Read Ebook: Lectures on the constitution and laws of England With a commentary on Magna Charta and illustrations of many of the English statutes by Sullivan Francis Stoughton Stuart Gilbert Commentator

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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.

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 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.

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 alien?e, 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.

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.

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.

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.

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.

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.

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. 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. 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. 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.

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. But these were not introduced so early.

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.

In the northern kingdoms the same causes produced the same effects, as to the exclusion of the laity, but with more advantageous circumstances to the rights of these princes. For as the lands they gave to the bishops in right of their churches were held of them, so they gave the investiture; and there was a kind of concurring right between the clergy, who elected, and the king. He insisted on his right of giving the investiture, but generally received their nominee, and granted it to him.

But after the time of Charles Martel, when the clergy were stripped of most of their lands, things took a different turn. For when new grants were made to the church by the king, he insisted, as feudal lord, on the absolute nomination, and the giving investiture, by delivering the staff or crosier, the emblem of his pastoral care, and the ring, the symbol of his spiritual marriage with the church; but these rights were opposed by the clergy, who were strongly supported by the popes then setting up for being the feudal lords of all churchmen, and who hoped to derive, as they did, great advantage from these dissentions. From the year 1000 to 1200, great confusion subsisted throughout all Europe, occasioned by these contests, until the popes in general prevailed; but for four hundred years past, and particularly since the reformation, their power hath been on the decline; and from this last period the patronage or advowson of bishoprics hath been confessedly in our king, as hath been the case in several other kingdoms; and though in England a form of election is still retained, it is no more than a mere form.

To return to the country clergy. The manner in which they came to have settled establishments was thus: It was usual, as soon indeed as tithes were established as a law, that is, before or about the time of Charlemagne, for the bishop to allocate to his vicar or curate in any district, the whole, or a part of the tithes or other profits arising there; but when England, France, and other countries were ravaged by the Danes and Normans, the fury of these barbarous heathens fell particularly on the ecclesiastics. Their churches they burned, and themselves they slaughtered without mercy; insomuch that, when their devastations ceased, there ensued not only a great scarcity of clergymen, but such a want of means of proper support for them that the feudal lords were willing, for the sake of having divine service performed in their districts, for the benefit of themselves and their vassals, to alienate part of their lands to the church, which was then in indigence, for the purpose of building houses for the parson, and providing a competent glebe for him, and also for building new churches where they were wanted. Altho' alienation was at this time entirely disallowed by the feudal customs, yet the necessity of those times prevailed against it in those instances, especially as these superstitious people attacked, or ready to be attacked by an heathen enemy, thought the lands so given to be really given for military service, as they were given for the service of God, the Lord of Hosts, who was to speed their arms. However, the circumstances and opinions of that age would not allow any grant, without an acknowledgment of the superiority of the grantor; nor allow any lord to give any grant materially detrimental to his military fief. Hence, as an acknowledgment that the lands so granted to the church proceeded from the bounty of the Lord, he was allowed to nominate a clergyman to the bishop; who, if he was qualified, was obliged to admit him. But as the patron might present an improper person, and such an one as the bishop must be obliged in conscience to reject; and might do this repeatedly, for any considerable length of time, during which the duties of religion would be neglected, it was, in after times, settled, in all countries, that the right of the patron's presentation should last only a limited time. In our countries it is six months; after which time lapsed from the vacancy, the bishop's original right of nomination revives.

But the customs of those ages not admitting of the alienation of any part of a military tenure, but what was absolutely necessary, it followed that these glebes were far from being sufficient for the maintenance of a parson. These grants, therefore, were not made without the consent of the bishop, to allocate, in aid of the glebe, the tithes of that precinct, to the use of the parson. And now the parson began to have a permanent interest for life in his parish, and a permanent cure of souls therein; but not exclusive of the cure of souls in the bishop, who was concomitant with him in that point, though not in the profits. For when the bishop, for the good of the church, appropriated a part of the revenues of the church to a particular person and his successors, which, for the public good, he was allowed to do, he could not, however, divest himself, or his successor, of that general cure of souls through his whole district, which was the essence of his office. As the parson, therefore, though named by a layman, was his deputy, he was in truth his feudal tenant. From him he received institution, which is the improper investiture; to him he gave the oath of canonical obedience, which is equivalent to the oath of fealty; and by him, or persons appointed by him, he was inducted into his church, that is, had livery and seizin given him.

They began first with dismembering bishoprics, in order to found new ones, on pretence of the churches being better served; and this they did principally in Italy, where their influence was most extensive; and that with a view, by having a greater number of votes, to over-rule the determination of the general councils. They did the same, but more sparingly, for the reason aforesaid, in other countries, with the sovereigns; who, in these cases, were really actuated by the motive of advancing the public good, and promoting religion. The next step was more decisive. Their authority being now established, they took occasion, on several pretences, to exempt from the jurisdiction of the bishops, several places within their dioceses, which they kept immediately under themselves, to which they appointed clerks by this way of donation, and whom they visited by their legates, as their immediate ordinary. The clergy, thus provided for, served as faithful servants and spies to the pope, in all parts of the christian world, and were, next to the monasteries, the firmest support of his power. The same practice they pursued with respect to bishoprics, by exempting several of them in divers places from the archbishop of the province. And this was the origin of donatives. But, in order to shew the plenitude of their power, the next step they took was of a higher strain. They not only founded donatives for themselves, but for others, even of the laity; shewing by this, that all ecclesiastical jurisdiction and discipline was entirely subject to their will, and that, at pleasure, they could transfer it to hands before judged incapable of it.

These two kind of donatives still subsist in England, the latter in the hands of subjects, the former of the king as supreme ordinary, since the pope's usurped power was transferred to Henry the Eighth. I am sensible many common lawyers insist that the king of England was always supreme ordinary, and that nothing new was gained at that time, but only his old authority, which the pope had usurped, restored to him. But what shall we say to the first fruits and tenths; which are certainly papal impositions, and comparatively of a modern date. The same I apprehend to be the case of the ordinary jurisdiction. As to the supreme patronage, I allow it was, originally, the king's. My reason is, that I do not find in the antient church any trace of a layman solely exercising ecclesiastical jurisdiction, or enacting laws for the church.

I think therefore the king's title to be supreme ordinary, stands better settled on the parliamentary declaration, and on the reason of the thing, that all coercive power should be derived from him, whom God hath made the superintendant; than on the assertions of lawyers, that it always was so. Matters of fact are to be determined by evidence, not by considering what ought to have been; and we need not be surprized to find, that an ignorant and superstitious people allowed practices, and a division of power in themselves unreasonable.

In these donatives there was neither institution nor induction. The patron gave his clerk a title by deed, on which he entered; for the plenitude of the papal power supplied all forms. The patron was the visitor, and had the power of deprivations; but what clearly shews, in my apprehension, that these donatives were incroachments on the episcopal authority, is, that, if once a common patron had presented his clerk, and he got institution and induction, the donative was gone for ever. The living became presentative, and the bishop's jurisdiction revived.

I should next proceed to tithes, another kind of incorporeal benefice; but this would carry me too great a length for the present discourse.

In the fourth century, the restraint being taken away, these largesses from the rich and superstitious, to the church became much greater; but the general voluntary contributions from all who could spare, diminished, the apparent necessity for them being lessened; and the zeal of the people, which persecution had kept warm and fervent, slackened from ease and security. The bishops, who were the distributers, prided in vying with each other in the magnificence of their churches; and, being now raised to an eminent rank in the state, were not satisfied to live in such a manner as contented the simplicity of the antient fathers of the church; so that by the year 400, the inferior clergy and the poor were, in many places, but in very scanty circumstances. This induced many of the pious to fix upon a certain rate out of their own annual gains to supply these necessities, and as the tenth was what had been assigned to the Levites in the mosaical law, that generally became the proportion. But as the payments of those tithes were purely voluntary, so did the givers appropriate them in such manner as they pleased, and as they thought they were most wanted.

In Egypt, where, it seems, this practice began, they were commonly given to the monks, who had devoted themselves to a religious poverty; in Illyricum generally to the poor; in other places to the inferior clergy of such a district, or, if the church itself was indigent, to the bishop, for the use of his church. The famous preachers about this time, particularly St. Ambrose and St. Augustine, inforced this practice with all their eloquence, and insisted on the levitical law of tithes as binding on christians. This had great, but not general effects. Some gave the tithe, others, of more zeal, gave more, and others less; and though these contributions began now to be aided by the spiritual arms of excommunication, yet were these only used to oblige a man, in testimony of his being a christian, to make some offering, not to pay precisely the tenth, or any other portion.

When Henry the eighth threw off the pope's supremacy, great was his danger both from abroad, and at home, particularly from the monasteries. A resolution therefore was taken for suppressing them, and applying their revenues to more useful purposes. The intention of Cranmer, at least, was to restore the tithes to the parochial clergy, and out of some part of the lands to found new bishopricks, and for other religious and charitable purposes; the remainder to be united to the royal demesnes to enable him to defend his realm without burthening his subjects with subsidies. But little of this kind was done. Five or six bishopricks, with very poor revenues, were erected, and the rest, both of lands and tithes, were distributed to the laity in whose hands they still remain, partly out of present political views, but principally from the extravagance of that king and the indigence of his successors, concurring with the avarice of their courtiers. As to the lands the abbots held discharged of tithes, the parish ministers right to them would, by the common law of England, have revived as soon as they got into lay-hands; as it would have done before, if the abbot had aliened with the consent of the convent, and this was the case of the lands of the lesser monasteries. But when the greater ones were dissolved by the act of 31st of Henry the eighth, it was expressly provided, that the king and his grantees should enjoy those lands, discharged from tithes, in as ample a manner, as the abbots held them before that time. Thus became a great part of the tithes of the kingdom, which by the common law of England were the legal maintenance of the parochial clergy, lay fees, and inheritances, as they continue at this day.

The two first had their foundation in the law of Moses, the last was introduced and strongly inforced by the canon law; nay so shameless were some of the canonists, as to insist that harlots were obliged to pay the tenth of their infamous gains; but this latter kind has had little effect in England, except by the local customs of some particular places.

As to what things are tithable or not by our law, it may not be amiss to lay down some general maxims concerning them.

To return to reversions, I mentioned fealty and services as incidents of a reversion; but we must distinguish that fealty is an inseparable one, which the services are not; for the tenure being from the reversioner, and fealty necessarily incident to every tenure, it is impossible they should be separated. A grant, therefore, of fealty, without the reversion, is void; and the grant of the reversion carries the fealty with it. But the case is otherwise as to the services; for the services may be granted without the reversion, and although the reversion be granted, the services, by special words, may be excepted.

But this practice, though highly useful to the sellers, was of considerable detriment, not only to their lords, who thereby frequently lost the fruits of their tenures, but indeed to the whole military policy of the kingdom. It was enacted, therefore, in the eighteenth of Edward the First, by the statute above mentioned, that whenever a man aliened his whole estate, the alienee should not hold from him, and be his tenant, but from the superior lord, and be the lord's tenant directly; and that by the same services, by which the alienor had holden. The alienor, then, by this statute, ceasing to be lord, and his right of reversion clearly gone, if he reserves a rent on such alienation, he cannot distrain for it, and it is a rent seck.

Distresses were not only taken for rents, and other services reserved, but also to oblige persons to appear in courts of justice, or to raise fines, and amerciaments inflicted on them. This likewise arose from the feudal law, as by that the doing suit and service at the lord's court was one of the duties attendant on fealty.

Many and grievous were the extortions and oppressions of the antient English lords in their taking distresses, during the troublesome reign of Henry the Third, for the remedying which many wise regulations were made by the statute of Marlebridge and others. For they not only distrained in a most unreasonable manner for the smallest duties, but distrained where nothing was due; and frequently even out of their fees; and to deprive the parties injured of legal remedy, drove them into another county, or inclosed them in a castle, or would not suffer their bailiffs to permit a replevin.

First then, nothing can be distrained but moveables, and such as may be restored in the same plight. For the distress is in the nature of a pledge to be restored on due satisfaction made; therefore nothing fixed to the freehold is distrainable, as doors, windows, furnaces, &c. for these being affixed thereto, are part of the freehold, and cannot be separated thence without damage. Therefore, a smith's anvil, though not actually fixed, or a millstone removed in order to be picked, are not subject to distress; for the one is, in law, still part of the shop, as the other is of the mill. Hence, likewise, money is not distrainable, unless it be in a bag; because, otherwise, it cannot be known, so as to return it in the same plight. For the same reason, by the old law, corn in sheaves, or in stacks, or in a barn, or hay in cocks, or in a loft, could not, for fear of damage in removing. That however hath been since altered by statute, but corn or hay on a cart could be distrained by the old law; for they being, in such a case, found in a situation fit for removal, might be transported from place to place without any probable danger of damage, or diminution.

Thirdly, Things sent to public places of trade are privileged, for the public benefit of the realm, as cattle in a market, corn sent to a mill, cloth in a taylor's shop, yarn in a weaver's house. For it would put a total stop to commerce if these were answerable for the rents of such places.

Fourthly, What is in the custody of law is not distrainable, for it would be an absurdity that a man should have a right by law, to take things out of the custody of the law itself, such as goods already distrained, or goods taken in execution, or seized by process at the suit of the king.

Fifthly, Things in manual possession of another, are, for the time, privileged, as an ax in a man's hand, or the horse I ride on. But for damage feasant, as I said before, every thing is distrainable; for the thing itself which did the damage, is the pledge of the satisfaction, and the only one.

In antient times, the lords used to drive the distresses into foreign counties, whereby the tenants knew not where to resort to feed their beasts. This was forbidden by Marlebridge, cap. 4. However, that act received this construction, that if a manor lay in two counties, and its pound in one of them, the lord might distrain in the other county, and impound them in his manor pound; because the tenant, by attending the manor court, was presumed to know every thing transacted in the manor. But now, by later acts, no distress of cattle shall be impounded out of the hundred, or barony where taken, except in a pound overt, in the same county, within three miles of the place; nor shall distresses be divided, and impounded in several places. Dead chattels must be impounded likewise within three miles, and that in a pound covert, otherwise the taker is answerable for them, if damaged or stolen.

This impowered the sheriff to make replevins without writ, upon the plaint of the plaintiff in replevin; and this he could do out of his county court, because, as that was held only from month to month, were it otherwise, the delay might be as great as in the case of a writ of replevin; but then the sheriff, in order to lay the foundation of the suit, must enter the plaint the next county court, that it may appear on the rolls thereof.

The feudal lands having been changed by degrees from tenancies for years into permanent grants for life, partly by the necessities, and partly by the favour of the lords, the matter did not stop here; but, to the advantage of the vassals, their rights were continually gaining ground, and insensibly extending themselves, to a durable continuance in the same family. To this, undoubtedly, the number of allodial estates, which were estates of inheritance in the hands of the Romans, greatly contributed. For it is not to be imagined that it could be an agreeable spectacle to the conquerors, when once they were settled, and secured in the possession of the country, to behold their posterity in a more precarious situation, with regard to property, than the vanquished were. It is true, as by their constitution the lord was obliged to provide every gentleman, that is, every one of their nation, unless he proved unworthy, with a benefice, there was no danger of their issue not being supplied, in some degree or other. But this did not satisfy them.

But the words of the grant were not extended, by a favourable construction, to take in grandsons by the name of sons, for the following reason. When a grant was made to a man and one or more of his sons by name, the sons were originally, at the time of the investiture, capable, or supposed capable, by the lord's admission, of doing the services of the feud; and their ability and merit was in the contemplation of the grantor, and part of the consideration of the grant; and where it was given to a man and his sons generally, the law presumed the same thing, the same capacity in them, the same intention in the grantor. But in the case of grandfather and grandson, the law could not presume so, it being contrary to the ordinary course of nature, that both should, at the time of investiture, be capable of doing the services in person; and therefore the grandsons, unless specially provided for, were excluded.

It seems a little odd, that the lower military people had got such an advantage above the great and powerful lords; but this may be accounted for from the number of the knights, who made the strength of the kingdom, and were not to be disobliged; and also from the precarious situation many of the great lords were in, who had been attached to the cause of Stephen. However, the wisdom and moderation of this great prince was such, that we find no complaints on this head, during his reign, or that of his son Richard; but when John ascended the throne, a prince who hated, and was hated by his nobles, the old oppressions were renewed, and aggravated to such a degree, that the remedying thereof is the first article of temporal concern in Magna Charta.

What greatly contributed to the extending these grants to indefinite generations, was the inclination that now seized the Romans and Gauls who held allodial lands to be admitted into the feudal policy, by becoming vassals to the king. They had long lain under very humiliating distinctions. They were no members of the state. The loss of their lives, and other injuries, were compensated only by half the satisfaction to a Frank. For neglect, or contumacy, when called into the king's courts, they were reputed guilty, and forfeited their estates; whereas a Frank was only imprisoned to oblige him to answer. When accused of the lightest crimes, they were put to the ordeal; whereas the Franks were only subjected thereto in case of murder. And many other were the distinctions between the allodial and feudal tenants. No wonder then the former were very desirous of enrolling themselves among the conquerors, which when they had at length obtained, their liberty was effected, by their giving their allodial lands, or a part of them, to the king, and receiving them back, subject to the feudal rules. Now were they immediate vassals of the king, and, as such, became Franks to all intents and purposes. But these people were not so foolish, nor could it be expected from them, to part with absolute inheritances, and take back only an estate for life. They insisted upon grants for a perpetuity, at least for as long as the issue male of the person resigning lasted. When once these donations were become common, we may be assured the Franks were very ready to follow the example, and to take all advantages either of the favour, or the weakness of their kings; and to such a number did these inheritances increase, that, about the year 730, the kingdom was near being lost to the Saracens, for want of a sufficient number of beneficiary or life-estates, to encourage the soldiery.

The policy of Pepin and his son Charlemagne corresponded with Charles Martel's views. The former allowed the continuance of inheritances according to the original provision in the creation, but were much fonder of the beneficiary estates, and Charlemagne made several laws to prevent his beneficiaries from converting by any art their interests into inheritances. In his time, a great majority of estates were benefices; but this I presume is not to be understood of France particularly, where, from the detail before mentioned, it could scarce be, but of his whole empire. For in his acquisitions, and especially in Germany, where such a practice was agreeable to the antient customs of the natives, such a regulation was conformable to the sound policy of his father and grandfather; by which they endeavoured to restore the splendour of the old French monarchy, I mean with exception to the large gifts he gave to the church on the borders of the infidels, in atonement for his grandfather's sacrilege, and in hopes of converting those barbarians, and thereby civilizing them, and making them good subjects.

I speak of the times of Charles the Bald, who reigned about 860. One of his laws gave leave, and an unlimited one, to the allodians, to submit themselves and their estates, in the nature of fiefs, to others besides the kings. Nothing could contribute more to the weakening of the royal power, and the throwing of all the weight into the baron's scale. Before they could be made Franks, only by becoming the immediate vassals of the king. This was equally for the public benefit of the state, the king, and the allodians. But when once the barrier was thrown down, in those times of confusion, the allodians were glad to gain the protection of the neighbouring lords, and, under colour thereof, detached themselves from their former subjection to the counts, who were the king's officers over them.

Another law, of equal consequence, was to entitle the fee of a beneficiary, who had only an estate for life, without any express agreement for a longer continuance, to go to the son. This was extorted by the circumstances of the times, and perhaps then was thought of little consequence, as it only continued them for one generation. But the temper and general inclination of the people were not to be controuled. Those grants that had been so long as two generations in a family, it was sometimes dangerous, always invidious not to continue; and thus the successors often obtained permanent estates, when nothing less was intended at the beginning. And this was easily obtained, as the use of letters was not common among these people, and their charters were, by frequent rebellions, liable to be destroyed.

In England the two ceremonies of homage and fealty were kept distinct; the homage, as being for the most durable estate, was performed first, and afterwards the fealty; but, on the continent, at least in some countries, I find they were blended together, by the homage being done upon oath.

The term of twenty-one years, which I have mentioned was confined, as may appear by what I said concerning it, to heirs minor, that were males; but with respect to heirs female, minors, as almost all of our fiefs soon after the conquest were feminine feuds, as the lawyers on the continent call them, that is, descendable to females in the next degree, if males in that degree failed, the limitation of minority was different. In these fiefs it was impossible the woman herself should do personal service: She was, therefore, allowed a substitute; but in time of minority, as she could not appoint a proper one, the lord who was bound to perform the service to his superior, had the lands in the same manner as in case of an heir male. However, there was no reason that the minority of a woman in wardship should continue so long as that of a man, namely, to twenty-one years; for as the law of God declared that man and wife should be one flesh; so the canon law, and ours in consequence, have decreed, that, in law, the man and wife are one person, and that the husband in all respects is bound to perform the obligations she lies under. Hence, in case of a female heir, the term of the lord's guardianship was, by the common law, limited to fourteen years; by which time it was presumed she might have a husband capable, and obliged to do the duty for her. But this age of fourteen years was, in a particular case, extended, by act of parliament, to two years farther. However, as the reason of that depends on the lord's right to the marriage of the heiress, it will be better to defer speaking thereof, until we come to that head.

It remains to be mentioned, what was the nature of this interest the lord had in the estate of this minor tenant, by virtue of the feudal institutions, and so contrary to the general and the original tenure of them. For, simply, the lord had only the propriety, and in consequence the right of reversion or escheat, with the render of the services; whilst the tenant had the possession and the profits. But, in this case, all these seem to be blended, particularly the right of original propriety and possession, so essentially to be distinguished in the feudal system. For the lord has not only his propriety in right of his seignory, but also the absolute possession, and permanency, or taking of the profits, and the minor heir apparently nothing. However, the law, in this case, did justice, and created in the lord a temporary interest, an estate for years, namely, for the number of years till the majority was compleated, contrary to all the other feudal maxims. For the fee and inheritance of the estate remained in the minor, though he had neither possession or profits. This interest of the lord could not be called, at least with strict propriety, a tenancy for years, because, in this case, the lord possesses the tenant's lands, not the tenant. The lords had therefore no tenure, but an estate for years, created by the law; and that it was originally considered as an estate for years, or a chattle interest in lands, appears from two things. First, that in the early times, when alienations were scarce allowed, it was assignable over to another, without any licence or form. Secondly, that instead of going to the heir, in case of the lord's death, during the minority of the ward, it went to the lord's executors, as other estates for years did.

As the lord was bound to his vassal and his heirs by the homage done to him, it certainly followed, that it was not lawful for him to do, during the wardship, any actual waste to the estate of his minor ward, or to suffer any to be done by others. He was also obliged to repair and keep in condition, out of the profits of the estate, the houses and improvements thereon; yet so great was the misbehaviour of the English lords, soon after the conquest, that many severe and restrictive laws were, from time to time, made in favour of the minor wards.

In my next I shall treat of guardians in socage, reserving the article of marriage, though it appertained to military service, to a place by itself; as it was of a distinct nature, and went on its own particular ground in a great measure.

Having, in the last lecture, given some account of wardship and guardianship in chivalry, it will be necessary to mention what provision the law made, now lands were become hereditary, for the benefit of a minor, when lands, held in socage, descended to him. In the former case, where war was the consideration, whose times and exigences were uncertain, the law was obliged, on account of the public safety, to consider the interest of the lord, who was to answer the duties to the state, in the first place, and the interest of the minor only in a secondary light. But in socage lands, which the lord had parted with for certain fixed stipulated services, to be paid at particular times, the lord had no claim to any more than them. Neither did the public interest demand a military person for the guardian of one who was not to be bred a soldier. A near relation, therefore, was the properest person to take the wardship.

But put the case, Suppose that the minor doth not enter, or choose another guardian, but that the old one continues to receive the profits, what remedy shall the minor have for those received after his age of fourteen? Certain it is, he cannot bring an action of account against him as guardian; for guardianship is expired; and yet the infant's discretion cannot be presumed so great, as to be perfectly acquainted with all his legal rights, and therefore his negligence shall not be imputed to him. The law in this case remedieth him by a reasonable fiction, and supposeth, though the fact hath not been so, that the minor had appointed him to receive the profits of the estate, and therefore gives an action of accounts against him, not as guardian, but as bailiff or receiver.

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