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every landholder, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might co-operate with the king's remonstrances, and the better incline the nobility to listen to his proposals for putting them in a posture of defence. For, as soon as the danger was over, the king held a great council to inquire into the state of the nation; the immediate consequence of which was the compiling of the great survey called domesday-book, which was finished in the next year: and in the latter end of that very year the king was attended by all his nobility at Sarum; where all the principal landholders submitted their lands to the yoke of military tenure, became the king's vasals, and did homage and fealty to his person. This may possibly have been the aera of formally introducing the feodal tenures by law; and perhaps the very law, thus made at the council of Sarum, is that which is still extant,t [50] and couched in these remarkable words: "statuimus, ut omnes liberi homines foedere et sacramento affirment, quod intra et extra universum regnum Angliæ Wilhelmo regi domino suo fideles esse valunt; terras et honores illius omni fidelitate ubique servare cum eo, et contra inimicos et alienigenas defendere." The terms of this law (as sir Martin Wright has observed") are plainly feodal: for, first, it requires the oath of fealty, which made in the sense of the feudists every man that took it a tenant or vasal: and, secondly, the tenants obliged themselves to defend their lord's territories and titles against all enemies foreign and domestic.

r Rex tenuit magnum concilium, et graves sermones habuit cum suis proceribus de hac terra quo modo incoleretur, et a quibus hominibus. Chron. Sax. ibid.

8 Omnes prædia tenentes, quotquot essent notæ melioris per totam Angliam, ejus homines facti sunt, et omnes se illi subdidere, ejusque facti sunt vasalli, ac si fidelitatis juramenta præstiterunt, se contra alios quoscunque illi fidos futuros. Chron. Sax. . D. 1086.

t Cap. 52. Wilk. 228.

u Tenures, 66,


But what clearly evinces the legal establishment of this system, is another law of the same collection," which exacts the performance of the military feodal services, as ordained by the general council. "Omnes comites, et barones, et milites, et servientes, et universi liberi homines totius regni nostri prædicti, habeant et teneant se semper bene in armis et in equis, ut decet et oportet: et sint semper prompti et bene parati, ad servitium suum integrum nobis explendum et peragendum, cum opus fuerit; secundum quod nobis debent de fœdis et tenementis suis de jure facere, et sicut illis statuimus per commune concilium totius regni nostri prædicti."

The new polity therefore seems not to have been imposed by the conqueror, but nationally and freely adopted by the general assembly of the whole realm, in the same manner as other nations of Europe had before adopted it, upon the same principle of self-security. And, in particular, they had the recent example of the French nation before their eyes; which had gradually surrendered up all it's allodial or free lands into the king's hands, who restored them to the owners as a beneficium or feud, to be held to them and such of their heirs as they previously nominated to the king: and thus by degrees all the allodial estates in France were converted into feuds, and the freemen became the vasals of the crown. The only difference between this change of tenures in France, and that in England, was, that the former was effected gradually, [51] by the consent of private persons; the latter was done at once, all over England, by the common consent of the nation.

In consequence of this change, it became a fundamental maxim and necessary principle (though in W Cap. 58. Wilk. 288.

x Montesq. Sp. L. b. 31. c. 8.

y Pharoh thus acquired the dominion of all the lands in Egypt, and granted them out to the Egyptians, reserving an annual render of the fifth part of their value. (Gen. xlvii.)

4 Previously, "puts the matter out of dispute."

reality a mere fiction) of our English tenures, *"that the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feodal services."* For, this being the real case in pure, original, proper feuds, other nations who adopted this system were obliged to act upon the same supposition, as a substruction and foundation of their new polity, though the fact was indeed far otherwise. And indeed by thus consenting to the introduction of feodal tenures, our English ancestors probably meant no more than to put the kingdom in a state of defence by establishing a military system; and to oblige themselves (in respect of their lands) to maintain the king's title and territories, with equal vigour and fealty, as if they had received their lands from his bounty upon these express conditions, as pure, proper beneficiary feudatories. But whatever their meaning was, the Norman interpreters, skilled in all the niceties of the feodal constitutions, and well understanding the import and extent of the feodal terms, gave a very different construction to this proceeding: and thereupon took a handle to introduce not only the rigorous doctrines which prevailed in the duchy of Normandy, but also such fruits and dependencies, such hardships and services, as were never known to other nations; as if the English had, in fact as well as theory, owed everything they had to the bounty of their sovereign lord.

Our ancestors therefore, who were by no means beneficiaries, but had barely consented to this fiction of tenure from [52] the crown, as the basis of a military discipline, with reason looked upon these deductions as grievous impositions, and arbitrary conclusions from z 2 Tout fuit in luy, et vient de luy al commencement. (M. 24 Edw. IIF. (5.)2

a Spelm. of feuds, c. 28.

*-* Quoted, 1 Wend. 256; 19 Am. Dec. 497; 60 N. Y. 66.

principles that, as to them, had no foundation in truth.b However, this king, and his son William Rufus, kept up with a high hand all the rigours of the feodal doctrines but their successor, Henry I., found it expedient, when he set up his pretensions to the crown, to promise a restitution of the laws of king Edward the confessor, or antient Saxon system; and accordingly, in the first year of his reign, granted a charter, whereby he gave up the greater grievances, but still reserved the fiction of feodal tenure, for the same military purposes which engaged his father to introduce it. But this charter was gradually broken3 through, and the former grievances were revived and aggravated, by himself and succeeding princes; till in the reign of king John they became so intolerable, that they occasioned his barons, or principal feudatories, to rise up in arms against him: which at length produced the famous great charter at Runing-mead, which, with some alterations, was confirmed by his son Henry III. And, / though it's immunities (especially as altered on it's last edition by his son d) are very greatly short of those granted by Henry I., it was justly esteemed at the time a vast acquisition to English liberty. Indeed, by the farther alteration of tenures that has since happened, many of these immunities may now appear, to a common observer, of much less consequence than they really were when granted; but this, properly considered, will shew, not that the acquisitions under John were small, but that those under Charles were greater. And from hence also arises another inference; that the liberties of Englishmen are not (as some arbitrary writers would represent them) mere infringements of the king's prerogative, extorted from our princes by b Wright. 81.

c LL. Hen. I. c. 1.

d 9 Hen. III.

3 Previously, "broke," and noted in errata of second edition.


taking advantage of their weakness; but a restoration of that antient constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived by the force of the Nor

man arms.

[53] Having given this short history of their rise and progress, we will next consider the nature, doctrine, and principal laws of feuds; wherein we shall evidently trace the ground-work of many parts of our public polity, and also the original of such of our own tenures, as were either abolished in the last century, or still remain in force.

The grand and fundamental maxim of all feodal tenure is this; that all the lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately, of the crown. The grantor was called the proprietor, or lord; being he who retained the dominion or ultimate property of the feud or fee and the grantee, who had only the use and possession, according to the terms of the grant, was stiled the feudatory or vasal, which was only another name for the tenant or holder of the lands; though, on account of the prejudices we have justly conceived against the doctrines that were afterwards grafted on this system, we now use the word vasal opprobriously, as synonymous to slave or bondman. The manner of the grant was by words of gratuitous and pure donation, dedi et concessi; which are still the operative words in our modern infeodations or deeds of feoffment. This was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vasals, which perpetuated among them the aera of the new acquisition, at a time when the art of writing was very little known: and therefore the evidence of property was reposed in the memory of the neighbourhood; who in case of a disputed title, were afterwards called upon to decide the differ

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