CHAPTER THE FOURTH.

T

OF THE FEODAL SYSTEM.

It is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom (1), or the laws which regulate its landed property, without some general acquaintance with the nature and doctrine of feuds, or the feodal law: a system so universally received throughout Europe upwards of twelve centuries ago, that sir Henry Spelmana does not scruple 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 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

a of parliaments, 57.

(1) An intimate acquaintance with the feudal system is absolutely necessary to the attainment of a comprehensive knowledge of the first principles and progress of our constitution. And this subject, in my opinion, might with great propriety have preceded the chapter upon parliament. The authority of lord Coke, upon constitutional questions, is greatly diminished by his neglect of the study of the feudal law; which Sir Henry Spelman, who well knew its value and importance, feelingly laments: "I do marvel many times, that my lord Coke, "adorning our law with so many flowers of antiquity and foreign "learning, hath not turned into this field, from whence so many roots "of our law have, of old, been taken and transplanted." Spelm. Orig of Terms, c. viii.

law, in a scholarlike 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 draughts of the same edifices, in their pristine proportion and splendor.

THE Constitution of feuds had its original from the [45] military 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, 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. These allotments were called feoda, feuds, fiefs, or fees; which last appellation in the northern languages signifies a conditional stipend or reward f. Rewards or stipends they evi

b See Spelman of feuds, and Wright of tenures, per fot.

e De jure fead. 19, 20. 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

e

the udal right in Finland, etc. (See Mac Doual Inst. part 2.) Now the transposition of these northern syllables, alloth, will give us the true etymology of the allodium, or absolute property of the feudists (2): 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.

(2) This is the same as all-hood in English, and is suggested as the derivation of allodium in Woll. Religion of Nat. del. p. 136.

This unquestionably is the true etymology. Though Dr. Robertson adopts the derivation of allodium from an and lot, or allotment, the mode of dividing what was not granted as stipendiary property; and he relates the memorable story of the fierce soldier who refused to

dently 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 8: 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 accepted them to defend them: and, as they all sprang [46] from 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 inlisted, 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 coun

g See this oath explained at large in Feud. 1. 2. t. 7.

h Feud. I. 2. t. 24.

grant a sacred vase to his general Clovis, the founder of the French monarchy, who wished to return it at the request of the bishop to the church from which it had been taken as spoil, by striking it violently with his battle-axe, and declaring "that you should have nothing but "that to which the lot gives you a right!" Hist. of Ch. V. 1 vol. notes 7 & 8.

try 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, 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 æra. They demanded of the Romans, "ut martius populus aliquid “sibi terrae daret, quasi stipendium; caeterum, ut vellet, mani"bus 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 afterwards: when the Salii, Burgundians, and Franks broke in upon Gaul, the Visigoths on Spain, and the Lombards upon Italy; [47] 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 Severus1 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 valor, alarmed all the princes of Europe; that is, of those countries which had

i Wright, 8.

k L. Florus, l. 3. c. 3.

1 Sola, quae de hostibus capta sunt, limitaneis ducibus et militibus donavit; ita ut "eorum ita essent, si haeredes illorum mili"tarent, nec unquam ad privatos pertine

rent: dicens attentius illos militaturos, si

"etiam sua rura defenderent. Addidit sane "his et animalia et servos, ut possent colere "quod acceperant ; ne per inopiam hominum "vel per senectutem descrerentur rura vicina "barbariae, quod turpissimum ille ducebat," (Ael. Lamprid. in vita Alex. Severi.)

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 of military fealty m. 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". 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 rigor 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 vigor and maturity, even on the continent of Europe P.

[48]

THIS introduction however of the feodal tenures into England, by king William, does not seem to have been effected

m Wright, 10.

n Gravin. Orig. 1. 1. sec. 139.

o Spelm. Gloss. 218. Bract. 1. 2. c. 16. sec. 7. p Crag. 1. 1. t. 4.