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.

As the proper investiture required the actual going upon the lands, which was often inconvenient, the improper investiture was introduced. This, which was the second kind mentioned, was also performed in the presence of the pares curiæ, thus: The intended tenant, in a most humble and lowly manner, prays the grant of such an estate from his lord; which, when the latter has agreed to, he invests him, by words signifying his grant, and what it is of, accompanied by some corporeal action, as delivering him a staff, a ring, a sword, or clothing him with a robe, which last, being the most common method amongst the great immediate tenants of the king, gave rise to the name investiture. After this, the tenant did fealty. But this improper investiture did not transfer the actual possession of the land without subsequent livery and seizin, and gave the tenant not a right to enter, but only a right of action, whereby he might sue, and oblige the lord to transfer it by an actual livery. For all these lands, being liable to services arising out of the profits for which the lord was bound to answer to the king, his possession of these profits by their rules was continued, until he had, by an act of public notoriety, namely, by giving livery and seizin on the land, put it out of him. And this maxim was, I apprehend, established also for the benefit of the co-vassals, who could better judge by their own eyes, on the spot, whether an injury was done by the grant to any of them, than by hearing the lands named and described elsewhere, as, in such case, it frequently happened that all the vassals were not present[101].

Hence, if the lord had granted lands by an improper investiture to A, and had afterwards, by livery and seizin, granted them to B, they became B’s, though he was the later invested; and the remedy A had against the lord was not for the lands themselves, for those he had already legally parted with to B, and could not recal, but for their value, in consideration of his having bound himself to fealty.

This was the form and manner of proper and improper investitures in the early times, before these barbarians had learned the use of letters, and was intended not merely for solemnity, but also to create such a notoriety of the fact, as it might easily be proved by viva voce testimony. For if it was denied, the tenant produced two or more of the pares curiæ, each of whom swore he had either been present at the investiture himself, or had constantly heard his father declare, that he was. And this, at first, was the only evidence admissible, and was abundantly sufficient, when the grants were only for one life. Such proof, however, could not be of any advantage to the church; for, though churchmen die, the church doth not, but continues to be represented in a succession of natural persons. If she, therefore, had not a more permanent evidence to produce than what I have before-mentioned, she could never, after some length of time, ascertain her rights. On this account brevia testata, or, as we call them, deeds, were made use of, which were written instruments, expressing the grant, and its nature, attested by some of the pares, and authenticated by the seal of the lord, or by his name and sign of the cross. When this kind of evidence was once introduced, as it was more fixed and certain than the frail memories of men, it became customary for the tenant, who had been invested either properly or improperly, to demand and obtain a breve testatum of that investiture, and afterwards other symbols in improper investitures went out of use, and the delivery of a deed became the ordinary sign; but this, as all other improper investitures, required a subsequent actual livery and seizin.

Having thus delivered the antient and proper method of constituting an estate for life, let us attend to the consequences, and see what were the several rights and obligations of the lord and tenant, and for that purpose examine the oath of fealty.

The general oath of fealty on the continent was thus: Ego N. vassallus, super hæc sancta Dei evangelia, juro, quod ab hac horâ in antea usque ad ultimum vitæ meæ diem, tibi M. domino meo, fidelis ero, contra omnem hominem, excepta summo pontifice, vel imperatore, vel rege, vel priore domino meo, as the case was. In England, Littleton gives this account of it. When a freeholder doth fealty to his lord, he shall hold his right hand on a book, and shall say thus: Know ye this, my lord, that I shall be faithful and true unto you, and faith to you shall bear, for the lands which I claim to hold of you; and that I shall lawfully do to you the customs and services which I ought to do, at the terms assigned; so help me God, and his saints; and he shall kiss the book[102].

The only differences are, that the words ab hac hora in antea usque ad ultimum vitæ meæ diem are omitted: for abroad none but tenants for life swore fealty. In England termers for years did; and that contra omnem hominem, excepto, &c. though implied, is likewise omitted; which exceptions, however, in the English law, were inserted in the doing of homage which the tenant in fee did to his lord.

Such was the general oath of fealty; but to shew what being faithful and true, and bearing faith comprehends, it will be proper to insert, from the seventh title of the second book of the feudal law, the larger oath, which persons, rude and ignorant of what the word fealty implied, were to take. It runs in these words: Ego juro, quod nunquam scienter ero in consilio, vel in facto quod tu amittas vitam, vel membrum aliquod, vel quod tu recipias in personâ aliquam læsionem, vel injuriam, vel contumeliam, vel quod tu amittas aliquem honorem quem nunc habes, vel in antea habebis; & si scivero, vel audivero, de aliquo, qui velit aliquod istorum contra te facere, pro posse meo, ut non fiat impedimentum præstabo. Et si impedimentum præstare nequivero, quam cito potero, tibi nunciabo; & contra eum, prout potero, auxilium meum tibi præstabo; & si contigerit, te rem aliquam quam habes vel habebis injuste vel fortuito casu amittere, eam recuperare juvabo, & recuperatam omni tempore retinere. Et si scivero te velle juste aliquem offendere, & inde generaliter vel specialiter fuero requisitus, meum tibi, sicut potero, præstabo auxilium. Et si aliquid mihi de secreto manifestaveris, illud, sine tua licentia, nemini pandam, vel per quod pandatur faciam; & si consilium mihi super aliquo facto postulaveris, illud tibi dabo consilium, quod mihi videtur magis expedire tibi; & nunquam ex persona mea aliquid faciam scienter, quod pertineat ad tuam vel tuorum injuriam vel contumeliam.

Besides the negative obligations, of doing nothing to the prejudice of the lord or his family, the positive ones the vassals lay under may be reduced to the two heads of counsel and aid; which, with us, are still the principal duties that the parliament, who are, or represent the vassals of the king, owe to the sovereign. Under counsel, not only giving faithful advice, but keeping his secrets was included. Aid may be either in supporting his reputation and dignity, or defending his person or property. Under the first, the vassal was not only to shew him the highest reverence, but was forbid to accuse or inform against him, except in the case of treason, where the supreme lord was concerned. He could not in a suit between them tender to his lord the oath of calumny, whereby he should be obliged to swear he thought his cause was just, and that he did not carry it on with an intent to harrass and distress; for this was throwing an aspersion on his lord’s character. He could not, for the same reason, bring any action against him, whereby he might be defamed, and particularly the interdictum unde-vi, which was a charge against the person sued, of an unjust and violent dispossession of property. Neither could he, in any cause that was not strictly feudal (for in such as were for the general preservation of that polity, he was permitted) bear witness against him. And, lastly, he was obliged to support his dignity, to attend his courts, and do suit and service, as a witness and a juror.

By aid to his person, he was not only obliged to defend his lord, if attacked personally, but to assist him in his wars, and that at his own expence, out of the profits of his tenancy; and if, in the field of battle, he deserted his lord, before his lord was mortally wounded, it was an absolute forfeiture. But this aid he was not obliged to give until required; for perhaps the lord did not need the aid of all his tenants; and the vassal, without notice, was supposed ignorant that there was any occasion for his assistance, unless it could be proved the vassal knew his lord’s danger, when the lord himself did not; or that he knew it was so imminent as not to give the lord time to summon him; in which two cases, he was obliged to serve without requisition[103].

But here some distinctions must be taken notice of as to the nature of these wars. I have often repeated that the king’s companions were bound to assist him in all his undertakings, offensive or defensive; and that the other freemen were obliged only to serve in defensive wars. But now, by this new introduction of grants for life to the freemen, the case was altered. In all defensive wars, they were obliged to aid their lord, though he had been the unjust aggressor, and this for the preservation of the society to which they belonged; but in offensive ones, it was to be considered whether the cause was just, or doubtful, or notoriously unjust. In the two first cases, he was obliged to furnish his aid; for if his lord’s quarrel was doubtful, the respect and reverence he owed him, and his regard to his lord’s character and dignity, laid him under a necessity of presuming in his superior’s favour. But if the war was notoriously unjust, he was at liberty to serve, or not, as he pleased. And the aid he was bound to give, where he was bound, was against all persons, contra omnem hominem, even his parents, brothers, children, and friends, with the following exceptions. First, not against the king, who was the supreme lord of the whole, and in whose preservation and dignity every individual was concerned. Secondly, not against himself, for self-preservation is the first law of nature. Thirdly, not against his original country, though he had received a grant from a foreign lord, and afterwards war broke out between them: for by this time, the opinion of a durable obligation to the state he was born in, began to prevail among them. Lastly, not against his antienter lord, when he had grants from two; for the second obligation could not annul the first. It may here be naturally asked, how such a vassal, who had two lords, was to act in case of a war between them? If his first lord’s cause was just or doubtful, he was undoubtedly bound to him against the subsequent one, even in attacking him; and this was no forfeiture, for the second lord had sufficient notice of his prior obligation, by the exception in the oath of fealty. Indeed, if he, having a lord before, had omitted the exception, he justly lost his fief, for the deceit put on his latter lord. But if his first lord’s cause was notoriously unjust, he was not at liberty to assist him against the second; but by the two bonds was obliged to remain neuter[104].

This military duty was to be done in the vassal’s proper person, if he was capable of it; unless the lord was pleased to accept of a deputy. But if he was incapable himself, as often must have happened, after estates for life came in, he was allowed to serve by a substitute, such as the lord approved. Suppose, then, a man had two lords, who were at the same time at war with others, and each required his personal assistance, it was plain he was obliged to serve both, the elder lord in person, because his right was prior, and the last by deputy[105].

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[106].

These were all the aids necessarily required by the law in these antient 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.