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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.
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
tion of inferior to superior, of mann to hlaford, in the Anglo-Saxon books, the purely personal relation which beginning with the comitatus, and continued in the form of commendation, belonged to socage tenure as well as to knight-service, and even survived to take the form of allegiance to the king or commonwealth in our own day. Homage, on the other hand, only made its appearance when the relation became one of land as well as of persons. It was the recognition of service due to the lord, not merely as superior, but as the giver of a benefice or fee. It was rendered for each several holding, while fealty was personal. All other differences were merely consequences of this. We cannot doubt that the development of homage was coincident with the change from personal to territorial law, from sovereignty of the tribe to sovereignty of the territory, and especially with the introduction of feudalism into England. It also marked an important difference between the system there and elsewhere.
The importance given to the livery of seisin, the actual transfer of the tenement, the freehold by the feoffor, in English law, in contrast to its neglect on the continent, has attracted general attention. Of course it has been attributed to Roman influence, like everything else not easily explicable; and it is surprising that Gundermann even has copied this explanation, although elsewhere he has expressly stated the true reason, or rather the fact which forms the complementary effect, that the English law places no weight on investiture, because it coalesced with homage. (Englisches Privatrecht, 10, p. 202.)
Livery by the feoffor became important for the very reason that livery by the lord, i. e., investiture, did not. Merging in homage, an act subsequent to the traditio, and presupposing the latter, investiture could not well be the constitutive fact that gave the new estate, and livery of seisin must occupy its place. The contrast in
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.