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 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.

Allotments, thus acquired, naturally engaged such as accepted them to defend them; and, as they all sprang 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 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 defense of the whole. and of every part of this their newly acquired country; the produce of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquests. Its Growth on the Continent.

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 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 so universally obtained but now became for many centuries lost and forgotten.

The System in England.

But this feodal policy, 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.

Its establishment under the Normans was gradual. It grew up as the best way to put the country on a military footing.

The new policy was not imposed by King William, but seems to have been nationally and freely adopted by the general assembly of the whole realm. In the same year with the completion of the great survey called domesday-book 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.

The sons of William the Conqueror kept up with a high hand all the rigors of the feodal system; but their successor, Henry I., promised to restore the laws of King Edward the Confessor-the ancient Saxon system, but he still reserved the fiction of feodal tenure, and afterwards the grievances of the system were revived until the reign of King John, when the barons arose in arms and wrested from him the great charter.

Having given this short history of their rise and progress, we will next consider the nature, doctrine, and principal laws of feuds; wherein we shall evidently trace the groundwork of many parts of our public polity, and also the original of such of our own tenures as were either abolished in the last century, or still remain in force.

The Fundamental Maxim.

The grand and fundamental maxim of all feodal tenure is this: that all lands were originally granted out by the sovereign, and are therefore holden either mediately, or immediately, of the crown. The grantor was called the proprietor or lord: being he who retained the dominion or ultimate property of the feud or fee; and the grantee, who had only the use and possession, according to the terms of the grant, was styled the feudatory, or vassal, which was only another name for the tenant, or holder of the lands; though on account of the prejudices which we have justly conceived against the doctrines that were afterwards grafted on this system, we now use the word vassal opprobriously, as synonymous to slave or bondman. The manner of the grant was by words of gratuitous and pure donation, dedi et concessi; which are still the operative words in our modern infeodations or deeds of feoffment. This was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vassals, which perpetuated among them the era of the new acquisition, at a time when the art of writing was very little known: and therefore the evidence of property was reposed in the memory of the neighborhood; who, in case of a disputed title, were afterwards called upon to decide the difference, not only

according to external proofs, adduced by the parties litigant, but also by the internal testimony of their own private knowledge.

Besides an oath of fealty, or profession of faith to the lord, which was the parent of our oath of allegiance, the vassal or tenant upon investiture did usually homage to his lord; openly and humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the lord, who sate before him; and there professing that "he did become his man, from that day forth of life and limb and earthly honor;" and then he received a kiss from his lord. Which ceremony was denominated homagium, or manhood, by the feudists, from the stated form of words, devenio vester homo.

The Service of the Tenant.

When the tenant had thus professed himself to be the man of his superior or lord, the next consideration was concerning the service which, as such, he was bound to render, in recompense for the land he held. This, in pure, proper and original feuds, was only twofold; to follow, or do suit to, the lord in his courts in time of peace; and in his armies or warlike retinue, when necessity called him to the field. The lord was, in early times, the legislator and judge over all his feudatories: and therefore the vassals of the inferior lords were bound by their fealty to attend their domestic court barons (which were instituted in every manor or barony for doing speedy and effectual justice to all the tenants), in order as well to answer such complaints as might be alleged against themselves as to form a jury or homage for the trial of their fellowtenants and upon this account, in all the feudal institutions both here and on the continent, they are distinguished by the appellation of the peers of the court; pares curiis, or pares curiae. In like manner the barons themselves, or lords of inferior districts were denominated peers of the king's court, and were bound to attend him upon summons, to hear causes of greater consequence in the king's presence and under the direction of his grand justiciary; till in many countries the power of that officer was broken and distributed into other courts of judicature, the peers of the king's court still reserving to themselves (in almost every feudal government) the right of appeal from those subordinate courts in the last resort. The military branch of service consisted in attending the lord to the wars, if called upon, with such a retinue, and for such a number of days, as were stipulated at the first donation, in proportion to the quantity of the land.

The Qualities of the Feud.

At the first introduction of feuds, as they were gratuitous, so also they were precarious, and held at the will of the lord, who was then the sole judge whether his vassal performed his services.

faithfully. Then they became certain for one or more years. But, when the general migration was pretty well over, and a peaceable possession of the new acquired settlements had introduced new customs and manners, when the fertility of the soil had encouraged the study of husbandry, and an affection for the spots they had cultivated began naturally to arise in the tillers; a more permanent degree of property was introduced, and feuds began now to be granted for the life of the feudatory. But still feuds were not yet hereditary; though frequently granted, by the favor of the lord, to the children of the former possessor; till in process of time it became unusual, and was therefore thought hard, to reject the heir, if he were capable to perform the services: and therefore infants, women, and professed monks, who were incapable of bearing arms, were also incapable of succeeding to a genuine feud. But the heir, when admitted to the feud which his ancestor possessed, used generally to pay a fine or acknowledgment to the lord, in horses, arms, money, and the like, for such renewal of the feud: which was called a relief, because it raised up and re-established the inheritance, or, in the words of the feudal writers, "incertam et caducam hereditatem relevabat." This relief was afterwards, when feuds became absolutely hereditary, continued on the death of the tenant, though the original foundation of it had ceased.

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 their lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation. 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, 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.

Other qualities of feuds were, that the feudatory could not aliene or dispose of his feud; neither could he exchange, nor 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 valour, to others who might prove less able. And, as the feodal obligation was looked upon as reciprocal, the feudatory being entitled to the lord's protection, in return for his own fealty and service; therefore the lord could no more transfer his seignory or protection without consent of his vassal, than the vassal could his feud without 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.

Inferior Feuds.

These were the principal, and very simple qualities, of the genuine or original feuds; which were all of a military nature, and in the hands of military persons; though the feudatories, 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 rents, and by these means the feodal polity was greatly extended; these inferior feudatories (who held what are called in the Scots law "rerefiefs") 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 lords. But this at the same time demolished the ancient 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