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 (h). Allotments, thus acquired, naturally engaged such as Its effects. accepted them to defend them: and, as they all sprang from * the same right *of conquest, no part could subsist indepen- [ 46 ] dent 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 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 (h) Feud. 1. 2, t. 24. ligeum contained a saving or exception of faith due to other lords, and the homager might at any time free himself from feudal dependence, by renouncing the land with which he had been invested. (Du Fresne Gloss. voc. Hominium, Legius, et Fidelitas.) Mr. Hargrave (in note 1, to Co. Litt. 68 a) says, in some countries on the continent of Europe, homage and fealty are blended together, so as to form one engagement; and therefore, foreign jurists frequently consider them as synonymous. But, in our law, whilst both continued, they were in some respects distinct : fealty was sometimes done where homage was not due. (See post, p. 53, n.) And Lord Coke himself tells us, (1 Inst. 151 a,) fealty may remain, where homage is extinct. So, Wright, (L. of Ten. 55, in note,) informs us, that it appears not only from the concurrent testimony of all our most authentic ancient historians, (whom he VOL. II. cites,) but likewise from Britton, Brac- The short result appears to be, that, The manner of doing homage and fealty, is prescribed by the act of 17 Edw. II. st. 3, which enactment abundantly proves the distinct nature of the two acknowledgments at that time. H Its policy. they had given. Thus the feodal connexion 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 (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 (5), among all those nations, which in complaisance to the Romans we still call barbarous, may appear from what is recorded (k) 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 mar"tius 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 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, [ 47 ] and Franks broke in upon Gaul, the Visigoths on * 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 too it is probable that the emperor Alexander Severus (1) took the hint, of dividing lands conquered from the enemy among his generous 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 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 (6), (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 (7) of military fealty (m). And thus, in the com- Its progress. (m) Wright, 10. (6) One striking difference between allodial and feudal tenure consisted in this, allodial lands entered into commerce. They were saleable or otherwise alienable, at the pleasure of the possessor, either by deed or will; and they were attachable to answer his debts. But, the holder of a fief was only an usufructuary; he could not alienate the lands without the consent of the lord, and also of his own male issue, if he had any born at the time; even supposing he was the first purchaser of the fee; and if he took it by descent, after the doctrine of collateral descent was established, then the consent of all the living collaterals who might possibly become entitled to the succession, was likewise required. Feudal estates also were not liable to the debts contracted by the feudatory; for this would have deprived the lords, and the heirs of the tenants, of their rights. Neither could the creditor attach the profits of the land during the life of the debtor; for this might have rendered the vassal incapable of the duties of the fief. But, as the strictness of the As to the gradual progress by which (7) The mode of making this change, when it was, or bore the semblance of being, a voluntary act, effected by course of law, is detailed by Marcul.. fus, (book 1, formulary 13;) the owner of the land gave it to the king, who restored it to the donor, by way of usufruct, or feudal benefice. And the civil security, and political advantages, which a feudatory enjoyed, were in some respects so much superior to those which an allodial proprietor could depend upon, in those days of anarchy and violence, that it is not unreasonable to believe the conversion of absolute allodial properties into conditional feudal tenures, was frequently voluntary. (See Montesquieu, book 31, chap. 8.) The period of its reception in this country. pass 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 material 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). *But this feodal polity, which was thus by degrees established over all the continent of Europe, seems not to have [ *48] 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 (o). 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) (8). This introduction, however, of the feudal tenures into Norman barons. England, by King William, does not seem to have been effected immediately after the conquest (9), nor by the mere Its gradual establishment by the (8) See ante, note (2) to this chapter. The reader, who wishes to go further into the inquiry how far the institutions of feudality, or regulations analogous thereto, were established in this country in the time of the Saxons, will do well to consult Turner, (Hist. of Anglo-Sax. book 9, chap. 3,) where he will find sufficient evidence that, to Saxon grants of land conditions of military service were generally annexed; but, he will also see reason to conclude that such grants, and the ex peditio militaris with which they were burthened, were, in several essential respects, very different from the tenures of feuds, as created by the military policy of the Normans. (9) Wright (in his Law of Ten. 52 -57) observes, "it is very remarkable, that William I., about the twentieth year of his reign, just when the general survey of England, called Domesday-book, is supposed to have been finished, and not till then, summoned all the great men and land 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. Indeed, 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 seized on all the lands of England, and dealt them out again to his own favourites. A supposition, Signification of grounded upon a mistaken sense of the word conquest; quest. which, in its feodal acceptation, signifies no more than acquisition (10); and this has led many hasty writers into a holders in the kingdom to do their homage, and swear their fealty to him; by doing whereof the Saxon chronicler supposes, that, at that time, proceres et omnes prædia tenentes se illi subdidere, ejusque facti sunt vassalli. So that we may reasonably suppose, first, that this general homage and fealty was done at this time, (nineteen or twenty years after the accession of William I.,) in consequence of something new; or engagements so important to the maintenance and security of a new establishment would have been required long before; and if so, it is probable that tenures were then new, inasmuch as homage and fealty were mere feudal engagements, binding the homager to all the duties and observances of a feudal tenant. Secondly, that as this general homage and fealty was done about the time that Domesday-book was finished, and not before, we may suppose that that survey was taken upon, or soon after, our ancestors' consent to tenures, in order to discover every man's fee, and to fix his homage: this supposition is the more probable, because it is not likely that a work of this (10) It seems to have been a point 66 the word con |