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

Another thing is to be observed, that, although, at the introduction of these tenures, all others were for the life of the grantor and grantee at most, yet when the others became perpetual, these continued long after to be only for the joint lives of the grantor and grantee, namely, as long as kings and great lords were considered as tenants for life, and incapable of alienating their demesnes, or laying any permanent charge upon them. But when, by the frequency of the example of alienations, and by the occasional indigence of the kings and other lords, and the desire designing persons had to take advantage of it, alienations of the demesnes were once introduced, to the prejudice of the successor, these grants, as was very natural, as they were less hurtful than an absolute alienation, were continued for the life of the grantee, though the grantor had died before[124].

LECTURE VIII.

Feudum Soldatæ—Feudum habitationis—Feudum Guardiæ—Feudum Gastaldiæ Feudum mercedis—Incorporeal benefices in England—Advowsons—Presentative advowsons—Collative advowsons—Donatives.

In the preceding lecture I began to treat of the several kinds of improper benefices, which are transferable only by the improper investiture, or, as the English law says, lie in grant; intending only to illustrate their general nature, without descending minutely into particulars; and of these I have already mentioned the feudum de camera, and that de cavena. I call these fiefs, even at the time I am now treating of, in conformity with the practice of the feudal writers: not with strict propriety, indeed; for feudum, properly speaking, signifies a tenure of inheritance, and such were not yet introduced. But before I quit them, it will be proper to take notice of some subdivisions of them, to be met with in the feudal writers.

I have already observed they were either gratuitous or officious, that is, without future service, or with it. Of the first kind there were two species, that called feudum soldatæ, from the word solidus, which signified a piece of money, and was a gratuitous pension, granted either out of the charity or bounty of the lord, or in reward of past services; the other called feudum habitationis; which is liberty of dwelling in an house belonging to the lord, in whom the property still doth, and the possession is still supposed to remain[125]. Of the officious ones Corvinus mentions three kinds, feudum guardiæ, feudum gastaldiæ, and feudum mercedis.

The feudum guardiæ hath annexed to it the defence of a castle, for the security of the realm; and this differs from the castle guard I have before mentioned, in as much as that, where lands were given for the defence of the castle, it was a corporeal benefice, and transferred by livery and seizin; namely, by admitting the constable into the castle, and delivering him the key thereof, and was an improper one only in respect of its duration, as, in the early times, it continued only a year; but this I am now speaking of was a pension, paid out of the king’s exchequer for the same purpose; and was of the same nature with the modern salaries of governors of garrisons[126].

The feudum gastaldiæ was a pension granted to a person for transacting the lord’s business, as for being his treasurer, steward, agent, or receiver. The feudum mercedis was in consideration of being an advocate or defender of the lord. Such are grants to lawyers pro consilio impendendo; and the salaries of the king’s lawyers, and the solicitors for the crown[127].

I shall next run over briefly the several kinds of incorporeal benefices which the law of England takes notice of, and explain their general nature. And the first I shall take notice of is an advowson, which is a right a man hath of nominating a proper person to fulfil the duties, and to receive the profits of an ecclesiastical benefice. These rights arose thus. In the infancy of the christian church, when the clergy were supported by the voluntary contributions of the people, the bishop was chosen by the clergy and people at large; and this method was so firmly established, that when the emperors became christians, although they made great donations of lands to the church, yet they left the manner of election as they found it; and so it continued in Rome until the year 1000 at least. But these elections, made by the giddy multitude, were the occasions of infinite disorders. The value of these offices being encreased, and the manners of the ecclesiastics corrupted by the accession of riches; parties and factions were eternally forming, and supported by all methods; and when a vacancy happened, the contest was frequently not decided without bloodshed. It is no wonder that all the sober part of the clergy, who were scandalized at these irreligious practices, and the emperors, who were concerned in the peace of their dominions, concurred in remedying these evils; which was at length effected by excluding the laity, gradually, and by insensible degrees, and confining the election to the ecclesiastics. Many of the emperors, indeed, struggled hard to get the nomination to themselves, but the clergy proving too powerful for them, they obtained, at most, but a power of recommendation[128].