fame fuppofition, as a fubftruction and foundation of their new polity, though the fact was indeed far otherwise. And indeed, by thus confenting to the introduction of feodal tenures, our English ancestors probably meant no more than to put the kingdom in a ftate 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 exprefs conditions, as pure, proper, beneficiary feudatories. But whatever their meaning was, the Norman interpreters, fkilled in all the niceties of the feodal constitutions, and well understanding the import and extent of the feodal terms, gave a very different conftruction 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, fuch hardfhips and fervices, as were never known to other nations 2; as if the English had, in fact as well as theory, owed every thing they had to the bounty of their fovereign lord. OUR ancestors therefore, who were by no means beneficiaries, but had barely confented to this fiction of tenure from [52] the crown, as the basis of a military discipline, with reafon looked upon these deductions as grievous impofitions, and arbitrary conclufions from principles that, as to them, had no foundation in truth. However, this king, and his fon William Rufus, kept up with a high hand all the rigours of the feodal doctrines: but their fucceffor, Henry I. found it expedient, when he fet up his pretenfions to the crown, to promise a reftitution of the laws of king Edward the confeffor, or antient Saxon fyftem; and accordingly, in the first year of his reign, granted a charter, whereby he gave up the greater grievances, but ftill referved the fiction of feodal tenure, for the fame military purpofes 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 fucceeding princes; till in the reign of b Wright. S1. a Spelm. of Feuds. c. 28. LL. Hen. I. c. 1. king John they became fo intolerable, that they occafioned his barons, or principal feudatories, to rife up in arms against him which at length produced the famous great charter at Runing-mead, which, with some alterations, was confirmed by his fon Henry III. And, though it's immunities (especially as altered on it's last edition by his fon ) are very greatly fhort of thofe granted by Henry I, it was justly efteemed at the time a vaft acquifition to English liberty. Indeed, by the farther alteration of tenures that has fince happened, many of thefe immunities may now appear, to a common obferver, of much lefs confequence than they really were when granted: but this, properly confidered, will fhew, not that the acquifitions under John were small, but that those under Charles were greater. And from hence also arises another inference; that the liberties of Englishmen are not (as fome 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 antient conftitution, of which our ancestors had been defrauded by the art and fineffe of the Norman lawyers, rather than deprived by the force of the Norman arms. HAVING given this fhort hiftory of their rife and progrefs, [53] we will next confider the nature, doctrine, and principal laws of feuds; wherein we shall evidently trace the groundwork of many parts of our public polity, and alfo the origi nal of fuch 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 fovereign, 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 poffeffion, according to the terms of the grant, was ftiled the feudatory or vafal, which was only another name for the tenant or holder of the lands; though, on 49 Hen. III. account BOOK 11. account of the prejudices which we have justly conceived against the doctrines that were afterwards grafted on this fyftem, we now use the word vafal opprobriously, as fynonymous to flave or bondman (3). The manner of the grant was by words of gratuitous and pure donation, dedi et conceffi; which are still the operative words in our modern infeodations or deeds of feoffment. This was perfected by the ceremony of corporal inveftiture, or open and notorious delivery of poffeffion in the prefence of the other vafals; which perpetuated among them the aera of the new acquifition, at a time when the art of writing was very little known: and therefore the evidence of property was repofed in the memory of the neighbourhood; who, in cafe of a difputed title, were afterwards called upon to decide the difference, not only according to external proofs, adduced by the parties litigant, but alfo by the internal teftimony of their own private knowlege. BESIDES an oath of fealty, or profeffion of faith to the lord, which was the parent of our oath of allegiance, the vafal or tenant upon inveftiture did ufually homage to his lord; openly and humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the [54] lord, who fate before him; and there profefling that, "he "did become his man, from that day forth, of life and limb "and earthly honour:" and then he received a kifs from his lord. Which ceremony was denominated homagium, or manhood, by the feudifts, from the stated form of words, devenio vefter homo. • Lit. § 85. f It was an obfervation of Dr. Ar buthnot, that tradition was no where preferved fo pure and incorrupt as among children, (3) Nothing, I think, proves more ftrongly the deteftation in which the people of this country held the feudal oppreffions, than that the word vafal, which once fignified a feudal tenant or grantee of land, is now fynonymous to flave; and that the word villain, which once meant only an innocent inoffenfive bondman, has kept its relative diftance, and denotes a perfon deftitute of every moral and honourable principle, and is become one of the moft opprobrious terms in the English language. WHEN the tenant had thus profeffed himself to be the man of his fuperior or lord, the next consideration was concerning the fervice, which, as fuch, he was bound to render, in recompenfe for the land that he held. This, in pure, proper, and original feuds, was only twofold; to follow, or do fuit to, the lord in his courts in time of peace; and in his armies or warlike retinue, when neceffity called him to the field. The lord was, in early times, the legislator and judge over all his feudatories: and therefore the vasals of the inferior lords were bound by their fealty to attend their domestic courts baron, (which were instituted in every manor or barony, for doing speedy and effectual justice to all the tenants,) in order as well to answer fuch complaints as might be alleged against themselves, as to form a jury or homage for the trial of their fellow tenants: and upon this account, in all the feodal inftitutions both here and on the continent, they are distinguished by the appellation of the peers of the court; pares curtis, or pares curiae. In like manner the barons themselves, or lords of inferior diftricts, were denominated peers of the king's court, and were bound to attend him upon fummons, to hear caufes of greater confequence in the king's presence and under the direction of his grand jufticiary; till in many countries the power of that officer was broken and diftributed into other courts of judicature, the peers of the king's court ftill referving to themselves (in almost every feodal government) the right of appeal from thofe fubordinate courts in the laft refort. The military [55] branch of fervice confifted in attending the lord to the wars, if called upon, with fuch a retinue, and for fuch a number of days, as were ftipulated at the firft donation, in proportion to the quantity of the land. children, whofe games and plays are defivered down invariably from one generation to another. (Warburton's notes on Pope. vi. 134. o.) It will not, I hope, be thought puerile to remark (in confimation of this obfervation) that in one of our antient juvenile paftimes g Feud. 1. 2. & 55. AT 55 AT the first introduction of feuds, as they were gratuitous, fo alfo they were precarious and held at the will of the lord", who was then the fole judge whether his vafal performed his fervices faithfully. Then they became certain for one or more years. Among the antient Germans they continued only from year to year: an annual distribution of lands being made by their leaders in their general councils or affemblies. This was profeffedly done, left their thoughts should be diverted from war to agriculture; left the strong should incroach upon the poffeflions of the weak; and left luxury and avarice should be encouraged by the erection of permanent houses, and too curious an attention to convenience and the elegant fuperfluities of life. But, when the general migration was pretty well over, and a peaceable poffeffion of the new acquired fettlements had introduced new cuftoms and manners; when the fertility of the foil had encouraged the study of husbandry, and an affection for the spots they had cultivated began naturally to rife in the tillers; a more permanent degree of property was introduced, and feuds began now to be granted for the life of the feudatory *. But ftill feuds were not yet hereditary; though frequently granted, by the favour of the lord, to the children of the former poffeffor; till in procefs of time it became unusual, and was therefore thought hard, to reject the heir, if he were capable to perform the fervices: and therefore infants, women, and profeffed monks, who were incapable of bearing arms, were alfo incapable of fucceeding to a genuine feud. But the heir, when admitted to the feud which his ancestor [56] poffeffed, used generally to pay a fine or acknowlegement to the lord, in horfes, arms, money, and the like, for fuch renewal of the feud : which was called a relief, because it raised up and re-established the inheritance, or in the words of the |