gentium, as Crag very justly entitles it, poured themselves in vast quantities into all the régions 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.* 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 с De jure feod. 19, 20. 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. Hence he derives the odhal right in those countries; and hence too perhaps is derived the udal right in Finland, etc. (See Mac Doual. Inst. part. 2.) Now the transposition of these northern syllables, allodh, will give us the true etymology of the allodium, or absolute property of the feudists as, by a similar combination of the latter syllable with the word fee (which signifies, we have seen, a conditional reward or stipend) feeodh or feodum will denote stipendiary property. 9 Ninth edition reads "thence." g See this oath explained at large in Feud. 1. 2. t. 7. h Feud. 1. 2. t. 24. *-* Quoted, 4 Heisk. 578. could subsist independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each others 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 were 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 prudence of which constitution was soon sufficiently visible in the strength and spirit, with which they maintained their conquests. 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 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 aera. They demanded of the Romans, "ut martius populus aliquid sibi terræ daret, quasi stipendium: cæterum, ut vellet, manibus atque armis 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 lords should i Wright. 8. k L. Florus. l. 3. c. 3. 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 [47] 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 5 too 5 it is probable that the emperor Alexander Severus1 took the hint, of dividing lands conquered from the enemy among his generals and victorious soldiery," on condition of receiving military service from them and their heirs forever. 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 ma 1 'Sola, quæ de hostibus capta sunt, limitaneis ducibus et militibus donavit; ita ut eorum ita essent, si hæredes 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 desererentur rura vicina barbariæ, quod turpissimum ille ducebat." (Æl. Lamprid. in vita Alex. Severi.) 9 Ninth edition inserts, " duly stocked with cattle and bondmen." terial 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 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 accepit.n [48] 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. Not but that it is reasonable 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 feodal 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 have been gradually established by the Norman 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 his title was established. 4 n Gravin. Orig. l. 1. § 139. o Spelm. Gloss. 218. Bract. l. 2. c. 16. § 7. p Crag. l. 1. t. 4. Indeed *Cited, 6 Conn, 500, to show the allodial character of lands in that state. 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 seised 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 it's 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, [49] certain it is, that the Normans now began to gain very large 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 it's 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, 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 it's stead, the kingdom was wholly defenceless: which occasioned the king to bring over a large army of Normans and Bretons, who were quartered upon 4 q A. D. 1085. 4 4 Previously, "perhaps we may be able to ascertain." |