44 CHAPTER IV. OF THE FEODAL SYSTEM. A general acquaintance with doctrine of feuds, the nature and or the feodal It is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom, or the laws which regulate its landed property, without some general acquaintance with the nature and doctrine of feuds, law, necessary. or the feodal law: a system so universally received throughout Europe upwards of twelve centuries ago, that Sir Henry Spelman (a) does not scruple to call it the law of nations in our western world (1). This chapter will be therefore de(a) Of Parliaments, 57. (1) The feudal laws derived their origin from the military hordes of Northern Europe. The institutions admitted by these semi-barbarians, while they remained in their native forests and marshes, added to the very peculiar situation in which they were placed when they settled in the countries which they conquered, naturally produced a particular system of laws and policy; which system was established by every one of the tribes in question, however different in their dialects, or unconnected by alliances. The plan of distributing among a conquering people the lands they have conquered, and of annexing to the benefit a condition of military service, is too obvious a one not to have been frequently acted upon by Its origin. dicated to this inquiry. And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student will imagine his time misemployed, when he is led to consider that the obsolete doctrines of our laws are frequently the foundation upon which what remains is erected; and that it is impracticable to comprehend many rules of the modern law, in a scholarlike scientifical manner, without having recourse to the antient. Nor will these researches be altogether void of rational entertainment as well as use: as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it administers both pleasure and instruction to compare them with the draughts of the same edifices, in their pristine proportion and splendor. *The constitution of feuds (b) had its original from the mi[*45] litary policy of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals, and the Lombards, who all migrating from the same officina gentium, as Crag very justly entitles it (c), poured themselves in vast quanti(b) See Spelman of Feuds, and Wright of Tenures, per tot. (c) De jure feod. 19, 20. no general system of government in a system of laws, without the plan of a legislator, which, however the laws of the conquered people might for some time subsist, could not fail in the end to swallow up all the laws of all the countries in which it was received. We are apt to believe this system the result of the most consummate political prudence and refinement; but regular and extensive as the fabric became, it was originally no more than the very natural consequence of the causes above mentioned. The principles of the feudal system were founded in conquest; and all its provisions tended to preserve the fruits of that conquest. (See Dalrymple's Essay on Feud. Prop. cc. 1, 2). ties into all the regions of Europe, at the declension of the Roman empire. It was brought by them from their own countries (2) and continued in their respective colonies as the most likely means to secure their new acquisitions: and to that end, large districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels or (2) This, if meant to be understood as a general proposition, is very questionable. It rather appears that the feudal system first grew out of the foreign conquests made by the northern nations; instead of having been an institution previously matured by them at home. (See the last note.) Montesquieu, resting his assertion on the two best, (not to say, the only good) authorities on the subject, tells us (in the third chapter of his 30th book on the Spirit of Laws,) that, among the Germans, there were vassals, but no fiefs; they had no fiefs, because the princes had no lands to give; or rather their fiefs consisted in horses trained for war, in arms, or feasting. There were vassals, because there were trusty men, who, being bound by their word, engaged to follow the prince to the field, and did very near the same service as was, afterwards, performed for the fiefs. If Blackstone only meant to speak of the introduction of feuds into this country, he would be countenanced by many other writers in assuming that, when the Saxons took possession of the greater part of Britain, putting a large portion of the native population to the sword, they either brought with them, or very soon adopted, some of the principles and practices of feudality: though it is so clear that the system never attained its full maturity here, before the Norman conquest, that many writers, of great learning and reputation, have been disposed to ascribe, not merely the completion, but, the erection of the fabric of feudal government in England, to William the Conqueror. A summary of several of the arguments on both sides may be found either in a note to 1 Hale's Hist. of C. L. 190-201, or in the 2nd chap. of Wright's Law of Ten. Dalrymple holds that, when the Saxons settled here, certain portions of the land were reserved for the prince, and others parcelled out among the chieftains; and that both the prince and chieftains again, naturally settled upon their lands their followers of inferior degree, and their slaves. But, he says, we are not to imagine that the whole land of the country was so distributed, or so holden. Much of it continued to be still allodial: and even in those lands which were held by feudal tenure, the feudal relations were far from running in that regular subordination which, in after ages, made the feudal dependencies complete. The outlines of the feudal system may be traced amongst the Saxons; but that system was not completed till after the Norman conquest. In this conclusion it is believed the reader may safely rest: and it is that which our author will be found, a few pages hence, in effect to support. allotments to the inferior officers and most deserving soldiers (d). These allotments were called feoda (3), feuds, fiefs or fees; which last appellation in the northern languages (e) signifies a conditional stipend or reward (f). Rewards or stipends they evidently were: and the condition annexed to them was, that the possessor should do service (d) Wright, 7. (e) Spelm. Gl. 216. (f) Pontoppidan, in his history of Norway (page 290) observes, that in the northern languages odh signifies proprietas and all totum. Hence he derives the odhal right in those countries; and thence too, perhaps, is derived the udal right in Finland, &c. (See MacDoual. Inst. part 2). Now, the transposition of these northern syllables, allodh, will give us the true etymology of the allodium, or absolute property of the feudists, as, by a similar combination of the latter syllable with the word fee (which signifies, we have seen, a conditional reward or stipend), feeodh, or feodum, will denote stipendiary property. [Somner, in his Treat. on Gavelk. (prop. 4), after going deeply into Teutonic learning on the subject, substantially agrees with our author as to the derivation of these words. In sum (3) The name of feuda was not given to such allotments at first. Muratori tells us they were originally called beneficia; and then, such donations, stipends, or benefits, only conferred the usufruct of a portion of the royal demesnes during the life of the donor. (Antiq. Ital. Med. Ævi. dissert. 11). So, Balusius informs us, these donations, being gratuitous, were originally called beneficia; in course of time they acquired the name of feuda. (i. Capit. 453. ii. Capit. 875). Somner, likewise, ming up his argument, (p. 111), he says, Shortly then, feudum or fee, (considered in its first and primary acceptation, to which they must have regard, that will hope to judge aright of the ground for the first imposition of the name), is no more than what was holden in fee-hode, by contraction feud, or feod: i. e. in a stipendiary, conditional, mercenary, mediate way and nature, and with the acknowledgment of a superior lord, and a condition of returning him some service for it, upon the withdrawing whereof the land was revertible unto the lord. Allodium is, contrarywise, what is holden in allhode, in totality, in a full, absolute, immediate manner, without any acknowledgment of a superior lord, and free from any tie or compact for returning any service at all for it unto any."ED.] in quaint language, calls "beneficium, feudum's elder brother," and declares that feudum was a word unknown until about the year 1000. (Treat. on Gavelk. 102). And Spelman says, these stipends, whilst they were held at the pleasure of the donor, were called munera. Afterwards, when they became grants for a certain term, or for life, they were called beneficia; and they were first called feuda when they began to be granted in perpetuity, and not before. (Treat. of Feuds, 4, 6, 9). faithfully, both at home and in the wars, to him by whom they were given; for which purpose he took the juramentum fidelitatis, or oath of fealty (g) (4): and in case of the breach of 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 ac- Its effects. cepted them to defend them: and, as they all sprang from (g) See this oath explained at large in Feud. 1. 2, t. 7. (4) Fealty, the essential feudal bond, is so necessary to the very notion of a feud, that it is a downright contradiction to suppose the most improper feud to subsist without it; but the other properties or obligations of an original feud may be qualified, or varied by the tenor, or express terms of the feudal donation. (Wright L. of Ten. 35). Fealty and homage are sometimes confounded; but they do not necessarily imply the same thing. Fealty was a solemn oath, made by the vassal, of fidelity and attachment to his lord. Homage was merely an acknowledgment of tenure, unless it was performed as homagium ligeum: that, indeed, did in strictness include allegiance as a subject, and could not be renounced; but homagium non 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 syno nymous. But, in our law, whilst both The short result appears to be, that, not. The manner of doing homage and fealty, is prescribed by the act of 17 Edw. 2, st. 3, which enactment abundantly proves the distinct nature of the two acknowledgments at that time. |