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Commentaries on the Laws of England : in Four Books / by Sir William

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Commentaries on the Laws of England : in Four Books / by Sir William THE FEUDAL SYSTEM. 43 Chap. 4.] These are the general divisions of rent; but the difference between them (in respect to the method of recovering them) is now totally abolished; and all persons may have the like remedy by distress for rents-seck, rents of assize, and chief-rents, as in case of rents reserved upon lease. (g) Rent is regularly due and payable upon the land from whence it issues, if no particular place is mentioned in the reservation: (h) but in case of the king, the payment must be either to his officers at the exchequer, or to his receiver in the country. (i) And strictly the rent is demandable and payable before the time of sunset of the day whereon it is reserved; (k) though perhaps not absolutely due till midnight. (l) With regard to the original of rents, something will be said in the next chapter; and, as to distresses, and other remedies for their recovery; the doctrine relating thereto, and the several proceedings thereon, these i. properly to the third part of our Commentaries, which will treat of civil injuries, and the means whereby they are redressed. CHAPTER IV. OF THE FEUDAL 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 feudal law : a system so universally received throughout Europe upwards of twelve centuries ago, that Sir Henry Spelman (a) does not scruple to call it the law of nations in our western world. This chapter will be there fore 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 law, in a scholar-like, 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 ma jestic ruins of Rome, or Athens, of Balbec or Palmyra, it administers both leasure and instruction to compare them with the draughts of the same ed ifices, in their pristine proportion and splendour. *The constitution of feuds (b) had its original from the military pol- [*45] icy of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals and the Lombards, who all, migrating from the same officina gen it, tium, as Crag very entitles (c) poured themselves in vast quantities into all the regions !.".of Europe, at the declension of the Roman empire. It by was brought them from their own countries, aud continued in their re spective colonies as the most likely means to secure their new acquisitions: Stat. 4 Geo. II. c. 28. (h) Co. Litt. 201. 2. Anders. 253. 1 Prec, § 4 Rep. 73. (k) Co. Litt. 802. (1) Saund. 287. Chanc. 555. Salk. 578. (b) See Spelman, of feuds, and Wright of tenures, per tot. a) of parliaments, 57. c) Dejure feod. 19,20. by (1) See in addition to the authorities cited the author, Bell's Historical Studies of 2, ; Feudalism, Hallam's Middle Ages, c. ft. 2; Robertson's Charles W Guizot's History of Civilization in France; Stubbs' Const. Hist. of England. 349 45 THE FEUDAL SYSTEM. [Book II. by and to that end, large districts or parcels of land were allotted the con by quering general to the superior officers of the army, and them dealt out again in smaller parcels or allotments to the inferior officers and most deserv ing soldiers. (d) These allotments were called feoda, feuds, fiefs or fees: which last appellation in the northern language (e) signifies a conditional stipend or reward, (f) Rewards or stipends they evidently 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: (g) and in case of the breach of this condition and oath, by not performing the stipu lated 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 from *the same right of conquest, [*46] 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 by feudatory, was thereforebound, when called upon 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, connection was es to protect the possessions they had given. Thus the ...” tablished, 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 country; (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 feudal among all those nations, which in complaisance to the Romans we still callF.barbarous, may appear from what is recorded (k) 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 aera. They demanded of the Romans, “ut martius populus aliquid sibi terrae daret, quasi stipendium ; which capterum, ut vellet, manibus atque armis suis uteretur.” The sense of is, may be thus rendered; they desired stipendiary lands (that feuds) to be al lowed them, to be held by military and other personal services, whenever their lord should call upon them. This was evidently the same constitution that dis played itself more fully about seven hundred years afterwards when the Salii, Burgundians,and Franks broke in upon Gaul, the Visigoths on *Spain,and [*47] the Lombards upon Italy; and introduced with themselves this northern lan of polity, serving at once to distribute and to protect the territories they #. newly gained. And from hence, too, it is probable that the Emperor Al exander Severus (l) took the hint of dividing lands conquered from the enem among his generals and victorious soldiery, duly stocked with cattle and bon d) Wright, 7. (e) Spelm. Gl. 216. ) Pontoppidan, in his history of Norway, (page 290)observes that in the northern languages odh sig nifies proprietas, and all totum. Hence he derives the odhal right in those countries; and thence too, perhaps, is derived the udal right in Finland, &c. (See Mac Donal Inst. part 2.] Now the transposition of these northern syllables, allodh, will give us the true etymology of the allodium, or absolute property of the feudists; as by a similar combination of the latter syllable, with the word fee, (which signifies, we y have seen a conditional reward or stipend) feeddh or feodum will denote stipe property. ) See this oath explained at large in Feud. 1.2. t.7. 2, 8. 3, ) l. t. Feud. 24. (i) (k) L. Florus, l. c. 3. 1) “Sola de hostibus captaWººlsunt limitaneis ducibus et militibus donavit; ita uteorum ita essent, si edes illorum militarent, nec unquan, ad privºtos pertinerent : dicens attentius illos militaturos, si etiam sua rura defenderent. Additlit stine his et animalia et servos, ut possent collere quod accep erent; nº per inopiam hominum ve! persºn-cluten desererentur rura vicina barbaria, quod turpiº simum ille ducebat." (AEI Lamprid. in vita Alec. Severi.) 350 Chap. 4.]" THE FEUDAL SYSTEM. 47 on condition of receiving military service from them and their heirs |.orever. Scarce had these northern conquerors established themselves in their new dominions, when the wisdom of their constitutions, as well as their personal is, valour, alarmed all the princes of Europe, that 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 is, allodial (that 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 feudal obligations of military fealty. (m) And thus, in the compass of a very few years, the feudal constitution, or the doctrine of tenure, extended itself over all the western world. Which alteration of landed property, in so very material a point, nec essarily drew after it an alteration of laws and customs; so that the feudal 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.
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