of our Commentaries, which will treat of civil injuries, and the means whereby they are redressed.70 reference to the death of any other person interested in the rent, &c., as to confine the meaning of those words to a death by which the interest (that is, the estate) of such person does not, in a technical sense, continue; and so to exclude the death of a person entitled in fee-simple, or in tail, because, in such case, the estate or interest of the party dying, both in the reversion and in the rent which is annexed to it, does not determine, but continues in his heir. Messrs. Coote and Hays are of opinion that the words are so controlled, and consequently, where tenant in fee makes a lease, reserving rent on a particular day, and dies upon that day before midnight, his heir or devisee, and not his executor, shall have the rent; and similarly, that where a tenant in tail dies under similar circumstances, having made such a lease as by stat. 32 Hen. VIII., c. 38, is binding on his issue, the (70) The right to mines has been sometimes treated as an incorporeal hereditament. Mines, whether opened or not, belong primâ facie to the owner of the soil (Co. Litt., 4, a); and a copyholder, although he can not open mines, may bring an action of trespass against a stranger who enters the sub-soil from his own mine, without breaking the surface. (2 B. & Ad., 437.) Mines of gold and silver are called royal mines, and belong to the queen, as part of her prerogative of coining; and under this description are included mines of lead, tin, and copper, containing either of these precious metals. (Plowd., 336, 339; 16 Ves., 393.) The hardships consequent upon the exercise of this prerogative at common law have been somewhat alleviated by the statutes 1 W. & M., st. 1, c. 20, and 5 & 6 W. & M., c. 6. A tenant for life, or for years, may work mines already opened, but if he break the surface for the purpose of searching for minerals, it is waste. Hence seems to have arisen the doctrine that a widow is dowable of open mines only. (1 Taunt., 482.) issue in tail, and not the executor, shall Apportiea- Mr. Coote's position in the page above erroneous. incorporeal hereditament or license is Mines. A grant or reservation of a right of mining implies every right that is necessary for the convenient working of the mine, a right of entering and breaking the surface, a right of way to carry away the ore, &c.; but it implies no more. It allows no use of the surface, no deposit upon it to a greater extent or Mines may be conveyed, excepted, or for a longer duration than is necessary, reserved apart from the right to the sur- no attendance upon the land of unnecesface mines opened, as corporeal here- sary persons. It is questionable whethditaments (1 Mee. & W.; 210; Shepp., er it would allow a deposit upon the Touch., 96); mines unopened, or, rather, land for the purpose of sale, and whetha license to dig for minerals, as incorpo- er it would justify the introduction of real hereditaments. (6 Nev. & M., 441; purchasers to view the minerals. (2 B. see 3 Id., 497, n.; 4 Id., 505; 4 Leon., & Cr., 211; 2 Lutw., 1247; 6 Mee. & 147; 1 W. Bl., 483; 7 Scott, 855.) This W., 174.) : 44 of the nature CHAPTER IV. OF THE FEODAL SYSTEM. Knowledge It is impossible to understand, with any degree of accuraand doctrine cy, either the civil Constitution of this kingdom,' or the laws of feuds es- which regulate its landed property, without some general ac sential. quaintance with the nature and doctrine of feuds, or the feodal law a system so universally received throughout Europe upward of twelve centuries ago, that Sir Henry Spelman does not scruple to call it the law of nations in our western world. This chapter will be, therefore, dedicated to this inquiry.2 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 scholar-like, scientifical manner, without having recourse to the ancient. 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 drafts of the same edifices, in their pristine proportion and splendor. [ 45 ] The constitution of feuds had its original from the military Feudal sys- policy of the northern or Celtic nations, the Goths, the Huns, tem introdu- the Franks, the Vandals, and the Lombards, who all emigranorthern na- ting from the same officina gentium, as Crag very justly entitles ced by the tions into the south. a Of Parliaments, 57. b See Spelman, of Feuds, and Wright, of Tenures, per tot. (1) An intimate acquaintance with that my Lord Coke, adorning our law the feodal system is absolutely necessa- with so many flowers of antiquity and ry to the attainment of a comprehensive foreign learning, hath not turned into knowledge of the first principles and this field, from whence so many roots progress of our Constitution. And this of our law have, of old, been taken and subject, in my opinion, might with great transplanted." (Spelm., Orig., c. viii.) propriety have preceded the chapter [CHRISTIAN.] upon Parliament. The authority of Lork Coke upon constitutional questions is greatly diminished by his neglect of the study of the feodal law; which Sir Henry Spelman, who well knew its value and importance, feelingly laments: “I do marvel many times, 58 (2) Upon the subject of the feodal system, in addition to the authorities cited in the text, see Robertson's History of Charles V., vol. i., and the masterly essay by Mr. Hallam in his History of the Middle Ages, ch. ii., part 2. 3 it, poured themselves in vast quantities into all the regions of Europe, at the declension of the Roman Empire. It was brought by them from their own countries, 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 allotments to the inferior officers and most deserving soldiers.d These allotments were called feoda, feuds, fiefs, or fees; which last appellation, in the northern language, signifies a conditional stipend or reward.f4 Rewards or stipends they evidently were; and the condition annexed to them was, that the possessor should do service 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 case e De Jure Feod., 19, 20. d Wright, 7. Spelm., Gl., 216. f Pontoppidan, in his History of Norway (page 290), observes, that in the northern languages ouh signifies proprietas and all totum. Hence he derives the ouhal right in those countries; and hence too, perhaps, is derived the udal right in Finland, &c. (See Mac Doual, Inst., part 2.) Now the transposition (3) This does not appear to have been the case; the lands were held in common, and were annually divided and allotted, as Montesquieu observes: "Chez les Germains, il y avoit des vassaux, et non pas des fiefs. Il n'y avoit point de fiefs, parce que les princes n'avoient point de terres à donner, ou plutôt les fiefs étoient des chevaux de bataille, des armes, des repas. Il y avoit des vassaux, parce qu'il y avoit des hommes fidèles, qui étoient liés pas leur parole, qui étoient engagés pour la guerre, et qui, faisoient, à peu près, le même service que l'on fit depuis pour les fiefs.”—(De l'Esprit des Loix, liv. xxx., chap. iii.) (4) This derivation is, perhaps, better than that which has been proposed from the initial letters of the vassal's oath, "Fidelis ero ubique domino vero meo;" but a sufficient objection to all Teutonic derivations of the word feud is contained in the observation of Sir F. Palgrave, that the word itself was never used in any Teutonic language, the Anglo-Saxon or German name for a feud being always lan or lehn (a loan), and for the feudal system, lehn-wesen. Our own word was adopted from the Norman, and was most probably of Latin e 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), fecodh, or feodum, will denote stipendiary property. See this oath explained at large in Feud., 1. 2, t. 7. origin. In Scotland, the letting of land for a long term of years, or in perpetuity, subject to the payment of a rent and forfeiture, and therefore upon terms closely resembling those of the original benefices or feuds, is to this day called feuing, and the rent feu-duty. Erskine (Principles of the Law of Scotland, book ii., tit. 4), speaking of this tenure, says, "It has a strong resemblance to the Roman emphyteusis, in the nature of the right, the yearly duty payable by the vassal, the penalty in the case of not punctual payment, and the restraint frequently laid upon the vassal not to alien without the superior's consent." Accordingly, Sir F. Palgrave, with some probability, derives the word from the emphyteusis of the civil law, pronounced emphytefsis, and gradually shortened and corrupted into phitef, or fitef, and ultimately into fief, fevodium, fevd, or feud.-(Rise and Progress of the Anglo-Saxons, Illustrations, p. ccv., et seq.) Emphyteusis was certainly, in the infancy of the feudal system, used with the same meaning as precaria, and præstaria, or præstitia (the Latin translation of the Teutonic lehn); and these latter words signified the same thing with beneficia, the original feud. Duties of lord and vassal. 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 accepted them to defend them; and as they all sprang from the same [ 46 ] right of conquest, no part could subsist independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each other's possessions. But, as that could not effectually be done in a tumultuous, irregular way, government, and to that purpose subordination, was necessary. Every receiver of lands, or feudatory, was therefore bound, when called upon by his benefactor, or immediate lord of his feud or fee, to do all in his power to defend him. Such benefactor or lord was likewise subordinate to, and under the command of, his immediate benefactor or superior; and so upward to the prince or general himself: and the several lords were also reciprocally bound, in their several gradations, to protect the possessions they had given. Thus the feodal connection was established, a proper military subjection was naturally introduced, and an army of feudatories was always ready enlisted, and mutually prepared to muster, not only in defense of each man's own several property, but also in defense of the whole, and of every part of this their newly-acquired country; the prudence of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquests. The system universal among the barbarous nations. The universality and early use of this feodal plan among all those nations, which in complaisance to the Romans we still call barbarous, may appear from what is recorded of the Cimbri and Teutones, nations of the same northern original as those whom we have been describing, at their first irruption into Italy about a century before the Christian era. They demanded of the Romans, "ut martius populus aliquid sibi terræ daret, quasi stipendium: cæterum, ut vellet, manibus atque armis suis uteretur." The sense of which may be thus rendered: they desired stipendiary lands (that is, feuds) to be allowed them, to be held by military and other personal services, whenever their lord should call upon them. This was evidently the same constitution that displayed itself more fully about seven hundred years afterward; when the Salii, Burgundians, and Franks broke in upon Gaul, the Visigoths upon Spain, and the [ 47 ] Lombards upon Italy; and introduced with themselves this northern plan of polity, serving at once to distribute and to protect the territories they had newly gained. And from hence, too, it is probable that the Emperor Alexander Severus' took h Feud., 1. 2, t. 24. i Wright, 8. k L. Florus, 1. 3, c. 3. limitaneis ducibus et militibus donavit; ita ut eorum ita essent, si hæredes illorum militarent, nec unquam ad privatos "Sola, quæ de hostibus capta sunt, pertinerent: dicens attentius illos mili the hint, of dividing lands conquered from the enemy among his generals and victorious soldiery, duly stocked with cattle and bondmen, on condition of receiving military service from them and their heirs forever. tries. Scarce had these northern conquerors established themselves Adopted by in their new dominions, when the wisdom of their constitu- other coun-¡ tions, as well as their personal valor, alarmed all the princes of Europe; that is, of those countries which had formerly been Roman provinces, but had revolted, or were deserted by their old masters, in the general wreck of the empire. Wherefore most, if not all, of them thought it necessary to enter into the same or a similar plan of policy. For whereas, before, the possessions of their subjects were perfectly allodial (that is, wholly independent, and held of no superior at all),5 now they parceled out their royal territories, or persuaded their subjects to surrender 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 constitution, or the doctrine of tenure, extended itself over all the western world. Which alteration of landed property, in so very material a point, necessarily drew after it an alteration of laws and customs so that the feodal laws soon drove out the Roman, which had hitherto universally obtained, but now became for many centuries lost and forgotten; and Italy itself (as some of the civilians, with more spleen than judgment, have expressed it) belluinas, atque ferinas, immanesque Longobardorum leges accepit." polity made of England the Norman. But this feodal polity, which was thus by degrees established [ 48 ] over all the Continent of Europe, seems not to have been re- The feodal ceived in this part of our island, at least not universally and as part of the a part of the national Constitution, till the reign of William the Constitution Norman.° Not but that it is reasonable to believe, from abund- by William ant traces in our history and laws, that even in the times of taturos, si etiam sua rura defenderent. Addidit sane his et animalia et servos, ut possent colere quod acceperant; ne per inopiam hominum vel per senectutem desererentur rura vicina barbaria, (5) "Allodial lands are commonly opposed to beneficiary or feudal, the former being strictly proprietary, while the latter depended upon a superior. In this sense the word is of continual recurrence in ancient histories, laws, and instruments. It sometimes, however, bears the sense of inheritance, and this seems to be its meaning in the famous 62d chapter of the Salic Laws-De Alodis. 'Alodium interdum opponitur comparato,' says Du Cange, in formulis veteribus.' Hence, in the charters of the eleventh century, hereditary fiefs are fre quod turpissimum ille ducebat."—(Æl. m n Gravin., Orig., 1. 1, § 139. 16, § 7. (6) The feudal constitutions and usa- |