of their aggrandizement, that was more to their honour. As these
barbarians were constantly at war, and reduced their unhappy captives
to a state of slavery, and often had many more than they knew what to
do with, it was usual for the churchmen to redeem them. These, then,
became their servants, and tenants, where they met not only with a more
easy servitude, but were, from the sacredness of the church, both for
themselves and their posterity, secured from any future dangers of the
same kind. It was usual also for the unhappy Romans, who were possessed
of allodial estates, and saw themselves in danger, by these perpetual
wars, of not only losing them, but their liberty also, to make over their
estates to the church, and become its socage-tenants, on stipulated
terms, in order to enjoy the immunities thereof.
By all these means the landed estates of the clergy grew so great, that
in time the military power of the kingdom was much enfeebled: for though
they were obliged to furnish men for the wars, according as the lands
they held were liable to that service, this was performed with such
backwardness and insufficiency, that the state at one time was near
overturned, and it became necessary to provide a remedy. Charles Martel,
therefore, after having delivered the nation from the imminent danger
of the Saracen invasion, found himself strong enough to attempt it. He
stripped the clergy of almost all their possessions, and, turning them
into strict military tenures, divided them among the companions of his
victories; and the clergy, instead of lands, were henceforth supported
by tithes, which before, though sometimes in use, were only voluntary
donations, or the custom of particular places not established by law[96].
In my next lecture I shall consider the introduction of estates for life
into the feudal system, and take notice of the consequences that followed
from thence.
LECTURE VI.
_The introduction of estates for life into the feudal
system—The nature and forms of investiture—The oath of fealty,
and the obligations of lord and tenant._
In the preceding lecture I took notice of the different condition and
situation of the Romans and barbarians in the infancy of the French
monarchy; but it will be necessary to observe, that all the barbarians
themselves were not subject to the same laws and regulations. When the
Ripuarian Franks, after the murder of their sovereign, submitted to
Clovis, it was under an express condition of preserving their own usages.
The same privilege he allowed to the Allemans, whom he conquered, and
to such parts of the Burgundian and Gothic kingdoms as he reduced to
his obedience. The customs of all these several people, as they were
Germans, were indeed of the same spirit, and did pretty much agree; but
in particular points, and especially as to the administration of justice,
they had many variations; and these the several nations were fond of
and studious of preserving. What was peculiar to these people, above
all other nations, was this, that these different laws were not local,
but personal: for although the Salians, in general, dwelt in one part
of the country, the Ripuarians in another, the Allemans in a third, &c.
yet the laws were not confined to these districts: but a Salian, in the
Ripuarian territories was still judged by his own, the Salian law; and
the same was true of all the others. Another peculiarity was, that the
barbarians were not confined to live in the law they were born under. The
Romans, indeed, could not pass from their Roman law to that of any one of
their conquerors, until they were allowed, several ages after, to acquire
fiefs; but any of the barbarians, if he liked another law better than his
own, could adopt it: a privilege, I presume, derived from that antient
practice which they used, of removing from one state or commonwealth to
another, or of going forth to form a new one.
In the French monarchy, then, there were five different nations, besides
the Romans, governed by five distinct laws; but these five people, being
all of the same northern original, and descended from the conquerors
of Gaul, were, in the state, every one of them esteemed and regarded
on an equal footing, enjoyed the same privileges, and equally received
benefices from the king or other lords. I have already observed, that
the bonds between the king and his companions in Germany continued
during their joint lives. It had the same duration after they settled in
Gaul; where they either presided with him in his court, as they had done
formerly, or were settled in benefices near him, and in such situations
as they might readily attend him on occasion; or else were the governors
and leaders of the free Romans, under the title of counts. But all the
grants of lands or offices that they enjoyed were, as yet, but temporary.
So that they were _fideles_, or vassals, bound by an oath of fealty for
life; but there were no fiefs, or feudal tenures, if we may call them by
that name, that continued for so long a term[97].
The introduction of beneficiary grants for life, as is very properly
conjectured, was first owing to the counts. They had, as I mentioned
before, the third part of the profits of the courts in their respective
districts, which made their office not only considerable and honourable,
but opulent. They lived apart from the other barbarians among the Romans,
whose allodial property was fixed and permanent. It was natural for them
to wish the continuance of their lucrative employments, and to make them
as perpetual as their obligation of fidelity was; and this they were
enabled to attain by the means of the profits they made of their places,
and the want of treasure, which the kings frequently laboured under to
support their wars: for offensive ones they could carry on in no other
manner than by ready treasure. The counts, therefore, by the dint of
presents, or fines, attained, or I may rather say, purchased estates for
life in their offices; but these estates had, at first, continuance only
during the joint lives of the granter and grantee[98].
But the matter did not stop here. The example was quickly followed by
the other barbarians, who were the immediate tenants of the crown, and
who now were growing weary of the constant, or even a frequent change
of habitation. And, in one respect, this allowance was of considerable
advantage to the king, as it created a tie upon them, equally durable
with that by which his companions were bound to him, and wore out by
degrees that principle they had before retained, that by throwing up
what they held from him, they were absolved from their allegiance. They,
therefore, as well as the companions, took the oath of fealty; which,
as far as I can find, was taken by none on the continent, whose estates
were less than for life; though, in the law of England, it is a maxim,
that fealty is incident to every tenure but two, namely, estates at will
(for they did not think it reasonable that a person should bind himself
by oath, in consideration of what might be taken from him the next day)
and estates given in frank almoigne, or free alms, that is, to religious
houses, in consideration of saying divine service, and praying for
the donor and his heirs; and these were excused out of respect to the
churchmen, who were supposed not to need the bond of an oath, to perform
that duty to which they had dedicated themselves, and also because the
service was not done to the lord, who gave the land, but to God.
Thus estates for life, created by particular grants, went on continually
encreasing in number, till the year 600, by which time almost every
military tenure, castle-guard excepted, was of this nature. And this
accounts for the particular regard the feudal, and from it our law
shews to the tenant of the freehold, and the preference given to him
above a tenant for years. For, first, his estate was, generally, more
valuable and permanent, as long terms were then unknown; and, secondly,
it was more honourable, as it was a proof of a military tenure, and of
the descent of its possessor from the old German freemen. For it was a
long time after that socage lands, in imitation of these, came to be
granted in the same manner, for life. The lords, or immediate tenants
of the crown, having, by the means afore-mentioned, gotten estates of
continuance, and being bound for life to the king, thought it their
interest likewise to connect their tenants as strictly to them, by
granting them freeholds also; but in the oath of these sub-vassals,
which they took to their lords, there was an exception of the fealty due
to the king, from whom the land was originally derived, or of a former
lord, if such an one they had, to whom they were bound by oath before.
These sub-vassals, likewise, had not in those early times, the power of
creating vassalages, or estates for life, under them; for it was thought
improper to remove the dependence of any military man on the king to so
great a distance; and indeed it was hardly worth any man’s while, if it
had been lawful, to accept such a gift as was determinable either on the
death of the superior lord, or of his vassal, who had granted it, or
lastly, on his own death[99].
Estates for life being now become common, and in high estimation, it
was thought proper that they should be conferred with more form and
solemnity, and that by means of what the feudal law calls Investiture,
of which there are two kinds. The first, or proper investiture, was thus
given: The lord, or one impowered by him, and he that was to be tenant,
went upon the land, and then the tenant, having taken his oath of fealty,
the lord, or his deputy (or attorney, as our law calls him) gave actual
possession to him, by putting into his hand a part of the premises, in
the name of the whole, as a turf, a twig, or a hasp of the door, in the
presence of the _pares curiæ_, that is, of the other vassals or tenants
of the lord. This is what our law calls giving livery and seizin, from
the lord’s or his deputy’s delivering, and the tenant’s taking seizin,
for so the possession of a freehold or estate for life is called. The
presence of the _pares curiæ_ was required equally for the advantage of
the lord, of the tenant, and of themselves; of the lord, that, if the
tenant was a secret enemy, or otherwise unqualified, he might be apprised
thereof by the peers of his court, before he admitted him; and that they
might be witnesses of the obligation the tenant had laid himself under of
doing service, and of the conditions annexed to the gift, if any there
were, which the law did not imply: for the benefit of the tenant, that
they might testify the grant of the lord, and for what services it was
given; and lastly, for their own advantage, that they might know what the
land was, that it was open for the lord to give, and not the property of
any of the vassals; and also that no improper person should be admitted a
par, or peer of their court, and consequently be a witness, or judge, in
their causes[100].
Hence it is, that in our law, if a man has right to enter into several
lands in the same county, an entry into one of them, in the name of all,
is sufficient to vest the seizin, that is, the possession of the freehold
of all, in him; because the same _pares curiæ_ (who were in antient
times the only witnesses allowed) who know he had in their presence
entered into one, know also that he entered that one in the name of
all the others; but if the lands lie in different counties (which are
distinct jurisdictions, and have different _pares curiæ_) an entry into
one county, in the name of the whole, is not sufficient; because, as to
seizin of lands in the other county, the _pares_ thereof are the only
competent witnesses.
As the proper investiture required the actual going upon the lands, which
was often inconvenient, the improper investiture was introduced. This,
which was the second kind mentioned, was also performed in the presence
of the _pares curiæ_, thus: The intended tenant, in a most humble and
lowly manner, prays the grant of such an estate from his lord; which,
when the latter has agreed to, he invests him, by words signifying his
grant, and what it is of, accompanied by some corporeal action, as
delivering him a staff, a ring, a sword, or clothing him with a robe,
which last, being the most common method amongst the great immediate
tenants of the king, gave rise to the name _investiture_. After this, the
tenant did fealty. But this improper investiture did not transfer the
actual possession of the land without subsequent livery and seizin, and
gave the tenant not a right to enter, but only a right of action, whereby
he might sue, and oblige the lord to transfer it by an actual livery. For
all these lands, being liable to services arising out of the profits for
which the lord was bound to answer to the king, his possession of these
profits by their rules was continued, until he had, by an act of public
notoriety, namely, by giving livery and seizin on the land, put it out of
him. And this maxim was, I apprehend, established also for the benefit of
the co-vassals, who could better judge by their own eyes, on the spot,
whether an injury was done by the grant to any of them, than by hearing
the lands named and described elsewhere, as, in such case, it frequently
happened that all the vassals were not present[101].
Hence, if the lord had granted lands by an improper investiture to A, and
had afterwards, by livery and seizin, granted them to B, they became B’s,
though he was the later invested; and the remedy A had against the lord
was not for the lands themselves, for those he had already legally parted
with to B, and could not recal, but for their value, in consideration of
his having bound himself to fealty.
This was the form and manner of proper and improper investitures in the
early times, before these barbarians had learned the use of letters,
and was intended not merely for solemnity, but also to create such a
notoriety of the fact, as it might easily be proved by _viva voce_
testimony. For if it was denied, the tenant produced two or more of the
_pares curiæ_, each of whom swore he had either been present at the
investiture himself, or had constantly heard his father declare, that
he was. And this, at first, was the only evidence admissible, and was
abundantly sufficient, when the grants were only for one life. Such
proof, however, could not be of any advantage to the church; for, though
churchmen die, the church doth not, but continues to be represented
in a succession of natural persons. If she, therefore, had not a more
permanent evidence to produce than what I have before-mentioned, she
could never, after some length of time, ascertain her rights. On this
account _brevia testata_, or, as we call them, deeds, were made use of,
which were written instruments, expressing the grant, and its nature,
attested by some of the _pares_, and authenticated by the seal of the
lord, or by his name and sign of the cross. When this kind of evidence
was once introduced, as it was more fixed and certain than the frail
memories of men, it became customary for the tenant, who had been
invested either properly or improperly, to demand and obtain a _breve
testatum_ of that investiture, and afterwards other symbols in improper
investitures went out of use, and the delivery of a deed became the
ordinary sign; but this, as all other improper investitures, required a
subsequent actual livery and seizin.
Having thus delivered the antient and proper method of constituting an
estate for life, let us attend to the consequences, and see what were
the several rights and obligations of the lord and tenant, and for that
purpose examine the oath of fealty.
The general oath of fealty on the continent was thus: _Ego N. vassallus,
super hæc sancta Dei evangelia, juro, quod ab hac horâ in antea usque
ad ultimum vitæ meæ diem, tibi M. domino meo, fidelis ero, contra omnem
hominem, excepta summo pontifice, vel imperatore, vel rege, vel priore
domino meo_, as the case was. In England, Littleton gives this account of
it. When a freeholder doth fealty to his lord, he shall hold his right
hand on a book, and shall say thus: Know ye this, my lord, that I shall
be faithful and true unto you, and faith to you shall bear, for the lands
which I claim to hold of you; and that I shall lawfully do to you the
customs and services which I ought to do, at the terms assigned; so help
me God, and his saints; and he shall kiss the book[102].
The only differences are, that the words _ab hac hora in antea usque
ad ultimum vitæ meæ diem_ are omitted: for abroad none but tenants for
life swore fealty. In England termers for years did; and that _contra
omnem hominem, excepto, &c._ though implied, is likewise omitted; which
exceptions, however, in the English law, were inserted in the doing of
homage which the tenant in fee did to his lord.
Such was the general oath of fealty; but to shew what _being faithful
and true_, and _bearing faith_ comprehends, it will be proper to
insert, from the seventh title of the second book of the feudal law,
the larger oath, which persons, rude and ignorant of what the word
fealty implied, were to take. It runs in these words: _Ego juro, quod
nunquam scienter ero in consilio, vel in facto quod tu amittas vitam,
vel membrum aliquod, vel quod tu recipias in personâ aliquam læsionem,
vel injuriam, vel contumeliam, vel quod tu amittas aliquem honorem quem
nunc habes, vel in antea habebis; & si scivero, vel audivero, de aliquo,
qui velit aliquod istorum contra te facere, pro posse meo, ut non fiat
impedimentum præstabo. Et si impedimentum præstare nequivero, quam
cito potero, tibi nunciabo; & contra eum, prout potero, auxilium meum
tibi præstabo; & si contigerit, te rem aliquam quam habes vel habebis
injuste vel fortuito casu amittere, eam recuperare juvabo, & recuperatam
omni tempore retinere. Et si scivero te velle juste aliquem offendere,
& inde generaliter vel specialiter fuero requisitus, meum tibi, sicut
potero, præstabo auxilium. Et si aliquid mihi de secreto manifestaveris,
illud, sine tua licentia, nemini pandam, vel per quod pandatur faciam;
& si consilium mihi super aliquo facto postulaveris, illud tibi dabo
consilium, quod mihi videtur magis expedire tibi; & nunquam ex persona
mea aliquid faciam scienter, quod pertineat ad tuam vel tuorum injuriam
vel contumeliam._
Besides the negative obligations, of doing nothing to the prejudice of
the lord or his family, the positive ones the vassals lay under may
be reduced to the two heads of counsel and aid; which, with us, are
still the principal duties that the parliament, who are, or represent
the vassals of the king, owe to the sovereign. Under counsel, not only
giving faithful advice, but keeping his secrets was included. Aid may
be either in supporting his reputation and dignity, or defending his
person or property. Under the first, the vassal was not only to shew him
the highest reverence, but was forbid to accuse or inform against him,
except in the case of treason, where the supreme lord was concerned. He
could not in a suit between them tender to his lord the oath of calumny,
whereby he should be obliged to swear he thought his cause was just, and
that he did not carry it on with an intent to harrass and distress; for
this was throwing an aspersion on his lord’s character. He could not,
for the same reason, bring any action against him, whereby he might be
defamed, and particularly the interdictum _unde-vi_, which was a charge
against the person sued, of an unjust and violent dispossession of
property. Neither could he, in any cause that was not strictly feudal
(for in such as were for the general preservation of that polity, he
was permitted) bear witness against him. And, lastly, he was obliged to
support his dignity, to attend his courts, and do suit and service, as a
witness and a juror.
By aid to his person, he was not only obliged to defend his lord, if
attacked personally, but to assist him in his wars, and that at his own
expence, out of the profits of his tenancy; and if, in the field of
battle, he deserted his lord, before his lord was mortally wounded, it
was an absolute forfeiture. But this aid he was not obliged to give until
required; for perhaps the lord did not need the aid of all his tenants;
and the vassal, without notice, was supposed ignorant that there was any
occasion for his assistance, unless it could be proved the vassal knew
his lord’s danger, when the lord himself did not; or that he knew it
was so imminent as not to give the lord time to summon him; in which two
cases, he was obliged to serve without requisition[103].
But here some distinctions must be taken notice of as to the nature of
these wars. I have often repeated that the king’s companions were bound
to assist him in all his undertakings, offensive or defensive; and that
the other freemen were obliged only to serve in defensive wars. But now,
by this new introduction of grants for life to the freemen, the case was
altered. In all defensive wars, they were obliged to aid their lord,
though he had been the unjust aggressor, and this for the preservation
of the society to which they belonged; but in offensive ones, it was to
be considered whether the cause was just, or doubtful, or notoriously
unjust. In the two first cases, he was obliged to furnish his aid; for
if his lord’s quarrel was doubtful, the respect and reverence he owed
him, and his regard to his lord’s character and dignity, laid him under
a necessity of presuming in his superior’s favour. But if the war was
notoriously unjust, he was at liberty to serve, or not, as he pleased.
And the aid he was bound to give, where he was bound, was against all
persons, _contra omnem hominem_, even his parents, brothers, children,
and friends, with the following exceptions. First, not against the king,
who was the supreme lord of the whole, and in whose preservation and
dignity every individual was concerned. Secondly, not against himself,
for self-preservation is the first law of nature. Thirdly, not against
his original country, though he had received a grant from a foreign
lord, and afterwards war broke out between them: for by this time, the
opinion of a durable obligation to the state he was born in, began to
prevail among them. Lastly, not against his antienter lord, when he had
grants from two; for the second obligation could not annul the first.
It may here be naturally asked, how such a vassal, who had two lords,
was to act in case of a war between them? If his first lord’s cause was
just or doubtful, he was undoubtedly bound to him against the subsequent
one, even in attacking him; and this was no forfeiture, for the second
lord had sufficient notice of his prior obligation, by the exception in
the oath of fealty. Indeed, if he, having a lord before, had omitted the
exception, he justly lost his fief, for the deceit put on his latter
lord. But if his first lord’s cause was notoriously unjust, he was not
at liberty to assist him against the second; but by the two bonds was
obliged to remain neuter[104].
This military duty was to be done in the vassal’s proper person, if he
was capable of it; unless the lord was pleased to accept of a deputy. But
if he was incapable himself, as often must have happened, after estates
for life came in, he was allowed to serve by a substitute, such as the
lord approved. Suppose, then, a man had two lords, who were at the same
time at war with others, and each required his personal assistance, it
was plain he was obliged to serve both, the elder lord in person, because
his right was prior, and the last by deputy[105].
The aids due to the lord, in respect of his property, were, first, to
aid and support him, if reduced to actual indigence, and to procure
his liberty, by paying his ransom, if taken in war. It was a doubt
among the feudal lawyers, whether, if the lord was imprisoned for
debts, his tenants were obliged to release him; and the better opinion
was, that they were, if the debts did not tend to their very great
impoverishment[106].