CHAPTER THE FOURTH. OF THE FEODAL SYSTEM. I a T is impoffible to understand, with any degree of accuracy, either the civil conftitution of this kingdom, or the laws which regulate it's landed property, without fome general acquaintance with the nature and doctrine of feuds, or the feodal law: a fyftem fo univerfally received throughout Europe, upwards of twelve centuries ago, that fir Henry Spelman does not fcruple to call it the law of nations in our western world. This chapter will be therefore dedicated to this inquiry. And though, in the course of our observations in this and many other parts of the prefent book, we may have occasion to search pretty highly into the antiquities of our English jurifprudence, yet furely no industrious ftudent will imagine his time mifemployed, when he is led to confider that the obfolete 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 ufe: as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it adminifters both pleasure and instruction to compare them with the draughts of the fame edifices, in their pristine proportion and splendor. THE Constitution of feuds had its original from the military policy of the northern or Celtic nations, the Goths, the Hunns, the Franks, the Vandals, and the Lombards, who all migrating from the fame officina gentium, as Crag very juftly entitles it, poured themselves in vaft quantities into all the regions of Europe, at the declenfion of the Roman empire. It was brought by them from their own countries, and continued in their respective colonies as the moft likely means to fecure their new acquifitions: and, to that end, large districts or parcels of land were allotted by the conquering general to the fuperior officers of the army, and by them dealt out again in smaller parcels or allotments to the inferior officers and moft deferving foldiers. These allotments were called feoda, feuds, fiefs, or fees; which laft appellation in the northern languages fignifies a conditional ftipend or reward f. Rewards or ftipends they evi dently were: and the condition annexed to them was, that the poffeffor fhould do fervice 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 &: and in cafe of the breach of this condition and oath, by not performing the ftipulated service, or by deferting the lord in battle, the lands were again to revert to him who granted them h e ALLOTMENTS, thus acquired, naturally engaged fuch as accepted them to defend them; and as they all fprang from L JbSee Spelman of feuds, and Wright Inft. part. 2.) Now the tranfpofition of of tenures, per tot. jure feed, 19, 20. c De Wright. 7. 13 Spelm. Gl. 216. Enf Pontoppidan in his history of Nor290) obferves, that in the northern languages O0 fignifies propri way and all totum. Hence he derives the DDhalright in those countries; and hence too perhaps is derived the udal right in Finland, &c. (See Mac Doual. these northern fyllables, allodh, will give us the true etymology of the allodium, or abfolute property of the feudifts as, by a fimilar combinaton of the lat ter fyllable with the word fee (which fignifies, we have seen, a conditional reward or ftipend) feeobh o feodum will denote ftipendiary property. g See this oath explaind at large in Feud. 1. 2. t. 7. h Feud. 1. 2. 1. 24. the Book II. the fame right of conqueft, no part could fubfift independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each others poffeffions. But, as that could not effectually be done in a tumultuous irregular way, government, and to that purpose fubordination, was neceffary. Every receiver of lands, or feudatory, was there fore bound, when called upon by his benefactor, or imme diate lord of his feud or fee, to do all in his power to defend him. Such benefactor or lord was likewife fubordinate to and under the command of his immediate benefactor or fuperior; and fo upwards to the prince or general himself. And the several lords were alfo reciprocally bound, in their refpective gradations, to protect the poffeffions they had given. Thus the feodal connection was established, a proper milimukof tary fubjection was naturally introduced, and an army of feudatories were always ready enlisted, and mutually prepared to mufter, not only in defence of each man's own feveral pro perty, but also in defence of the whole, and of every part of this their newly-acquired country 1: the prudence of which conftitution was foon fufficiently visible in the strength and fpirit, with which they maintained their conquefts. J THE univerfality and early use of this feodal plan, among all thofe nations, which in complaifance to the Romans we ftill call barbarous, may appear from what is recorded of the Cimbri and Teutones, nations of the fame northern original as those whom we have been describing, at their first irruption into Italy about a century before the christian aera. They demanded of the Romans, " ut martius populus aliquid * fibi terree daret, quafi ftipendium: caeterum, ut vellet, mani"bus atque armis fuis uteretur." The fenfe of which may be thus rendered; they defired ftipendiary lands (that is, feuds) to be allowed them, to be held by military and other perfonal fervices, whenever their lords fhould call upon them. This was evidently the fame conftitution, that difplayed itself more fully about feven hundred years afterwards: when the Salii, Burgundians, and Franks broke in upon Gaul, the Vifigoths on KL. Florus. 1. 3. c. 3. 1 Wright. 8. Spain, and the Lombards upon Italy; and introduced with themselves this northern plan of polity, serving at once to diftribute and to protect, the territories they had newly gained. And from hence too it is probable that the emperor Alexander Severus' took the hint, of dividing lands conquered from the enemy among his generals and victorious foldiery, on condition of receiving military service from them and their heirs for ever. SCARCE had these northern conquerors established themfelves in their new dominions, when the wisdom of their conftitutions, 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 deferted by their old masters, in the general wreck of the empire. Wherefore most, if not all, of them thought it neceflary to enter into the fame or a similar plan of policy. For whereas, before, the poffeffions of their fubjects were perfectly allodial, (that is, wholly independent, and held of no superior at all) now they parcelled out their royal territories, or perfuaded their fubjects to furrender up and retake their own landed property, under the like feodal obligations of military fealty". And thus, in the compass of a very few years, the feodal conftitution, or the doctrine of tenure, extended itself over all the western world. Which alteration of landed property, in fo very material a point, neceffarily drew after it an alteration of laws and cuftoms: fo that the feodal laws foon drove out the Roman, which had hitherto univerfally obtained, but now became for many centuries loft and forgotten; and Italy itself (as some of the civilians, with more spleen than judgment, have expreffed it) belluinas, atque ferinas, immanefque Longobardorum leges accepit". "Sola, quae de hoftibus capta funt, * limitaneis ducibus et militibus donavit ;' *ita ut eorum ita effent, fi haeredes illo rum militarent, nec unquam ad priva"tos pertinerent dicens attentius illos militatures, Ji etiam fuá rúra defende"rent. Addidit fane his et animalia et "fervos, ut poffent colere quod acceperant ; Gravia, Orig. 1. 1. §. 139. BUT BUT this feodal polity, which was thus by degrees established over all the continent of Europe, feems not to have been received in this part of our ifland, at least not univerfally and as a part of the national constitution, till the reign of William the Norman. 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 fwarm from what fir William Temple calls the fame northern hive, fomething fimilar to this was in ufe: yet not fo extenfively, nor attended with all the rigour that was afterwards imported by the Normans. For the Saxons were firmly fettled in this ifland, 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 ". THIS introduction however of the feodal tenures into England, by king William, does not seem to have been effected immediately after the conqueft, nor by the mere arbitrary will and power of the conqueror; but to have been gradually eftablished by the Norman barons, and others, in fuch forfeited lands as they received from the gift of the conqueror, and afterwards univerfally confented to by the great council of the nation long after his title was established. Indeed from the prodigious flaughter of the English nobility at the battle of Haftings, and the fruitless infurrections of those who furvived, fuch numerous forfeitures had accrued, that he was able to reward his Norman followers, with very large and extenfive poffeffions, which gave a handle to the monkish hiftorians, and fuch as have implicitly followed them, to reprefent him as having by right of the fword feifed on all the lands of England, and dealt them out again to his own favourites. A fuppofition, grounded upon a mistaken sense of the word conquest; which in it's feodal acceptation, fignifies no more than acquisition: and this has led many hafty writers into a ftrange hiftorical mistake, and one which upon the flighteft examination will be found to be moft untrue. However, P Crag. 7. 1. 1. 4. Spelm. Gloff. 218. Bract. 1. z. c. 16. §. 7. certain |