Sivut kuvina

ence, not only according to external proofs, adduced by the parties litigant, but also by the internal testimony of their own private knowlege.*

Besides an oath of fealty, or profession of faith to the lord, which was the parent of our oath of allegiance, the vasal or tenant upon investiture did usually homage to his lord [see note 17, page 108]; openly and humbly kneeling, being ungirt, uncovered, [54] and holding up his hands both together between those of the lord, who sate before him; and there professing that "he did become his man, from that day forth, of life and limb and earthly honour:" and then he received a kiss from his lord. Which ceremony was denominated homagium, or manhood, by the feudists, from the stated form of words, devenio vester homo.1

When the tenant had thus professed himself to be the man of his superior or lord, the next consideration was concerning the service, which, as such, he was bound to render, in recompense for the land he held. This, in pure, proper and original feuds, was only twofold: to follow, or do suit to, the lord in his courts in time of peace; and in his armies or warlike retinue, when necessity called him to the field. The lord was, in early times, the legislator and judge over all his feudatories and therefore the vasals of the inferior lords were bound by their fealty to attend their domestic courts baron,s (which were instituted in every manor or barony, for doing speedy and effectual justice to all

e Litt. 85.

f It was an observation of Dr. Arbuthnot, that tradition was nowhere preserved so pure and incorrupt as among children, whose games and plays are delivered down invariably from one generation to another. (Warburton's notes on Pope. vi. 134. 80.) Perhaps it may be thought puerile to 9 observe 9 (in confirmation of this 9remark 9) that in one of our antient9 pastimes (the king I am or 4 basilinda of Julius Pollux, Onomastic. l. 9. c. 7.) the ceremonies and language of feodal homage are preserved with great exactness.

9 Ninth edition respectively reads and inserts, "It will not I hope."" remark," " observation," and "juvenile."

g Feud. 1. 2. t. 55.

9 Ninth edition inserts here, "that."

* Cited, 6 Call, 131.

the tenants) in order as well to answer such complaints at might be alleged against themselves, as to form a jury or homage for the trial of their fellow tenants: and upon this account, in all the feodal institutions both here and on the continent, they are distinguished by the appellation of the peers of the court; pares curtis, or pares curiæ. In like manner the barons themselves, or lords of inferior districts, were denominated peers of the king's court, and were bound to attend him upon summons, to hear causes of greater consequence in the king's presence and under the direction of his grand justiciary; till in many countries the power of that officer was broken and distributed into other courts of judicature, the peers of the king's court still reserving to themselves (in [55] almost every feodal government) the right of appeal from those subordinate courts in the last resort. The military branch of service consisted in attending the lord to the wars, if called upon, with such a retinue, and for such a number of days, as were stipulated at the first donation, in proportion to the quantity of the land.*

At the first introduction of feuds, as they were gratuitous, so also they were precarious and held at the will of the lord, who was then the sole judge whether his vasal performed his services faithfully. Then they became certain for one or more years. Among the antient Germans they continued only from year to year: an annual distribution of lands being made by their leaders in their general councils or assemblies.i This was professedly done, lest their thoughts should

h Feud. l. 1. t. 1.

i Thus Tacitus: (de mor. Germ. c. 26.) “agri ab universis per vices occupantur: arva per annos mutant." And Cæsar yet more fully: (de bell. Gall. l. 6. c. 21.) "Neque quisquam agri modum certum, aut fines proprios habet; sed magistratus et principes, in annos singulos, gentibus et cognationibus hominum qui una coierunt, quantum eis et quo loco visum est, attribuunt agri, atque anno post alio transire cogunt."

*Cited, 2 Duval, 222: 4 Heisk. 578.

t-t Quoted, 54 N. H. 282.

be diverted from war to agriculture; lest the strong should incroach upon the possessions of the weak; and lest luxury and avarice should be encouraged by the erection of permanent houses, and too curious an attention to convenience and the elegant superfluities of life. But, when the general migration was pretty well over, and a peaceable possession of the new-acquired settlements had introduced new customs and manners; when the fertility of the soil had encouraged the study of husbandry, and an affection for the spots they had cultivated began naturally to arise in the tillers; a more permanent degree of property was introduced, and feuds began now to be granted for the life of the feudatory. But still feuds were not yet hereditary; though frequently granted, by the favour of the lord, to the children of the former possessor; till in process of time it became unusual, and was therefore thought hard, to reject the heir, if he were capable to perform the services: 1* and therefore infants, women and professed monks, who were incapable of [56] bearing arms, were also incapable of succeeding to a genuine feud. But the heir, when admitted to the feud which his ancestor possessed, used generally to pay a fine or acknowlegment to the lord, in horses, arms, money, and the like, for such renewal of the feud: which was called a relief, because it re-established the inheritance, or in the words of the feodal writers, "incertam et caducam hereditatem relevabat." This relief was afterwards, when feuds became absolutely hereditary, continued on the death of the tenant, though the original foundation of it had ceased.

For in process of time feuds came by degrees to be universally extended, beyond the life of the first vasal, to his sons, or perhaps to such one of them, as the lord

k Feud. l. 1. t. 1.

1 Wright. 14.

9 Ninth edition inserts, "raised up and."
*-*Quoted, 54 N. H. 282.

should name; and in this case the form of the donation was strictly observed; for if a feud was given to a man and his sons, all his sons succeeded him in equal portions; and as they died off, their shares reverted to the lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation.m But when such a feud was given to a man and his heirs, in general terms, then a more extended rule of succession took place; and when a9 feudatory died, his male descendants in infinitum were admitted to the succession.* When any such descendant, who thus had succeeded, died, his male descendants were also admitted in the first place; and, in defect of them, such of his male collateral kindred as were of the blood or lineage of the first feudatory, but no others. For this was an unalterable maxim in feodal succession, that "none was capable of inheriting a feud, but such as was of the blood of, that is, lineally descended from, the first feudatory."n And the descent, being thus confined to males, originally extended to all the males alike; all the sons, without any distinction of primogeniture, succeeding to equal portions of the father's feud. But this being found upon many accounts inconvenient (particularly, by dividing the services, and thereby weakening the strength of the feodal union), and honorary feuds (or titles of nobility) being now introduced, which were not of [57] a divisible nature, but could only be inherited by the eldest son; in imitation of these military feuds (or those we are now describing) began also in most countries to descend according to the same rule of primogeniture, to the eldest son, in exclusion of all the rest.P

Other qualities of feuds were, that the feudatory could not aliene or dispose of his feud; neither could



Wright. 17.

Ibid. 183.

o Feud. 2. t. 55.

p Wright. 32.

9 Ninth edition reads, "the."
+-* Quoted, 54 N. H. 282.

he exchange, nor yet mortgage, nor even devise it by will, without the consent of the lord. For, the reason of conferring the feud being the personal abilities of the feudatory to serve in war, it was not fit he should be at liberty to transfer this gift, either from himself, or from his posterity who were presumed to inherit his valour, to others who might prove less able.* And, as the feodal obligation was looked upon as reciprocal, the feudatory being entitled to the lord's protection, in return for his own fealty and service; therefore the lord could no more transfer his seignory or protection without consent of his vasal, than the vasal could his feud without consent of his lord; it being equally unreasonable, that the lord should extend his protection to a person to whom he had exceptions, and that the vasal should owe subjection to a superior not of his own choosing.t

These were the principal, and very simple, qualities of the genuine or original feuds: which were all of a military nature, and in the hands of military persons: though the feudatories, being under frequent incapacities of cultivating and manuring their own lands, soon found it necessary to commit part of them to inferior tenants; obliging them to such returns in service, corn, cattle, or money, as might enable the chief feudatories to attend their military duties without distraction: which returns, or reditus, were the original of rents. And by these means the feodal polity was greatly extended; these inferior feudatories (who held what are called in the Scots law "rere-fiefs") being under similar obligations of fealty, to do suit of court, to answer the stipulated [58] renders or rent-service, and to promote the welfare of their immediate superiors or lords. But this at the same time demolished the antient simplicity of feuds; and an inroad being once made upon their constitution, it subjected them, in a 8 Previously, "being then."

q Ibid. 29.
r Ibid. 30.

s Wright. 20.

- Quoted, 54 N. H. 282.

† Cited, 18 Johns. 185; 9 Am. Dec. 198.

« EdellinenJatka »