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. "It came not with observation." 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 this respect of common freeholds to copyholds, wherein an investiture by the lord or his steward always remained the form, and to the form which Edward II. tried to establish for tenants in capite, shows us plainly why investiture was deemed incompatible with the rights of freemen. Fealty, fidelitas, had become a duty of the subject generally, without reference to the comitatus, at least as early as the ninth century. In the Capitulum instructing the Missi how they were to proceed in their investigations, A. D. 828 (Walter, C. J. G. ii. 374), it is expressly provided that they are to begin by selecting the better and more veracious men of each county, and if any of them be found not to have promised fealty already to the emperor, he is to do so. They are then to be instructed in their duties, and that they are to report delinquencies, as they desire to keep whole their faith and promise, knowing that if one be found to have spoken aught but truth he is to be reckoned untrue to his fealty-infidelis. CHAPTER THE FIFTH. OF THE ANTIENT ENGLISH TENURES. In this chapter we shall take a short view of the antient tenures of our English estates, or the manner in which lands, tenements and hereditaments might have been holden; as the same stood in force, till the middle of the last century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other; being fruits of, and deduced from, the feodal policy.* Almost all the real property of this kingdom is by the policy of our laws supposed to be granted by, dependent upon and holden of some superior3 lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore stiled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. [See note 18, page 133.] Thus fall the land in the kingdom is supposed to be holden, mediately or iminediately, of the king; who is stiled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king; and thus partaking of a middle nature, were called mesne, or middle, lords.' So that if the king granted a manor to A, and he granted a portion of the land to B, now B was said to hold [60] of A, and A of the king; or in other words, B held his lands immediately of A, but mediately of 3 Prior editions insert here, "or." * Cited, 2 Duval, 222, this respect of common freeholds to copyholds, wherein an investiture by the lord or his steward always remained the form, and to the form which Edward II. tried to establish for tenants in capite, shows us plainly why investiture was deemed incompatible with the rights of freemen. Fealty, fidelitas, had become a duty of the subject generally, without reference to the comitatus, at least as early as the ninth century. In the Capitulum instructing the Missi how they were to proceed in their investigations, A. D. 828 (Walter, C. J. G. ii. 374), it is expressly provided that they are to begin by selecting the better and more veracious men of each county, and if any of them be found not to have promised fealty already to the emperor, he is to do so. They are then to be instructed in their duties, and that they are to report delinquencies, as they desire to keep whole their faith and promise, knowing that if one be found to have spoken aught but truth he is to be reckoned untrue to his fealty-infidelis. |