viously nominated to the king: and thus by degrees all the allodial estates ir France were converted into feuds, and the freemen became the vassals of the crown.(x) The only difference between this change of tenures in France, and that in England, was, that the former was effected gradually *by the con*51] sent of private persons; the latter was done at once, all over England. by the common consent of the nation.(y)

In consequence of this change, it became a fundamental maxim and necessary principle (though in reality a mere fiction) of our English tenures, "that the king is the universal lord and original proprietor of all the lands in his kingdom:(z) and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feodal services." For this being the real case in pure, original, proper feuds, other nations who adopted this system were obliged to act upon the same supposition, as a substruction and foundation of their new polity, though the fact was indeed far otherwise. And, indeed, by thus consenting to the introduction of feodal tenures, our English ancestors probably meant no more than to put the kingdom in a state of defence by establishing a military system; and to oblige themselves (in respect of their lands) to maintain the king's title and territories, with equal vigour and fealty as if they had received their lands from his bounty upon these express conditions, as pure, proper, beneficiary feudatories. But whatever their meaning was, the Norman interpreters, skilled in all the niceties of the feodal constitutions, and well understanding the import and extent of the feodal terms, gave a very different construction to this proceeding: and thereupon took a handle to introduce not only the rigorous doctrines which prevailed in the duchy of Normandy, but also such fruits and dependencies, such hardships and services, as were never known to other nations;(a) as if the English had, in fact as well as theory, owed every thing they had to the bounty of their sovereign lord.

Our ancestors, therefore, who were by no means beneficiaries, but had barely consented to this fiction of tenure from *the crown, as the basis of a

*52] military discipline, with reason looked upon these deductions as grievous impositions, and arbitrary conclusions from principles that, as to them, had no foundation in truth.(b) However, this king and his son William Rufus kept up with a high hand all the rigours of the feodal doctrines: but their successor Henry I. found it expedient, when he set up his pretensions to the crown, to promise a restitution of the laws of king Edward the Confessor, or ancient Saxon system; and accordingly, in the first year of his reign, granted a charter,(c) whereby he gave up the greater grievances, but still reserved the fiction of feodal tenure, for the same military purposes which engaged his father to introduce it. But this charter was gradually broken through, and the former grievances were revived and aggravated, by himself and succeeding princes; till in the reign of king John they became so intolerable, that they occasioned his barons, or principal feudatories, to rise up in arms against him; which at length produced the famous great charter at Runing-mead, which, with some alterations, was confirmed by his son Henry III. And, though its Immunities (especially as altered on its last edition by his son)(d) are very greatly short of those granted by Henry I., it was justly esteemed at the time a vast acquisition to English liberty. Indeed, by the further alteration of tenures that has since happened, many of these immunities may now appear, to a common observer, of much less consequence than they really were when

(*) Montesq. Sp. L. b. 31, c. 8.

(7) Pharaoh thus acquired the dominion of all the lands in Egypt, and granted them out to the Egyptians, reserving an ar.nual render of the fifth part of their value. Gen. c. xlvii. (2) Tout fuit in luy, et vient de luy al commencement. M. 24 Edw. III. 65.

(a) Spelm. of feuds, c. 28.

(6) Wright, 81.

(c) L. L. Hen. I. c. 1.
(d) 9 Hen. III.

I do not understand Montesquieu, in the chapter cited, to say that all the allodial lands in France were surrendered up into the king's hands and taken again as fiefs. Down to a late period, the presumption of law in the southern provinces of France as to land was that it was allodial until the contrary was shown. See Hallam's Middle Ages, ch. 2, part 1.-COLERIDGE.

granted but this, properly considered, will show, not that the acquisitions under John were small, but that those under Charles were greater. And from nence also arises another inference; that the liberties of Englishmen are not (as some arbitrary writers would represent them) mere infringements of the king's prerogative, extorted from our princes by taking advantage of their weakness; but a restoration of that ancient constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived by the force of the Norman arms.

*Having given this short history of their rise and progress, we will [*53 next consider the nature, doctrine, and principal laws of feuds; wherein we shall evidently trace the groundwork of many parts of our public polity, and also the original of such of our own tenures as were either abolished in the last century, or still remain in force.

The grand and fundamental maxim of all feodal tenure is this: that all lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately, of the crown. The grantor was called the proprietor, or lord: being he who retained the dominion or ultimate property of the feud or fee; and the grantee, who had only the use and possession, according to the terms of the grant, was styled the feudatory, or vassal, which was only another name for the tenant, or holder of the lands; though, on account of the prejudices which we have justly conceived against the doctrines that were afterwards grafted on this system, we now use the word vassal opprobriously, as synonymous to slave or bondman. The manner of the grant was by words of gratuitous and pure donation, dedi et concessi; which are still the operative words in our modern infeodations or deeds of feoffment. This was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vassals; which perpetuated among them the era of the new acquisition, at a time when the art of writing was very little known; and therefore the evidence of property was reposed in the memory of the neighbourhood; who, in case of a disputed title, were afterwards called upon to decide the difference, not only according to external proofs, adduced by the parties litigant, but also by the internal testimony of their own private knowledge.

Besides an oath of fealty, or profession of faith to the lord, which was the

8 Nothing, I think, proves more strongly the detestation in which the people of this country held the feudal oppressions, than that the word vassal, which once signified a feudal tenant or grantee of land, is now synonymous to slave; and that the word villain, which once meant only an innocent, inoffensive bondman, has kept its relative distance, and denotes a person destitute of every moral and honourable principle, and is become one of the most opprobrious terms in the English language.-CHRISTIAN.

May it not be assumed that the system produced a moral debasement equivalent to the political degradation which it inflicted, and that, although villain originally meant nothing more than bondman, or labourer, it became afterwards, as we have seen, expressive of moral turpitude, from the vices which the system necessarily engendered in its victims?-CHITTY.

See ante, note 2 to this chapter, observing, in addition to what is there said, that lands held in frankalmoigne, or at will, according to common law, not affected by custom, form exceptions to the general rule that fealty is incident to all manner of tenures. 1 Inst. 93, a. b. It should also be remarked that no one who has not an estate in fee-simple or fee-tail, either in his own right or in right of another, was entitled either to receive, or even to do, homage. 1 Inst. 66, b., 67, a. Homage, indeed, seems to have been properly incident to tenure by knight's service only: at least, wherever homage was parcel of a tenure, that was held to afford a presumption that the tenure was by knight's service, unless the contrary could be proved. 1 Inst. 67, b. Whilst homage continued, it was far from being a mere ceremony; for the performance of it, where it was due, materially concerned both lord and tenant in point of interest and advantage. To the lord it was of consequence, because, till he had received homage from the heir, he was not entitled to the wardship of him and of his land; unless the lord had the seignory for life or years only, in which case he could not take homage, and therefore was allowed wardship without that previous act. To the tenant the homage was scarce of less importance; for, anciently, every kind of homage, when received, but not before, bound the lord to keep VOL. I.-28

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parent of our oath of allegiance, the vassal or tenant upon investiture did usually homage to his lord; openly and humbly kneeling, being ungirt, un*54] covered, and holding up his hands both together between those of the lord, who sate before him; and there professing, that "he did become his man, from that day forth, of life and limb and earthly honour:" and then he received a kiss from his lord.(e) Which ceremony was denominated homagium, or manhood, by the feudists, from the stated form of words, devenio vester homo.(f)

When the tenant had thus professed himself to be the man of his superior or lord, the next consideration was concerning the service which, as such, he was bound to render, in recompense for the land that he held. This, in pure, proper, and original feuds, was only twofold; to follow, or do suit to, the lord in his courts in time of peace; and in his armies or warlike retinue, when necessity called him to the field. The lord was in early times, the legislator and judge over all his feudatories: and therefore the vassals of the inferior lords were bound by their fealty to attend their domestic court barons, (g) (which were instituted in every manor or barony for doing speedy and effectual justice to all the tenants,) in order as well to answer such complaints as might be alleged against themselves, as to form a jury or homage for the trial of their fellowtenants and upon this account, in all the feodal institutions both here and on the continent, they are distinguished, by the appellation of the peers of the court; pares curtis, or pares curiæ. In like manner the barons themselves, or lords of inferior districts, were denominated peers of the king's court, and were bound to attend him upon summons, to hear causes of greater consequence in the king's presence, and under the direction of his grand justiciary; till in many countries the power of that officer was broken and distributed into other courts of judicature, the peers of the king's court still reserving to themselves (in *almost every feodal government) the right of appeal from those sub*55] ordinate courts in the last resort. The military branch of service consisted in attending the lord to the wars, if called upon, with such a retinue, and for such a number of days, as were stipulated at the first donation, in proportion to the quantity of the land.

At the first introduction of feuds, as they were gratuitous, so also they were precarious, and held at the will of the lord,(h) who was then the sole judge whether his vassal performed his services faithfully. Then they became certair for one or more years. Among the ancient Germans they continued only from year to year; an annual distribution of lands being made by their leaders in their general councils or assembles. (i) This was professedly done lest their thoughts should be diverted from war to agriculture, lest the strong should encroach upon the possessions of the weak, and lest luxury and avarice should be encouraged by the erection of permanent houses, and too curious an attention to convenience and the elegant superfluities of life. But, when the general migration was pretty well over, and a peaceable possession of the new-acquired settlements had introduced new customs and manners; when the fertility of the soil had encouraged the study of husbandry, and an affection for the spots they had cultivated began naturally to arise in the tillers; a more permanent degree of property was introduced, and feuds began now to be granted for the life of the feudatory.(k) But still feuds were not yet hereditary; though frequently

() Litt. 285.

(f) It was an observation of Dr. Arbuthnot that tradition was nowhere preserved so pure and incorrupt as among chil fren, whose games and plays are delivered down invariably from one generation to another. Warburton's Notes on Pope, vi. 134, 88. It will not, I hope, be thought puerile to remark, in confirmation of this observation, that in one of our ancient juvenile pastimes (the king I am or basilinda of Julius Pollux, Onomastic, l. 9, c. 7) the ceremonies and language of feodal homage are preserved with great exactness.

(9) Feud. 1. 2, t. 55.

(A) Ford, 1, 1, t. 1.

(Thus Tacitus, (de Mor. Germ. c. 26:) "ag ab universis per vices occupantur; arva per annos mutant? And Cæsar, yet more fully, (de bell. Gall. l. 6, c. 21 :) " Neque quisqua T agri modum certum aut fines proprios habet: sed magistratua et principes, in annos singulos, gentibus et cognationibus hominum qui una coierunt, quantum eis et quò loco visum est, attribuunt agri, atque anno post alio transire cogunt.” (*) Feud. l. 1, t. 1.

the tenant free from every molestation for services due to the lord paramount, (if there were any such,) and to defend his title to the land against all others; though in subsequent times this implication of acquittal and warranty became peculiar to homage uncestrel. Hargrave's note to Co. Litt. 67, b.-CHITTY.

granted, by the favour of the lord, to the children of the former possessor; till in process of time it became unusual, and was therefore thought hard, to rejec the heir, if he were capable to perform the services:(1) and therefore infants, women, and professed monks, who were incapable of *bearing arms, were also incapable of succeeding to a genuine feud. But the heir, when [*56 admitted to the feud which his ancestor possessed, used generally to pay a fine or acknowleagment to the lord, in horses, arms, money, and the like, for such renewal of the feud: which was called a relief, because it raised up and reestablished the inheritance, or, in the words of the feodal writers, "incertam et caducam hereditatem relevabat." This relief was afterwards, when feuds became absolutely hereditary, continued on the death of the tenant, though the original foundation of it had ceased.

For in process of time feuds came by degrees to be universally extended beyond the life of the first vassal, to his sons, or perhaps to such one 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 portions: and, as they died off, their shares reverted to their lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation.(m) But when such a feud was given to a man and his heirs, in general terms, then a more extended rule of succession took place; and when the feudatory died, his male descendants in infinitum were admitted to the succession. When any such descendant, who thus had succeeded, died, his male descendants were also admitted in the first place; and, in defect of them, such of his male collateral kindred as were of the blood or lineage of the first feudatory, but no others. For this was an unalterable maxim in feodal succession, that "none was capable of inheriting a feud, but such as was of the blood of, that is, lineally descended from, the first feudatory."(n) And the descent being thus confined to males, originally extended to all the males alike; all the sons, without any distinction of primogeniture, succeeding to equal portions of the father's feud. But this being found upon many accounts inconvenient, (particularly, by dividing the services, and thereby weakening the strength of the feodal union,) and honorary feuds (or titles of nobility) being now introduced, which were not of *a divisible nature, but could only [*5% he inherited by the eldest son ;(0) in imitation of these, military feuds (or those we are now describing) began also in most countries to descend, according to the same rule of primogeniture, to the eldest son, in exclusion of all the rest.(p).

Other qualities of feuds were, that the feudatory could not aliene or disposo of his feud; neither could he exchange, nor yet mortgage, nor even devise it by will, without the consent of the lord.(g) For the reason of conferring the feud being the personal abilities of the feudatory to serve in war, it was not fit he should be at liberty to transfer this gift, either from himself, or from his posterity who were presumed to inherit his valour, to others who might prove less able. And, as the feodal obligation was looked upor. as reciprocal, the feudatory being 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 his feud without consent of his lord :(r) it being equally unreasonable, that the lord should extend his protection to a person to whom he had exceptions, and that the vassal should owe subjection to a superior not of his own choosing.

These were the principal, and very simple, qualities of the genuine or original fends; which were all of a military nature, and in the hands of military persons: though the feudatories, being under frequent incapacities of cultivating and manuring their own lands, soon found it necessary to commit part of them to inferior tenants: obliging them to such returns in service, corn, cattle, or money, as might enable the chief feudatories to attend their military duties without

distraction which returns, or reditus, were the original of rents, and by these means the feodal polity was greatly extended; these inferior feudatories (who held what are called in the Scots law "rere-fiefs") being under similar obligations of fealty, to do suit of court, to answer the stipulated renders or rent-service, and to promote the welfare of their immediate superiors or lords. (s) *But *58] this at the same time demolished the ancient simplicity of feuds; and an inroad being once made upon their constitution, it subjected them, in a course of time, to great varieties and innovations. Feuds began to be bought and sold, and deviations were made from the old fundamental rules of tenure and succession; which were held no longer sacred, when the feuds themselves no longer continued to be purely military. Hence these tenures began now to be divided into feoda propria et impropria, proper and improper feuds; under the former of which divisions were comprehended such, and such only, of which we have before spoken; and under that of improper or derivative feuds were comprised all such as do not fall within the other descriptions; such, for instance, as were originally bartered and sold to the feudatory for a price; such as were held upon base or less honourable 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. But, where a difference was not expressed in the creation, such new-created feuds did in all respects follow the nature of an original, genuine, and proper feud.(t)

But as soon as the feodal system came to be considered in the light of a civil establishment, rather than as a military plan, the ingenuity of the same ages, which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon, began also to exert its influence on this copious and fruitful subject: in pursuance of which, the most refined and oppressive consequences were drawn from what originally was a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defence. From this one foundation, in different countries of Europe, very different superstructures have been raised: what effect it has produced on the landed property of England will appear in the following chapters.10

10 This, for so concise a treatise, is perhaps the most luminous that has been written upon the subject of the feudal system. However, in addition to it, I should strongly recommend to the student's perusal the treatise on feuds and tenures by knight-service among the posthumous works of Sir Henry Spelman, Dalrymple on Feudal Property, and a very elaborate note upon the subject by Mr. Butler, among his annotations upon Coke Littleton. Co. Litt. 191, a.-ARCHBOLD.

Upon the subject of the feudal system, its rise and decline, its spirit, and the comparative evils and benefits of which it was the cause, I cannot do better than refer the reader to Mr. Hallam's masterly disquisition, Middle Ages, ch. 2, part 2.-COLERIDGE.

Upon the subject of this and the following chapters the student is recommended to study the excellent Essay on Feudal Property, by Sir John Dalrymple, an author who, notwithstanding some errors on antiquarian points of little importance, cannot be too highly praised for the philosophical accuracy and elegance with which he has treated a subject that most writers contrive to render extremely obscure and repulsive.-SWEET. I may be allowed to add that Sullivan's Lectures on Feudal Law is a work copious in detail, and exhibiting ably, among other topics, the influence of the feodal system upon the modern law of tenures. Sir Martin Wright's Introduction to the Law of Tenures is one of the most accurate and profound of the essays on this topic, and is worthy of the most attentive study. Craig de Feudis, lord Mansfield thought, was much to be preferred to any juridical work which England had then produced. The thirtieth and thirty-first books of Montesquieu's Spirit of Laws may be read with advantage, as also Robertson's History of Charles V., and an excellent Lecture on Feudal Law-Lect. X.in Hoffman's Legal Outlines.-SHARSWOOD.

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