times. For those for making his eldest son a knight, and marrying
his elder daughter, came in afterwards. All other contributions and
assistances were merely voluntary, though very frequent, and were
originally, as they are still here, and are still called abroad, though
imposed really and truly, _free gifts_.
We are now to speak of the duty of the lord to his vassals; and on this
head there is no need of enlarging much: for it was a maxim in the
feudal law, that though the vassal only took the oath to the lord, and
the lord, on account of his dignity, and the respect due to him from the
tenant, took none; yet was he equally obliged as if he had taken it, to
do every thing, and forbear every thing, with respect to his tenant, that
the vassal was with respect to the lord; so that the bond was in most
respects strictly mutual; but not in all, for the lord was not obliged to
support his indigent tenant, or to give aids to him; but, on the other
hand, he was obliged to warrant and defend the lands he had given to
his tenant by arms, if attacked in open war, and in courts of justice,
by appearing upon his voucher, that is, the tenant’s calling him in to
defend his right, and if the lord failed, he was bound to give lands of
equal value, or, if he had not such to bestow, to pay to the tenant (in
consideration of the bond for life, he had bound himself to his lord in)
an equivalent in money.
As, in case of the vassal’s failure in his duty, the lands returned to
the lord, so, in case of the lord’s failure on his side, the lands were
vested in the vassal, free from all services to his immediate superior.
But to the king, or lord paramount, he still owed service, in proportion
to his fief; and by this means he might become, instead of a subvassal,
an immediate vassal of the king[107].
Having mentioned the obligations on each side between lord and tenant,
it next follows to see what interest each had in the lands given; on
which head I shall be brief, as these several rights were not so nicely
distinguished as in after ages, when these tenures became hereditary.
The lord was then to suffer his tenant to enjoy the issues and profits
of the lands, he rendering the services due by the reservation of law,
and the additional ones, if any such had been specially reserved. In
case of failure, he had, in those antient times, a right of entry for
the tenant’s forfeiture. For while this military system continued in its
full vigour, the smallest breach the vassal committed in his engagements
was an absolute forfeiture; but in after times, when the lands were
often given upon other considerations than military service; and when
the military was often commuted for pecuniary considerations, a milder
way was found out, that is, by _distress_, by which the lord, instead of
seizing the lands, took possession of all the goods and chattels of his
tenants found upon the lands, (for the lands were still the mark where
he was to take), and kept them as a deposit, till his tenant had made
satisfaction, originally indeed at the lord’s pleasure, for the failure
in his duty[108].
The right the tenant had in the land was, that, paying the services
due, he should receive the produce thereof, and turn it to his own best
advantage; and that he might, if attacked in a court of justice, vouch,
or call in his lord to defend his possession by arms, or otherwise. But
as his tenure was precarious, and only for life, he was prohibited from
doing any thing that should either hurt his lord’s interest, or that of
the king, in whom and his successors the inheritance was vested. Thus,
he could not commit waste, by destroying houses, or cutting down trees,
except what was necessary for immediate use, for repairs, firing, or
tillage. He could not bequeath his tenancy, for he held only during life.
He could not alienate without the consent of his lord, for he had his
lands in consideration of his personal service; and although, in case of
necessity, he was allowed a substitute, it was only such an one as was
acceptable to the lord; whereas by alienation, the real tenant who was
bound by oath to do the services out of the profits, was to lose them,
and a stranger, perhaps an enemy, who was under no tie to the lord, was
to enjoy them. Alienation, therefore, without the consent of the lord,
was unlawful. If he consented indeed, and accepted the alienée, he, upon
his taking the oath of fealty, became the real tenant, and the former
was quit of all positive service, except honour and reverence; but
still bound by his former oath from doing or suffering any thing to the
prejudice of his former lord. Neither could a sub-vassal, in those early
times, create a vassalage to be held of himself. The immediate vassal of
the king, indeed, could, but then it was on these terms; first, that the
person he granted it to was one that was of the ligeance of the king,
either natural or adopted; next, that he was as capable of rendering the
services as the grantor; and lastly, that the services reserved should,
if not better, which was expected, be at least equally beneficial to
the supreme lord as those of the original grant to the intermediate or
mesne lord. To explain this, if the king granted ten thousand acres to
his immediate vassal, for the service of ten knights, the vassal might
give one thousand, indeed, or any lesser number of acres to one person,
for the service of one knight; but if he gave more to one, as he had
attempted to hurt and lessen the benefit his superior had stipulated for,
his grant was void, and in those times, when forfeitures were regularly
exacted, the grant of the king to him was forfeited also[109].
In my next lecture I shall say something of _improper feuds_, as they
began to be introduced about the time I am now upon, and were very
seldom, in those ages, granted for longer terms than for years or lives,
and go on to shew by what means, by what steps and degrees, estates for
life grew up into inheritances.
LECTURE VII.
_Improper feuds or benefices—Grants to the Church—Grants
in which the oath of fealty was remitted—Grants to which
a condition was annexed, that enlarged or diminished the
estate—Grants which reserved certain other services, beside
military service—Grants implying some certain service, as
rent, and not reserving military service—Grants reserving
no services, but general fealty—Grand serjeanty—Petty
serjeanty—Grants to women—Grants of things not corporeal—Feudum
de Cavena—Feudum de Camera._
Having, in the preceeding lecture, laid down the manner of constituting
a proper beneficiary estate for life, which consisted in lands granted
for the defence of the state, upon the consideration of personal military
service, and the rights and obligations annexed thereto; it will be
proper to mention such, (and to point out the several kinds of them)
as are called improper benefices, which are those that, in one or more
particulars, recede from the strict, and, in antient times, the usual
nature of those grants; and this is more especially necessary, as, since
the abolishing the military tenures in Charles the Second’s time, all our
present estates come under one or other of these heads. It was a maxim
in the feudal law, that _conventio modum dat donationi_; and therefore,
whatever terms the donor prescribed, though varying from the general
course, was the rule by which the grant was to be regulated.
In the first place, then, all benefices granted to the church were
improper ones, because given on other terms than that of military
service, and because they ended not with the death of the grantor or
grantee, but continued coeval with the life of the church, that is, for
ever[110].
Secondly, Grants of lands, wherein the oath of fealty was remitted; for
although fealty itself was an incident, essential to, and inseparable
from, every estate of life abroad, and every estate of years also in
England, the ceremony of actually taking the oath might be omitted; and
if the lord had put the tenant in possession, without his having taken
the oath, the tenant might enjoy without it. He was obliged, indeed, to
take it whenever his lord called upon him, on pain of forfeiture; unless,
in the investiture, it had been expressly remitted; in which case, he
might refuse to take it, and justify his refusal by the tenor of his
investiture[111].
Thirdly, All grants to which there was a condition annexed, that either
enlarged or diminished the estate; as if lands were granted to two,
and the survivor of them. This was an improper benefice, as it had
continuance for more than one life; or if they were granted to a man for
life, provided he did, or refrained from doing such an act. This was
improper also, because it might have a more speedy determination.
Fourthly, All grants, in which certain services beside military were
reserved, were also of this nature, as if the tenure was by military
service and a certain rent, or any other certain duty, or by military
service reduced to a certainty, as to attend, suppose forty days and
no more, or by military service with a power in the tenant to excuse
himself, by paying a certain sum. For the proper fief was for military
service only, the occasions and duration of which were uncertain[112].
Fifthly, If military service was not reserved at all, but some other
certain service instead thereof, as rent, the grant was an improper
one, and such are our tenures, since they have been reduced to socage,
which is derived from _soke_ or _soka_, a plough, because their duty
was originally to attend a certain number of days to plow their lord’s
grounds, or else to supply him with a certain quantity of corn in lieu
thereof. This manner of paying in kind, namely, by corn, cattle or other
necessaries, was continued every where many ages; in England, until the
time of Henry the first, when they began to be commuted into money, to
the great advantage of the successors of these socage tenants, whose
estates were before become hereditary. For the computation being made
at the rate and proportion of value between money and the necessaries
of life at that time, as money grew more plentiful every day, its value
continually sunk, and the price of commodities accordingly increased; in
so much that the present successor of a tenant at that time, who had
before paid a fat ox, which was changed into twenty shillings, its then
value, would now pay but the eight part of the original reservation, when
the price of an ox is eight pounds. And this contributed not a little
to the happy equality which now reigns among all ranks, as these baser,
the socage tenures, were continually rising in value, and consequently
in consideration, and coming every day nearer to an equality, in the
estimation of the world, with the nobler, the military benefices[113].
Sixthly, If no services at all were reserved, except general fealty,
which could not be remitted; for it was thought reasonable, not only
to grant lands in consideration of future military service, but also
to reward such as had deserved eminently, and were perhaps maimed or
mutilated, and so unfit for future service, with lands free from such, or
any other duty.
Seventhly, Grand serjeanty is a benefice of an improper nature, even
though it be reckoned a military one, because it is reduced to a
certainty. Grand serjeanty is a certain service done by the body of a man
to the person of the king, and is of two kinds; military, which is to
be done either in or out of the realm; and not military, which is to be
done within the realm. Military, as when lands are given on condition of
carrying the banner of the king, or his lance, or to lead his army, that
is, to be his constable; or to number and array his army, that is, to be
his marshal; but these being _certain_ services, and due to the person of
the king, they were not obliged to attend, but where he went in person;
and this right they insisted on so strongly, as had almost occasioned a
rebellion in the time of Edward the First; who, although in most things
an excellent prince, was of an hot and haughty temper[114].
Having determined to attack France on two sides; in Flanders, where he
intended to command himself, and in Guienne; he ordered the Earl of
Hereford, high constable by tenure, and the Earl of Norfolk, marshal by
tenure, to lead the army in Guienne, as his generals and commanders in
chief. But, however honourable and pleasing in other respects the offer
might be, they feared that such a precedent, quietly complied with,
might be, in after times, a means of introducing new and hard services
at the king’s pleasure, instead of the antient and known ones. They,
therefore, flatly refused, unless he went thither himself; offering, at
the same time, to serve under him in Flanders. The king, boiling with
resentment against France, and provoked at this contradiction to his
pleasure, however justly founded, threatened Norfolk, in a transport of
passion, with hanging; to which the other replied, with equal fierceness,
and total want of respect. The two Earls retired to their estates, put
themselves in a state of defence, and even committed several outrages
against the king’s collectors; and their cause was generally espoused by
the nation, who were against the king’s exacting any new and unheard-of
services. The behaviour of these lords to their sovereign, and to such a
sovereign, in setting him at defiance, and that with terms of disdain,
when they themselves were the aggressors, was utterly unjustifiable;
but, from their cause, notwithstanding this behaviour of theirs, being
universally espoused by the nation, we may clearly see the opinion and
judgment of those times; that their kings were not unlimited, and that
they had no right to exact from their vassals any services but those
that flowed from their tenures. The king, indeed, at first gave their
lands and offices to others; but when he had cooled, and found they had
insisted on no more than was their right, he, in the frankest manner,
repaired his error. He gave in parliament a new confirmation of Magna
Charta. By another statute, he renounced all right of taking talliages,
that is, levying taxes, even on his own demesnes, without consent of
parliament, as contrary to that charter; and in the body of this last
act, in the amplest manner, remitted all disgust and resentment against
the two earls and their associates; and gave them the fullest indemnity
for the offences they had so outrageously committed. Such conduct in any
king, whose subjects were not disposed to esteem him, might have been
as a sign of weakness, and have been attended with dismal consequences;
but in Edward’s realms there was not a man that did not admire his
wisdom, adore him for his valour, his honour, and his sincerity. He could
encroach without incurring hatred, and he could retract without being
thought mean; so that it may be a question, whether, by the noble manner
of his repairing his mistake, he did not tie his subjects to him with
stronger bonds of affection, than if he had never committed it[115].
The grand serjeanties that are not military are of various kinds, being
offices and services done to the person of the king within the realm, in
order to the support of his state and dignity; for which reason, although
they are not, properly speaking, military services, yet they are looked
upon in that light, and are endowed with the same privileges, and subject
to the same regulations, except in a few instances, to be hereafter
mentioned; so that no person under the rank of the lesser nobility, that
is, of knighthood, was capable of performing them; and therefore, when,
by allowing the alienation of lands, these tenures fell into the hands
of persons of inferior quality, they were either knighted, or appointed
a deputy of that rank. Thus, at the coronation of Richard the Second,
as we find in Lord Coke, William Furnivall claimed to find a globe for
the right hand of the king, and to support his hand on the day of his
coronation, in virtue of the manor of Farnham, which he held by that
grand serjeanty; but, though descended of a noble family, he was not
permitted to perform it in person, until he had been dubbed a knight. At
the same coronation, John Wiltshire, citizen of London, claimed to hold a
towel while the king washed before dinner, which claim being allowed, as
he was of too low rank to perform the service in person, he made Edmund
Earl of Cambridge his deputy. Women likewise and minors were obliged to
serve by deputy; as did, at that time, Anne Countess-dowager of Pembroke,
by Sir John Blount, and her son John Earl of Pembroke, a minor, by Edmund
Earl of March[116].
These grand serjeanties, which were most of them lands granted for the
doing certain duties at the solemnity of the coronation, contributing
to the splendour and dignity of the crown, have been still retained,
though all other military tenures have been changed into free and
common socage. However, all these grand serjeanties were not for the
bare purpose of attending at coronations. The lord high stewardship or
seneschalship of England, of which the duty is to preside at the trials
of peers, was annexed to the barony of Hinckly, which, passing into the
family of Leicester, and then into that of Lancaster, in the person of
Henry the Fourth was united to the crown; but ever since that time, as
the powers and privileges the law threw into his hands were looked upon
as too extensive, and dangerous, if continued, this officer hath only
been occasionally created, as for a coronation, or the trial of a peer,
which ended, he breaks his staff, and the office is vacant[117]. The same
is the case, and for the same reason, of the office of high-constable,
ever since the attainder, in Henry the Eighth’s time, of Edward Duke
of Buckingham, who enjoyed it as Earl of Hereford. Thus did the crown
get rid of two considerable checks, which concurring with other more
extensive and influencing causes, helped to raise the power of the
house of Tudor above what the princes of the line of Plantagenet had
enjoyed[118]. The office of earl marshal, indeed still continues in the
noble family of Norfolk. For, notwithstanding the attainders of that
family, when they were restored, it also was restored to them. The reason
is, because this office is of little power; indeed, in the vacancy of the
constable to whom he is properly an assistant, scarce of any at all. It
being, therefore, an honourable dignity, and attended with no danger, it
is no wonder it hath remained[119]. In this kingdom one grand serjeanty
remained till the year 1715, in the family of Ormond, that of butlerage;
but it differed from those before-mentioned in this, that it was not a
service arising from a grant of lands, but of the prisage of wines, an
antient profit of the crown, due by prerogative, namely, a right to take
two tons of wine, one before the mast, and the other behind, out of every
ship containing twenty tons or more, until Charles the Second purchased
it from the Duke of Ormond by a perpetual pension of four thousand pounds
a year[120].
Eighthly, Petty serjeanty was another species of improper benefices, and,
in our law, was comprised under the general head of _socage_, because the
service was certain. It is, as Littleton[121] defines it, where a man
holds his land of our sovereign lord the king, to yield to him yearly a
bow or a sword, or a dagger, or a knife, or a lance, or a pair of gloves
of mail, or a pair of gilt spurs, or an arrow, or divers arrows; or to
yield such other small things belonging to war; so this, as well as grand
serjeanty, was a tenure of the king’s person, and could not be held of
a subject. Such is the grant the Lord Baltimore hath in his province of
Maryland; for he yields every Christmas five Indian arrows, besides a
fifth of all gold and silver found within this province.
Ninthly, All grants to women were of the nature of improper ones, because
they must always serve by deputy; and personal service is essential to
the proper military tenures[122]. But these were not introduced so early.
The tenth kind, and the last that I shall mention, of improper benefices,
are those that are of _things not corporeal_, and of which, consequently,
there cannot be a possession manually delivered over, that is, they do
not admit of livery and seizin, and therefore can be only conveyed by
the improper investiture, that is, by words or writing, accompanied by
a symbol. Such are rights in, or profits issuing out of land, where
another hath the possession of it. As the feudal law distinguishes
between corporeal things, whose possession can be actually transferred,
and incorporeal, which cannot; so doth our law make what is the same
distinction between things that lie in livery, and things that lie in
grant. In the first, it regularly requires an actual livery and seizin,
and here a deed is not absolutely necessary; but the second pass by the
delivery of the deed. Here therefore a deed is absolutely necessary; for
although the feudal law admits the use of other symbols in this case,
ours, for the greater certainty, precisely requires this peculiar one,
that there may be full evidence of what was conveyed. Of this last tenth
kind as there are many and various species, I shall run over some of them
in a cursory manner, to explain and shew their general nature.
The first I shall take notice of is, that which, I presume, was the most
antient, as it seems to have come in the place of those repasts the
king gave to his comites, or companions, and is what is called _feudum
de cavena_. _Cavena_ signified the repository, or repositories of the
necessaries of life, while in those ancient times the services due from
the demesnes, or the socage lands, to the king or lords, were paid in
kind. Things therefore necessary, or useful for the support of life,
distributed in specie, out of the king’s or lord’s cellar or pantry, or
both, were what the _feudum cavena_ consisted in; and that this came in
place of the antient constant entertainments, and feasts, of the comites,
or companions, appears from this, that it was a rule, even after other
grants were allowed to be hereditary, that these determined with the
life of the grantor, or grantee, which ever first happened to expire.
These grants likewise were of two kinds; some granted in consideration
of future services, upon the failure of which a forfeiture was incurred,
others, in reward for past services, where nothing was expected for the
future but general fealty. This difference runs through many other of
these gifts that lie in grant. For the feudal law distinguishes them
into _officiosa_, that is, to which a positive duty is annexed, and
_inofficiosa_, where no subsequent service is required, but general
fidelity, which is incident to every tenure[123].
The second I shall mention is _feudum de camera_, which, I apprehend, was
originally a substitution for what I have just mentioned, the _feudum de
cavena_; for it was instead of an allowance of necessaries out of the
cellar or pantry of the king, an annual allocation of a sum of money for
will, life, or years, according as it was granted out of the _camera_, or
chamber where the king or lord kept his money; and this was, as the other
I before mentioned into whose room it came, either a reward for past
services, in which case no future duty was required, or on consideration
of future ones. The pensions granted by the king in our kingdom (Ireland)
out of his revenue, are of the nature of the former; and the salaries
to judges and other officers are of the nature of the latter. What was
common to both of these, the _feudum de camera & de cavena_, was, that,
by the feudal law, they were not due at the stated time, unless there
were provisions in the _cavena_, or money in the _camera_, and that free
from debts; for the lord’s safety and dignity was to be first considered;
but they were to wait for their arrear, till provisions or money came in.