Blackstone's Commentaries on the Laws of England
Book the Second - Chapter the Fourth : Of the Feodal System
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Book II.
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Chapter the fourth.
Of the FEODAL SYSTEM.
It is impoffible to underftand, with any degree of accuracy, either the civil conftitution of this kingdom, or the laws which regulate it's landed property, without fome general acquaintance with the nature and doctrine of feuds, or the feodal law: a fyftem fo univerfally received throughout Europe, upwards of twelve centuries ago, that fir Henry Spelman
a does not fcruple to call it the law of nations in our weftern world. This chapter will be therefore dedicated to this inquiry. And though, in the courfe of our obfervations in this and many other parts of the prefent book, we may have occafion to fearch pretty highly into the antiquities of our Englifh jurifprudence, yet furely no induftrious ftudent will imagine his time mif-employed, when he is led to confider that the obfolete 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 law, in a fcholarlike fcientifical manner, without having recourfeto the antient. Nor will thefe refearches be altogether void of rational entertainment as well as ufe: as in viewing the majeftic ruins of Rome or Athens, of Balbec or Palmyra, it adminifters both pleafure and inftruction to compare them with the draughts of the fame edifices, in their priftine proportion and fplendor.
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a of parliaments. 57.
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The conftitution of feuds
b had it's original from the military policy of the northern or Celtic nations, the Goths, the Hunns, the Franks, the Vandals, and the Lombards, who all migrating from the fame officina gentium, as Crag very juftly entitles it
c, poured themfelves in vaft quantities into all the regions of Europe, at the declenfion of the Roman empire. It was brought by them from their own countries, and continued in their refpective colonies as the moft likely means to fecure their new acquifitions: and, to that end, large diftricts or parcels of land were allotted by the conquering general to the fuperior officers of the army, and by them dealt out again in fmaller parcels or allotments to the inferior officers and moft deferving foldiers
d. Thefe allotments in the northern languages
e fignifies a conditional ftipend or reward
f. Rewards or ftipends they evidently were; and the condition annexed to them was, that the poffeffor fhould do fervice faithfully, both at home and in the wars, to him by whom they were given; for which purpofe he took the juramentum fidelitatis, or oath of fealty
g: and in cafe of the breach of this condition and oath, by not performing the ftipulated fervice, or by deferting the lord in battle, the lands were again to revert to him who granted them
h.
Allotments thus acquired, naturally engaged fuch as accepted them to defend them: and, as they all fprang form the
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b See Spelman of feuds, and Wright of tenures, per tot.
c De jure feod. 19, 20.
d Wright: 7.
e Spelm. Gl. 216.
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Pontoppidan in his hiftory of Norway (page 290) obferves, that in the northern languages odh fignifies proprietas and all totum. Hence he derives the odhal right in thofe countries; and hence too perhaps is derived the udal right in Finland, &c. (See Mac Doual. Inft. Part. 2.) Now the tranfpofition of thefe northern fyllables, allodh, will give us the true etymology of the allodium, or abfolute property of the feudifts; as, by a fimilar combination of the latter fyllable with the word fee (which fignifies, we have feen, a conditional reward or ftipend) feeodh or feodum will denote ftipendiary property.
g See this Oath explained at large in Feud. l. 2. t. 7.
h Feud. l. 2. t. 24.
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fame
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fame right of conqueft, no part could fubfift independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each others poffeffions. But, as that could not effectually be done in a tumultuous irregular way, government, and to that purpofe fubordination, was neceffary. 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 likewife fubordinate to and under the command of his immediate benefactor or fuperior; and fo upwards to the prince or general himfelf. And the feveral lords were alfo reciprocally bound, in their refpective gradations, to protect the poffeffions they had given. Thus the feodal connection was eftablifhed, a proper military fubjection was naturally introduced, and an army of feudatories were always ready enlifted, and mutually prepared to mufter, not only in defence of each man's own feveral property, but alfo in defence of the whole, and of every part of this their newly acquired country
i: the prudence of which conftitution was foon fufficiently vifible in the ftrength and fpirit, with which they maintained their conquefts.
The univerfality and early ufe of this feodal plan, among all thofe nations which in complaifance to the Romans we ftill call barbarous, may appear from what is recorded
k of the Cimbri and Teutones, nations of the fame northern original as thofe whom we have been defcribing, at their firft irruption into Italy about a century before the chriftian aera. They demanded of the Romans, “ut martius populus aliquid fibi terrae daret, quafi ftipen- “dium: caeterum, ut vellet, minibus atque armis fuis uteretur.” The fenfe of which may be thus rendered; they defired ftipendiary lands (that is, feuds) to be allowed them, to be held by military and other perfonal fervices, whenever their lords fhould call upon them. This was evidently the fame conftitution, that difplayed itfelf more fully about feven hundred years afterwards; when the Salii, Burgundians, and Franks broke in upon Gaul,
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i Wright. 8,
k L. Florus. l. 3. c. 3.
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the Vifigoths on Spain, and the Lombards upon Italy, and introduced with themfelves this northern plan of polity, ferving at once to protect, the territories they had newly gained. And from hence it is probable that the emperor Alexander Severus
l took the hint, of dividing lands conquered from the enemy among his generals and victorious foldiery, on condition of receiving military fervice from them and their heirs for ever.
Scarce had these northern conquerors eftablifhed themfelves in their new dominions, when the wifdom of their conftitutions, as well as their perfonal valour, alarmed all the princes of Europe; that is, of thofe countries which had formerly been Roman provinces, but had revolted, or were deferted by their old mafters, in the general wreck of the empire. Wherefore moft, if not all, of them thought it neceffary to enter into the fame or a fimilar plan of policy. For whereas, before, the poffeffions of their fubjects were perfectly allodial; (that is, wholly independent, and held of no fuperior at all) now they parceled out their royal territories, or perfuaded their fubjects to furrender up and retake their own landed property, under the like feodal obligation of military fealty
m. And thus, in the compafs of a very few years, the feodal conftitution, or the doctrine of tenure, extended itfelf over all the weftern world. Which alteration of landed property, in fo very material a point, neceffarily drew after it an alteration of laws and cuftoms: fo that the feodal laws foon drove out the Roman, which had hitherto univerfally obtained, but now became for many centuries loft and forgotten; and Italy itfelf (as fome of the civilians, with more fpleen than judgment, have expreffed it) belluinas, atque ferinas, immanefque Longobardorum leges accepit
n.
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“Sola, quae de hoftibus capta funt, limi- “taneis ducibus et militibus donavit; ita ut “corum ita effent, fi haeredes illorum militarent, “nec unquam ad privates pertinerent:dicens “attentius illos militaturos, fi etiam fua rura “defenderent. Addidit fane his et animalia et “fervos, ut poffent colere quod acceperant; ne “per inopiam hominum vel per fenectutom defe- “rerentur rura vicina barbariae, quod turpif- “femum ille ducebat.” (Æl. Lamprid. In vita Alex. Severi.)
m Wright. 10.
n Gravin. Orig. l. 1. §. 139.
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But this feodal polity, which was thus by degrees eftablifhed over all the continent of Europe, feems not to have been received in this part of our ifland, at leaft not univerfally and as a part of the national conftitution, till the reign of William the Norman
o. Not but that it is reafonable to believe, from abundant traces in our hiftory and laws, that even in the times of the Saxons, who were a fwarm from what fir William Temple calls the fame northern hive, fomething fimilar to this was in ufe: yet not fo extenfively, nor attended with all the rigour that was afterwards imported by the Normans. For the Saxons were firmly fettled in this ifland, at leaft as early as the year 600: and it was not till two centuries after, that fueds arrived to their full vigour and maturity, even on the continent of Europe
p.
This introduction however of the feodal tenures into England, by king William, does not feem to have been effected immediately after the conqueft, nor by the mere arbitrary will and power of the conqueror; but to have been confented to by the great council of the nation long after his title was eftablifhed. Indeed from the prodigious flaughter of the Englifh nobility at the battle of Haftings, and the fruitlefs infurrections of thofe who furvived, fuch numerous forfeitures had accrued, that he was able to reward his Norman followers with very large and extenfive poffeffions: which gave a handle to the monkifh hiftorians, and fuch as have implicitly followed them, to reprefent him as having by right of the fword feifed on all the lands of England, and dealt them out again to his own favourites. A fuppofition, grounded upon a miftaken fenfe of the word conqueft; which, in it's feodal acceptation, fignifies no more than acquifition: and this has led many hafty writers into a ftrange hiftorical miftake, and one which upon the flighteft examination will be found to be moft untrue. However, certain it is, that the Normans now began to gain very large poffeffions in England: and their regard for the feodal law, under which they had long lived, together
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o Spelm. Gloff. 218. Bract. l. 2. c. 16. §. 7.
p Crag. l. 1. t. 4.
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with the king's recommendation of this policy to the Englifh, as the beft way to put themfelves on a military footing, and thereby to prevent any future attempts from the continent, were probably the reafons that prevailed to effect it's eftablifhment here. And perhaps we may be able to afcertain the time of this great revolution in our landed property with a tolerable degree of exactnefs. For we learn from the Saxon Chronicle
q, that in the nineteenth year of king William's reign an invafion was apprehended from Denmark; and the military conftitution of the Saxons being then laid afide, and no other introduced in it's ftead, the kingdom was wholly defencelefs: which occafioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landholder, and greatly oppreffed the people. This apparent weaknefs, together with the grievances occafioned by a foreign force, might co-operation with the king's remonftrances, and the better encline the nobility to liften to his propofals for putting them in a pofture of defence. For, as foon as the danger was over, the king held a great council to inquire into the ftate of the nation
r; the immediate confequence of which was finifhed 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 fubmitted their lands to the yoke of military tenure, became the king's vafals, and did homage and fealty to his perfon
s. This feems to have been the aera of formally introducing the feodal tenures by law; and probably the very law, thus made at the council of Sarum, is that which is ftill extant
t, and couched in thefe remarkable words: “ftatuimus, ut omnes liberi “hominess foedere et facramento affirment, quod intra et extra uni- “verfum regnum Angliae Wilhelmo regi domino fuo fideled effe volunt; “terras et honores illius omni fidelitate ubique fervare cum eo, et
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q A. D. 108;
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Rex tenuit magnum concilium, et graves fermones habuti cum fuis proceribus de hac terra, quo modo incoleretur, et a quibus hominibus. Chron. Sax. Ibid.
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Omnes praedia tenentes, quotquot effent notae melioris per totam Angliam, ejus hominess facti funt, et omnes fe illi fubdidere, ejufque facti funt vafalli, ac ei fidelitatis juramenta praeft: terunt, fe contra alios quofcunque illi fidos futuros. Chron. Sax. A. D. 1086.
t cap. 52. Wilk. 228.
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“contra inimicos et alienigenas defendere.” The terms of this law (as firMartin Wright has obferved
u) are plainly feodal: for, firft, it requires the oath of fealty, which made in the fenfe of the feudifts every man that took it a tenant or vafal; and, fecondly, the tenants obliged themfelves to defend their lord's territories and titles againft all enemies foreign and domeftic. But what puts the matter out of difpute is another law of the fame collection
w, which exacts the performance of the military feodal fervices, as ordained by the general council. “Omnes comites, et “barones, et milites, et fervientes, et univerfi liberi homines totius “regni noftri praedicti, habeant et tenoant fe femper bene in armis et “in equis, ut decet et oportet: et fint femper prompti et bene parati “ad fervitium fum integrum nobis explendum et peragendum cum “opus fuerit; fecundum quod nobis debent de feodis et tenementis fuis 'de jure facere; et ficut illis ftatuimus per commune concilium totius “regni noftri praedicti.”
This new polity therefore feems not to have been impofed by the conqueror, but nationally and freely adopted by the general affembly of the whole realm, in the fame manner as other nations of Europe had before adopted it, upon the fame principle of felf-fecurity. And, in particular, they had the recent example of the French nation before their eyes; which had gradually furrendered up all it's allodial orfree lands into the king's hands, who reftored them to the owners as a beneficium or feud, to be held to them and fuch of their heirs as they previoufly nominated to the king: and thus by degrees all the allodial eftates of France were converted into feuds, and the freemen became the vafals of the crown
x. The only difference between this change of tenures in France, and that in England, was, that the former was effected gradually, by the confent of private perfons; the latte was done at once, all over England, by the common confent of the nation
y.
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u Tenures. 66.
w cap. 58. Wilk. 228.
x Montefq. Sp. L. b. 31. c. 8.
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Pharoah thus acquired the dominion of all the lands in Egypt, and granted them out to the Egyptians, referving an annual render of the fifth part of their value. (Gen. c. 47.)
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In confequence of this change, it became a fundamental maxim and neceffary principle (though in reality a mere fiction) of our Englifh tenures, “that the king is the univerfal lord and original “proprietor of all the lands in his kingdom; and that no man “doth or can poffefs any part of it, but what has mediately or “immediately been derived as a gift from him, to be held upon “feodal fervices.” For, this being the real cafe in pure, original, proper feuds, other nations who adopted this fyftem were obliged to act upon the fame fuppofition, as a fubftruction and foundation of their new polity, though the fact was indeed far otherwife. And indeed by thus confenting to the introduction of feodal tenures, our Englifh anceftors probably meant no more than to put the kingdom in a ftate of defence by eftablifhing a military fyftem; and to oblige themfelves (in refpect 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 thefe exprefs conditions, as pure, proper, beneficiary feudatories. But, whatever their meaning was, the Norman interpreters, fkilled in all the niceties of the feodal conftitutions, and well underftanding the import and extent of the feodal terms, gave a very different conftruction to this preceeding; and thereupon took a handle to introduce not only the rigorous doctrines which prevailed in the duchy of Normandy, but alfo fuch fruits and dependencies, fuch hardfhips and fervices, as were never known to other nations
z; as if the Englifh had in fact, as well as theory, owed every thing they had to the bounty of their fovereign lord.
Our anceftors therefore, who were by no means beneficiaries, but had barely confented to this fiction of tenure from the crown, as the bafis of a military difcipline, with reafon looked upon thefe deductions as grievous impofitions, and arbitrary conclufions from principles that, as to them, had no foundation in truth
a. However, this king, and his fon William Rufus, kept up with
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z Spelm. of feuds, c. 28.
a Wright. 81.
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G 2
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a high hand all the rigours of the feodal doctrines: but their fucceffors, Henry I, found it expedient, when he fet up his pretenfions to the crown, to promife a reftitution of the laws of king Edward the confeffor, or antient Saxon fyftem; and accordingly, in the firft year of his reign, granted a charter
b, whereby the gave up the greater grievances, but ftill referved the fiction of feodal tenure, for the fame military purpofes which engaged his father to introduce it. But this charter was gradually broke through, and the former grievances were revived and aggravated, by himfelf and fucceeding prince; till in the reign of king John they became fo intolerable, that they occafioned his barons, or principal feudatories, to rife up in arms againft him: which at length produced the famous great charte at Runing-mead, which, with fome alterations, was confirmed by his fon Henry III. And, though it's immunities (efpecially as altered on it's laft edition by his fon
c) are very greatly fhort of thofe granted by Henry I, it was juftly efteemed at the time a vaft acquifition to Englifh liberty. Indeed, by the farther alteration of tenures that has fince happened, many of thefe immunities may now appear, to a common obferver, of much lefs confequence than they really were when granted : but this, properly confidered, will fhew, not that the acquifitions under John were fmall, but that thofe under Charles were greater. And from hence alfo arifes another inference; that the liberties of Englifhmen are not (as fome arbitrary writers would reprefent them) mere infringements of the king's prerogative, extorted from our princes by taking advantage of their weaknefs; but a reftoration of that antient conftitution, of which our anceftors had been defrauded by the art and fineffe of the Norman lawyers, rather than deprived by the force of the Norman arms.
Having given this fhort of their rife and progrefs, we will next confider the nature, doctrine, and principal laws of feuds; wherein we fhall evidently trace the groundwork of many parts of our public polity, and alfo the original of fuch of our
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b LL. Hen. I. c. 3.
c 9 Hen. III.
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own tenures, as were either abolifhed in the laft century, or ftill remain in force.
The grand and fundamental maxim of al feudal tenure is this; that all lands were originally granted out by the fovereign, 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 ufe and poffeffion, according to the terms of the grant, was ftiled the feudatory or vafal, which was only another name for the tenant or holder of the lands; though, on account of the prejudices we have juftly conceived againft the doctrines that were afterwards grafted on this fyftem, we now ufe the word vafal opprobrioufly, as fynonymous to flave or bondman. The manner of the grant was by words of gratuitous and pure donation, dedi et conceffi; which are ftill the operative words in our modern infeodations or deeds of feoffment. This was perfected by the ceremony of corporal inveftiture, or open and notorious delivery of poffeffion in the prefence of the other vafals, which perpetuated among them the aera of the new acquifition, at a time when the art of writing was very little known: and therefore the evidence of property was repofed in the memory of the neighbourhood; who, in cafe of a difputed title, were afterwards called upon to decide the difference, not only according to external proofs, adduced by the parties litigant, but alfo by the internal teftimony of their own private knowlege.
Besides an oath of fealty, or profeffion of faith to the lord, which was the parent of our oath of allegiance, the vafal or tenant upon inveftiture did ufually homage to his lord; openly and humbly kneeling, being ungirt, uncovered, and holding up his hands both together between thofe of the lord, who fate before him. And there profeffing that “he did become honour:” and then he received a kifs from his lord
d. Which ceremony was deno-
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d Litt. §. 85.
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minated homagium, or manhood, by the feudifts, from the ftated form of words, devenio vefter homo
e.
When the tenant had thus profeffed himfelf to b the man of his fuperior or lord, the next confideration was concerning the fervice, which, as fuch, he was bound to render, in ecompenfe for the land he held. This, in pure, proper, and original feuds, was only twofold: t follow, or do fuit to, the lord in his courts in time of peace; and in his armies or warlike retinue, when neceffity called him to the field. The lord was, in early times, the legiflator and judge over all his feudatories: and therefore the vafals of the inferior lords were bound by their fealty to attend their domeftic courts baron
f, (which were inftituted in every manor or barony, for doing fpeedy and effectual juftice to all the tenants) in order as well to anfwer fuch complaints as might be alleged againft themfelves, as to form a jury or homage for the trial of their fellow-tenants; and upon this account, in all the feudal inftitutions both here and on the continent, they are diftinguifhed by the appellation of the peers of the court; pares curtis, or pares curiae. In like manner the barons themfelves, or lords of inferior diftricts, were denominated peers of the king's court, and were bound to attend him upon fummons, to hear caufes of greater confequence in the king's prefence and under the direction of his grand jufticiary; till in many countries the power of that officer was broken and diftributed into other courts of judicature, the peers of the king's court ftill referving to themfelves (in almoft every feudal government) the right of appeal from thofe fubordinate courts in the laft refort. The military branch of fervice confifted in attending the lord to the wars, if called upon, with fuch a retinue, and for fuch a number of days,
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- It was an obfervation of Dr. Arbuthnot, that tradition was no where preferved fo pure and incorrupt as among children, whofe games and plays are delivered down invariably from one generation to another. (Warburton's notes on Pope. vi. 134. 80.) Perhaps it may be thought puerile to obferve (in confirmation of this remark) that in one of our antient paftimes (the bafilinda of Julius Pollux, Onomaftic. l. 9.c. 7.) the ceremonies and language of feudal homage are preferved with great exactnefs.
f Feud. l. 2. t. 55.
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as were ftipulated at the firft donation, in proportion to the quantity of the land.
At the firft introduction of feuds, as they were gratuitous, fo alfo they were precarious and held at the will of the lord
g, who was the fole judge whether his vafal performed his fervices faithfully. Then they became certain, for one or more years. Among the antient Germans they continued only from year to year; an annual diftribution of lands being made by their leaders in their general councils or affemblies
h. This was profeffedly done, left their thoughts fhould be diverted from war to agriculture; left the ftrong fhould incroach upon the poffeffions of the weak; and left luxury and avarice fhould be encouraged by the erection of permanent houfes, and too curious an attention to convenience and the elegant fuperfluities of life. But, when the general migration was pretty well over, and a peaceable poffeffion of their new-acquired fettlements had introduced new cuftoms and manners; when the fertility of the foil had encouraged the ftudy of hufbandry, and an affection for the fpots they had cultivated began naturally to arife in the tillers; a more permanent degree of property was introduced, and feuds began now to be granted for the life of the feudatory
i. But ftill feuds were not yet hereditary; though frequently granted, by the favour of the lord, to the children of the former poffeffor; till in procefs of time it became unufual, and was therefore thought hard, to reject the heir, if he wee capable to perform the fervices
k: and therefore infants, women, and profeffed monks, who were incapable of bearing arms, were alfo incapable of fucceeding to a genuine feud. but the heir, when admitted to the feud which his anceftor poffeffed, ufed generally to pay a fine or acknowlegement to the lord, in
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g Feud. l. 1. t. 1.
- Thus Tacitus: (de mor. Germ. c. 26.) “agri ab univerfis per vices occupantur: arva “per annos mistant.” And Caefar yet more fully; (de bell. Gall. l. 6. c. 21.) “Neque “quifquam agri modum certum, aut fines pro- prios habet; fed magiftratus et principes, in “annos fingulos, gentibus et cognationibus ho- “minum qui una coierunt quantum cis et quo. “loco vifum eft, attribuunt agri, ataue anno “poft alio tranfire cogunt.”
i Fend. l. t. 1.
k Wright. 14.
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horfes, arms, money, and the like, for fuch renewal of the fued: which was called a relief, becaufe it re-eftablifhed the inheritance, or, in the words of the feudal writers, “incertam et cadu- “cam hereditatem relevabat.” This relief was afterwards, when feuds became abfolutely hereditary, continued on the death of the tenant, though the original foundation of it had ceafed.
For in procefs of time feuds came by degrees to be univerfally extended, beyond the life of the firft vafal, to his fons, or perhaps to fuch one of them, as the lord fhould name; and in this cafe the form of the donation was ftrictly obferved: for if a feud was given to a man and his fons, all his fons fucceeded him in equal portions; and as they died off, their fhares reverted to the lord, and did not defcend to their children, or even to their furviving brothers, as not being fpecified in the donation
l. But when fuch a feud was given to a man, and his heirs, in general terms, then a more extended rule of fucceffion took place; and when a feudatory died, his male defcendants in infinitum were admitted to the fucceffion. When any fuch defcendant, who thus had fucceeded, died, his male defcendants were alfo admitted in the firft place; and, in defect of them, fuch of his male collateral kindred as were of the blood or lineage of the firft feudatory, but no others. For this was an unalterable maxim in feudal fucceffion, that “none was capable of inheriting a feud, but fuch “as was of the blood of, that is, lineally defcended from, the “firft feudatory
m.” And the defcent, being thus confined to males, originally extended to all the males alike; all the fons, without any diftinction of primogeniture, fucceeding to equal portions of the father's feud. but this being found upon many accounts inconvenient, (particularly, by dividing the fervices, and thereby weakening the ftrength of the feudal union) and honorary feuds (or titles of nobility) being now introduced, which were not of a divifible nature, but could only be inherited by the eldeft fon
n; in imitation of thefe, military feuds ( or thofe we are now defcribing) began alfo in moft countries to defcend ac-
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l Wright. 17.
m Ibid. 183.
n Feud. 2. t. 55.
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cording to the fame rule of primogeniture, to the eldeft fon, in exclufion of all the reft
o.
Other qualities of feuds were, that the feudatory could not aliene or difpofe of his feud; neither could he exchange, nor yet mortgage, nor even devife it by will, without the confent of the lord
p. For, the reafon of conferring the feud being the perfonal abilities of the feudatory to ferve in war, it was not fit he fhould be at liberty to transfer this gift, either from himfelf, or his pofterity who were perfumed to inherit his valour, to others who might prove lefs able. And, as the feudal obligation was looked upon as reciprocal, the feudatory being entitled to the lord's protection, in return for his own fealty and fervice; therefore the lord could no more transfer his feignory or protection without confent of his vafal, than the vafal could his feud without confent of his lord
q: it being equally unreafonable, that the lord fhould extend his protection to a perfon to whom he had exceptions, and that the vafal fhould owe fubjection to a fuperior not of his own choofing.
These were the principal, and very fimple, qualities of the genuine or original feuds;; being then all of a military nature, and in the hands of military perfons: though the feudatories, being under frequent incapacities of cultivating and manuring their own lands, foon found it neceffary to commit part of them to inferior tenants; obliging them to fuch returns in fervice, corn, cattle, or money, as might enable the chief feudatories to attend their military duties without diftraction: which returns, or reditus, were the original of rents. And by this means the feudal polity was greatly extended; thefe inferior feudatories (who held what are called in the Scots law “rere-fiefs”) being under fimilar obligations of fealty, to do fuit of court, to anfwer the ftipulated renders or rent-fervice, and to promote the welfare of their immediate fuperiours or lords
r. But this at the fame time demolifhed
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o Wright. 32.
p Ibid. 29.
q Ibid. 30.
r Wright. 20.
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.P 58
The Rights
of Things.
Book II.
Ch. 4.
the antient fimplicity of feuds; and an inroad being once made upon their conftitution, it fubjected them, in a courfe of time, to great varieties and innovations. Feuds came to be bought and fold, and deviations were made from the old fundamental rules of tenure and fucceffion; which were held no longer facred, when the feuds themfelves no longer continued to be purely military. Hence thefe tenures began now to be divided into feoda propria et impropria, proper and improper feuds; under the former of which divifions were comprehended fuch, and fuch only, of which we have before fpoken; and under that of improper or derivative feuds were comprised all fuch as do not fall within the other defcription: fuch, for inftance, as were originally bartered and fold to the feudatory for a price; fuch as were held upon bafe or lefs honourable fervices, or upon a rent, in lieu of military fervice; fuch as were in themfelves alienable, without mutual licence; and fuch as might defcend indifferently either to males or females. But, where a difference was not expreffed in the creation, fuch new-created feuds did in all other refpects follow the nature of an original, genuine, and proper feud
s.
But as foon as the feudal fyftem came to be confidered in the light of a civil eftablifhment, rather than as a military plan, the ingenuity of the fame ages, which perplexed all theology with the fubtilty of fcholaftic difquifitions, and bewildered philofophy in the mazes of metaphyfical jargon, began alfo to exert it's influence on this copious and fruitful fubject: in purfuance of which, the moft refined and oppreffive confequences were drawn from what originally was a plan of fimplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defence. From this one foundation, in different countries of Europe, very different fuperftructures have been raifed: what effect it has produced on the landed property of England will appear in the following chapters.
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s
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