we find a scheme perfectly analogous to that of Severus, adopted in India, among the Timarriots in the Turkish Empire, and by other nations. The seeds of the feudal system were sown, as we shall presently show, in the character and policy of the ancient Germans, but the full developement of it was owing to causes that began to operate subsequently to the first settlement of the Northern hordes in the countries which they over-ran. Those causes are to be sought for in the violence and anarchy of a dark age, when not only every kingdom, but every dutchy, every county, every district, was subject to the incursions of its enemies-when, in short, there was a war of all against all.

*

This opinion is supported with exact learning and unanswerable force of argument by the Abbé de Mably, whose "Observations upon the History of France" have been pronounced by a competent judge, the most precious monument, beyond all controversy, that has been raised out of the wreck of the nation's early annals. This writer maintains that what are called seigneuries, that is, the legal superiority of one estate or possession to others, coupled with a jurisdiction over its inhabitants, were altogether unknown to the Franks-that such an institution was inconsistent with their ideas of independence and equality-and that no trace whatever of tenures, properly so called, occurs in the Salique and Ripuarian codes. He thinks that they were produced by revolutions in the government which occurred after the Franks had been established in Gaul for upwards of a century. In reply to the assertion of Montesquieu, that they were not usurpations of a more recent date, but grew necessarily out of the peculiar constitution or polity of the Germanic tribes, he urges that this is quite inconceivable; for what fiefs or benefices had the German chieftains to bestow? How could the right of distributing justice, be incident to the gift of a war-horse or a battle-axe?

Montesquieu founds his opinion upon a well known passage in the Treatise de Moribus Germanorum,‡ in which Tacitus draws a very lively picture of the free and warlike manners of those barbarians. Our readers will excuse us for translating this passage once more, since it is necessary to bring out, completely, some of our subsequent speculations. The historian represents these tribes as forming a sort of military democracy, and consulting in full council upon every important matter of public interest:

* Grimm. Corresp. Littéraire, tome 15. p. 657.

t Observations sur l'Hist. de France, lib. i. c. 3. Note,

cc. 11, 12, 13, 14.

"There, the king, or the chieftain, according to his age, his nobility, his renown in war, his eloquence, sways his audience more by authority to persuade than by power to command them. If what he proposes displease them, they reject it with loud murmurs-if it please them, they shake their javelins."

66

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*

They transact no business, whether public or private, unarmed. But none is allowed to bear arms, until his ability to use them be approved by the tribe. Then, in the presence of the whole people, some one of the chieftains, or his father, or a relative, equips the young warrior with shield and javelin-this is their toga virilis-this, the first honour of youth-before this, he was a member of a family, henceforth he belongs to the commonwealth—an illustrious extraction, or signal merits in their ancestors, entitle some young men to the rank of hereditary chieftain. The rest, enlist themselves under the banners of leaders already tried and distinguished in war, nor is it any disgrace to be seen among their retainers. Nay, in this companionship, there are different degrees of honour, assigned according to the judgment of the chiefs, and thus a mighty emulation is excited among the followers of each chief, to be first in his esteem and favour, and among the chiefs themselves, to have the most numerous and warlike followers. This is their dignity, this their strength, to be surrounded always by a host of noble youths-their ornament in peace, their defence in war.

"When they go into battle, it is a reproach to the chieftain that any one should surpass him in prowess; it is a reproach to his followers if they do not emulate the prowess of their chieftain. Especially is it a foul disgrace to a warrior, an indelible blot upon him through life, to have quitted alive the battle-ground on which his chief had fallen. To defend him, to protect him, to ascribe to him the glory even of his own achievements, is the soldier's first and most sacred obligation. The chieftains fight for victory-the retainers, for the chieftain. If the tribe in which they are born be languishing in the inactivity of a protracted peace, most of the young nobles enter as volunteers into the service of such nations as happen to be at war. This they do not only because they are naturally impatient of repose and more easily acquire distinction amidst dangers and difficulties, but also because there is no means of supporting a numerous band of retainers but by violence and war, for it is from the liberality of the chieftain that they exact the warrior-horse, the bloody and victorious javelin, which they long to possess. Feasts and bountiful, though homely entertainments, are their pay. Their only means of munificence are war and rapine. You will not so easily persuade them to till the earth and wait the revolutions of the seasons, as to challenge their enemies and peril their own lives-nay, they think it base and cowardly to earn by sweat and toil what may be purchased with blood."

We perceive in this account. of the customs and character of the Germanic tribes, while they were still wandering in their forests, the germ of those institutions which they subsequently spread over the greater part of Europe. But it is plain that any thing like a refined and complex system of feods was incompati

ble with a state of society so rude and simple. Taking it for granted, therefore, that it is inaccurate to refer the establishment of this system to the downfall of the western empire, we may venture to affirm that many centuries must have elapsed before allodial tenures were supplanted by feudal, and before the intricate jurisprudence of the latter assumed a settled and systematic form.

This happened at different periods, in different nations. In France, according to Montesquieu, fiefs became hereditary, and, consequently, the foundation of the independence and grandeur of the feudatories was laid as early as the reign of Charles the Bald, who established that principle in his capitularies. In Germany, this great change in the system, did not take place until nearly two centuries afterwards. It is stated in the Book of Fiefs, that the retainers of the Emperor Conrad, who began his reign in 1024, prevailed on him to ordain that grand-children should succeed to such feuds as were before that time transmissible to children, and that brothers should inherit to brothers in a feudum antiquum, where there were no heirs of the body. It was a still later period before distant collaterals were allowed to profit by the merits or good fortune of a common ancestor. In England, although some writers fancy they perceive the origin of tenures in the Thane-land and Reve-land of the Saxons, it is not probable that any general and systematic establishment of feuds took place before the Norman conquest.

Such, however, were the advantages in those times of darkness and anarchy, attendant upon the feodal contract of protection and service, that during the tenth and eleventh centuries, the allodial tenures almost universally disappeard, and nulle terre sans seigneur became a general rule both in France and in England.

II. The definition given of a fief, in the Book of Feuds, (of which we shall presently say more) is as follows: "A fief or benefice is that which is given out of pure good will to any one, on this condition, that the property of the thing shall still remain in the giver, but the possession and enjoyment of its fruits and profits (usus fructus) belong to the donee and his heirs, to the intent that he and his heirs shall faithfully serve the lord or donor."+

These services were at first purely military—so much so, that according to the highest authorities, those only deserve the name of proper feuds, "which in all respects preserve the nature

*Esprit des Loix, lib. xxxi. c. 28.

+ Feudor. lib. ii, Tit. 23.

of an original feud, that is to say, such as are militiæ gratiâ, generously given without price or stipulation to persons duly qualified for military service, the requisite renders or rather obligations as social duties, resulting from the nature and design of a feodal confederacy, being properly uncertain and emergent as the occasions of war and defence."*

From the military nature of feuds, it followed in strictness, that no person was capable of holding them who could not bear arms, and accordingly, we find that monks were expressly excluded from them at all times; because, says the book, he has ceased to be a soldier of this world, who is become a soldier of Christ; women were originally in the same predicament, though they were afterwards admitted to the inheritance where female heirs were specially mentioned in the original gift or feoffment, but not otherwise-it was a debatable matter whether a son who was deaf or dumb, or blind or lame, or labouring under any other serious physical defects, could take the estate of his father.‡

And, inasmuch as this military relation arising between the givers and receivers of feuds, implied a special confidence reposed by the former in the personal qualifications of the latter, it followed, 1st, that fiefs were originally precarious, and held strictly at the will of the lord, and that it was not until many centuries were elapsed, as has been already observed, that they passed through all the gradations of estates at will, for years, for life, hereditary sub modo, absolutely hereditary, &c. by a process carefully traced in the Book of Fiefs. 2dly. That the feudal donation was never extended beyond the words by any presumed intent, insomuch, that if the donation were to a man and his sons, all the sons succeeded per capita, and if one of them died, his part did not descend to his children or survive to his brothers, but reverted to the donor.§ 3dly. That the feudatory could not alien his fief without the consent of the lord, nor exchange, pledge, mortgage, or otherwise subject it to his debts, or by any other means put it into the hands of a stranger. 4thly. That even when feuds were become hereditary, and the confidence of the lord was, in legal contemplation, extended to all who were of the blood of the vassal or feudatory, the latter could not devise or dispose of the fee by will, or by any means prevent or vary the feudal course of succession, which, in all proper feuds, was to the sons as tenants in common, until honorary fiefs becoming indivisible, they, and in imitation of them,

*Wright's Tenures, p. 27. Feud. lib. ii. Tit. 21, (109) cf. ib. Tit. 26, 30. Ibid. Tit 36. Lib. i. Tit. 1. § Wright's Ten. p. 17, ¶ Ibid. p. 29, Feud. lib. i. Tit. 13, 21, &c.

military feuds in most countries, began to descend to the eldest son alone.*

We might go on and account in the same way for all the fruits and incidents of feudal tenure, such as marriage, wardship, reliefs, fines for alienation, (in later times) &c. In doing so, however, we should far transcend our limits, and we shall content ourselves with barely referring our readers to Sir John Dalrymple's admirable treatise on Feudal Property, in which the whole subject, especially this part of it, is developed in a masterly manner. We will here add only two observations which strike us as particularly important. The first is, that as Mr. Butler remarks,‡ at the first establishment of fiefs, land or immoveable property, in the narrowest sense of that word, was the only subject of a fief. To this is owing that wide difference between real and personal estate in all their legal incidents and qualities, which pervades the whole system of English jurisprudence, and is almost wholly unknown to the civil law-a difference, which it is the great object of Mr. Humphreys to abolish altogether, by effacing every vestige of feudal principles. Our second observation is, that the feudists considered the gift of a fief as a contract executed, and equally binding upon both the parties, so that it was one of their established rules, that as the vassal could not alien his fee without the consent of the lord, so neither could the lord alien his seignory without the consent of his vassal. In the progress of society, one, among many other difficulties. and inconveniences arising out of these restraints upon property, very soon presented itself. Feuds, as we have seen, being held by a military tenure, were of course in the hands of military men, who were neither able nor willing to cultivate their own lands, and yet were not allowed to alien or transfer them to those who were. To remedy this inconvenience, without violating the principles of the system, recourse was had to what was called subinfeudation. That is to say, the feudatory who, we shall suppose, received his fief of the king, enfeoffed other persons of some portion of it, who were to hold of him as his vassals, and who again enfeoffed others, and so on in infinitum. This, however, brought about an important change in the system. Instead of military service, these arrere-vassals or subtenants were bound to pay rents, or returns in corn, cattle or money to their superior lords. It is manifest also, that the feudal policy must have been by this means, prodigiously extended; nor can we wonder at the important political consequences it produced, when we consider the nature of that relation which subsisted between even the most humble vassal and his immediate sub*Feud. lib. i. Tit. 8.-Ib. lib. ii. Tit. 55. p. 44, et seq. Co. Litt. 191, a. note 77. VOL. III.-No. 5.

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