "Absque impedimento sæcularium negociorum ac regalium tributarum sive expeditionum aut jussionum incognitarum," &c. Offa, Kemble, i. p. 204; Cart. Eadmund. ▲. D. 945; ib. ii. p. 257, et spars. (i) Egberth. A. D. 838; Kemble, i. 318. In such cases a counterpart of the charter was kept in the king's chartulary. (k) Sup. p. 9. (1) Kemble, i. 260; ib. i. 270; grant of Coen wlf, A. D. 821, et v. ib. ii. 191. Ethelwlf, in his grant of the tenth of all his possessions, remitted it, Ingulph, Script. Post. Bed. 862. (m) Cart. Ethelbald, ▲. D. 749; Kemble, i. 120; and see Anc. L. i. p. 62, note. (n) Hallam, M. A. i. 173—177. Introduction of Feudalism-Its Sources-Patron and Client. 28 a rather minute examination, as it is the foundation of the modern doctrine of tenure. But it is scarcely possible, as I conceive, to obtain just notions on this subject without first making ourselves acquainted with the relative conditions and mutual duties of the Roman patron and client, and patron and freedman, and also with the system of tenure of. land which prevailed in the Roman provinces called dominium utile, as distinguished from dominium directum, and the incidents connected with such tenure. We shall at least, I think, find in these institutions most if not all the elements of the feudal system (o), whether they were adopted or not. I proceed, therefore, to make a preliminary inquiry into each of these subjects. CHAPTER VII. SOURCES OF THE FEUDAL SYSTEM. Relation of PATRon and Client in the Roman Provinces-Duties of Patron to Client and Client to Patron-Pecuniary Aid-Colonies, Cities, Towns, as well as Individuals, had Patrons-Rent sometimes paid-System of Commendation by Persons of inferior Rank to Persons of Authority and Consequence-Edicts to restrain this Description of Patronage -Plots of Land granted to Clients-Revocable at pleasure. Relation of PATRON AND FREEDMAN-Reverence-Rights of Patron as regards the Succession of Deceased Freedman-Services-Marriage-Guardianship-Most of these found in the relation of Lord and Man, or Vassal, about to be considered. *Distinction between DOMINIUM DIRECTUM and DOMINIUM UTILE-MancipationThe AGER PUBLICUS-Possessory Tulle only, namely, Dominium Utile could be [*29] acquired in these Lands-Veterans, the principal Beneficiaries of these Lands, on the Frontiers-Limitanei Milites-Evocati-Agri Limitrophi-Grants by the Emperors to be held Jure emphyteutico. Patrimonial Lands held in Demesne by the Emperors-Peculiar Jurisdiction over the Inhabitants-Game Laws. Transfer of Dominium Utile effected by DELIVERY only, with some Exceptions-An Instrument in writing to evidence the Grant required by Constantine. Importance of the Distinction between Dominium Directum and Dominium Utile as affecting the Feudal System. The THE relation of patron and client was founded on the mutual engagement of protection on the one hand and reverence on the other. duties of the patron and the client were similar to those which existed between parent and child (a). "Patronus si clienti fraudem faxit," says the law of the XII. Tables," sacer esto" (b). The client was bound to treat his patron with reverence, to furnish him with pecuniary aid according to his means to enable his patron to marry his daughters, also to redeem his patron, or his patron's children, if taken captive, and otherwise to supply his pressing necessities: if the client failed in his duty (o) Mr. Hallam, after stating the principle of the feudal relation as above, gives the following enumeration of the feudal incidents:-reliefs, fines on alienation, escheats, aids, wardships, marriage, the last two not universal, M. A. i. 181—192. (a) So "Tales culpas non faciat (vasallus) donatori suo, quales solent ingrati filii parentibus suis facere, per quas exheredantur," Longob. ii. 15. 3. (b) Ed. Gothof. Tab. VII. |