fealty, which made, in the sense of the feudists, every man that took it a tenant or vasal: 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 feodal services, as ordained by the general council. "Omnes comites, et “barones, et milites, et servientes, et universi liberi homines totius regni nos"tri prædicti, habeant et teneant se semper bene in armis et in equis, ut decet "et oportet: et sint semper prompti et bene parati, ad servitium suum inte"grum nobis explendum et peragendum, cum opus fuerit: secundum quod "nobis debent de feodis et tenementis suis de jure facere, et sicut illis statui66 mus per commune concilium totius regni nostri praedicti.” This new polity therefore seems 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 vasals of the crown. (x) The only difference between this change of tenures in France, and that in Eng[51] land, was, that the former was effected gradually by the consent 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; (2) 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. w cap. 58. Wilk. 288. x Montesq. Sp. L. b. 31. c. 9. y Pharaoh 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.) 2. Tout fuit in luy, et vient de luy al commencement. (M. 24 Edw. III. 65.) 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 grievous impositions, and arbitrary conclusions from principles that, as to [ 52 ] them, had no foundation in truth. (6) 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 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 [53] will 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 vasal, 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 vasal opprobriously, as synonymous to slave or bondman. “ b Wright. 81. c LL. Hen. I. c. 1. d 9 Hen. Ill. (6) Spelman's Glossary does not give the derivation of the word vasal; nor is it stated with certainty by any other author. Perhaps the most plausible etymology is that suggested by Meyer, who says the word "gesell," in Dutch and German, signifies" companion. And Tacitus, whose De Moribus Germanorum may be looked to for information on this point, describes the first indications of the relation of lord and vasal under the notion of companionship. His terms comites and comitatus, before they meant, the first a count, and the second a county, must have VOL. I. 55 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 vasals; 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 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 parent of our oath of allegiance, the vasal or tenant upon investiture did usually homage to his lord; openly and humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the lord, who sate before him; and there professing that "he did become [54] "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 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 vasals 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 fellow-tenants: 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 curiœ. 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, e Litt. 85. f It was an observation of Dr. Arbuthnot, that tradition was no where 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, 8.) It will not, I bope, be thought puerile to remark, in confirmation of this observation, that in one of our ancient juvenile pastimes (the king I am or busilinda of Julius Pollux, Onomastic, (l. 9. c. 7.) the ceremonies and language of feodal homage are preserved with great ex actness. g Feud. 1. 2. t. 55. signified companion and companionhood; and it is not disputed that the first counts were what may be called vasals of the king. When however these words were no longer used to express their original meaning," gesell" might become latinized into gausallus, or vasallus. See Esprit Origine et Progress des Institutiones Judiciaires, vol. i p. 141. Mr. Christian says, "Nothing, I think, proves more strongly the detestation in which the peo ple of this country held the feudal oppressions, than that the word vasal, which once signified a feudal tenant or grantee of land, is now synonymous to slave; and 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." May it not be assumed that the system produced a moral debasement, equivalent to the political degradation which it inflicted; and that although villain origirally 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 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 subordinate courts in the last resort. The military branch of service consisted [55] 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. 7 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 vasal performed his services faithfully. Then they became certain 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 assemblies. (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 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 reject the heir, if he were capable to perform the services : (l) and therefore infants, women, and professed monks, who were incapable of bearing arms, were also incapable of succeeding to a genuine feud. [56] But the heir, when admitted to the feud which his ancestor possessed, used generally to pay a fine or acknowledgment to the lord, in horses, arms, money, or the like, for such renewal of the feud: which was called a relief, because it raised up and re-established 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 vasal, 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 b Feud. l. 1. t. 1. iThus Tacitus: (de mar Germ. c. 26.) "agri ab universis per vices occupantu; arva per annos mutant.” And Cæsar yet more fully: (de bell. Gall. 1. 6. c. 21.) Neque quisquam agri modum certum aut fines proprios habet; sed magistratus et principes, in annos singulos, gentibus et cognationibus hominum quí una coierunt, quantum eis et quo loco visum est, attribuunt agri, atque anno post alio transire cogunt.” k Feud. l. 1. t. 1. 1 Wright, 14. m Ibid. 17. (7) To this similarity of the services which the vasal was to render to his lord, and those which the lord was to render to the king, may perhaps in a great measure be attributed the circumstance of the barons of England having invariably made common cause with the people in asserting the rights of both; and to which England at the present day principally owes the large proportion of liberty she possesses. .Archbold. 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 there was an unalterable maxim in feodal succession, that "none was capable of inheriting a feud, but such 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 be inherited by the eldest son; (o) in imitation of these, [57] 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 dispose of his feud; neither could he exchange, nor yet mortgage, nor even devise it by will, without the consent of the lord. (7) 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 fbdal obligation was looked upon 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 seigniory or protection without consent of his vasal, than the vasal 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 vasal should owe subjection to a superior not of his own choosing. These were the principal, and very simple, qualities of the genuine or original feuds; 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 an[58] swer the stipulated renders or rent-service, and to promote the wel fare of their immediate superiors or lords. (s) But 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 ; |