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reposed in the memory of neighbors, who in case of a disputed title, were afterwards called upon to decide the difference, their testimony being added to the external proof presented.
Ceremony of Investiture. Besides an oath of fealty to the lord, from which sprang the oath of allegiance of later days, the vassal upon investiture, made homage usually to the lord, humbly kneeling, being ungirt and uncovered. Placing his hands between those of his lord, who sat before him, he there professed, that "he did become his man from that day forth, of life and limb and earthly honor,” whereupon the lord kissed him. This ceremony was termed homagium, or manhood.
Service Pledged. The next consideration was the service he was bound to render, in recompense for the land. In original feuds, this was only two fold: to follow or do suit to the lord in his courts in time of peace, and in his armies or retirue, when necessity should call him to the field. The lord, in early times, was the legislator and judge over his feudatories, and therefore the vassals of the inferior lords were bound by their fealty to attend their domestic courts baror., which existed in every manor, for doing speedy justice to all the tenants, and to answer complaints against them, as also to form a jury for the trial of fellow tenants.
Duties of Barons. The barons themselves, or lords of inferior districts, were termed peers of the king's court, and were bound to attend him when summoned, to hear causes of greater consequence in the king's presence and under the direction of his grand justiciary, the peers reserving to themselves the right of appeal from those subordinate courts. The military branch of service consisted in attending the lord in the wars, in proportion to the quantity of land held.
Precarious Tenure at First. Feuds at their introduction were precarious as well as gratuitous, and held at the will of the lord, who was then the sole judge, as to whether his vassal performed his duties faithfully. Afterwards they became certain for one or more years. Among the ancient Germans, they continued only from year to year, an annual distribution of lands being made by the leaders in their general assemblies This was done, lest their thoughts should be directed from war to agriculture, and lest luxury and avarice should be encouraged, by the erection of permanent houses.
Descent of Feud to Heir. But when the general migration was nearly over, and peaceable possession of the newly acquired settlements had introduced new customs and manners, and when the fertility of the soil had encouraged the study of husbandry, a more permanent degree of prosperity was introduced, and feuds were granted for the life of the feudatory. But still feuds were not hereditary, though frequently granted by the lord to the children of the former possessor, till in process of time, it was thought hard to reject the heir, if he were capable of performing the services; but infants, women and priests, who were incapable of bearing arms, were also incapable of succeeding to a genuine feud.
Reliefs Paid the Lord. But the heir, when admitted to the feud, generally paid a fine or acknowledgement to the lord, in horses, arms or money, for such renewal of the feud, which was termed a relief, as it raised up and re-established the inheritance. When feuds became hereditary, this relief continued on the death of the tenant, though the original foundation for it had ceased.
Lines of Succession. In time, feuds by degrees were extended beyond the life of the first vassal to his sons, or perhaps to such of them as the lord should name, and in this case, the form of the donation was strictly observed, for if a feud was given to a man and his sons, all his sons succeeded him in equal proportions, and as they died off, their shares reverted to their lord, and did not descend to their children, or even to their brothers. But when the feud was given to a man and his heirs, in general terms, on his death, his male descendants in infinitum were admitted to the succession. It was a maxim in feudal succession, that none were capable of inheriting a feud, but such as were lineally descended from the first feudatory.
Primogeniture. The descent being confined to males, originally extended to all the males alike, all the sons succeeding to equal portions of the father's feud. But this being found to be inconvenient by dividing the services, honorary feuds or titles of nobility were introduced, which were not of a divisible nature, but could only be inherited by the eldest son, in imitation of which, military feuds began in most countries to descend, according to the same rule of primogeniture, to the eldest son, in exclusion of the rest.
Alienation of a Feud. The feudatory could not aliene or dispose of his feud, nor could he exchange, mortgage or devise it, without the consent of his lord. The original conferring of the feud was based on the ability of the feudatory to serve in war. If he were lacking in ability, he should not be at liberty to transfer this gift to one less able. And as the feudal obligation was reciprocal, the feudatory was entitled to the lord's protection, in return for his own fealty and service; therefore the lord could no more transfer his seignory or protection, without consent of his vassal, than the vassal could transfer his feud without consent of his lord.
Sub-Tenants. All feuds were criginally of a military nature, and in the hands of military persons, though the feudatories being often incapacitated from cultivating their lands, soon found it necessary to commit part of them to inferior tenants who made return therefor in service, cattle, grain or money, thus giving time to the feudatories to attend to their military duties.
Inferior Feudatories. This return or reditus was the origin of rents, and by these means the feudal polity was greatly extended; these inferior feudatories being under similar obligations of fealty ; to do suit at court, to answer the stipulated renders or rent-service, and to promote the welfare of their immediate lords. But at the same time it demolished the ancient simplicity of feuds.
Derivative and improper Feuds. Feuds began to be bought and sold, and deviations were made from the old rules of tenure and succession, which were held no longer sacred, when the feuds themselves ceased to be purely military. Hence these tenures began to be divided into proper and improper feuds, the latter being the derivative feuds; such, for instance, as were sold to a feudatory for a price; such as were held upon base or less honorable services, or upon a rent, in lieu of military service; such as were in themselves alienable, without mutual license, and such as might descend indifferently either to males or females. If, however, the difference was not expressed in the creation, such new-created feuds followed the nature of the original and proper feud.
Decay of the Feudal System. As soon as the feudal system became considered as a civil establishment, rather than a military plan, the ingenuity of the age was taxed to draw the most refined and oppressive consequences from what originally was a plan of simplicity and liberty, equally beneficial to lord and tenant, and calculated for their mutual protection. From this one foundation, different superstructures have been raised in different countries of Europe.
CHAPTER V.-ANCIENT ENGLISH TENURES.
Derived from the King. Almost all the real property in England is, by the policy of its laws, supposed to be granted by, dependent upon, and holden of some superior lord, by and in consideration of certain services to be rendered the lord by the tenant or possessor. The thing held is called a tenement, the possessors tenants, and the manner of their possession a tenure. All the land is supposed to be holden originally from the king, who is styled the lord paramount, or above all. Such tenants as took directly from the king, when they granted out portions of their lands to inferior persons, became also lords, with respect to such persons, though still tenants as respects the king, and hence they partook of a middle nature, and were termed mesne or middle lords.
Extent of Feuds. The king was lord paramount; his grantee was a mesne lord, and the person to whom he transferred a part of the lands was the tenant paravail, or lowest tenant, being the one, who was supposed to make avail or profit of the land. No land now remains, which is properly allodial, that is, according to the feudists, land not holden of any superior. The lands of England hence are plainly feuds, or partake very strongly of the feudal nature.
Tenants in Capite. Tenants who held directly from the king, were called his tenants in capite, or in chief, which was the most honorable species of tenure, but at the same time subjected the tenant to more burdensome services, than did inferior tenures,
Division of Tenures. There seem to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced, the criteria of which were the nature of the several services or renders, that were due to the lords from their tenants. The services, in respect of their qual. ity, were either free or base services; in respect of their quantity and the time of exacting them, were either certain or uncertain.
Free and Base Services. Free services were such as were not unbecoming a soldier or a freeman to perform, as to serve under the lord in the wars, to pay a sum of money or the like. Base services were such as were only fit for peasants or persons of a servile rank, such as to plough the lord's land, or other lowly employment.
Certain and Uncertain Services, The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence, as to pay a stated annual rent, or to plough a field in a given time. The uncertain services depended upon unknown contingencies, as to do military duty, or pay an assessment in lieu of it, when called upon, or to do whatever the lord should command.
Four Lay Tenures. Four kinds of lay tepure subsisted in England until the middle of the seventeenth century, three of which still exist. They are: (1) Knight service. (2) Socage. (3) Pure villenage. (4) Privileged villenage.
Tenements. Tenements are of two kinds: frank-tenement and villenage. Of frank-tenements, some are held freely in consideration of homage and knight service, others in free socage, with the service of fealty only. Of villenage, some are pure and others privileged. He that holds in pure villenage shall do whatever is commanded him to do, and hence always be bound to an uncertain service. The other kind of villenage is villein socage, and those villeins do villein service, but such as is certain and determined.
Resumé of Feudal Service.
1. Where the service was free but uncertain, as military service with homage, it was terined tenure in chivalry, or by knight service.
2. Where the service was both free and certain, as by fealty only, or by rent and fealty, that tenure was called free socage.
3. Where the service was base in its nature, and uncertain as to time and quantity, the tenure was absolute or pure villenage.
4. Where the service was base in its nature, but reduced to a certainty, this was termed privileged villenage or villein socage.