vices, are therefore called rent-service. And for these, in case they be behind, or arrere, at the day appointed, the lord may distrein of common right, without reserving any special power of distress; provided he hath in himself the reversion, or future estate of the lands and tenements, after the lease or particular estate of the lessee or grantee is expired. (a) A rentcharge is where the owner of the rent hath no future interest, or reversion expectant in the land: as where a man by deed maketh over to others his whole estate in fee-simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrere, or behind, it shall be lawful to distrein for the same. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed; and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it. (b) 40 Rent-seck, reditus siccus, or barren rent, is in effect nothing more than a rent reserved by deed, but without any clause of distress.

There are also other species of rents, which are reducible to these three. Rents of assise are the certain established rents of the freeholders and ancient copyholders of a manor, (c) which cannot be departed from or varied. Those of the freeholders are frequently called chief-rents, reditus capitales: and both sorts are indifferently denominated qui-rents, quieti reditus; because thereby the tenant goes quit and free of all other services. When these payments were reserved in silver or white money, they were anciently called white-rents, or blanch-farms, reditus albi ; (d) in contradistinction to rents reserved in work, grain, or baser money, which were called reditus nigri, or black-mail. (e) Rack-rent is only a rent of the full [ 43 ] value of the tenement, or near it. A fee-farm rent is a rent-charge issuing out of an estate in fee; of at least one-fourth of the value of the lands, at the time of its reservation: (f) for a grant of lands, reserving so considerable a rent, is indeed only letting lands to farm in fee-simple instead of the usual methods for life or years. 41

These are the general divisions of rent; but the difference between them (in respect to the remedy for recovering them) is now totally abolished: and all persons may have the like remedy by distress for rents-seck, rents of assise, and chief-rents, as in case of rents reserved upon lease. (g)"

42

Rent is regularly due and payable upon the land from whence it issues, if no particular place is mentioned in the reservation: (h) but in case of the king, the payment must be either to his officers at the exchequer, or to his receiver in the country. (i) And strictly the rent is demandable and payable before the time of sunset of the day whereon it is reserved; (k) though perhaps not absolutely due till midnight. (7) 43

b Co, Litt. 143.

c 2 Inst. 19.

d In Scotland this kind of small payment is called blanch holding, or reditus albae firmae.

a Litt. § 215.

e 2 Inst. 19.

b Co. Litt. 201.

f Co. Litt. 143.

g Stat 4 Geo. II. c. 28. Co. Litt. 302. 1 Anders. 253.

1 1 Saund. 287. Prec. Chanc. 555. Salk. 578.

(40) A clear rent-charge must be free from the land-tax. Bradbury v. Wright, Doug. 625. If land on which a rent-charge is granted is afterwards sold in parcels, and the grantee levies the whole rent on one purchaser, the court of chancery will relieve him by a contribution from the rest of the purchasers, and restrain the grantee from levying upon him only. Cary, 2. 92.

(41) Mr. Hargrave is of opinion, that the quantum of the rent is not essential to create a fee. farm. Co. Litt 144. n. 5.; where he differs from Mr. Douglas, who had thought that a feefarm was not necessarily a rent-charge, but might also be a rent seck. Dougl 627. n. 1.

(42) That is, for such as had been paid for three years, within twenty years before the passing of that act, or for such as have been since created. 4 Geo. II. c. 28. s. 5. Doug. 627. and n. 1. As to distresses, see 3 vol. 6.

(43) If the lessor dies before sunset on the day upon which the rent is demandable, it is clearly

With regard to the original of rents, something will be said in the next chapter; and, as to the distresses and other remedies for their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part of our commentaries, which will treat of civil inju ries, and the means whereby they are redressed.

CHAP. IV.

OF THE FEODAL SYSTEM.'

2

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. 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 doctrine 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.

[45] The 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

a of parliaments, 57.

b See Spelman, of feuds, and Wright, of tenures, per tot.
c De jure feod. 19, 20.

settled that the rent unpaid is due to his heir, and not to his executor; but if he dies after sunset and before midnight, it seems to be the better opinion, that it shall go to the executor, and not to the heir. 1 P. Wms. 178. Toller on Executors, 177, 8. Christian.

(1) Upon the subject of the feodal system, in addition to the authorities cited in the text, see Robertson's History of Cha. 5th, 1 vol. and the masterly essay by Mr. Hallam in his History of the Middle Ages, ch. 2. part 2.

(2) Mr. Christian in his edition has the following note:-"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: 1 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." But Mr. Preston shews, 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.

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) 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. (4)

:

Allotments, thus acquired, naturally engaged such as accepted them to defend them and, as they all sprang from the same right of conquest, no part could subsist independent of the whole; wherefore [ 46 ] 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 connexion 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 in defence of the whole, and of every part of this their newly-acquired country; (i) the produce of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquests. 3

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 æra. They demanded of the Romans, "ut martius populus aliquid sibi terrae darei, “quasi stipendium; caeterum, ut vellet, manibus atque ormis 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 hun

d Wright, 7.

e Spelm. Gl. 216.

f Pontoppidan, in his history of Norway, (page 290) observes, that in the northern languages odh signifies proprietas and all totum. fence 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, will give us the true etymology of the nilodium, or absolute property of the fewdists; as, by a similar combination of the latter syllable with the word fee, (which signifies, we have seen, a conditional reward or stipend) fecodh or feodum will denote stipendiary property. g See this oath explained at large in Feud. 1. 2. t. 7.

i Wright, 8.

b Feud. 1. 2. t. 24.

k L. Florus, l. 3. c. 3.

(3) See Hallam's Hist. of Middle Ages, ch. 2. p. 1. ch. 8. p. 2.

dred years afterwards; when the Salii, Burgundians, and Franks [ 47 ] broke in upon Gaul, the Visigoths on Spain, 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 (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 for

ever.

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. 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 accepti. (n)

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 [48] 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 to 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

1 " Sola, quae de hostibus capta sunt limitaneis ducibus et militibus donavit; ita ut eorum ita essent, si haeredes 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 acceperant ; ne per inopiam hominum vel per senectutem descrerentur rura vicina barbariae, quod turpissimum ille ducebat.' (EL. Lamprid. in vita Alex. Severi.) n Gravin. Orig. l. 1. § 159. p Crag. 1. 2. t. 4.

m Wright, 10.

o Spelm. Gloss. 218. Bract, l. 2. c. 16. § 7.

(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.

have been gradually established by the Roman 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 this 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; 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 gain very large [49] 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 vasals, and did homage and fealty to his person. (s) This may possibly have been the æra 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 [ 50 ] extant, (t) and couched in these remarkable words: "Statuimus " ut omnes liberi homines foedere et sacramento affirment, quod intra et extra "universum regnum Anglia Wilhelmo regi domino suo fideles esse volunt; "terras et honores illius omni fidelitate ubique servare cum eo, et contra ini"micos 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

q 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. s Omnes praedia tenentes, quotquot essent notae melioris per totam Angliam, ejus homines facti sunt, et omnes se illí subdidere, ejusque facti sunt vasalli, ac ei fidelitatis juramenta praestiterunt, se contra alios quoscunque illi fidos futuros. Chron. Sax. A. D. 1086.

t cap. 52. Wilk. 228.

u Tenures, 66.

(5) As to Doomsday-book, see Phil. on Evid. 1 vol. 334.