CHAPTER THE FOURTH.

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 it's 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 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 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 scholar-like scientifical manner, without having recourse to the antient. 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.

b

THE constitution of feuds had its original from the [ 45 ] military policy of the northern or Celtic nations, the Goths,

• Of parliaments, 57.

See Spelman, of feuds; and Wright,,

of tenures, per tot.

the Huns, the Franks, the Vandals, and the Lombards, who all migrating from the same officina gentium, as Crag very justly entitles it, 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. These allotments were called feoda, feuds, fiefs, or fees; which last appellation in the northern languages signifies a conditional stipend or reward'. 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: 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 ".

e

ALLOTMENTS, thus acquired, naturally 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

De jure feod. 19, 20. • Wright, 7.

Spelm. Gl. 216.

f Pontoppidan, in his history of Norway, (page 290) observes, that in the northern languages ooh significs proprietas and all totum. Hence he derives the obba! 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, allobh, will give us the true etymology of the allo dium, or absolute property of the feud. ists; 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.

See this oath explained at large in Feud. 1.2. t. 7.

Feud. 1.2. t. 24.

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 in defence of the whole, and of every part of this their newly-acquired country'; the prudence of which constitution was soon sufficiently visible in the strength and spirit with which they maintained, their conquests. (1)

i Wright, 8.

(1) Mr. Hallam gives an account of the origin of the feudal system rather different from that in the text. He says, that when the Ger manic tribes poured down upon the empire, the conquerors made partition of the lands between themselves and the original possessors, some tribes taking a larger, some a less portion to themselves. The estates of the conquerors were termed allodial, subject to no burden but that of public defence, and inheritable. Besides these lands, others also were reserved out of the share of the conquered for the crown, partly to maintain its dignity, partly to supply its munificence. These were the fiscal lands, and for the greater part were gradually granted out under the name of benefices; and if the donation was not accompanied by any express reservation of military service, yet the beneficiary was undoubtedly more closely connected with the crown, and bound to more constant service than the allodial proprietor.

Mr. Hallam thinks that there is no satisfactory proof that these benefices were ever resumable at pleasure, but that from the beginning they were ordinarily granted for the life of the grantee. Very early they became hereditary, and as soon as they did so, they led to the practice of subinfeudation, which he deems the true commencement of the system of feudal tenures.

Still at this point the far larger part of the lands remained allodial, and the extension of the feudal system is to be attributed, in his opinion, to the førlorn and unprotected state in which the allodial proprietor found himself during the period of anarchy and private warfare, which followed soon after the death of Charlemagne. In those times, the connection between the beneficiary and the vasal was a protection to both the former abstained from acts of violence against the latter, and both together protected each other against the attacks of others;, while the isolated allodialist, to whom the crown in its weakness could afford no succour, was left a com E

VOL. II.

mon

THE universality and early use of this feodal plan, among all those nations, which in complaisance to the Romans we

mon prey for all. This led to a voluntary subjection of themselves to feudal lords upon feudal conditions, and to the gradual diminution, though not extinction, of allodial estates.

Mr. Hallam mentions a custom 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 vasal 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 vasal.

This manner of accounting for the rise of the feudal system appears to me more reasonable and natural than the common theory, that which is stated in the text; and principally on two grounds, 1st, What we know of the composition of the Germanic armies who overran the empire makes it very unlikely either that the general would be actuated by so refined a policy as that supposed, or that the soldiery would have submitted to take their estates as gifts to be held of him, or their superior officers, on feudal conditions. Every one is familiar with the story of Clovis and the vase of Soissons. If he was unable to select a single jewel out of the spoil for himself by his own authority, and the meanest soldier considered his own right to his share to stand on the same footing precisely as that of the king to his, is it probable that the whole army would submit to take their lands on any other footing, than that of their being the respective portions of the territory to which their own swords had given them an independent title?

2dly. The theory assumes, that the foundation of the feudal system was the public defence; this also appears to me a refined after-thought not warranted by the fact. No doubt, even if the first conquerors took their lands allodially, as Mr. Hallam supposes, they were bound on general principles, principles among the very earliest in the growth of civil society, to come forward in defence of the public safety. But the feudal principle is a private one of mutual defence against private dangers; it was adapted to meet that state of anarchy and private warfare, in which individuals did not look to the crown or the laws, but to their own strength, protectors, or dependents, for safety against violence and oppression. The vasal took his oath of fealty to his immediate lord, and to no other, and the oath was without any reservation. Accordingly, it was a part of the law to define under what circumstances the vasal was bound, upon pain of losing his fief, to follow his lord, even in his wars against the king; and the very circumstance of a limitation of cases being made, seems to imply a time when he was bound to do so in all cases. In some districts, indeed, the vasal owed no service to the king; and in others, he was only bound to follow the lord in his wars to the limits of the lord's territory. It is not surprising, however, that English lawyers should have adopted an opposite

theory,

k

46

still call barbarous, may appear from what is recorded 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 daret, quasi stipendium; caeterum, ut vellet, mani"bus atque armis suis uteretur.” The sense of which thus rendered; they desired stipendiary lands (that is, feuds) be may 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 Spain, and the Lombards upon Italy; and introduced [ 47 ] 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' 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

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 vasals, those who held of him in chief, but of their vasals 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 seignior le roy. Hallam's M. Ages, ch.2. p.1. ch.8. p.2. See also Robertson's Cha, V. vol. 1. n. (8). s.1. p. 18. H,