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CHAPTER THE FOURTH.
OF THE FEODAL SYSTEM.
TT is impossible to understand, with any degree of accu
1 racy, either the civil constitution of this kingdom, or the laws which regulate it's landed property, without some general acquaintance with the nature and doctrine of feuds, or the feodal law: a system so universally received throughout Europe, upwards of twelve centuries ago, that fir Henry Spelman a does not scruple to call it the law of nations in our western world. This chapter will be therefore dedicated to this inquiry. And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student will imagine his time misemployed, when he is led to consider that the obsolete doctrines of our laws are frequently the foundation, upon which what remains is erected ; and that it is impracticable to comprehend many rules of the modern law, in a scholarlike scientifical manner, without having recourse to the antient. Nor will these researches be altogether void of rational entertainment as well as use: as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it administers both pleasure and instruction to compare them with the draughts of the fame edifices, in their pristine proportion and splendor.
The constitution of feuds b had its original from the military policy of the northern or Celtic nations, the Goths, the Hunns, the Franks, the Vandals, and the Lombards, who all migrating from the same officina gentium, as Crag very justly entitles it', poured themselves in vast quantities into all the regions of Europe, at the declension of the Roman empire. It was brought by them from their own countries, and continued in their respective colonies as the most likely means to secure their new acquisitions : and, to that end, large districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels or allotments to the inferior officers and moft deserving soldiers d. These allotments were called feoda, feuds, fiefs, or fees; which last appellation in the northern languages e fignifies a conditional ftipend or reward f. Rewards or ftipends they evidently were : and the condition annexed to them was, that the poffeffor should do service faithfully, both at home and in the wars, to him by whom they were given ; for which purpose he took the juramentum fidelitatis, or oath of fealty 8 : and in case of the breach of this condition and oath, by not performing the ftipulated service, or by deserting the lord in battle, the lands were again to revert to him who granted them .
ALLOTMENTS, thus acquired, naturally engaged such as accepted them to defend them : and as they all sprang from
the same right of conquest, no part could fubfift independent of the whole ; wherefore all givers as well as receivers were mutually bound to defend each others possessions. But, as that could not effectually be done in a tumultuous irregular way, government, and to that purpofe subordination, was necessary. Every receiver of lands, or feudatory, was therefore bound, when called upon by his benefactor, or immediate lord of his feud or fee, to do all in his power to defend him. Such benefactor or lord was likewife fubordinate to and under the command of his immediate benefactor or superior; and so upwards to the prince or general himself. And the several lords were also reciprocally bound, in their respective gradations, to protect the poffeffions they had given. Thus the feodal connection was established, a proper military subjection was naturally introduced, and an army of feudatories were always ready enlisted, and mutually prepared to muster, not only in defence of each man's own several property, but also in defence of the whole, and of every part of this their newly-acquired country i: the prudence of which conftitution was foon fufficiently visible in the strength and fpirit, with which they maintained their conquests.
The univerfality and early use of this feodal plan, among all those nations, which in complaisance to the Romans we still call barbarous, may appear from what is recorded k of the Cimbri and Teutones, nations of the same northern original as those whom we have been defcribing, at their first irruption into Italy about a century before the christian aera. They demanded of the Romans, “ ut martius populus aliquid “ fibi terrae daret, quasi stipendium: caeterum, ut vellet, mani« bus atque armis fuis uteretur.” The sense of which may be thus rendered ; they desired ftipendiary lands (that is, feuds) to be allowed them, to be held by military and other personal services, whenever their lords should call upon them. This was evidently the same constitution, that difplayed itself more fully about seven hundred years afterwards: when the Salii, Burgundians, and Franks broke in upon Gaul, the Visigoths on i Wright. 8.
k L. Florøs. I. 3. 6. 3.
Spain, and the Lombards upon Italy; and introduced th themselves this northern plan of polity, serving at oncto distribute and to protect, the territories they had noly gained. And from hence too it is probable that the empor Alexander Severus' took the hint, of dividing lands inquered from the enemy among his generals and victopus soldiery, on condition of receiving military service from them and their heirs for ever. .
SCARCE had these northern conquerors established hemselves in their new dominions, when the wisdom of their constitutions, as well as their personal valour, alarned all the princes of Europe ; that is, of those countries which had formerly been Roman provinces, but had revolęd, or were deserted by their old masters, in the general wreck of the empire. Wherefore most, if not all, of them thought it nee cessary to enter into the same or a similar plar of policy. For whereas, before, the possessions of their subjects were perfectly allodial, (that is, wholly independent, and held of no superior at all) now they parcelled out their royal territories, or persuaded their subjects to surrender up and retake their own landed property, under the like feodal obligations of military fealty m. And thus, in the compass of a very few years, the feodal constitution, or the doctrine of tenure, ex tended itself over all the western world. Which alteration of landed property, in fo very material a point, necessarily drew after it an alteration of laws and customs: so that the feodal laws foon drove out the Roman, which had hitherto universally obtained, but now became for many centuries lost and forgotten; and Italy itself (as fome of the civilians, with more spleen than judgment, have expressed it) belluinas, atque ferinas, immanesque Longobardorum leges accepit'n, .
I“ Sola, quae de boftibus capta funt, " limitaneis ducibus et militibus donavit; " ita ut eorum ita eflent, fi baeredes illo“ rum militarent, nec unquam ad priva“ tos pertinerent: dicens attentius illos * militaturos, si etiam fua rura defendeerent. Addidit fane bis et animalia et
« fervos, ut poffent colire quod acceperant ; “ine per inopiam hominum vel per fenic
futem defererentur rura vicina barba«riae, quod turpiffimum ille ducebar.?" (Æl. Lamprid. in vita Alex. Severi.d
m Wright, 10.
BUT BUT this feodal polity, which was thus by degrees eftabhed over all the continent of Europe, seems not to have bn received in this part of our island, at least not univerfay and as a part of the national constitution, till the reign OfWilliam the Normano. Not but that it is reasonable to bezve, from abundant traces in our history and laws, that cve in the times of the Saxons, who were a swarm from wh: fir William Temple calls the same northern hive, somethiri similar to this was in use: yet not so extensively, nor atterded with all the rigour that was afterwards imported by the Normans. For the Saxons were firmly settled in this island, at least as early as the year 600 : and it was not till two centuies after, that feuds arrived to their full vigour and maturity, even on the continent of Europe P.
This introduction hower of the feodal tenures into Eng. land, by king William, does not seem to have been effected immediately after the conquest, nor by the mere arbitrary will and power of the conqueror; but to have been gradually established by the Norman barons, and others, in such forfeited lands as they received from the gift of the conqueror, and afterwards universally consented to by the great council of the nation long after his title was established. Indeed from the prodigious slaughter of the English nobility at the battle of Hastings, and the fruitless insurrections of those who survived, such numerous forfeitures had accrued, that he was able to reward his Norman followers, with very large and extensive possessions, which gave a handle to the monkish historians, and such as have implicitly followed them, to represent him as having by right of the sword feised on all the lands of England, and dealt them out again to his own favourites. A supposition, grounded upon a mistaken sense of the word conqueft; which in it's feodal acceptation, signifies no more than acquisition : and this has led many hafty writers into a strange historical mistake, and one which upon the Dightest examination will be found to bemoft untrue. However, • Spelm. Gla): 218. Bract. l. 2. 6. 16. 9.7. P Crag. l. 1. 1.4.