But, besides the land so held by grant from the crown and by sub-infeudations, there was, as we have seen, a large portion held-independently or allodially. This, in the course of time, became changed into feudal holdings by pressure of circumstances. The history of the period succeeding the establishment of the Frankish empire, contains little but a series of continual struggles for power between not only those who claimed succession to a *throne, but those who with no better right than that of personal energy and [* 121 ] territorial power, endeavoured to establish themselves in sovereign independence and with absolute dominion over their possessions. The Chronicles are full of wars internal and external, murders and outrages of every kind (m). We find the kings of the Merovingian dynasty gradually losing their power by subdivision amongst themselves, by personal incapacity, by the encroachments of their own great officers of state, until, after passing through the phase of being mere puppets, they are finally overthrown by a new dynasty. This, under Charlemagne, attains a high degree of despotic authority only to be degraded under his successors to the same or even a more abject state of prostration. Such was the condition of society, and in such circumstances it was but natural that the assumption of despotic power over others should not be confined to the central authority. Provincial governors, the counts (n), the dukes, and other nobles generally, constantly aimed at more or less absolute control over all with whom they came in contact. Thus it was inevitable that some dependency upon their powerful neighbours would arise on the part of all allodial proprietors of only moderate means. And remembering the subdivision of lands which took place on the death of each *owner, we see that allodial lands must be possessed principally in continually diminishing quan[* 122 ] tities. Their possessors, therefore, must chiefly have been placed in circumstances which in peaceful times would render them industrious and happy yeomen, but, in the times of which we speak, little capable of effectually resisting the power arising from the combined resources of a baron's possessions. These, therefore, "who had hitherto formed the strength of the state fell into a much worse condition. They were exposed to the rapacity of the counts, who, whether as magistrates or governors, or as overbearing lords, had it always in their power to harass them. Every district was exposed to continual hostilities; sometimes from a foreign country, more often from the owners of castles and fastnesses, which in the tenth century, under pretence of resisting Normans and Hungarians, served the purposes of private wars. Against such a system of rapine the military compact of lord and vassal was the only effectual shield its essence was the reciprocity of service and protection. An insulated allodialist had no support, his fortunes were strangely changed since he claimed at least in right a share in the legislation of his country, and could compare with pride his patrimonial fields with the temporary benefices of the crown. Without law to redress his injuries, without the royal power to support his (m). "It is a weary and unprofitable task to follow these changes in detail through scenes of tumult and bloodshed in which the eye meets with no sunshine, nor can rest upon any interesting spot. It would be difficult, as Gibbon justly said, to find anywhere more vice or less virtue." 1 Hall. Mid. Ages, 5. (n) The country was, under the Franks, distributed into districts or counties, presided over by the graf, or comes, as the Romans VOL. I. 63 translated it. As to the duties of the graf, see the ancient collection of precedents by Marculfus (about A.D. 660), lib. i. 32. Dukes were of higher rank, presiding over several counties. It is needless, perhaps, to say that in England the names were imported (ante, vol. i. p. 138), with a somewhat modified meaning, since the Saxon forms of local gov ernment were by no means entirely abrogated by the Normans. right, he had no course left but to compromise with oppression and subject himself in return for protection to a feudal lord. During the tenth and eleventh centuries it appears that allodial lands in France had chiefly become feudal that is, they had been surrendered by their proprietors and received back again upon the feudal conditions: or, more frequently, perhaps, the owner had been compelled to acknowledge himself the man or vassal of a suzerain, and thus to confess an original grant which had never existed." (0). *But this feudal polity, which was thus by degrees established over [*123] all the continent of Europe, seems not to have been received in this ty made part of the constitu tion of England by William the Norman. part of our island, at least not universally and as a part of the national constitution, till the reign of William the Norman (p). 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 as we have seen, it was not till upwards of three centuries after, that feuds arrived to their full vigour and maturity, even on the continent of Europe (9). [*124] *This introduction, however, of the feudal tenures into England by king William, does not seem to have been effected immediately after the conquest, nor by the mere arbitrary will and power of the Adopted by the Norman barons, Conqueror; but to have been gradually established by the Norassented to by man barons, and others, in such forfeited lands as they received cil of the from the gift of the Conqueror, and afterwards universally consented to by the great council of the nation long after his title and afterwards the great coun nation. (0) 1 Hall. Mid. Ages, 163. (p) Spelm. Gloss. 218; Bract. 1. 2, c. 16, s. 7. (q) Crag. 1. 1, t. 4. The received opinion is, that the feudal tenures existed among the Anglo-Saxons, though but partially, and in a less complete form than in France. Dalrymple traces their existence in the celebrated distinction between thain-land and reve-land. Land granted to the thains or lords was called thain-land; allodial, over which the king's officer or reve, afterwards called sheriff, had jurisdiction, was called reve-land. Again, land of the one kind being held by a charter, was at other times called boc-land, that is, book-land; land of the other kind, being held without writing and in the ancient manner, and mostly by the ancient inhabitants, was at other times called folkland. Unless, how ever, we resort, as Dalrymple has done, to the improbable supposition, that, contrary to the usual course of events, feudal land was sometimes converted into allodial, it would seem that the distinction was rather between land held of thains and land held of the Crown, and subject to the authority of his reves. Thus, it is a common return in Domesday Book, that "Hæc terra fuit tempore Edwardi thain-land; et postea conversum in reveland; et idem dicunt legati regis quod ipsa terra et census qui inde exit, furtim aufertur regi." (Domesd. tit. Hereford; Dalrymple on Feuds, 14.) Other writers consider that the folk-land was a precarious tenure, similar to that which is said to have been the origin of our copyholds. (See Hall. Mid. Ages, vol. 2, p. 406; Elton, Tenures of Kent, 119.) the A summary of the evidence on this question will be found in the second volume of Mr. Hallum's work, which has been so often cited. "Whether," says that antiquarian, in conclusion," the law of feudal tenures can be said to have existed in England before the conquest must be left to every reader's determination. Perhaps any attempt to decide it positively would end in a verbal dispute. In tracing the history of every political institution three things are to be considered principle, the form, and the name. The last will probably not be found in any genuine Anglo-Saxon record; of the form, or the peculiar ceremonies and incidents of a regular fief, there is some, though not much, appearance. But they who reflect upon the dependence in which free and even noble tenants held their estates of other subjects, and upon the privileges of territorial jurisdiction, will, I think, perceive much of the intrinsic character of the feudal relation, though in a less mature and systematic shape than it assumed after the Norman conquest.". (Vol. 2, p. 300.) was established. Indeed, from the slaughter of the English nobility at the battle of Hastings, and the fruitless insurrection of those who survived, such numerous forfeitures had accrued, that he was able to reward his Norman followers with very large and extensive possessions. The monkish historians, and such as have implicitly followed them, have represented him as having by right of the sword seized on all the lands of England, and dealt them out again to his own favourites. This supposition, grounded upon a mistaken sense of the word conquest, which, in its feudal acceptation, signifies no more than acquisition, has led many hasty writers into the belief, which upon examination is found to be untrue, that all Saxon proprietors were dispossessed by the Normans, or at least were allowed to retain their land only by new and special grant. However, certain it is, that the Normans now began to gain very large possessions in England; and their regard for the feudal law under which they had long lived, together with the king's recommendation [*125] of his policy to the English, as the best way to put themselves on a military footing, and thereby to prevent any future attempts from the continent, were probably the reasons that prevailed to effect its establishment here by law. And, though the time of this great revolution in the tenure of land cannot be ascertained with exactness, yet there are circumstances that lead us to a probable conjecture concerning it. For we learn from the Saxon Chronicle (r), that in the nineteenth year of king William's reign an invasion was apprehended from Denmark; and the military constitution of the Saxons being then laid aside, and no other introduced in its stead, the kingdom was wholly defenceless; which occasioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landholder, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might co-operate with the king's remonstrances, and the better incline the nobility to listen to his proposals for putting them in a posture of defence. For, as soon as the danger was over, the king held a great council to inquire into the state of the nation (s); the immediate consequence of which was the compiling of the great survey called domesday-book (t), which was finished in the next year: and in *the latter end of that [*126 ] very year the king was attended by all his nobility at Sarum; where all the principal landholders submitted their lands to the yoke of military tenure, became the king's vassals, and did homage and fealty to his person (u). This may possibly have been the era of formally introducing the feudal tenures by law; and perhaps the very law, thus made at the council of Sarum, is that which is still extant (x), and couched in these remarkable words: "Statuimus (r) A. D. 1085. (s) Rex tenuit magnum concilium, et graves sermones habuit cum suis proceribus de hac terrá; quo modo incoleretur, et a quibus hominibus. Chron. Sax. ibid. (t) See Sir H. Ellis's preface to Domesday Book, and the First Report of the House of Commons on Public Records, Append. The inquiry was made upon oath before the king's justices appointed to conduct it. Domesday Book is the ultimate criterion for determining what lands are ancient demesnes of the crown. It is also occasionally of importance in determining the parcels of manors, the pedigrees of families, the sites of ancient mills, the abbey lands belonging to religious houses, and a variety of other circumstances incident to the proof of immemorial rights and obligations. (Phillips on Evidence, p. 579, 8th edition.) (u) Omnes praedia tenentes, quotquot essent notae melioris per totam Angliam, ejus homines facti sunt, et omnes se illi, subdidere, ejusque facti sunt vasalli, ac ei fidelitatis juramenta praestiterunt, se contra alios quoscunque illi fidos futuros. Chron. Sax. A. D. 1066. A precedent of surrendering allodial property to the king and receiving it back as a fief, may be found in the ancient precedents of Marculfus, 1. 1, form 13. (x) Cap. 52; Wilk. 228. ut omnes liberi homines fœdere et sacramento affirment, quod intra et extra universum regnum Anglia Wilhelmo regi domino suo fideles esse volunt; terras et honores illius omni fidelitate ubique servare cum eo, et contra inimicos et alienigenas defendere." The terms of this law (as sir Martin Wright has observed (y)) are plainly feudal: for, first, it requires the oath of fealty, which made in the sense of the feudists every man that took it a tenant or vassal: and, secondly, the tenants obliged themselves to defend their lord's territories and titles against all enemies foreign and domestic. But what clearly evinces the legal establishment of this system, is another law of the same collection (z), which exacts the performance of the military feudal services, as ordained by the general council. "Omnes comites, et barones, et milites, et servientes, et universi liberi homines totius regni nostri prædicti, habeant et teneant se semper bene in armis et in equis, ut decet et oportet; et sint semper prompti et bene parati, ad servitium suum integrum nobis explendumet peragendum, cum opus fuerit; secundum quod nobis debent de foedis et *tenementis suis de [*127] jure facere, et sicut illis statuimus per commune concilium totius regni nostri prædicti." The feudal system thus became established throughout the whole realm. Its acceptance was in appearance voluntary, or with the consent of a great council; but we may easily suppose that the act was voluntary only on the part of those Norman barons who were not only united in interest with the king, but accustomed in their own earlier history to the great military polity. To them the adoption of this system of tenure was at once a cause and a consequence of their power. By accepting grants from the king they acquired territorial wealth, and consequent personal power; by insisting upon the acceptance by others of fiefs held under themselves they insured their own safety and that of their society as then established. The conversion of allodial property into feuds, although it had never been done in the wholesale way in which it was then effected in England, had been sufficiently common in France and other countries to make its adoption seem a natural measure to the lords, and perhaps as the least of many evils to those upon whom it was forced (a). is derived that the king is proprietor of all the lands. In consequence of this change, it became a fundamental maxim and necessary principle (though in reality in perhaps most cases a mere fiction) of our English tenures, "that the king is the universal lord and From this sys original proprietor of all the lands in his kingdom (b) and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feudal services." For this being the real cause in pure, original, proper feuds, those who adopted this system were obliged to act upon the same supposition, as a substruction and foundation of their polity, whatever might be the fact. And carrying this theory into practice, the Norman lawyers, skilled in all the niceties of feudal constitutions, and well understanding the *import and extent of feudal terms, introduced not only the rig[*128] orous doctrines which prevailed in the duchy of Normandy, but also such fruits and dependencies, such hardships and services, as were never known to other nations (c); as if the English had, in fact as well as theory, owed every thing they possessed to the bounty of their sovereign lord. (y) Tenures, 66. (2) Cap. 58; Wilk. 228. (a) Montesq. Esp. des L. lib. xxxi. c. 8. (b) Tuit fuit in luy, et vient de luy al commencement. (M. 24 Edw. 3, 65; Co. Litt. 1.) (c) Spelm. of Feuds, c. 28. The system forced by Will. 1. and II. Relaxed by Our ancestors therefore, who were by no means beneficiaries, but had barely consented to this fiction of tenure from the crown, as the basis of a military discipline, with reason looked upon these deductions as grievous rigorously en- impositions, and arbitrary conclusions from principles that, as to them, had no foundation in truth (d). However, this king, and his son William Rufus, kept up with a high hand all the rigours of the feudal doctrines: but their successor, Henry I., found it expedient, when he set up his pretensions to the crown, to promise a restitution of the laws of king Edward the Confessor, or ancient Saxon system; and accordingly, in the first year of his reign, granted a charter (e), whereby he gave up the greater grievances, but still reserved the fiction of feudal tenure, for the same military purposes which induced his father to introduce it. But this charter was gradually broken through, and the former grievances were revived and aggravated, by himself and succeeding princes; till, in the reign of king John, they became so intolerable, that they occasioned his barons, or principal feudatories, to rise up in arms against him; which at length produced the famous great charter at Runingmead, which, with some alterations, was confirmed by his son Henry III. And, though its immunities (especially as altered on its last edition by his son) (f) are very greatly short of those granted by Henry I., it was justly esteemed at the time a vast acquisition to English liberty. Indeed, by the farther alteration of tenures that has since happened, many *of these immunities may now appear, to a common observer, of much less consequence than they really were when granted: but this, prop- [* 129] erly considered, will show, not that the acquisitions under John were small, but that those under Charles were greater. And from hence also arises another inference; that the liberties of Englishmen are not (as some arbitrary writers would represent them) mere infringements of the king's prerogative, extorted from our princes by taking advantage of their weakness; but a restoration of that ancient constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived by the force of the Norman arms (g). (d) Wright, 81. (g) "It has been very common," says Mr. Hallam (History of the Middle Ages, ch. 2, part 2), "to seek for the origin of feuds, or at least for analogies to them, in the histories of various countries. But though it is of great importance to trace the similarity of customs in different parts of the world, because it guides us to the discovery of general theorems as to human society, yet we should be on our guard against seeming analogies, which vanish away when they are closely observed. It is easy to find partial resemblances to the feudal system. The relation of patron and client in the Roman republic is not unlike that of lord and vassal in respect of mutual fidelity; but it was not founded on the tenure of land or on military service. The veteran soldier, and, in later times, some barbarian allies of the emperors, received lands upon condition of public defence; but they were bound not to an individual lord, but the state. Such a resemblance to fiefs may be found in the Zemindaries of Hindostan and the Timariots of Turkey. The clans of the Highlanders and Irish followed their chieftain into the field; but their tie was that of imagined kindred and respect for birth, not the spontaneous compact of vassalage. Much less can we extend the name of feud, though it is sometimes strangely misapplied, to the polity of Poland and Russia. All the Polish nobles were equal in rights, and independent of each other. All who were less than noble were in servitude. No government can be more opposite to the long gradations and mutual duties of the feudal system. The regular machinery and systematic establishment of feuds, in fact, may be considered as almost confined to the dominions of Charlemagne, and to those countries which afterwards derived it from thence." We have quoted the passage from the earlier editions of Mr. Hallam's work; in the later editions it is somewhat amplified. In another place Mr. Hallam has himself. pointed out an institution, which appears to have been much more closely analogous to the proper feud than any of those enumerated above. "This was usually called com |