original as those whom we have been describing, at their first irruption into Italy about a century before the Christian æra. They demanded of the Romans, "ut martius populus aliquid sibi terræ 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 [*47] upon Italy; and introduced with themselves this northern plan of polity, serving 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 (1) 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 dominions, 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 feudal obligations of military fealty. (m) And thus, in the compass of a very few years, the feudal constitution, or the doctrine of tenure, extended itself over all the western world. (4) Which alteration of landed property, in so very material a point, necessarily drew after it an alteration of laws and customs; so that the feudal laws soon drove out the Roman, which had hitherto 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 feudal polity, which was thus by degrees established over all [*48] 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 time 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 600: (1) Sola. quæ de hostibus capta sunt limitaneis ducibus et militibus donavit; ita ut eorum ita essent, sı hæredes illorum militarent. nec unquam ad privatos pertinerent: dicens attentius illos militaturos, si etiam sua rura defenderent. Addidit sane his et animalia et servos. ut possent colere quod acceperent; ne per inopiam hominum vel per senectutem desererentur rura vicina barbariæ, quod turpissimum ille ducebat." (El. Lamprid, in vita Alex. Severi.) (m) Wright, 10. (0) Spelm. Gloss. 218. Bract. l. 2, c. 16, § 7.

(n) Gravin. Orig. l. 1, § 139.

(4) [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.

Allodial lands are commonly opposed to beneficiary, or feudal, the former being strictly proprietary, while the latter depended upon a superior. In this sense the word is of continual recur rence in ancient histories, laws and instruments. It sometimes, however, bears the sense of inheritance, and this seems to be its meaning in the famous 62d chapter of the Salic laws,-De Allodis. "Allodium interdum appointur comparato," says Du Cange, "in formulis veteribus." Hence, in the charters of the eleventh century, hereditary fiefs are frequently termed alodiæ. Hallam Mid. Ages, vol. 1, p. 97.]

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 feudal acceptation, signifies no more than acquisition; and this has led many hasty writers into a strange historical mistake, and one which, upon the slightest examination, will be found to be most untrue. However, certain it is, that the Normans now began to [*49] gain very large possessions in England; and their regard for the feudal 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 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, (q) 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; (r) the immediate consequence of which was the compiling of the great survey called domesday-book, (5) 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

(p) Crag 1. 2. t. 4.

(a) A. D. 1085.

(r) Rex tenuit magnum concilium, et graves sermones habuit cum suis proceribus de hac terra; quo modo incoleretur, et a quibus hominibus. Chron. Sax. ibid.

(5) The original of Domesday Book is comprised in two volumes, one a large folio, and the other a quarto, and is preserved among the other records of the exchequer in the chapter house at Westminster. In 1783 a fac simile was published by the government, and thus became generally accessible. In 1816 two volumes supplementary were published, one of which contains a general introduction with indexes. The other contains four records; three of them, namely, the Exon Domesday, the Inquisitio Eliensis, and the Liber Winton, contemporary with the survey, the other, called Boldon Book, is the survey of Durham, made in 1183 by Bishop Hugh Pudsey. By Domesday Book the king acquired an exact knowledge of the possessions of the crown, and it afforded him also the names of the landholders, and the means of ascertaining the military strength of the country. It also pointed out the possibility of increasing the revenue in some cases. To the people Domesday Book became valuable as a record to which appeal might be made when titles were disputed.

For furthur information respecting this most important record, see Domesday Book Illustrated, by Kellam, London, 1788. Mr. Hallam says: "Ingulfus gives the plain meaning of the word Domesday, which has been disputed. The book was so called, he says, pro sua generalitate omnia tenementa totetus terræ integre continente; that is, it was as general and conclusive as the last judgment will be." Middle Ages, ch. 9, pt. 2.

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361

did homage and fealty to his person. (s) This may possibly have been the æra of formally introducing the feudal tenures by law; and perhaps the very law, thus made at the council of Sarum, is that which is still extant, (t) *and [*50] couched in these remarkable words: "Statuimus, ut omnes, liberi homines fædere et sacramento affirment, quod intra et extra universum regnum Anglia Wilhelmo regi domino suo fidèles 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 feudal: 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 feudal 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 benc 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 seems therefore 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 previously nominated to the king; and thus by degrees all the allodial estates in 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 [*51] consent of private persons; the latter was done at once, all over England, by the common consent of the nation. (y) (6)

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 feudal 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 feudal 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.

(8) Omnes prædia tenentes quotquot essent notæ melioris per totam Angliam, ejus homines facti sunt, et omnes se illi subdidere, ejusque facti sunt vasalli, ac ei fidelitatis juramenta præstiterunt, se contra alios quos cunque illi fidos futuros. Chron. Sax. A. D. 1086. (1) Cap. 52, Wilk. 228. (u) Tenures. 66. Wilk. 288.

(w) Cap. 58.

(x) Montesq. Sp. L. b. 31, c 8. (y) Pharoah thus acquired the dominion of all the lands in Egypt, and granted them out to the Egyptians, reserving an annual render of the fifth part of their value. (Gen, c. xlvii) (z) Tout fuit in luy, et vient de luy al commencement. (M. 24 Edw. III, 65.) ·

(6) Justice Coleridge says: "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 Mid. Ages, c. 2, part 1."

But whatever their meaning was, the Norman interpreters, skilled in all the niceties of the feudal constitutions, and well understanding the import and extent of the feudal 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 military discipline, with reason looked upon these deductions as grevious [*52] 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 feudal 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 grieviances, but still reserved the fiction. of feudal 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 farther 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 granted: but this, properly considered, will shew, not that the acquisitions 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 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

next consider the nature, doctrine, and principal laws of feuds; wherein [*53] 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 feudal 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. (7) The manner of the grant was by words

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

(b) Wright, 81.

(c) LL. Hen. I, c. 1.

(d) 9 Hen. III.

(7) [Mr. Christian says: "Nothing, I think, proves more strongly the detestation in which the people of this country held the feudal oppression, than that the word vassal, which once signified a feudal tenant or grantee of land, is now synonymous to slave: and that the word

of gratuitous and pure donation, dedi et concessi; which are still the operative words in our modern infeudations 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 æra 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 neighborhood; 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 parent of our oath of allegiance, the vassal or tenant upon investiture did usually homage to his lord; openly and humbly kneeling, being ungirt, uncov

ered, and holding up his hands both together between those of the lord, [*54] 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 two-fold; to follow, or do suit to, the lord in his courts in time of peace; and in his armies or war-like 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 courts baron (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 feudal 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 feudal government) the right of appeal from those subor[*55] dinate 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 vassals performed his services faithfully. Then they became certain

(e) Litt. § 85.

(ƒ) It was an observation of Dr. Arbuthnot, that tradition was nowhere preserved so pure and incorrupt as among children, 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. 1. 9, c. 7,) the ceremonies and language of feudal homage are preserved with great exactness. (g) Feud. l. 2, t. 55. (h) Feud. l. 1, t. 1.

villain, which once meant only an innocent, inoffensive bondman, has kept its relative distance, and denotes a person destitute of every moral and honorable principle, and is become one of the most opprobrious terms in the English language." 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 laborer, it became afterward, as we have seen, expressive of moral turpitude, from the vices which the system necessarily engendered in its victims.]