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.

Seventhly, Grand serjeanty is a benefice of an improper nature, even though it be reckoned a military one, because it is reduced to a certainty. Grand serjeanty is a certain service done by the body of a man to the person of the king, and is of two kinds; military, which is to be done either in or out of the realm; and not military, which is to be done within the realm. Military, as when lands are given on condition of carrying the banner of the king, or his lance, or to lead his army, that is, to be his constable; or to number and array his army, that is, to be his marshal; but these being certain services, and due to the person of the king, they were not obliged to attend, but where he went in person; and this right they insisted on so strongly, as had almost occasioned a rebellion in the time of Edward the First; who, although in most things an excellent prince, was of an hot and haughty temper[114].

Having determined to attack France on two sides; in Flanders, where he intended to command himself, and in Guienne; he ordered the Earl of Hereford, high constable by tenure, and the Earl of Norfolk, marshal by tenure, to lead the army in Guienne, as his generals and commanders in chief. But, however honourable and pleasing in other respects the offer might be, they feared that such a precedent, quietly complied with, might be, in after times, a means of introducing new and hard services at the king’s pleasure, instead of the antient and known ones. They, therefore, flatly refused, unless he went thither himself; offering, at the same time, to serve under him in Flanders. The king, boiling with resentment against France, and provoked at this contradiction to his pleasure, however justly founded, threatened Norfolk, in a transport of passion, with hanging; to which the other replied, with equal fierceness, and total want of respect. The two Earls retired to their estates, put themselves in a state of defence, and even committed several outrages against the king’s collectors; and their cause was generally espoused by the nation, who were against the king’s exacting any new and unheard-of services. The behaviour of these lords to their sovereign, and to such a sovereign, in setting him at defiance, and that with terms of disdain, when they themselves were the aggressors, was utterly unjustifiable; but, from their cause, notwithstanding this behaviour of theirs, being universally espoused by the nation, we may clearly see the opinion and judgment of those times; that their kings were not unlimited, and that they had no right to exact from their vassals any services but those that flowed from their tenures. The king, indeed, at first gave their lands and offices to others; but when he had cooled, and found they had insisted on no more than was their right, he, in the frankest manner, repaired his error. He gave in parliament a new confirmation of Magna Charta. By another statute, he renounced all right of taking talliages, that is, levying taxes, even on his own demesnes, without consent of parliament, as contrary to that charter; and in the body of this last act, in the amplest manner, remitted all disgust and resentment against the two earls and their associates; and gave them the fullest indemnity for the offences they had so outrageously committed. Such conduct in any king, whose subjects were not disposed to esteem him, might have been as a sign of weakness, and have been attended with dismal consequences; but in Edward’s realms there was not a man that did not admire his wisdom, adore him for his valour, his honour, and his sincerity. He could encroach without incurring hatred, and he could retract without being thought mean; so that it may be a question, whether, by the noble manner of his repairing his mistake, he did not tie his subjects to him with stronger bonds of affection, than if he had never committed it[115].

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[116].

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[117]. 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[118]. 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[119]. 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[120].

Eighthly, Petty serjeanty was another species of improper benefices, and, in our law, was comprised under the general head of socage, because the service was certain. It is, as Littleton[121] defines it, where a man holds his land of our sovereign lord the king, to yield to him yearly a bow or a sword, or a dagger, or a knife, or a lance, or a pair of gloves of mail, or a pair of gilt spurs, or an arrow, or divers arrows; or to yield such other small things belonging to war; so this, as well as grand serjeanty, was a tenure of the king’s person, and could not be held of a subject. Such is the grant the Lord Baltimore hath in his province of Maryland; for he yields every Christmas five Indian arrows, besides a fifth of all gold and silver found within this province.

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[122]. But these were not introduced so early.

The tenth kind, and the last that I shall mention, of improper benefices, are those that are of things not corporeal, and of which, consequently, there cannot be a possession manually delivered over, that is, they do not admit of livery and seizin, and therefore can be only conveyed by the improper investiture, that is, by words or writing, accompanied by a symbol. Such are rights in, or profits issuing out of land, where another hath the possession of it. As the feudal law distinguishes between corporeal things, whose possession can be actually transferred, and incorporeal, which cannot; so doth our law make what is the same distinction between things that lie in livery, and things that lie in grant. In the first, it regularly requires an actual livery and seizin, and here a deed is not absolutely necessary; but the second pass by the delivery of the deed. Here therefore a deed is absolutely necessary; for although the feudal law admits the use of other symbols in this case, ours, for the greater certainty, precisely requires this peculiar one, that there may be full evidence of what was conveyed. Of this last tenth kind as there are many and various species, I shall run over some of them in a cursory manner, to explain and shew their general nature.

The first I shall take notice of is, that which, I presume, was the most antient, as it seems to have come in the place of those repasts the king gave to his comites, or companions, and is what is called feudum de cavena. Cavena signified the repository, or repositories of the necessaries of life, while in those ancient times the services due from the demesnes, or the socage lands, to the king or lords, were paid in kind. Things therefore necessary, or useful for the support of life, distributed in specie, out of the king’s or lord’s cellar or pantry, or both, were what the feudum cavena consisted in; and that this came in place of the antient constant entertainments, and feasts, of the comites, or companions, appears from this, that it was a rule, even after other grants were allowed to be hereditary, that these determined with the life of the grantor, or grantee, which ever first happened to expire. These grants likewise were of two kinds; some granted in consideration of future services, upon the failure of which a forfeiture was incurred, others, in reward for past services, where nothing was expected for the future but general fealty. This difference runs through many other of these gifts that lie in grant. For the feudal law distinguishes them into officiosa, that is, to which a positive duty is annexed, and inofficiosa, where no subsequent service is required, but general fidelity, which is incident to every tenure[123].

The second I shall mention is feudum de camera, which, I apprehend, was originally a substitution for what I have just mentioned, the feudum de cavena; for it was instead of an allowance of necessaries out of the cellar or pantry of the king, an annual allocation of a sum of money for will, life, or years, according as it was granted out of the camera, or chamber where the king or lord kept his money; and this was, as the other I before mentioned into whose room it came, either a reward for past services, in which case no future duty was required, or on consideration of future ones. The pensions granted by the king in our kingdom (Ireland) out of his revenue, are of the nature of the former; and the salaries to judges and other officers are of the nature of the latter. What was common to both of these, the feudum de camera & de cavena, was, that, by the feudal law, they were not due at the stated time, unless there were provisions in the cavena, or money in the camera, and that free from debts; for the lord’s safety and dignity was to be first considered; but they were to wait for their arrear, till provisions or money came in.

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].