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 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.