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BOOK II. ing arms, were alfo incapable of fucceeding to à genuine feud. But the heir, when admitted to the feud which his ancestor poffeffed, used generally to pay a fine or acknowlegement 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 feodal 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 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 strictly 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 shares reverted to the lord, and did not defcend to their children, or even to their furviving brothers, as not being specified in the donation". But when fuch a feud was given to a man and his heirs, in general terms, then a more extended rule of fucceflion took place; and when the 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 also admitted in the first place; and, in defect of them, fuch 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 fucceflion, that "none was capable of inheriting a feud, but fuch as was of the blood of, that is, lineally de"fcended from, the first feudatory "." 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 services, and thereby weakening the ftrength of the fcodal union) and honorary feuds (or titles of nobility) being now introduced, which were not of n Ibid. 183:

66

Wright. 17.

a divisible nature, but could only be inherited by the eldeft fon; in imitation of these, military feuds (or those we are now describing) began alfo in moft countries to descend, according to the fame rule of primogeniture, to the eldeft fon, in exclufion of all the reft P.

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 4. For, the reafon of conferring the feud being the perfonal abilities of the feudatory to ferve in war, it was not fit he should be at liberty to transfer this gift, either from himself, or from his pofterity who were prefumed 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 fervice; therefore the lord could no more transfer his feignory or protection without consent of his vafal, than the vafal could his feud without confent of his lord: it being equally unreasonable, that the lord fhould extend his protection to a person 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; which were 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 neceflary 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 thefe means the feodal 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 answer the stipu

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lated renders or rent-fervice, and to promote the welfare of their immediate fuperiors or lords'. But this at the fame time demolished the antient fimplicity of feuds; and an inroad being once made upon their conftitution, it subjected them, in a courfe of time, to great varieties and innovations. Feuds began 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 themselves 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 spoken; and under that of improper or derivative feuds were comprized 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 base or lefs honourable fervices, or upon a rent, in lieu of military fervice; fuch 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 expreffed in the creation, fuch new-created feuds did in all refpects follow the nature of an original, genuine, and proper feud'.

BUT as foon as the feodal fyftem came to be confidered in the light of a civil establishment, rather than as a military plan, the ingenuity of the fame ages, which perplexed all theology with the subtilty of scholaftic difquifitions, and bewildered philofophy in the mazes of metaphyfical jargon, began alfo to exert it's influence on this copious and fruitful fubject: in pursuance of which, the most 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 raised: what effect it has produced on the landed property of England will appear in the following chapters.

s Wright. 20.

Feud. 2. t. 7

CHAPTER THE FIFTH.

OF THE ANTIENT ENGLISH TENURES,

N this chapter we fhall take a fhort view of the antient

IN

tenures of our English estates, or the manner in which lands, tenements and hereditaments might have been holden; 'as the fame ftood in force, till the middle of the last century. In which we shall eafily perceive, that all the particularities, all the feeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other; being fruits of, and deduced from, the feodal policy.

ALMOST all the real property of this kingdom is by the policy of our laws supposed to be granted by, dependent upon, and holden of some superior lord, by and in confideration of certain fervices to be rendered to the lord by the tenant or poffeffor of this property. The thing holden is therefore ftiled a tenement, the poffeffors thereof tenants, and the manner of their poffeffion a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king; who is stiled the 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 refpect to those inferior persons, as they were still tenants with respect to the king; and, thus partaking of a middle nature, were called mefne, 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 faid 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 ftiled lord paramount; A was both tenant and lord, or was a mefne lord; and B was called tenant paravail, or the lowest tenant; being he who was fuppofed to make avail, or profit, of the land. In this manner are all the lands of the kingdom holden, which are in the hands of subjects: for according to fir Edward Coke, in the law of England we have not properly allodium; which, we have feen, is the name by which the feudifts abroad diftinguish fuch eftates of the subject, as are not holden of any superior, So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the fcodal

nature.

ALL tenures being thus derived, or fuppofed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the most honourable fpecies of tenure, but at the fame time subjected the tenants to greater and more burthenfome fervices, than inferior tenures did. This distinction ran through all the different forts of tenure; of which I now proceed to give an account,

I. THERE feem to have fubfifted among our ancestors four principal fpecies of lay tenures, to which all others may be reduced the grand criteria of which were the natures of the feveral fervices or renders, that were due to the lords from their tenants. The fervices, in refpect of their quality, were either free or bafe fervices; in refpect of their quantity and the time of exacting them, were either certain or uncertain. Free fervices were fuch as were not unbecoming the character of a foldier, or a freeman to perform; as to ferve

a 2 Inft. 296.

bi Inst. I.

c pag. 47.

d In the Germanic conftitution, the electors, the bishops, the fecular prin

ces, the imperial cities, &c. which hold directly from the emperor, are called the immediate states of the empire; all other landholders being denominated mediate ones. Mod. Un. Hift. xlii. 61.

under

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