at first held the lord; for one or more years; At the first introduction of feuds, as they were gratui- Feuds were tous, so also they were precarious, and held at the will at the will of of the lord, who was then the sole judge whether his vassal performed his services faithfully. Then they be- afterwards, came certain for one or more years. Among the ancient Germans they continued only from year to year: an annual distribution of lands being made by their leaders in their general councils or assemblies.' This was professedly done, lest their thoughts should be diverted from war to agriculture; lest the strong should incroach upon the possessions of the weak; and lest luxury and avarice should be encouraged by the erection of permanent houses, and too curious an attention to convenience and the elegant superfluities of life. 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 intro- then for life; duced, 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 favour 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 who, incapamonks, who were incapable of bearing arms, were also ceeding to a 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 re- Relief, what. newal of the feud: which was called a relief, because it raised up and re-established the inheritance, or in the Feud. 1. 1, t. 1. 1 Thus Tacitus: (de Mor. Germ. c. 26) "agri ab universis per vices occupantur: arva per annos mutant." And Cæsar yet more fully, (de Bell. Gall. 1. 6, c. 21,) "Neque quisquam agri modum certum, aut fines proprios habet; sed magistratus et principes, in annos n Wright, 14. ble of suc feud. [ 56 ] In process of time feuds scendible to the sons of the feuda tory. words of the feudal writers, " incertam et caducam heriditatem 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 became de- 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 the 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 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." 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; 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.' [ 57 ] tory could his feud with sent of the Other qualities of feuds were, that the feudatory could The feudanot aliene or dispose of his feud: neithercould he exchange, not dispose of nor yet mortgage, nor even devise it by will, without the out the conconsent of the lord. For, the reason of conferring the lord. 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 feudal 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 Neither protection without consent of his vassal, than the vassal could his feud without consent of his lord; it being without the 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. could the lord transfer his seignory consent of the vassal. in like man ferior tenants tions. by the These were the principal, and very simple, qualities of vassals had, the genuine or original feuds; which were all of a military ner, their innature, and in the hands of military persons: though the bound to feudatories, being under frequent incapacities of culti-like obliga vating 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 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 rentservice, and to promote the welfare of their immediate superiors or lords." But this at the same time demolished [58] 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 Change in the began to be bought and sold, and deviations were made feuds nature of Oppressive drawn from the feudal system. 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 license; 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. But as soon as the feudal system came to be consiconsequences dered in the light of a civil establishment, rather than as a military plan, the ingenuity of the same ages, which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon, began also to exert its influence on this copious and fruitful subject: in pursuance of which, the most refined and oppressive consequences were drawn from what originally was a plan of simplicity 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 superstructures have been raised: what effect it has produced on the landed property of England will appear in the following chapters. ▾ Feud. 2, t. 7. Wright, 36. CHAPTER THE FIFTH. of the anciENT ENGLISH TENURES. [ 59 ] cient English In this chapter we shall take a short view of the ancient of the antenures of our English estates, or the manner in which tenures. lands, tenements and hereditaments might have been holden; as the same stood in force, till the middle of the seventeenth century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feudal principles and no other; being fruits of, and deduced from, the feudal policy. All lands supposed to holden of some supe lord para Almost all the real property of this kingdom is, by the policy of our laws, supposed to be granted by, dependent be upon, and holden of some superior lord, by and in con- rior lord. sideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore stiled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. Thus all the land in the kingdom is supposed to be holden, The king, mediately or immediately, of the king, who is stiled the mount; lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king; and, thus partaking of a his grantees, middle nature, were called mesne, or middle lords. So that if the king granted a manor to A., and he granted a portion of the land to B., now B. was said to hold of A., and A. of the king; or in other words, B. held his lands immediately of A., but mediately of the king. The king therefore was stiled lord paramount; A. was both tenant and lord, or was a mesne lord: and B. was called tenant paravail. mesne lands. Tenants |