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With regard to the original of rents, something will be said in ine next chapter; and, as to distresses and other remedies for their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part of our commentaries, which will treat of civil injuries, and the means whereby they are redressed.
OF THE FEODAL SYSTEM.
It is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom, or the laws which regulate its 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 Sir 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 ancient. 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 same edifices, in their pristine proportion and splendour.
*The constitution of feuds(6) had its original from the military policy of the northern .or Celtic nations, the Goths, the Huns, the Franks, the [*45 Vandals, and the Lombards, who, all migrating from the same officina gentium, as Crag very justly entitles it,(c) 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 most deserving soldiers.(d), Theso allotments were called feoda, feuds, fiefs, or fees; which last appellation in the
De jure feod. 19, 20.
(d) Wright, 7.
(a) Of Parliaments, 57.
clearly settled that the rent unpaid is due to his heir, and not to his executor; but, if he dies after sunset and before midnight, it seems to be the better opinion that it shall go to the executor, and not to the heir. 1 P. Wms. 178. Toller on Executors, 177, 178. -CHRISTIAN.
An intimate acquaintance with the feodal system is absolutely necessary to the attainment of a comprehensive knowledge of the first principles and progress of our constitution. And this subject, in my opinion, might with great propriety have preceded the chapter upon parliament. The authority of lord Coke upon constitutional questions is greatly diminished by his neglect of the study of the feodal law; which Sir Henry Spelman, who well knew its value and importance, feelingly laments :-"I do marvel many times that my lord Coke, adorning our law with so many flowers of antiquity and foreign learning, hath not turned into this field, from whence so many roots of our law have, of old, been taken and transplanted.” Spelm. Orig. of Terms, c. viii.--Christian,
But Mr. Preston shows, contrary to the general opinion, that lord Coke was acquainted with the laws of feuds, and their applicability to some portions at least of our system. Preston on Esta 1 vol. 201.-CHITTY.
northern language(e) signifies a conditional stipend or reward.(S) Rewards or stipends they evidently were; and the condition annexed to them was, that the possessor 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 :(9)2 and in case of the breach of this condition and oath, by not performing the stipulated service, or by deserting the lord in battle, the lands were again to revert to him who granted them.(h)
Allotments, thus acquired, mutually engaged such as accepted them to defend *46]
them: and, as they all sprang from *the same right of conquest, no part
could subsist independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each other's possessions. But, as that could not effectually be done in a tumultuous irregular way, government, and to that purpose 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 likewise subordinate 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 possessions they had given. Thus the feodal connection was esta(Spelm. Gloss. 216.
the true etymology of the allodium, or absolute property of ) Pontoppidan, in his History of Norway, page 290, the fendists; as, by a similar combination of the latter sylobserves that in the northern languages odh signifies pro lable with the word fee, (which signifies, we have seen, a prietas and all totum. Hence he derives theodhal right in those conditional reward or stipend,) feeodh or feodum will denote countries; and thence too perhaps is derived the udal right stipendiary property. in Finland, &c. See Mac Doual, Inst. part 2. Now, the ) See this oath explained at large in Feud. L. 2, t. 7. transposition of these northern syllables, allodh,8 will give us (4) Feud. I. 2, t. 24.
Fealty, the essential feudal bond, is so necessary to the very notion of a feud that it is a downright contradiction to suppose the most improper feud to subsist without it; but the other properties or obligations of an original feud may be qualified or varied by the tenor or express terms of the feudal donation. Wright, L. of Ten. 35. Fealty and homage are sometimes confounded ; but they do not necessarily imply the same thing. Fealty was a solemn oath, made by the vassal, of fidelity and attachment to his lord. Homage was merely an acknowledgment of tenure, unless it was performed as homagium ligeum: that, indeed, did in strictness include allegiance as a subject, and could not be renounced; but homagium non ligeum contained a saving or exception of faith due to other lords, and the homager might at any time free himself from feudal dependence by renouncing the land with which he had been invested. Du Fresne Gloss. voc. Hominium, Legius, et Fidelitas. Mr. Hargrave (in note 1 to Co. Litt. 68, a.) says, in some countries on the continent of Europe, homage and fealty are blended together, so as to form one engagement; and therefore foreign jurists frequently consider them as synonymous. But in our law, whilst both continued, they were in some respects distinct: fealty was sometimes done where homage was not due. And lord Coke himself tells us (l'Inst. 151, a.) fealty may remain where homage is extinct. So Wright (L. of Ten. 55, in note) informs us that it appears not only from the concurrent testimony of all our most authentic antient historians, (whom he cites,) but likewise from Britton, Bracton, The Mirror, and Fleta, that homage and fealty were really with us distinct, though (generally) concomitant, engagements; and that homage (he of course means homagium non ligeum) was merely a declaration of the homager's consent to become the military tenant of certain of the lord's lands or tenements.
The short result appears to be that, whilst the tie of homage subsisted, fealty, though acknowledged by a distinct oath, was consequential thereto; but that the converse did not hold, as fealty might be due where homage was not.
The manner of doing homage and fealty is prescribed by the act of 17 Edw. II. st. 3, which enactment abundantly proves the distinct nature of the two acknowledgments at that time.-Chitty.
* This is the same as all-hood in English, and is suggested as the derivation of allodium in Woll. Religion of Nat. del. p. 136.
This unquestionably is the true etymology, though Dr. Robertson adopts the derivation of allodium from an and lot, or allotment,—the mode of dividing what was not granted as stipendiary property; and he relates the memorable story of the fierce so! dier who refused to grant a sacred vase to his general, Clovis, the founder of the French monarchy, who wished to return it, at the request of the bishop, to the church from which it had been taken as spoil, by striking it violently with his battle-axe, and declaring that "you should have nothing but that to which the lot gives you a right." Aist of Ch. V., 1 vol. notes 7 and 8.-CHRISTIAN.
blished, a proper military subjection was naturally introduced, and an army of feudatories was always ready enlisted, and mutually prepared to muster, not only in defence of each man's own several property, but also defence of the whole, and of every part of this their newly-acquired country ;(0) the produce of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquests.
The universality 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 describing, at their first irruption into Italy about a century before the Christian era. They demanded of the Romans, « ut martius populus aliquid sibi terrae daret, quasi stipendium; cæterum, ut vellet, manibus atque armis suis uteretur.” The sense of which may be thus rendered; they desired stipendiary lands (that is, feuds) to be allowed them, to be held by military and other personal services, whenever their lord should call upon them.
This was evidently the same constitution that displayed itself more fully about seven hundred years afterwards; when the Salii, Burgundians, and Franks broke in upon Gaul, the Visigoths on *Spain, and the Lombards upon Italy; and introduced with themselves this northern plan of polity, serving at
[*47 once to distribute and to protect the territories they had newly gained. And from hence too it is probable that the emperor Alexander Severus(l) took the hint of dividing lands conquered from the enemy among his generals and victorious soldiery, duly stocked with cattle and bondmen, on condition of receiving military service from them and their heirs forever.
Scarce had these northern conquerors established themselves in their new doininions, when the wisdom of their constitutions, as well as their personal valour, alarmed all the princes of Europe, that is, of those countries which had formerly been Roman provinces, but had revolted, or were deserted by their old masters, in the general wreck of the empire. Wherefore most, if not all, of them thought it necessary to enter into the same or a similar plan 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) ( Wright, 8.
didit sane his et animalia et servos, ut possent colere quod HL. Florus. l. 3, c. 3.
acceperant; ne per inopiam hominum tel per senectutem () - Sola, quæ de hostibus capta sunt limitaneis ducibus et desererentur rura vicina barbarix, quod turpissimum :İle militibus donavit ; ita ut corum ita essent, si heredes illorum ducebat." Æl. Lamprid. in vita Alex. Severi. militarent, nec unquam ad privatos pertinerent; dicens at (m) Wright, 10. tentius illos militaluros, si etiam sua rura defenderent. Ad
* Mr. Hallam's account of the origin of the feudal system is different from that in the text. His idea is that the first division of lands was allodial; but that, the sovereign gradually granting out his lands as beneficia, with the mutual obligation of protection and defence, the allodial proprietor soon found his condition an insecure one in the state of society which then existed, and willingly came under the obligation of rendering feudal services in exchange for the powerful protection of the sovereign. “Mr. Hallam mentions a custom,” says Mr. Justice Coleridge, "which, as occasioned by the same state of society, certainly adds some credit to this theory: I mean the custom of commendation. This was a kind of personal feudism. The lord was bound to protect the person and his lands who so commended himself to him, for which he received a stipulated sum of money, called salvamentum. The issal performed homage; but the connection had no reference to land, was not always burdened with the condition of military service, and seems to have been capable of dissolution at the pleasure of the vassal.” This judicious annotator gives his assent to Mr. Hallam's account, and adds, “ It is not surprising, however, that English lawyers should have adopted an opposite theory; because, in England, the system, as a whole, was introduced at once by a powerful and politic sovereign, who made it—what they assert it always was—a great political measure of military defence. William received the fealty not only of his own vassals,-thoso who held of him in chief, -but of their vassals also; and thenceforward the oath of fealty to a subject in England was accompanied with the reservation to be found in Lit. tleton's Precedent, given in s. 85, Salve lo foy, que jeo doy a nostre seigneur le roy."-SHARS.
And thus, in the compass of a very few years, the feodal constitution, or the doctrine of tenure, extended itself over all the western world. Which alteration of landed property, in so very material a point, necessarily drew after it an alteration of laws and customs : so that the feodal laws soon drove out the Roman, which had hitherto so universally obtained, but now became for many centuries lost and forgotten; and Italy itself (as some of the civilians, with more spleen than judgment, have expressed it) belluinas, atque ferinas, immanesque Longobardorum leges accepit.(n)
*But this feodal polity, which was thus by degrees established over all
the continent of Europe, seems not to have been received in this part of our island, at least not universally, and as a part of the national constitution, till the reign of William the Norman.(0) Not but that it is reasonable to believe, from abundant traces in our history and laws, that even in the times of the Saxons, who were a swarm from what Sir William Temple calls the same northern hive, something similar to this was in use; yet not so extensively, nor attended 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 000: and it was not till two centuries after, that feuds arrived at their full vigour and maturity, even on the continent of Europe.(p)
This introduction however of the feudal tenures into England, 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 seized 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 conquest; which in its feodal acceptation signifies no more than acquisition;and this has led many hasty writers into a strange historical mis(*) Gravin. Orig. l. 1, & 139.
() Crag. I. 2, t. 4. () Spelm. Gloss. 218. Bract. 1. 2, c. 16, & 7. 5 The feudal constitutions and usages were first reduced to writing about the year 1150, by two lawyers of Milan, under the title of consuetudines feudorum, and have been subjoined to Justinian's Novels in nearly all the editions of the body of the Roman law. Though this was the feudal law of the German empire, other states have modified this law by the spirit of their respective constitutions.-CHITTY.
6 To determine whether the appellation was or was not properly applied in its ordinary sense to William I., it is necessary to consider the circumstances under which he mounted the throne. These circumstances will be best stated in the felicitous language of Hume. In the 4th chapter of his History he says, "The duke of Normandy's first invasion of the island was hostile; his subsequent administration was entirely supported by arms; in the very frame of his laws he made a distinction between the Normans and English, to the advantage of the former; he acted in every thing as absolute master over the natives, whose interest and affections he totally disregarded ; and if there was an interval when he assumed the appearance of a legal sovereign, the period was very short, and was nothing but a temporary sacrifice, which he, as has been the case with most conquerors, was obliged to make, of his inclinations to present policy. Scarce any of those revolutions which, both in history and in common language, have always been denomi. nated conquests, appear equally violent, or were attended with so sudden an alteration both of power and property. The Normans and other foreigners who followed the standard of William, having totally subdued the natives, pushed the right of conquest to the utmost extremity against them. Except the former conquest of England by the Saxons themselves, who were induced by peculiar circumstances to proceed even to the extermination of the natives, it would be difficult to find in all history a revolution more destructive or attended with a more complete subjection of the inhabitants. Contumely seems to have been wantonly added to oppression, and the natives were universally reduced to such a state of meanness and poverty that the English name became a term
take, and one which, upon the slightest examination, will *be found to be most untrue. However, certain it is, that the Normans now began
[*49 to gain very large possessions in England; and their regard for the feodal lan under which they had long lived, together with the king's recommendation of this policy to the English, as the best way to put themselves on a military footing, and thereby to prevent any future attempts from the continent, were probably the reasons that prevailed to effect its establishment here by law. And, though the time of this great revolution in our landed property cannot be ascertained with exactness, yet there are some circumstances that may lead us to a probable conjecture concerning it. For we learn from the Saxon chronicle,(9) that in the nineteenth year of king William's reign an invasion was apprehended from Denmark; and the military constitution of the Saxons being then laid aside, and no other introduced in its stead, the kingdom was wholly defenceless; which occasioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landholder, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might co-operate with the king's remonstrances, and the better incline the nobility to listen to his proposals for putting them in a posture of defence. For as soon as the danger was over, the king held a great council to inquire into the state of the nation ;(-) the immediate consequence of which was the compiling of the great survey called domesday-book, which was finished in the next year: and in the latter end of that very year the king was attended by all his nobility at Sarum; where all the principal landholders submitted their lands to the yoke of military tenure, became the king's vassals, and did homage and fealty to his person.(s) This may possibly have been the era of formally introducing the feodal tenures by law; and perhaps the very law, thus made at the council of, Sarum, is that which is still extant,(t) *and couched in these remarkable
[50 words :-"Statuimus, ut omnes liberi homines fædere et sacramento afirment, quod intra et extra universum regnum Angliæ Wilhelmo regi domino suo fideles esse volunt; terras et honores illius omni fidelitate ubique servare cum eo, et contra inimicos et alienigenas defendere.” The terms of this law (as Sir Martin Wright has observed)(u) are plainly feodal: for, first, it requires the oath of fealty, which made, in the sense of the feudists, every man that took it a tenant or vassal: and, secondly, the tenants obliged themselves to defend their lords' territories and titles against all enemies foreign and domestic. But what clearly evinces the legal establishment of this system, is another law of the same collection,(w) which exacts the performance of the military feodal services, as ordained by the general council : Omnes comites, et barones, et milites, et servientes, et universi liberi homines totius regni nostri prædicti, habeant et teneant se semper bene in armis et in equis, ut decet et oportet : et sint semper prompti et bene parati, ad servitium suum integrum nobis explendum et peragendum, cum opus fuerit: secundum quod nobis debent de feodis et tenementis suis de jure facere, et sicut illis statuimus per commune concilium totius regni nostri prædicti.”
This new polity therefore seems not to have been imposed by the conqueror, but nationally and freely adopted by the general assembly of the whole realm, in the same manner as other nations of Europe had before adopted it, upon the same principle of self-security. And, in particular, they had the recent example of the French nation before their eyes; which had gradually surrendered up all its allodial or free lands into the king's hands, who restored them to the owners as a beneficium or feud, to be held to them and such of their heirs as they pre(2) A.D. 1085.
subdidere, ejusque facti sunt vasalli, ac ei fidelitatis juraRex tenuit magnum concilium, et graves sermones menta præstiterunt, se contra alios quoscunque illi fidos habuit cum suis proceribus de hac terra; modo incole- futuros. Chron. Sar. A.D. 1086.
Omnes prxdia tenentes, quotquot essent notæ melioris Tenures, 66. per totam Angliam, ejus homines facti sunt, et omnes se illi
Cap. 52. Wilk. 228.
Cap. 58. Wilk. 288.
of reproach, and several generations elapsed before one family of Saxon pedigree was raised to any considerable honours."
If these facts do not denote a conquest, in the ordinary sense of that word, then, to be-sure, it will be difficult to prove that the Saxons were a conquered people.- Chitty.