Sivut kuvina
PDF
ePub

tary.

then heredi- tatem relevabat." This relief was afterward, when feuds became absolutely hereditary, continued on the death of the tenant, though the original foundation of it had ceased."

Mode of descent.

For, in process of time, feuds came by degrees to be universally extended beyond the life of the first vassal, to his sons, or, perhaps, to such one of them as the lord should name; and in this case the form of the donation was strictly observed; for if a feud was given to a man and his sons, all his sons succeeded him in equal portions; and, as they died off, their shares reverted to the lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation.m But when such a feud was given to a man and his heirs, in general terms, then a more extended rule of succession took place; and when the feudatory died, his male descendants in infinitum were admitted to the succession. When any such descendant, who thus had succeeded, died, his male descendants were also admitted in the first place; and, in defect of them, such of his male collateral kindred as were of the blood or lineage of the first feudatory, but no others. For this was an unalterable maxim in feodal succession, that "none was capable of inheriting a feud but such as was of the blood of, that is, lineally descended from, the first feudatory." And the descent, being thus confined to males, originally extended to all the males alike; all the sons, without any distinction of primogeniture, succeeding to equal portions of the father's feud. But this being found, upon many accounts, inconvenient (particularly, by dividing the services, and thereby weakening the strength of the feodal union), and honorary feuds (or titles of nobility) being now introduced, 57] which were not of a divisible nature, but could only be inherited by the eldest son; in imitation of these, military feuds (or those we are now describing) began also, in most countries, to descend, according to the same rule of primogeniture, to the eldest son, in exclusion of all the rest.p

[blocks in formation]

(14) This," says Mr. Hallam, "is a very specious account of the matter. But they who consider the antiquity to which hereditary benefices may be traced, and the unreserved expressions of those instruments by which they were created, as well as the undoubted fact that a large proportion of fiefs had been absolute alodial inheritances, never really granted by the superior, will, perhaps, be led rather to look for the origin of reliefs in that rapacity with which the powerful are ever ready to oppress the feeble. When a feudal tenant died, the lord, taking advantage of his own strength and the confusion of the family,

15

• Feud., 2, t. 55.
P Wright, 32.

would seize the estate into his hands, either by the right of force or under some litigious pretext. Against this violence the heir could, in general, have no resource but a compromise, and we know how readily acts of successful injustice change their name, and move demurely, like the wolf in the fable, under the clothing of law."

(15) "A custom, very similar in effect to subinfeudation, was the tenure by frérage, which prevailed in many parts of France. Primogeniture, in that ex treme which our common law has es tablished, was unknown, I believe, in

not aliene

consent.

Other qualities of feuds were, that the feudatory could not Vassal could aliene or dispose of his feud; neither could he exchange, nor his feud. yet mortgage, nor even devise it by will, without the consent of the lord. For, the reason of conferring the feud being the personal abilities of the feudatory to serve in war, it was not fit he should be at liberty to transfer this gift, either from himself or from his posterity, who were presumed to inherit his valor, to others who might prove less able. And, as the feodal nor the lord his seignioobligation was looked upon as reciprocal, the feudatory being ry, without entitled to the lord's protection, in return for his own fealty and service; therefore, the lord could no more transfer his seigniory or protection without consent of his vassal, than the vassal could his feud without the consent of his lord: it being equally unreasonable that the lord should extend his protection to a person to whom he had exceptions, and that the vassal should owe subjection to a superior not of his own choosing. These were the principal, and very simple, qualities of the Feuds after genuine or original feuds; which were all of a military nature, rent, and and in the hands of military persons; though the feudatories, bought and being under frequent incapacities of cultivating and manuring their own lands, soon found it necessary to commit part of them to inferior tenants; obliging them to such returns in service, corn, cattle, or money as might enable the chief feudatories to attend their military duties without distraction; which returns, or reditus, were the original of rents, and by Reditus, or these means the feodal polity was greatly extended; these in- rent. ferior feudatories (who held what are called in the Scots law "rere-fiefs") being under similar obligations of fealty, to do suit of court, to answer the stipulated renders or rent service, and to promote the welfare of their immediate superiors or [ 58 { lords. But this, at the same time, demolished the ancient

r Ibid., 30.

[ocr errors]

Ibid., 20.

9 Wright, 29. every country on the Continent. The and vassal, this, like all other subinfeucustoms of France found means to pre- dations, was rather advantageous to the serve the dignity of families, and the in- former; for when the homage of a fief divisibility of a feudal homage, without was divided, the service was diminished exposing the younger sons of a gentle- in proportion. Suppose, for example, man to absolute beggary or dependence: the obligation of military attendance for Baronies, indeed, were not divided; but an entire manor to have been forty days, the eldest son was bound to make a if that came to be split equally between provision in money, by way of appanage, for the other children, in proportion to his circumstances and their birth. As to inferior fiefs, in many places, an equal partition was made; in others, the eldest took the chief portion, generally two thirds, and received the homage of his brothers for the remaining part, which they divided. To the lord of whom the fief was held, himself did homage for the whole In the early times of the feudal policy, when military service was the great object of the relation between lord

two, each would owe but a service of
twenty. But if, instead of being hom-
agers to the same suzerain, one tenant
held immediately of the other, as every
feudatory might summon the aid of his
own vassals, the superior lord would, in
fact, obtain the service of both. What-
ever opposition, therefore, was made to
the rights of subinfeudation or frérage,
would indicate a decay in the military
character, the living principle of feudal
tenure." (Hallam, Middle Ages, vol. i.,
p. 126.)

ward let to

sold.

The system varied in

simplicity of feuds; and an inroad being once made upon their constitution, it subjected them, in a course of time, to great varieties and innovations. Feuds began to be bought and sold, and deviations were made from the old fundamental rules of tenure and succession; which were held no longer sacred when the feuds themselves no longer continued to be purely military. Hence these tenures began now to be divided into feoda propria et impropria, proper and improper feuds; under the former of which divisions were comprehended such, and such only, of which we have before spoken; and under that of improper or derivative feuds were comprised all such as do not fall within the other description; such, for instance, as were originally bartered and sold to the feudatory for a price; such as were held upon base or less honorable services, or upon a rent, in lieu of military service; such as were in themselves alienable, without mutual license; and such as might descend indifferently either to males or females. But where a difference was not expressed in the creation, such new-created feuds did in all respects follow the nature of an original, genuine, and proper feud:t

But as soon as the feodal system came to be considered in different the light of a civil establishment, rather than as a military Countries. plan, the ingenuity of the same ages which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon, began, also, to exert its influence on this copious and fruitful subject; in pursuance of which, the most refined and oppressive consequences were drawn from what originally was a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defense. From this one foundation, in different countries of Europe, very different superstructures have been raised: what effect it has produced on the landed property of England, will appear in the following chapters."

t Feud., 2, t. 7.

(16) Upon the subject of this and the following chapters, the student is recommended to study the excellent "Essay on Feudal Property" by Sir John Dalrymple, an author who, notwithstanding some errors on antiquarian points of little 74

importance, can not be too highly prais ed for the philosophical accuracy and elegance with which he has treated a subject that most writers contrive to render extremely obscure and repulsive.

CHAPTER V.

OF THE ANCIENT ENGLISH TENURES.

cient ten

In this chapter we shall take a short view of the ancient View of an tenures of our English estates, or the manner in which lands, cent tenements, and hereditaments might have been holden, as the same stood in force, till the middle of the last century. In which we shall easily perceive that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles, and no other; being fruits of, and deduced from, the feodal policy.

of the words

lord para.

Almost all the real property of this kingdom is, by the policy Explanation of our laws, supposed to be granted by, dependent upon, and tenure, &c. holden of, some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is, therefore, styled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king, who is styled the lord paramount, or above all.* Such tenants King ́alled as held under the king immediately, when they granted out mount portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king;' and, thus partaking of a middle nature, were called mesne, or middle, lords; so that, if the king Mesne lords granted a manor to A., and he granted a portion of the land to B., now B. was said to hold of A., and A. of the king; or, in [60] other words, B. held his lands immediately of A., but mediately of the king. The king, therefore, was styled lord paramount; A. was both tenant and lord, or was a mesne lord; and B. was called tenant paravail, or the lowest tenant, being he who was Tenant par supposed to make avail or profit of the land. In this manner

a 2 Inst., 296.

(1) William the First and other feudal sovereigns, though they made large and numerous grants of lands, always reserved a rent, or certain annual payments (commonly very trifling), which were collected by the sheriffs of the counties

in which the lands lay, to show that
they still retained the dominium directum
in themselves. (Madox, History of the
Exchequer, c. 10; Craig, De Feudis, 1.
1, c. 9.)-CHITTY.]

* In New York, THE PEOPLE, in their right of sovereignty, are deemed to possess the original and ultimate property in all lands within the jurisdiction of the state; and all lands, the title to which fails from a defect of heirs, reverts or escheats to the people.-(1 R. S., 718, § 1.)

avail.

Tenants in capite.

Four spe

tenures.

are all the lands of the kingdom holden, which are in the hands of subjects; for, according to Sir Edward Coke,b in the law of England we have not properly allodium, which, we have seen, is the name by which the feudists abroad distinguish such estates of the subject as are not holden by any superior; so that, at the first glance, we may observe that our lands are either plainly feuds, or partake very strongly of the feodal

[blocks in formation]

All tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the most honorable species of tenure, but at the same time subjected the tenants to greater and more burdensome services than inferior tenures did.d This distinction ran through all the different sorts of tenure, of which-I now proceed to give an account.

I. There seem to have subsisted among our ancestors four cies of lay principal species of lay tenures, to which all others may be reduced; the grand criteria of which were the natures of the several services or renders that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services; in respect of their quantity and the time of exacting them, were either certain or uncertain. Free servi- Free services were such as were not unbecoming the character of a soldier or a freeman to perform; as, to serve under his

ces.

[blocks in formation]

* On the contrary, in New York all lands are held in pure allodium (i. e., by a tenure not beneficiary or feudal, but independent of any superior who can claim services, or avail himself of conditions incident to the estate), subject only to the liability to escheat to the people in case of defect of heirs; and all feudal tenures of every description, with all their incidents, are abolished. Rents, however, or services certain, incident, or belonging to tenures by which real estate is holden, are not taken away or destroyed.-(1 R. S., 718, § 34.) The original act of the legislature on this subject was passed as long since as the 20th of February, 1787. (See 1 Laws of N. Y., 359, Greenleaf's ed.) In it, not only all the incidents of feudal tenures are abolished, but also those of socage tenures. This act is incongruous, as by one of its sections it is declared that all lands within the state shall be deemed to be held in free and common socage, while in another it is said that they shall be adjudged to be held in free and pure allodium. To remove this dis crepancy, the enactments above referred to were incorporated into the Revised Statutes. (See 3 R. S., 564, reviser's notes.)

« EdellinenJatka »