Sivut kuvina

Its policy.

the same 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 upwards to the prince or general himself: and the several lords were also reciprocally bound in their respective 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 defence of each man's own several property, but also in defence of the whole, and of every part of this their newly-acquired country (i); the prudence of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquests.

The universality and early use of this feodal plan (5), among all those nations, which in complaisance to the Romans we still call barbarous, may appear from what is recorded (k) 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 æra. They demanded of the Romans, "ut mar"tius 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 (k) L. Florus, l. 3, c. 3.

(i) Wright, 8.

(5) See ante, notes i & 2, to this chapter.


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 afterwards; when the Salii, Burgundians, and Franks broke in upon Gaul, the Visigoths on *Spain, [ 47 ] and the 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 (1) took 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 for ever.

Scarce had these northern conquerors established themselves in their new dominions, when the wisdom of their constitutions, 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 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), now they parcelled out their royal territories, or persuaded their subjects to surrender up and retake their own landed property, under the like feodal obligations (6) of military fealty (m). And thus, in the com- Its progress.

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The period of its reception in this country.

[ *48 ]

pass 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 (n).

*But this feodal polity, which was thus by degrees established over all the continent of Europe, seems not to have been received in this part of our island, at least not universally and as a part of the national constitution, till the reign of William the Norman (o). 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 swarm from what Sir William Temple calls the same northern hive, something similar to this was in use; yet not so extensively nor attended with all the rigour that was afterwards imported by the Normans. For the Saxons were firmly settled in this island, 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 (p) (7).

(n) Gravin. Orig. 1. 1, s. 139.

(0) Spelm. Gloss. 218. Bract. 1. 2,

(book 1, formulary 13); the owner of
the land gave it to the king, who re-
stored it to the donor, by way of usu-
fruct, or feudal benefice. And the civil
security, and political advantages, which
a feudatory enjoyed, were in some re-
spects so much superior to those which
an allodial proprietor could depend
upon, in those days of anarchy and vio-
lence, that it is not unreasonable to be-
lieve the conversion of absolute allodial
properties into conditional feudal te-

c. 16, s. 7.

(p) Crag, 1. 1, t. 4.

nures, was frequently voluntary. (See Montesquieu, book 31, chap. 8).

(7) See ante, note 2 to this chapter. The reader, who wishes to go further into the inquiry how far the institutions of feudality, or regulations analogous thereto, were established in this country in the time of the Saxons, will do well to consult Turner, (Hist. of Anglo Sax. book 9, chap. 3), where he will find sufficient evidence that, to Saxon grants, of land conditions of military

This introduction, however, of the feudal tenures into Eng- Its gradual estaland, by King William, does not seem to have been effected blishment by the Norman barons. immediately after the conquest (8), nor by the mere arbitrary will and power of the Conqueror; but to have been gradually established by the Norman barons, and others, in such forfeited lands as they received from the gift of the Conqueror, and afterwards universally consented to by the great council of the nation long after his title was established. Indeed, from the prodigious slaughter of the English nobility at the battle of Hastings, and the fruitless insurrections of those who survived, such numerous forfeitures had accrued, that he was able to reward his Norman followers with very large and extensive possessions: which gave a

service were generally annexed; but, he will also see reason to conclude that such grants, and the expeditio militaris with which they were burthened, were, in several essential respects, very different from the tenures of feuds, as created by the military policy of the Normans. (8) Wright (in his Law of Ten. 52-57) observes, "it is very remarkable, that William I., about the twentieth year of his reign, just when the general survey of England, called Domesday-book, is supposed to have been finished, and not till then, summoned all the great men and land-holders in the kingdom to do their homage, and swear their fealty to him; by doing whereof the Saxon chronicler supposes, that, at that time, proceres et omnes prædia tenentes se illi subdidere, ejusque facti sunt vassalli. So that we may reasonably suppose, first, that this general homage and fealty was done at this time, (nineteen or twenty years after the accession of William I.), in consequence of something new, or engagements so important to the maintenance and security of a new establishVOL. II.


ment would have been required long before; and if so, it is probable that tenures were then new, inasmuch as homage and fealty were mere feudal engagements, binding the homager to all the duties and observances of a feudal tenant. Secondly, that as this general homage and fealty was done about the time that Domesday-book was finished, and not before, we may suppose that that survey was taken upon, or soon after, our ancestors' consent to tenures, in order to discover every man's fee, and to fix his homage: this supposition is the more probable, because it is not likely that a work of this nature was undertaken without some immediate reason, and no better reason can be assigned why it was undertaken at this time, or indeed why this survey should have been taken at all." And, in a note, it is added, if a particular survey of every estate had not been required for the purposes above mentioned, the general survey of the whole kingdom taken for Alfred, and which was extant in the time of William I., would have sufficed.

handle to the monkish historians, and such as have implicitly followed them, to represent him as having by right of the sword seized on all the lands of England, and dealt them Signification of out again to his own favourites. A supposition, grounded upon a mistaken sense of the word conquest; which, in its feodal acceptation, signifies no more than acquisition (9);

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(9) It seems to have been a point of honour, with most writers of our nation, (those of undoubted Norman descent as well as others), to maintain that William I. only made an acquisition of England, but that he by no means conquered it: and, to avoid the (fancied) disgrace of having the Saxons considered as beaten enemies, it is (gravely) asserted, they were only beaten rebels; though there is no denying that they were beaten by a foreign prince, at the head of a foreign army. Wright (L. of Ten. 61, 62) says, though it is true that the possessions of the Normans were of a sudden very great, and that they received most of them from the hands of William I., yet it does not follow, that this king took all the lands of England out of the hands of their several owners, claiming them as the spoils of war, or as parcel of a conquered country; but, on the contrary, it appears pretty plain from the history of those times, that the king either had, or pretended, title to the Crown, and that his title, whether real or pretended, was established by the defeat of Harold, which amounted to an unquestionable judgment in his favour.


did not therefore treat his opposers as enemies, but as traitors, agreeably to the known laws of the kingdom, which subjected traitors not only to loss of life, but of all their possessions; so that this king, thus entitling himself to the lands of all such as had, or did

afterwards oppose him, might well reward his followers in the manner he did."

From these premises (if admitted) the logical deduction must be, that, if a foreigner pretends to have title to the crown of another kingdom, and by force of foreign arms defeats the native troops, and kills the native prince of that country, the crown of which he places on his own head, and the greater part of the lands in which he takes from the native proprietors, and distributes among his own foreign troops, such a military acquisition is not a conquest; and if he pretends that his beaten opponents were not enemies, but merely rebels, when such opponents have been defeated or subdued, it is a strange mistake to say they have been conquered. Nice distinctions these! but they would hardly save the national honor, if, at the present day, that were at all staked upon the question.

The controversy, as Hume has observed, can hardly fail to degenerate into a dispute about words. It is admitted that the word conquest is sometimes, in old books, used to denote a peaceable acquisition; and therefore it must also be allowed, that the title of conqueror did not, in the 11th century, necessarily and of itself, imply that the prince to whom it was universally assigned owed his crown solely to force of arms. To determine whether the appellation was, or was not, properly

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