8

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 comprized 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 licence; 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 other respects follow the nature of an original, genuine, and proper feud..

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 subtility of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon, began also to exert it's 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.

t Feud. 2. t. 7.

8 Previously, "came."

NOTES OF THE AMERICAN EDITOR TO CHAPTER IV.

(16) of the feudal system, page 44.

Blackstone's view of the feudal system, like that of his contemporaries, Hume, Robertson, and others, was different from that which a century more of earnest study has given us. It was based on Montesquieu's spirited and sympathetic picture of the constitution which our ancestors found in their native woods; and naturally over-estimated the unity and completeness of feudalism as a system of laws by as much as it had been unjustly depreciated before the eighteenth century. To review it as a whole would go beyond an editor's duty, and exceed the utmost limits possible for these notes: to modify each inference would be even more tedious. I must confine myself to a few corrections of the point of view, mostly in negative form.

1. Feudalism was not so thoroughly ingrained in Teutonic life and law as it was then supposed to be. It was not the constitution of every tribe of that race, nor did it date from prehistoric times; at least in the form of land tenure.

2. It was never so uniform or so systematic over all the barbarian kingdoms and principalities as it seemed to those who studied it in the Liber Feudorum, and other deposits of a later age.

3. Hence it originated very little, but acted chiefly by modifying the institutions which it found existing in each community.

4. Nor could it be carried from place to place by a conscious effort, or introduced by a command. came not with observation."

"It

5. Still more important is the fact that its effect upon land was not due entirely to gifts made by the king in the first place, and always by the lord to the vassal. This was the theory of later writers, under the natural impulse to flatter the powerful. In the early days of feudalism, the relation was produced as often by the

tenant's choice of a lord, "going with his land where he will," in the language of Domesday, as by the lord's donation to the tenant. The distinction between these two kinds of feud, feuda data and feuda oblata, is very plain in the continental writers, especially the older ones. Blackstone ignores it because it was inconsistent with the doctrine of the English law, that all lands must be held of the king, or as he is careful to say, "is supposed to be holden thus." (p. 59.)

I place in subordination to these, rather than on a level with them, the observed facts that: (1) It never had any legislative organ. (2) Or any recognized objects. (3) It operated on men's conscience and convictions, not in their outward acts. (4) It dealt with personal relations and not with property in the first place. (5) It never was a system of land ownership except through the owners.

Its task was to re-organize the human race- -the European portion of it—which had been left by the fall of the Roman Empire in a condition of social chaos. It had to deal with the two great classes of men- the northern barbarians, who had never known a settled government, and the Roman provincials, who had never known anything but a settled government-and to bring these two under a system in which they could live together in social order and peace. The first object then of all its rules was the regulation of men, not of property.

In one sense it may be said that the feudal system never was one of title to land in our sense of the word; for never while that system lasted was land regarded as merely the object of private property in the same light with chattels. The modern notion that a man owns his farm or house lot as absolutely as his horse or his coat was utterly unknown to feudalism, and alien to its spirit. The very foundation of the feudal law of real property was that the state or king as representing

the state was the only true owner of all the land comprised within its boundaries. But even for the modified or partial ownership of an "estate in land" which the system recognized, it provided no system of titles that was designed exclusively for that purpose. It regarded estates in land as mere incidents to other rights and duties as mere appanages to certain positions in the social system. Therefore all the rules which governed the creation, transfer, or enjoyment of estates were mere corollaries to the principles which regulated the more important matters of social and political rank and power. Feudalism acted directly on the baron, knight, freeholder, villein, and only incidentally on such shares of the national domain as fell to be used by each.

Of the feud itself, I quote this brief account from Sharswood's Lectures (Lect. viii. pp. 207, 216, 228): "There are three great distinguishing principles of the feud. They are to be carefully separated from a number of incidents which do not necessarily belong to it. (1) All lands are derived, mediately or immediately, from the supreme power in the nation—from the king or from the people, the state. (2 Blackst. Com. 51-53, 105.) (2) The second great principle of feudalism may be stated to be that the indispensable condition of tenure is fealty; in other words, fidelity to the lord on the part of the tenant. . . . . So essential is fealty (not homage) to the feudal relation that it cannot be released. To extinguish it is to convert the feud into allodium; and this in England, neither king nor lord can do. Fealty was incident to all tenures, whatever their nature, except, perhaps, frankalmoine. (3) The third fundamental characteristic of the feud was that a breach of the obligation of fidelity was followed by forfeiture of the estate of the tenant." (Lib. Feud. ii. 26.) So a breach of the obligation of fidelity is a forfeiture of the estate of the tenant. (Lyle v. Richards, 9 Serg. &

R. 322.) While I believe that the direct effect of feudalism upon English land law was exaggerated by Blackstone and all his contemporaries, I would add that one very great debt we owe to that system has never been properly acknowledged. The commendation of early English law was the first example of a relation in which one freeman recognized his subjection to another: the first control of a superior over an inferior that was not mere slavery. As commendation is now acknowledged to be the first form of English feudalism, this is equivalent to saying that feudalism made a secure government possible without destroying human freedom.

(17) Beside an oath of fealty did homage to the lord, page 53.

....

the vassal usually

It would be well if our modern books told us more of the real meaning of fealty and homage, and the distinction between them, even if it were necessary to omit the description so often repeated from Blackstone of the form in which homage was rendered. This to be sure is interesting, and lends picturesque color to what would otherwise be a dry statement of obsolete law. But it throws no light on the connection between these acts and the rights which they symbolized.

They mark distinct stages in the advance of the feudal system; fealty is the representative of the original tie between lord and man as a personal relation; homage is the recognition of the tenure of land by the dependent, the pledge of service to the landlord. It retains its distinctive character more completely in England than on the continent, probably because it takes the place and fulfills the office of the investiture, otherwise unknown to the free tenures of the island.

The two terms distinguished in English law as a matter of form, and entirely confounded by the later writers of the continent, preserve the memory of the two great stages of the feudal law. Fealty is the rela