of gratuitous and pure donation, dedi et concessi; which are still the operative words in our modern infeudations or deeds of feoffment. This was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vassals; which perpetuated among them the æra of the new acquisition, at a time when the art of writing was very little known; and therefore the evidence of property was reposed in the memory of the neighborhood; who, in case of a disputed title, were afterwards called upon to decide the difference not only according to external proofs, adduced by the parties litigant, but also by the internal testimony of their own private knowledge.

Besides an oath of fealty, or profession of faith to the lord, which was the parent of our oath of allegiance, the vassal or tenant upon investiture did usually homage to his lord; openly and humbly kneeling, being ungirt, uncov

ered, and holding up his hands both together between those of the lord, [*54] who sate before him; and there professing, that "he did become his man, from that day forth, of life and limb and earthly honour:" and then he received a kiss from his lord. (e) Which ceremony was denominated homagium, or manhood, by the feudists, from the stated form of words, devenio vester homo. (f)

When the tenant had thus professed himself to be the man of his superior or lord, the next consideration was concerning the service, which, as such, he was bound to render, in recompense for the land that he held. This, in pure, proper, and original feuds, was only two-fold; to follow, or do suit to, the lord in his courts in time of peace; and in his armies or war-like retinue, when necessity called him to the field. The lord was, in early times, the legislator and judge over all his feudatories: and therefore the vassals of the inferior lords were bound by their fealty to attend their domestic courts baron (g) (which were instituted in every manor or barony for doing speedy and effectual justice to all the tenants,) in order as well to answer such complaints as might be alleged against themselves, as to form a jury or homage for the trial of their fellowtenants: and upon this account, in all the feudal institutions both here and on the continent, they are distinguished, by the appellation of the peers of the court; pares curtis, or pares curia. In like manner the barons themselves, or lords of inferior districts, were denominated peers of the king's court, and were bound to attend him upon summons, to hear causes of greater consequence in the king's presence, and under the direction of his grand justiciary; till in many countries the power of that officer was broken and distributed into other courts of judicature, the peers of the king's court still reserving to themselves (in *almost every feudal government) the right of appeal from those subor[*55] dinate courts in the last resort. The military branch of service consisted in attending the lord to the wars, if called upon, with such a retinue, and for such a number of days, as were stipulated at the first donation, in proportion to the quantity of the land.

At the first introduction of feuds, as they were gratuitous, so also they were precarious, and held at the will of the lord, (h) who was then the sole judge whether his vassals performed his services faithfully. Then they became certain

(e) Litt. 85.

(f) It was an observation of Dr. Arbuthnot, that tradition was nowhere preserved so pure and incorrupt as among children, whose games and plays are delivered down invariably from one generation to another. (Warburton's notes on Pope. vi. 134, 88.) It will not, I hope, be thought puerile to remark, in confirmation of this observation, that in one of our ancient juvenile pastimes (the king I am or basilinda of Julius Pollux, Onomastic, 1. 9, c. 7,) the ceremonies and language of feudal homage are preserved with great exactness. (g) Feud. l. 2, t. 55. (h) Feud. l. 1, t. 1.

villain, which once meant only an innocent, inoffensive bondman, has kept its relative distance, and denotes a person destitute of every moral and honorable principle, and is become one of the most opprobrious terms in the English language." May it not be assumed that the system produced a moral debasement equivalent to the political degradation which it inflicted; and that, although villain originally meant nothing more than bondman or laborer, it became afterward, as we have seen, expressive of moral turpitude, from the vices which the system necessarily engendered in its victims.]

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. (i) This was professedly done lest their thoughts should be diverted from war to agriculture, lest the strong should encroach 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 determined degree of property was introduced, and feuds began now to be granted for the life of the feudatory. (k) 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 monks, who were incapable of *bearing arms, were also incapable of succeeding to a genuine feud. But the heir, when ad- [*56] mitted 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 renewal of the feud: which was called a relief, because it raised up and re-established the inheritance, or in the words of the feudal 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.

66

For in process of time feuds came by degrees to be 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.(m) 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 had thus 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." (n) 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; (0) in imitation of these, military feuds (or [*57] 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. (p) Other qualities of feuds were, that the feudatory could not aliene or disposo of his feud; neither could he exchange, nor yet mortgage, nor even devise it by will without the consent of the lord. (q) For the reason of conferring the feud being the personal abilities of the feudatory to serve in war, it was not fit he

(i) 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 singulos, gentibus et cognationibus hominum qui una coierunt, quantum eis et quo loco vi sum est, attribuunt agri, atque anno post alio transire cogunt.” (k) Feud. l. 1. t. 1, (1) Wright, 14. (m) Ibid. 17. (P) Wright, 32.

(q) Ibid. 29.

(n) Ibid. 183.

(0) Feud. 2, t. 55.

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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. (8) 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 protection without consent of his vassal, than the vassal could his feud without consent of his lord: (r) it being 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.

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 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 rent-service, and to promote the welfare of their immediate superiors or lords.(s) [*58] *But this at the same time demolished 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 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 descriptions; 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. (t)

But as soon as the feudal system came to be considered 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.

(8) [When a feud had descended to any one, the restraint on alienation went a step farther, and he was not allowed to alien without the consent of the next collateral heir; for though the law trusted an ancestor with the interest of his own immediate descendants, yet it would not allow him to prejudice the distinct, though remote, interest in the donation which the next collateral heir had. Wright on Tenures. 167.]

CHAPTER V.

OF THE ANCIENT ENGLISH TENURES.

IN this chapter we shall take a short view of the ancient tenures of our English estates, or the manner in which lands, tenements, and hereditaments, might have been holden, as the same stood in force, till the middle of the last 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.

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 consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore styled 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, mediately or immediately, of the king, who is styled 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 respect to those inferior persons, as they were still tenants with respect to the king: (1) and, thus partaking of a 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 there[*60] fore was styled lord paramount; A was both tenant and lord, or was a mesne lord and B was called tenant paravail, or the lowest tenant; being he who was supposed to make avail, or profit of the land. (a) In this manner are all the lands of the kingdom holden, which are in the hands of subjects: for, according to Sir Edward Coke, (b) in the law of England we have not properly allodium; which, we have seen, (c) is the name by which the feudists abroad distinguish such estates 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 feudal nature.

All tenures being thus derived, or supposed 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 species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures did. (d) This distinction ran through all the different sorts of tenure, of which I now proceed to give an account.

I. There seems to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced: the grand criteria of which were the natures of the several services or renders, that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services; in respect of their quantity and the time of exacting them, were either certain or uncertain. Free services were such as were not unbecoming the character of a soldier or a freeman to perform; *as to serve under his lord in the wars, to pay a sum of money, and the like. Base services were [*61]

(b) 1 Inst. 1.

(c) Page 47.

(a) 2 Inst, 296. (d) In the Germanic constitution, the electors, the bishops, the secular princes, 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. Hist. xliii, 61.

(1) [William the First, and other feudal sovereigns, though they made large and numerous grants of lands, always reserved a rent, or certain annual payments (commonly very trifling), which were collected by the sheriffs of the counties in which the lands lay, to show that they still retained the dominium directum in themselves. Madox Hist, Exch. c. 10; Craig. de Feud, I. 1, c. 9.]

such as were fit only for peasants or persons of a servile rank; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies; as, to do military service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm; which are free services: or to do whatever the lord should command; which is a base or villein service.

From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England till the middle of the last century; and three of which subsist to this day. Of these Bracton (who wrote under Henry the Third) seems to give the clearest and most compendious account, of any author ancient or modern (e) of which the following is the outline or abstract. (f) "Tenements are of two kinds, frank-tenement and villenage. And, of frank-tenements, some are held freely in consideration of homage and knight-service; others in free-socage with the service of fealty only." And again, (g) "of villenages some are pure, and others privileged. He that holds in pure villenage shall do whatever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called villein-socage; and these villein-socmen do villein services, but such as are certain and determined." Of which the sense seems to be as follows: first, where the service was free but uncertain, as military service with homage, that tenure was called the tenure [*62] in chivalry, per servitium militare, or by knight-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, &c., that tenure was called liberum socagium, or free socage. These were the only free holdings or tenements; the others were villenous or servile, as thirdly, where the service was base in its nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in its nature, but reduced to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum; or it might still be called socage (from the certainty of its services), but degraded by their baseness into the inferior title of villanum socagium, villein-socage.

I. The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service, called in Latin servitium militare; and in law French, chivalry, or service de chivaler, answering to the fief d'haubert of the Normans, (h) which name is expressly given it by the Mirrour. (1) This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the general effect of the feudal establishment in England. To make a tenure by knight-service, a determinate quantity of land was necessary, which was called a knight's fee, feodum militare; the measure of which in 3 Edw. I, was estimated at twelve ploughlands, (k) and its value (though it varied with the times) (7) in the reigns of Edward I and Edward II, (m) was stated at 201. per annum. (2) And he who held this proportion of land

(e) L. 4, tr. 1, c. 28.

(f) Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenetur bibere pro homagio et servitio militari; aliud in libero socagio cum fidelitate tantum ? 1.

(g) Villenagiorum aliud parum, aliud privilegiatum. Qui tenet in puro villenagio faciet quicquid ei præcep tum fuerit, et semper tenebitur ad incerta. Aliud genus villenagii dicitur villanum socagium ; et hujusmodi villani socmanni-villana faciunt servitia, sed certa, et determinata. 25. (h) Spelm, Gloss. 219. (i) C. 2. ¿ 27. (k) Pasch. 3 Edw. I. Co. Litt. 69. (m) Stat. Westm. 1, c. 36. Stat. de milit. 1 Edw. II. Co. Litt. 69.

(1) 2 Inst. 596.

(2) Mr. Justice Coleridge is of the opinion that the fluctuation in the value of knight's fees was so uncertain and extraordinary that it could not be accounted for by any change in the times. With regard to the extent, he has no hesitation in assenting to the doctrine that it varied with the goodness of the land; at the same time the measure might be the same, as twelve plough lands of rich soil would contain a less space than the same number in a lighter and less productive soil. There might therefore be always the same number of plough lands though the number of acres might vary; nor is it at all inconsistent with this that there might be appended to the plough lands wood, meadow and pasture, for the arable land was the