Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

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.