*Having given this short history of their rise and progress, we will [*130] next consider the nature, doctrines, and principal laws of feuds; wherein we shall evidently trace the groundwork of many parts of our public polity, and also the origin of such of our own tenures, as were either abolished in the 17th century, or still remain in force.

The nature, doccipal laws of feuds.

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 trine, and prin- 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 [* 131] 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 with slave or bondman (h). The manner of the grant was by words of gratuitous and pure donation, dedi et concessi; which were long the operative words in the infeudations or deeds of feoffment of more modern times. 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 neighbouring owners; who, in case of a disputed title, were afterwards called upon to decide the difference, not only

Grant.

mendation; and appears to have been founded
on two very general principles, both of which
the distracted state of society inculcated.
The weak needed the protection of the pow-
erful, and the government needed some secu.
rity for public order. Even before the inva-
sion of the Franks, Salvian, a writer of the
fifth century, mentions the custom of obtain-
ing the protection of the great by money, and
blames their rapacity, though he allows the
natural reasonableness of the practice. The
disadvantageous condition of the less power
ful freemen, which ended in the servitude of
one part, and in the feudal vassalage of
another, led such as fortunately still pre-
served their alodial property to insure its
defence by a stipulated payment of money.
Such payments, called Salvamenta, may be
traced in extant charters, chiefly indeed of
monasteries. In the case of private persons,
it may be presumed, that this voluntary con-
tract was frequently changed by the stronger
party into a perfect feudal dependence. From
this, however, I imagine it properly differed
in being capable of dissolution at the infe-
rior's pleasure, without incurring a forfeiture,
as well as in having no relation to land.
Homage, however, seems to have been inci-
dent to commendation as well as to vassalage.
Military service was sometimes the condition
of this engagement.
It was the law of
France, so late at least as the commencement
of the third race of kings, that no man could
take part in private wars, except in defence

of his own lord; and this is strongly supported by the analogy of our own AngloSaxon laws, where it is frequently repeated, that no man should continue without a lord.”

we

(h) A satisfactory derivation of this word has long been wanting, which is entirely omitted in Spelman's Glossary. Meyer suggests one which is at least plausible:The word 'gesell," he says, "in Dutch and German, signifies companion. Tacitus know, has described the first rude appearances of the relation of lord and vassal, under the notion of companionship, but his terms comites and comitatus were necessarily abandoned for this purpose when they became applied, which was very early, to designate public officers and public charges, the gov ernors of districts, and the districts themselves. But it is obvious that these must have been secondary meanings, that, before comes signified a count, or comitatus a county, they must have signified companion and companionhood, and we know that the first counts were what we should now call vassals of the monarch. When, however, the secondary meaning superseded the first, it seems not improbable that the original term might be Latinised into guasallus or vassalus." (Esprit, Origine, et Progrès des Institutions Judiciaires, vol. i. p. 144.) As to the change of g into v or w, compare guerre, war; garanter, warrant; garenne, warren; but query whether the g in the Teutonic is ever changed into v in the Latinised form.

according to external proofs, adduced by the parties litigant, but also by the internal testimony of their own private knowledge.

Oath of fealty and homage.

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 investi[* 132 ] ture 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 his man, from that day forth, of life and limb and earthly honour" and then he received a kiss from his lord (i). Which ceremony was denominated homagium, or manhood, by the feudists, from the stated form of words, devenio vester homo (k).

Services of the vassal to the lord.

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 [* 133] to attend their domestic courts baron (7) (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 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 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

(i) Litt. s. 85.

(k) Homagium per paragium was unaccompanied by any feudal obligation, and distinguished from homagium legium, which carried with it an obligation of fidelity. The Dukes of Normandy rendered only homagium per paragium to the Kings of France, and received the like from the Dukes of Brittany. Littleton, s. 85, gives the following description of homage. "Homage is the most honourable service, and most humble service of reverence that a frank-tenant may do unto his lord. For when the tenant shall make homage to his lord, he shall be ungirt and his head uncovered, and his lord shall sit, and the tenant shall kneele before him on both his knees, and hold his hands jointly together between the hands of his lord, and shall say thus: I become your man from this day

forward, of life and limb and of earthly worship, and unto you shall be faithful, and bear you faith for the tenements that I claim to hold of you, saving the faith that I owe unto our sovereign lord the king;' and then the lord so sitting shall kiss him." Ss. 86, 87, 88, contain variations of the form of homage suited to the cases of ecclesiastics, and single and married women. As to fealty, the words of which were very similar to those of homage, see ss. 91, 92, 93, the ceremony was somewhat less formal, and might be done in the presence of the lord's steward or proxy, which was not the case with homage. The reservation of the faith owing to the king seems not to have been universal, or even general during the height of the feudal system. 1 Hall. Mid. Ages, 168.

(1) Feud. 1. 2, t. 55.

of days as were stipulated at the first donation, in proportion to the quantity of the land (m).

Mode of descent.

*We have seen how feuds came to be universally extended beyond the [* 134] 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 the lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation (n). 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 feudal 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" (o). 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 feudal union), [*135 ] 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 (p); 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 (g).

(m) "Upon investiture the duties of the vassal commenced. These it is impossible to define or enumerate; because the services of military tenure, which is chiefly to be considered, were in their nature uncertain, and distinguished as such from those incident to feuds of an inferior description. It was a breach of faith to divulge the lord's counsel, to conceal from him the machinations of others, to injure his person or fortune, or to violate the sanctity of his roof, and the honour of his family. In battle he was bound to lend his horse to the lord when dismounted, to adhere to his side while fighting, and to go into captivity as a hostage for him when taken. His attendance was due to the lord's courts, sometimes to witness and sometimes to bear a part in the administration of justice. The measure, however, of military service was generally settled by some usage: forty days was the usual term during which the tenant of a knight's fee was bound to be in the field at his own expense. This was extended by St. Louis to sixty days, except when the charter of infeudation expressed a shorter period. But the length of service diminished with the quantity of land; for half a knight's fee, but twenty days were due; for an eighth part, but five; and when this was commuted for an escuage or pecuniary assessment, the same proportion was observed. Men turned of

sixty, public magistrates, and of course women, were free from personal service, but obliged to send their substitutes: a failure in this primary duty incurred, perhaps, strictly a forfeiture of the fief; but it was usual for the lord to inflict an amercement, known in England by the name of escuage." Hall. vol. i. p. 170.

(n) Wright, 17.
(0) Ib. 183.

(p) Feud. 2, t. 55.

(q) Wright, 32. "A custom, very similar in effect to subinfeudation, was the tenure by frérage, which prevailed in many parts of France. Primogeniture, in that extreme which our common law has established, was unknown, I believe, in every country on the continent. The customs of France found means to preserve the dignity of families, and the indivisibility of a feudal homage, without exposing the younger sons of a gen tleman to absolute beggary or dependence. Baronies, indeed, were not divided; but the eldest son was bound to make a provision in money, by way of appanage, for the other children, in proportion to his circumstances and their birth. As to inferior fiefs, in many places, an equal partition was made; in others, the eldest took the chief portion, generally two-thirds, and received the homage of his brothers for the remaining part, which

Vassal could not

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 (r). For, the reason of conallene his feud, ferring the feud being the personal abilities of the * feu[*136] datory 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 feudal obligation was looked upon as reciprocal, the seignory, with 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 (s): 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

nor the lord his out consent.

Feuds afterwards let to rent, and bought and sold.

Reditus, or rent.

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 feudal 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 (t). 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 [*137 ] 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 description; 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

they divided. To the lord of whom the fief was held, himself did homage for the whole. In the early times of the feudal policy, when military service was the great object of the relation between lord and vassal, this, like all other subinfeudations, was rather advantageous to the former; for when the homage of a fief was divided, the service was diminished in proportion. Suppose, for example, the obligation of military attendance for an entire manor to have been forty days, if that came to be split equally between two, each would owe but a service of twenty. But if, VOL. I. - 64

instead of being homagers to the same suze-
rain, one tenant held immediately of the
other, as every feudatory might summon the
aid of his own vassals, the superior lord
would in fact obtain the service of both.
Whatever opposition, therefore, was made
to the rights of subinfeudation or frérage,
would indicate a decay in the military char-
acter, the living principle of feudal tenure."
Hall. Mid. Ages, vol. i. p. 176.
(r) Ib. 29.
(8) Wright, 30.
(t) Ib. 20.

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 (u).

The system varied in different countries.

But as soon as the feudal 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 (x).

ANCIENT ENGLISH TENURES.

In this chapter we shall take a short view of the ancient tenures of our English estates, or the manner in which lands, tenements, and hereditaments might have been holden, as the same stood in force till the middle of the last century. In which we shall easily perceive, that all the peculiarities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feudal principles, and no other; being fruits of, and deduced from, the feudal policy.

Explanation of the words tenure, &c.

King called lord para

All the land of this kingdom is, by the theory of our laws, supposed to have been granted by, and to be dependent upon, and holden of, some superior lord, in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. Moreover, it is supposed to be holden, mediately or immediately, of the king, who is styled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king (a); and, thus partaking of a middle nature, *were called mesne, or middle, lords. So that if the king granted a manor to A., and he (u) Feud. 2, t. 7.

mount.

Mesne lords.

[*139]

(x) Upon the subject of this and the two 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.

(a) William the First and other feudal sovereigns, though they made large and numer ous grants of lands, always reserved a rent, or certain annual payments (commonly very trifling), which were collected by the sheriffs of the counties in which the lands lay, to show that they still retained the dominium directum