perty, but also in defence of the whole, and of every part of this their newly-acquired country; the prudence of which conftitution was foon fufficiently visible in the ftrength and fpirit, with which they maintained their conquefts. THE univerfality and early ufe of this feodal plan, among all those nations, which in complaifance to the Romans we till call barbarous, may appear from what is recorded of the Cimbri and Teutones, nations of the fame northern ori ginal as thofe whom we have been defcribing, at their firft irruption into Italy about a century before the christian æra. They demanded of the Romans, "ut martius populus aliquid “fibi terrae daret, quafi ftipendium: caeterum, ut vellet, mani"bus atque armis fuis uteretur." The fenfe of which may be thus rendered; they defired ftipendiary lands (that is, feuds) to be allowed them, to be held by military and other perfonal fervices, whenever their lords fhould call upon them. This was evidently the fame conflitution, that difplayed itself more fully about feven hundred years afterwards: when the Salii, Burgundians, and Franks broke in upon Gaul, the Vifigoths on Spain, and the Lombards upon Italy; and introduced [ 47 ] with themselves this northern plan of polity, ferving at once. to diftribute and to protect the territories they had newly gained. And from hence too it is probable that the emperor Alexander Severus took the hint, of dividing lands conquered from the enemy among his generals and victorious foldiery, duly stocked with cattle and bondmen, on condition of receiving military service from them and their heirs for ever. SCARCE had thefe northern conquerors established themfelves in their new dominions, when the wifdom of their conftitutions, as well as their perfonal valour, alarmed all the [ 48 ] princes of Europe; that is, of those countries which had formerly been Roman provinces, but had revolted, or were deferted by their old masters, in the general wreck of the empire. Wherefore most, if not all, of them thought it neceffary to enter into the fame or a similar plan of policy. For whereas, before, the poffeffions of their fubjects were perfectly allodial, (that is, wholly independent, and held of no fuperior at all) now they parcelled out their royal territories, or perfuaded their subjects to furrender up and retake their own landed property, under the like feodal obligations of military fealty". 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, neceffarily drew after it an alteration of laws and customs: so that the feodal laws foon drove out the Roman, which had hitherto univerfally obtained, but now became for many centuries loft and forgotten; and Italy itself (as fome of the civilians, with more spleen than judgment, have expreffed it) belluinas, atque ferinas, immanefque Longobardorum leges accepit". BUT this feodal polity, which was thus by degrees established over all the continent of Europe, feems not to have been received in this part of our island, at least not univerfally and as a part of the national constitution, till the reign of William the Norman°. Not but that it is reasonable to believe, from abundant traces in our hiftory and laws, that even in the times of the Saxons, who were a fwarm from what fir William Temple calls the fame northern hive, fomething fimilar to this was in ufe; yet not fo extenfively, nor attended with all the rigour that was afterwards imported by the Normans. For the Saxons were firmly fettled in this island, at least as early as the year 600: and it was not till two centuries after, that feuds arrived to their full vigour and maturity, even on the continent of Europe P. m Wright, 10. n Gravin, Orig. 1. 1. § 139. Spelm. Gl. 218. Bract. 1. 2. c. 16. § 7. P Crag. l. 1. t. 4. THIS introduction however of the feudal tenures into England, by king William, does not seem to have been effected immediately after the conqueft, nor by the mere arbitrary will and power of the conqueror; but to have been gradually established by the Norman barons, and others, in fuch forfeited lands as they received from the gift of the conqueror, and afterwards univerfally confented to by the great council of the nation long after his title was established. Indeed from the prodigious flaughter of the English nobility at the battle of Haftings, and the fruitless infurrections of those who furvived, fuch numerous forfeitures had accrued, that he was able to reward his Norman followers with very large and extenfive poffeffions: which gave a handle to the monkish hiftorians, and fuch as have implicitly followed them, to represent him as having by right of the fword feifed 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, fignifies no more than acquifition: and this has led many hafty writers into a strange hiftorical mistake, and one which upon the flightest examination will be found to be most untrue. However, certain it is, that the Normans now began to gain very [49] large poffeffions in England; and their regard for the feodal law, 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 it's establishment here by law. And, though the time of this great revolution in our landed property cannot be afcertained with exactness, yet there are fome circumftances that may lead us to a probable conjecture concerning it. For we learn from the Saxon chronicle, that in the nineteenth year of king William's reign an invafion was apprehended from Denmark; and the military constitution of the Saxons being then laid aside, and no other introduced in it's ftead, the kingdom was wholly q A. D. 1985. defenceless: defencelefs which occafioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landholder, and greatly oppreffed the people. This apparent weakness, together with the grievances occafioned by a foreign force, might co-operate with the king's remonftrances, and the better incline the nobility to liften to his proposals for putting them in a pollure of defence. For as foon as the danger was over, the king held a great council to inquire into the state of the nation'; the immediate confequence of which was the compiling of the great furvey 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 fubmitted their lands to the yoke of military tenure, became the king's vafals, and did homage and fealty to his person 3. This may poffibly have been the aera of formally introducing the feodal tenures by law; and perhaps the very law, thus [50] made at the council of Sarum, is that which is ftill extant', and couched in thefe remarkable words: " ftatuimus, ut omnes "liberi homines foedere et facramento affirment, quod intra et ❝ extra univerfum regnum Angliae Wilhelmo regi domino fuo fi"deles effe volunt; terras et honores illius omni fidelitate ubique fervare cum eo, et contra inimicos et alienigenas defendere." The terms of this law (as fir Martin Wright has obferved") are plainly feodal: for, first, it requires the oath of fealty, which made in the fenfe of the feudifts every man that took it a tenant or vafal: and, secondly, the tenants obliged themfelves to defend their lords territories and titles against all enemies foreign and domeftic. But what clearly evinces the legal establishment of this fyftem, is another law of the fame collection", which exacts the performance of the military feodal fervices, as ordained by the general council, "Onines Rex tenuit magnum concilium, et grawes fermones babuit cum fuis proceribus de bac terra; quo modo incoleretur, et a quibus bominibus. Chron. Sax. ibid. Omnes praedia tenentes, quotquot effent notae melioris per totam Angliam, ejus bomines facti funt, at omnes fe illi fubdi dere, ejufque facti funt vafalli, ac ei fidelitatis juramenta praeftiterunt, fe contra alios quofcunque illi fidos futuros. Chron. Sax. A. D. 1086. t I cap. 52. Wilk. 228. cap. 58. Wilk. 228. « comites, "comites, et barones, et milites, et fervientes, et univerfi liberi "homines totius regni noftri praedicti, habeant et teneant fe fem per bene in armis et in equis, ut decet et oportet: et fint femper "prompti et bene parati, ad fervitium fuum integrum nobis ex plendum et peragendum, cum opus fuerit; fecundum quod nobis "debent de foedis et tenementi fuis de jure facere, et ficut illis ftatuimus per commune concilium totius regni noftri praedicti.” THIS new polity therefore seems not to have been imposed by the conqueror, but nationally and freely adopted by the general affembly of the whole realm, in the fame manner as other nations of Europe had before adopted it, upon the fame principle of felf-fecurity. And, in particular, they had the recent example of the French nation before their eyes; which had gradually furrendered up all it's allodial or free lands into the king's hands, who reftored them to the owners as a beneficium or feud, to be held to them and fuch of their heirs as they previously nominated to the king: and thus by degrees all the allodial eftates in France were converted into feuds, and the freemen became the vafals of the crown *. The only difference between this change of tenures in France, and that in England, was, that the former was effected gradually, by the confent of private perfons; the latter was done at [51] once, all over England, by the common consent of the nation ". IN confequence of this change, it became a fundamental maxim and neceffary principle (though in reality a mere fiction) of our English tenures," that the king is the uni❝versal lord and original proprietor of all the lands in his "kingdom; and that no man doth or can poffefs any part of "it, but what has mediately or immediately been derived as "a gift from him, to be held upon feodal fervices." For, this being the real cafe in pure, original, proper feuds, other nations who adopted this fyftem were obliged to act upon the Montefq. Sp. L. b. 31. c. 8. y Pharaoh thus acquired the dominion of all the lands in Egypt, and granted them out to the Egyptians, referving an annual render of the fifth part of their z Tout fuit in luy, et vient de ivy al |