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CHAPTER IV.: OF THE FEODAL SYSTEM. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF THE FEODAL SYSTEM.
It is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom, or the laws which regulate its landed property, without some 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 Sir Henry Spelman(a) does not scruple to call it the law of nations in our western world.1 This chapter will be therefore dedicated to this inquiry. And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student will imagine his time misemployed, when he is led to consider that the obsolete 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 law, in a scholarlike, scientifical manner, without having recourse to the ancient. Nor will these researches be altogether void of rational entertainment as well as use: as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it administers both pleasure and instruction to compare them with the draughts of the same edifices, in their pristine proportion and splendour.
*[*45The constitution of feuds(b) had its original from the military policy of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals, and the Lombards, who, all migrating from the same officina gentium, as Crag very justly entitles it,(c) poured themselves in vast quantities into all the regions of Europe, at the declension of the Roman empire. It was brought by them from their own countries, and continued in their respective colonies as the most likely means to secure their new acquisitions: and to that end, large districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels or allotments to the inferior officers and most deserving soldiers.(d) These allotments were called feoda, feuds, fiefs, or fees; which last appellation in the northern language(e) signifies a conditional stipend or reward.(f) Rewards or stipends they evidently were; and the condition annexed to them was, that the possessor should do service 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:(g)2 and in case of the breach of this condition and oath, by not performing the stipulated service, or by deserting the lord in battle, the lands were again to revert to him who granted them.(h)
Allotments, thus acquired, mutually engaged such as accepted them to defend them: and, as they all sprang from **46]the same right of conquest, no part could subsist independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each other’s possessions. But, as that could not effectually be done in a tumultuous irregular way, government, and to that purpose subordination, was necessary. 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 likewise subordinate to, and under the command of, his immediate benefactor or superior; and so upwards to the prince or general himself: and the several lords were also reciprocally bound, in their respective gradations, to protect the possessions they had given. Thus the feodal connection was established, a proper military subjection was naturally introduced, and an army of feudatories was always ready enlisted, and mutually prepared to muster, not only in defence of each man’s own several property, but also defence of the whole, and of every part of this their newly-acquired country;(j) the produce of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquests.4
The universality and early use of this feodal plan, among all those nations which in complaisance to the Romans we still call barbarous, may appear from what is recorded(k) of the Cimbri and Teutones, nations of the same northern original as those whom we have been describing, at their first irruption into Italy about a century before the Christian era. They demanded of the Romans, “ut martius populus aliquid sibi terrae 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 *[*47Spain, and the Lombards 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(l) 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 feodal obligations of military fealty.(m) 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.5 Which alteration of landed property, in so very material a point, necessarily drew after it an alteration of laws and customs: so that the feodal laws soon drove out the Roman, which had hitherto so 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)
**48]But this feodal polity, which was thus by degrees established over all 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.(o) 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 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: 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 feodal acceptation signifies no more than acquisition;6 and this has led many hasty writers into a strange historical mistake, and one which, upon the slightest examination, will *[*49be found to be most untrue. However, certain it is, that the Normans now began to gain very large possessions 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 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, 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 did homage and fealty to his person.(s) This may possibly have been the era of formally introducing the feodal tenures by law; and perhaps the very law, thus made at the council of Sarum, is that which is still extant,(t) *[50and couched in these remarkable words:—“Statuimus, ut omnes liberi homines fœdere et sacramento affirment, quod intra et extra universum regnum Angliæ Wilhelmo regi domino suo fideles 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 feodal: 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 feodal 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 bene 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 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 vassals of the crown.(x)7 The only difference between this change of tenures in France, and that in England, was, that the former was effected gradually **51]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:(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 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.
Our ancestors, therefore, who were by no means beneficiaries, but had barely consented to this fiction of tenure from **52]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 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 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 further 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 show, 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.
*[*53Having given this short history of their rise and progress, we 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 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.8 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 vassals; which perpetuated among them the era 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,9 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, uncovered, **54]and holding up his hands both together between those of the lord, 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 twofold; 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 vassals of the inferior lords were bound by their fealty to attend their domestic court barons,(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 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 **55]almost every feodal government) the right of appeal from those subordinate 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 vassal 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 assembles.(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 *[*56bearing arms, were also incapable of succeeding to a genuine feud. 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, and 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 vassal, 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 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 this was an unalterable maxim in feodal succession, that “none was capable of inheriting a feud, but such as 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 *[*57a divisible nature, but could only be inherited by the eldest son;(o) in imitation of these, 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.(q) 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 feodal 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 seignory or protection without consent of his vassal, than the vassal 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 vassal 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 answer the stipulated renders or rent-service, and to promote the welfare of their immediate superiors or lords.(s) **58]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; under the former of which divisions were comprehended such, and such only, of which we have before spoken; and under that of improper or derivative feuds were comprised all such as do not fall within the other descriptions; such, for instance, as were originally bartered and sold to the feudatory for a price; such as were held upon base or less honourable services, or upon a rent, in lieu of military service; such as were in themselves alienable, without mutual license; and such as might descend indifferently either to males or females. But, where a difference was not expressed in the creation, such new-created feuds did in all respects follow the nature of an original, genuine, and proper feud.(t)
But as soon as the feodal system came to be considered in the light of a civil establishment, rather than as a military plan, the ingenuity of the same ages, which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon, began also to exert its influence on this copious and fruitful subject: in pursuance of which, the most refined and oppressive consequences were drawn from what originally was a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defence. From this one foundation, in different countries of Europe, very different superstructures have been raised: what effect it has produced on the landed property of England will appear in the following chapters.10
[(a) ] Of Parliaments, 57.
[1 ] An intimate acquaintance with the feodal system is absolutely necessary to the attainment of a comprehensive knowledge of the first principles and progress of our constitution. And this subject, in my opinion, might with great propriety have preceded the chapter upon parliament. The authority of lord Coke upon constitutional questions is greatly diminished by his neglect of the study of the feodal law; which Sir Henry Spelman, who well knew its 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 so many roots of our law have, of old, been taken and transplanted.” Spelm. Orig. of Terms, c. viii.—Christian.
But Mr. Preston shows, contrary to the general opinion, that lord Coke was acquainted with the laws of feuds, and their applicability to some portions at least of our system. Preston on Estates, 1 vol. 201.—Chitty.
[(b) ] See Spelman, of feuds, and Wright, of tenures, per tot.
[(c) ]De jure feod. 19, 20.
[(d) ] Wright, 7.
[(e) ] Spelm. Gloss. 216.
[(f) ] Pontoppidan, in his History of Norway, page 290, observes that in the northern languages odh signifies proprietas and all totum. Hence he derives the odhal right in those countries; and thence too perhaps is derived the udal right in Finland, &c. See Mac Doual, Inst. part 2. Now, the transposition of these northern syllables, allodh,3 will give us the true etymology of the allodium, or absolute property of the feudists; as, by a similar combination of the latter syllable with the word fee, (which signifies, we have seen, a conditional reward or stipend,) feeodh or feodum will denote stipendiary property.
[3 ] This is the same as all-hood in English, and is suggested as the derivation of allodium in Woll. Religion of Nat. del. p. 136.
This unquestionably is the true etymology, though Dr. Robertson adopts the derivation of allodium from an and lot, or allotment,—the mode of dividing what was not granted as stipendiary property; and he relates the memorable story of the fierce soldier who refused to grant a sacred vase 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.” Hist of Ch. V., 1 vol. notes * and 8.—Christian.
[(g) ] See this oath explained at large in Feud. l. 2, t. 7.
[2 ] Fealty, the essential feudal bond, is so necessary to the very notion of a feud that it is a downright contradiction to suppose the most improper feud to subsist without it; but the other properties or obligations of an original feud may be qualified or varied by the tenor or express terms of the feudal donation. Wright, L. of Ten. 35. Fealty and homage are sometimes confounded; but they do not necessarily imply the same thing. Fealty was a solemn oath, made by the vassal, of fidelity and attachment to his lord. Homage was merely an acknowledgment of tenure, unless it was performed as homagium ligeum: that, indeed, did in strictness include allegiance as a subject, and could not be renounced; but homagium non ligeum contained a saving or exception of faith due to other lords, and the homager might at any time free himself from feudal dependence by renouncing the land with which he had been invested. Du Fresne Gloss. voc. Hominium, Legius, et Fidelitas. Mr. Hargrave (in note 1 to Co. Litt. 68, a.) says, in some countries on the continent of Europe, homage and fealty are blended together, so as to form one engagement; and therefore foreign jurists frequently consider them as synonymous. But in our law, whilst both continued, they were in some respects distinct: fealty was sometimes done where homage was not due. And lord Coke himself tells us (1 Inst. 151, a.) fealty may remain where homage is extinct. So Wright (L. of Ten. 55, in note) informs us that it appears not only from the concurrent testimony of all our most authentic antient historians, (whom he cites,) but likewise from Britton, Bracton, The Mirror, and Fleta, that homage and fealty were really with us distinct, though (generally) concomitant, engagements; and that homage (he of course means homagium non ligeum) was merely a declaration of the homager’s consent to become the military tenant of certain of the lord’s lands or tenements.
The short result appears to be that, whilst the tie of homage subsisted, fealty, though acknowledged by a distinct oath, was consequential thereto; but that the converse did not hold, as fealty might be due where homage was not.
The manner of doing homage and fealty is prescribed by the act of 17 Edw. II. st. 3, which enactment abundantly proves the distinct nature of the two acknowledgments at that time.—Chitty.
[(h) ]Feud. l. 2, t. 24.
[(j) ] Wright, 8.
[4 ] Mr. Hallam’s account of the origin of the feudal system is different from that in the text. His idea is that the first division of lands was allodial; but that, the sovereign gradually granting out his lands as beneficia, with the mutual obligation of protection and defence, the allodial proprietor soon found his condition an insecure one in the state of society which then existed, and willingly came under the obligation of rendering feudal services in exchange for the powerful protection of the sovereign. “Mr. Hallam mentions a custom,” says Mr. Justice Coleridge, “which, as occasioned by the same state of society, certainly adds some credit to this theory: I mean the custom of commendation. This was a kind of personal feudism. The lord was bound to protect the person and his lands who so commended himself to him, for which he received a stipulated sum of money, called salvamentum. The vassal performed homage; but the connection had no reference to land, was not always burdened with the condition of military service, and seems to have been capable of dissolution at the pleasure of the vassal.” This judicious annotator gives his assent to Mr. Hallam’s account, and adds, “It is not surprising, however, that English lawyers should have adopted an opposite theory; because, in England, the system, as a whole, was introduced at once by a powerful and politic sovereign, who made it—what they assert it always was—a great political measure of military defence. William received the fealty not only of his own vassals,—those who held of him in chief,—but of their vassals also; and thenceforward the oath of fealty to a subject in England was accompanied with the reservation to be found in Littleton’s Precedent, given in s. 85, Salve la foy, que jeo doy a nostre seigneur le roy.”—Sharswood.
[(k) ]L. Florus. l. 3, c. 3.
[(l) ] “Sola, quæ de hoslibus capta sunt limitaneis ducibus et militibus donavit; ita ut eorum ita essent, si hæredes illorum militarent, nec unquam ad privatos pertinerent; dicens at[Editor: Illegible character]tentius illos militaturos, si etiam sua rura defenderent. Addidit sane his et animalia et servos, ut possent colere quod acceperant; ne per inopiam hominum vel per senectutem desererentur rura vicina barbariæ, quod turpissimum ille ducebat.” ÆL Lamprid. in vita Alex. Severi.
[(m) ] Wright, 10.
[5 ] 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.—Chitty.
[(n) ] Gravin. Orig. l. 1, 139.
[(o) ] Spelm. Gloss. 218. Bract. l. 2, c. 16, 7.
[(p) ] Crag. l. 2, t. 4.
[6 ] To determine whether the appellation was or was not properly applied in its ordinary sense to William I., it is necessary to consider the circumstances under which he mounted the throne. These circumstances will be best stated in the felicitous language of Hume. In the 4th chapter of his History he says, “The duke of Normandy’s first invasion of the island was hostile; his subsequent administration was entirely supported by arms; in the very frame of his laws he made a distinction between the Normans and English, to the advantage of the former; he acted in every thing as absolute master over the natives, whose interest and affections he totally disregarded; and if there was an interval when he assumed the appearance of a legal sovereign, the period was very short, and was nothing but a temporary sacrifice, which he, as has been the case with most conquerors, was obliged to make, of his inclinations to present policy. Scarce any of those revolutions which, both in history and in common language, have always been denominated conquests, appear equally violent, or were attended with so sudden an alteration both of power and property. The Normans and other foreigners who followed the standard of William, having totally subdued the natives, pushed the right of conquest to the utmost extremity against them. Except the former conquest of England by the Saxons themselves, who were induced by peculiar circumstances to proceed even to the extermination of the natives, it would be difficult to find in all history a revolution more destructive or attended with a more complete subjection of the inhabitants. Contumely seems to have been wantonly added to oppression, and the natives were universally reduced to such a state of meanness and poverty that the English name became a term of reproach, and several generations elapsed before one family of Saxon pedigree was raised to any considerable honours.”
If these facts do not denote a conquest, in the ordinary sense of that word, then, to be sure, it will be difficult to prove that the Saxons were a conquered people.—Chitty.
[(q) ]ad 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.
[(s) ]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 quoscunque illi fidos futuros. Chron. Sax.ad 1086.
[(t) ] Cap. 52. Wilk. 228.
[(u) ] Tenures, 66.
[(w) ] Cap. 58. Wilk. 288.
[(x) ] Montesq. Sp. L. b. 31, c. 8.
[7 ] 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 Middle Ages, ch. 2, part 1.—Coleridge.
[(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.
[(z) ]Tout fuit in luy, et vient de luy al commencement. M. 24 Edw. III. 65.
[(a) ] Spelm. of feuds, c. 28.
[(b) ] Wright, 81.
[(c) ] L. L. Hen. I. c. 1.
[(d) ] 9 Hen. III.
[8 ] Nothing, I think, proves more strongly the detestation in which the people of this country held the feudal oppressions, than that the word vassal, which once signified a feudal tenant or grantee of land, is now synonymous to slave; and that 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.—Christian.
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 labourer, it became afterwards, as we have seen, expressive of moral turpitude, from the vices which the system necessarily engendered in its victims?—Chitty.
[9 ] See ante, note 2 to this chapter, observing, in addition to what is there said, that lands held in frankalmoigne, or at will, according to common law, not affected by custom, form exceptions to the general rule that fealty is incident to all manner of tenures. 1 Inst. 93, a. b. It should also be remarked that no one who has not an estate in fee-simple or fee-tail, either in his own right or in right of another, was entitled either to receive, or even to do, homage. 1 Inst. 66, b., 67, a. Homage, indeed, seems to have been properly incident to tenure by knight’s service only: at least, wherever homage was parcel of a tenure, that was held to afford a presumption that the tenure was by knight’s service, unless the contrary could be proved. 1 Inst. 67, b. Whilst homage continued, it was far from being a mere ceremony; for the performance of it, where it was due, materially concerned both lord and tenant in point of interest and advantage. To the lord it was of consequence, because, till he had received homage from the heir, he was not entitled to the wardship of him and of his land; unless the lord had the seignory for life or years only, in which case he could not take homage, and therefore was allowed wardship without that previous act. To the tenant the homage was scarce of less importance; for, anciently, every kind of homage, when received, but not before, bound the lord to keep the tenant free from every molestation for services due to the lord paramount, (if there were any such,) and to defend his title to the land against all others; though in subsequent times this implication of acquittal and warranty became peculiar to homage auncestrel. Hargrave’s note to Co. Litt. 67, b.—Chitty.
[(e) ] Litt. 85.
[(f) ] 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, l. 9, c. 7) the ceremonies and language of feodal homage are preserved with great exactness.
[(g) ]Feud. l. 2, t. 55.
[(h) ]Feud. l. 1, t. 1.
[(i) ] Thus Tacitus, (de Mor. Germ. c. 26:) “agri ab universis per vices occupantur; arva per annos mutant.” And Cæsar, yet more fully, (de bell. Gall. l. 6, c. 21:) “Neque quisquam agri modum certum aut fines proprios habet: sed magistratus et principes, in annos singulos, gentibus et cognationibus hominum qui una coierunt, quantum eis et quo loco visum est, attribuunt agri, atque anno post alio transire cogunt.”
[(k) ]Feud. l. 1, t. 1.
[(l) ] Wright, 14.
[(m) ] Ibid. 17.
[(n) ] Ibid. 183.
[(o) ]Feud. 2, t. 55.
[(p) ] Wright, 32.
[(q) ] Ibid. 29.
[(r) ] Ibid. 30.
[(s) ] Wright, 20.
[(t) ]Feud. 2, t. 7.
[10 ] This, for so concise a treatise, is perhaps the most luminous that has been written upon the subject of the feudal system. However, in addition to it, I should strongly recommend to the student’s perusal the treatise on feuds and tenures by knight-service among the posthumous works of Sir Henry Spelman, Dalrymple on Feudal Property, and a very elaborate note upon the subject by Mr. Butler, among his annotations upon Coke Littleton. Co. Litt. 191, a.—Archbold.
Upon the subject of the feudal system, its rise and decline, its spirit, and the comparative evils and benefits of which it was the cause, I cannot do better than refer the reader to Mr. Hallam’s masterly disquisition, Middle Ages, ch. 2, part 2.—Coleridge.
Upon the subject of this and the following chapters the student is recommended to study the excellent Essay on Feudal Property, by Sir John Dalrymple, an author who, notwithstanding some errors on antiquarian points of little importance, cannot be too highly praised for the philosophical accuracy and elegance with which he has treated a subject that most writers contrive to render extremely obscure and repulsive.—Sweet.
I may be allowed to add that Sullivan’s Lectures on Feudal Law is a work copious in detail, and exhibiting ably, among other topics, the influence of the feodal system upon the modern law of tenures. Sir Martin Wright’s Introduction to the Law of Tenures is one of the most accurate and profound of the essays on this topic, and is worthy of the most attentive study. Craig de Feudis, lord Mansfield thought, was much to be preferred to any juridical work which England had then produced. The thirtieth and thirty-first books of Montesquieu’s Spirit of Laws may be read with advantage, as also Robertson’s History of Charles V., and an excellent Lecture on Feudal Law—Lect. X.—in Hoffman’s Legal Outlines.—Sharswood.