[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 (y). 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 feudal 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” (z). 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 feudal 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 (a); 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 (b).] 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 (y) Wright's Tenures, 17. (z) Ibid. 183. (a) Feud. ii. 55. [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 to their military duties without distraction; which returns, or reditus, were the original of rents. And by these means the feudal polity was greatly extended, these inferior 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 lords (c). But this at the same time demolished the antient simplicity of feuds; and an inroad being once made upon their constitution, it subjected them, in 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 honourable services, or upon a rent, in lieu of military service; such as were in themselves alienable, without mutual licence; 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 (d).] The feudal polity of which we have here presented an outline [seems not to have been received in this part of our island, at least not universally, and as a part of the (c) Wright's Tenure, 20. (d) Ibid. 36. [national constitution, till the reign of William the Norman (e). 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 until the eleventh or twelfth century (f) [that feuds arrived to their full vigour and maturity, even on the continent of Europe. 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 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;] and their regard [for the feudal law, under which they had long lived, together with the king's recommendation of this 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 our landed property cannot be ascertained (e) Spelm. Gloss. 218; Bract. 1. 2, c. 16, s. 7. (f) Hallam's Middle Ages, vol. i. p. 192, 7th ed. Blackstone consi ders the feudal system as having reached its maturity about the year 800, and cites Crag. 1. 1, t. 4. may [with exactness, yet there are some circumstances that lead us to a probable conjecture concerning it; for we learn from the Saxon Chronicle (g), that in the nineteenth year of King William's reign an invasion was apprehended from Denmark; and the military constitutions 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 themselves 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 (h); the immediate consequence of which was the compiling of the great survey called Domesday Book, which was finished in the next year; and in the latter end of that 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 (i). 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 (k), and couched in these remarkable words:-" Statuimus, 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 (g) A.D. 1085. (h) "Rex tenuit magnum concilium, et graves sermones habuit cum suis proceribus de hâc terrâ ; quo modo incoleretur, et a quibus hominibus.”. Chron. Sax. ib. (i) "Omnes prædia tenentes quotquot essent nota melioris per totam Angliam, ejus homines facti sunt, et omnes se illi subdidere, ejusque facti sunt vasalli, ac ei fidelitatis juramenta præstiterunt, se contra alios quoscunque illi fidos futuros."-Chron. Sax. A.D. 1086. (k) Wilkins's Leg. Anglo-Sax. LL. Guil. Con. c. 52. [servare cum eo, et contra inimicos et alienigenas defendere." The terms of this law, as Sir Martin Wright has observed (1), 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 (m), 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 explendum et peragendum, cum opus fuerit; secundum quod nobis debent de feodis et tenementis suis de jure facere, et sicut illis statuimus per commune concilium totius regni nostri prædicti.”] It is probable that by thus [consenting to the introduction of feudal tenures, our English ancestors meant no more than to put the kingdom in a state of defence by establishing a military system, and to oblige themselves, in respect of their lands, to maintain the king's title and territories with equal vigour and fealty, as if they had received their lands from his bounty upon these express conditions, as pure, proper, beneficiary feudatories. But whatever their meaning was, the Norman interpreters, skilled in all the niceties of the feudal constitutions, and well understanding the import and extent of the feudal terms, gave a very different construction to this proceeding; and thereupon took a handle to introduce not only the rigorous 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 (n); as if the English had, in fact as well as (1) Tenures, 66. (m) Wilkins's Leg. Anglo-Sax. LL. Guil. Con. c. 28. (n) Spelm. of Feuds, c. 28. |