CHAPTER THE FOURTH.

OF

THE FEODAL SYSTEM.

T is impoffible to understand, with any degree of accuracy, either the civil conftitution of this kingdom (1), or the laws which regulate it's landed property, without fome 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 does not fcruple to call it the law of nations in our western world. This chapter will be therefore dedicated to this inquiry. And though, in the courfe of our obfervations in this and many other parts of the prefent book, we may have occafion to fearch pretty highly into the antiquities of our English jurisprudence, yet surely no induftrious student will imagine his time mifemployed, when he is led to confider that the obfolete 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 a of parliaments, 57.

(1) An intimate acquaintance with the feudal fyftem is abfolutely neceffary to the attainment of a comprehenfive knowledge of the first principles and progrefs of our conftitution. And this fubject, in my opinion, might with great propriety have preceded the chapter upon parliament. The authority of lord Coke, upon conftitutional questions, is greatly diminished by his neglect of the tudy of the feudal law; which fir Henry Spelman, who well knew it's 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 fo many roots of our law have, of old, "been taken and tranfplanted." Spelm. Orig. of Terms, c. viii.

law,

law, in a scholarlike fcientifical manner, without having recourfe to the antient. Nor will these researches be altogether void of rational entertainment as well as ufe: as in viewing the majestic ruins'of Rome or Athens, of Balbec or Palmyra, it administers both pleasure and inftruction to compare them with the draughts of the fame edifices, in their pristine proportion and fplendor.

THE Conflitution of feuds had its original from the [ 45 ] military policy of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals, and the Lombards, who all migrating from the fame officina gentiam, as Crag very justly entitles it, poured themselves in vast quantities into all the regions of Europe, at the declenfion of the Roman empire. It was brought by them from their own countries, and continued in their refpective colonies as the most likely means to fecure their new acquifitions: and to that end, large diftricts or parcels of land were allotted by the conquering general to the fuperior officers of the army, and by them dealt out again in fmaller parcels or allotments to the inferior officers and most deserving soldiers ". These allotments were called feoda, feuds, fiefs, or fees; which laft appellation in the northern languages fignifies a conditional ftipend or reward'. Rewards or ftipends they evi

See Spelman of feuds, and Wright

of tenures, per tot.

De jure fed. 19, 20. d Wright, 7. Spelm. Gl. 216.

f Pontoppidan in his hiftory of Norway, (page 290) obferves, that in the northern languages cuh fignifics proprietas and all totum. Hence he derives the adhal right in thofe countries; and thence too perhaps is derived the udal

right in Finland, &c. (See Mac Doual
Inft. part. 2.) Now the tranfpofition of
thefe northern fyllables, alioob, will
give us the true etymology of the allo-
dium, or abfolute property of the feu-
difts (2): as, by a fimilar combination
of the latter fyllable with the word fee
(which fignifies, we have feen, a con-
ditional reward or stipend) feeadh or
feodum will denote ftipendiary pro
perty.

(2) This is the fame as all-bood in English, and is fuggefted as the derivation of allodium in Woll. Religion of Nat. del. p. 136. Dr. Robertfon adopts the derivation of allclium from an and lot, or allotment, the mode of dividing what was not granted as ftipendiary

E 3

BOOK II. dently were and the condition annexed to them was, that the poffeffor should do fervice 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 % : and in cafe of the breach of this condition and oath, by not performing the ftipulated fervice, or by deserting the lord in battle, the lands were again to revert to him who granted them h.

ALLOTMENTS, thus acquired, naturally engaged fuch as accepted them to defend them: and, as they all fprang from [46] the fame right of conqueft, no part could subsist independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each other's poffeffions. But, as that could not effectually be done in a tumultuous irregular way, government, and to that purpofe fubordination, was neceffary. 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 fuperior; and fo upwards to the prince or general himself and the feveral lords were alfo reciprocally bound, in their refpective gradations, to protect the poffeffions they had given. Thus the feodal connection was established, a proper military fubjection was naturally introduced, and an army of feudatories was always ready enlifted, and mutually prepared to mufter, not only in defence of each man's own feveral

See this oath explained at large in Feud. 1. 2. t. 7. h Feud. 1. 2. t. 24.

pro

diary-property; and he relates the memorable story of the fierce foldier who refused to grant a facred vafe 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!" Hift. of Ch. V. 1 vol. notes 7 & 8.

perty, but also in defence of the whole, and of every part of this their newly-acquired country; the produce of which conftitution was foon fufficiently vifible in the ftrength and fpirit, with which they maintained their conquests.

THE univerfality and early use of this feodal plan, among all those nations, which in comp aifance to the Romans we ftill call barbarous, may appear from what is recorded * of the Cimbri and Teutones, nations of the fame northern original as those whom we have been defcribing, at their first irruption into Italy about a century before the chriftian 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 sense 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 conftitution, that displayed 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 distribute 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 fervice from them and their heirs for ever.

SCARCE had these northern conquerors eftablished themfelves in their new dominions, when the wifdom of their constitutions, as well as their perfonal valour, alarmed all the

[ 48 ]

princes of Europe; that is, of thofe 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 fimilar plan of policy. For whereas, before, the poffeflions 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 fubjects to furrender up and retake their own landed property, under the like feodal obligations of military fealty". And thus, in the compafs of a very few years, the feodal conftitution, or the doctrine of tenure, extended itself over all the western world. Which alteration of landed property, in fo very material a point, neceffarily drew after it an alteration of laws and cuftoms: fo 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 itfelf (as fome of the civilians, with more spleen than judgment, have expressed it) belluinas, atque ferinas, immancfque 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 conftitution, till the reign of William the Norman. 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 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 ifland, 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.