Cyclopædia of Political Science, Political Economy, and the Political History of the United States
FEUDAL SYSTEM. In treating of this subject we shall endeavor to present a concise and clear view of the principles of what is called the feudal system, to indicate the great stages of its history, especially in England, and to state briefly the leading considerations that should be taken into account in forming an estimate of its influence on the civilization of modern Europe.
—The essential constituent and distinguishing characteristic of the species of estate called a feud or fief was from the first, and always continued to be, that it was not an estate of absolute and independent ownership. The property, or dominium directum, as it was called, remained in the grantor of the estate. The person to whom it was granted did not become its owner, but only its tenant or holder. There is no direct proof that fiefs were originally resumable at pleasure, and Mr. Hallam, in his "State of Europe during the Middle Ages," has expressed his doubts if this were ever the case; but the position, as he admits, is laid down in almost every writer on the feudal system, and, if not to be made out by any decisive instances, it is at least strongly supported not only by general considerations of probability, but also by some indicative facts. This, however, is not material. It is not denied that the fief was at one time revocable, at least on the death of the grantee. In receiving it, therefore, he had received not an absolute gift, but only a loan, or at most an estate for his own life.
—This being established as the true character of a primitive feud or fief, may perhaps throw some light upon the much disputed etymology and true meaning of the word. Feudum has been derived by some from a Latin, by others from a Teutonic root. The principal Latin origins proposed are fœdus (a treaty) and fides (faith). The supposition of the transformation of either of these into feudum seems unsupported by any proof. These derivations, in fact, are hardly better than another resolution of the puzzle that has been gravely offered, namely, that feudum is a word made up of the initial letters of the words fidelis ero ubique domino vero meo. The chief Teutonic etymologies proposed have been from the old German faida, the Danish feide, or the modern German vehd, all meaning battle-feud, or dissension; and from fe or fee, which it is said signifies wages or pay for service, combined with od or odh, to which the signification of possession or property is assigned. But, as Sir Francis Palgrave has well remarked, "upon all the Teutonic etymologies it is sufficient to observe, that the theories are contradicted by the practice of the Teutonic tongues—a feud, or fief, is not called by such a name, or by any name approaching thereto, in any Teutonic or Gothic language whatever." (Proofs and Illustrations to Rise and Progress of Eng. Com., p. ccvii.) Lehn, or some cognate form, is the only corresponding Teutonic term; laen in Anglo-Saxon, len in Danish, leen in Swedish, etc. All these words properly signify the same thing that is expressed by our modern English form of the same element, loan; a loan is the only name for a feud or fief in all the Teutonic tongues. What then is feud or fief? Palgrave doubts if the word feudum ever existed. The true word seems to be fevdum (not distinguishable from feudum in old writing), or feftum. Fiev or fief (Latinized into fevodium, which some contracted into fevdum, and others, by omitting the v, into fevdum) he conceives to be fitef, or phitef, and that again to be a colloquial abbreviation of emphyteusis, pronounced emphytifsis, a well-known term of the Roman imperial law for an estate granted to be held not absolutely, but with the ownership still in the grantor and the usufruct only in the hands of the grantee. It is certain that emphyteusis was used in the middle ages as synonymous with precaria (an estate held on a precarious or uncertain tenure); that precariæ, and also præstitæ or præstariæ, (literally loans), were the same with beneficia; and that beneficia under the emperors were the same, or nearly the same, as fiefs. It may be added that the word feu is still in familiar use in Scotland for an estate held only for a term of years. The possessor of such an estate is called a feuar. Many of these feus are held for 99 years, some for 999 years. A rent, or feuduty, as it is called, is always paid, as in the case of a lease in England; but, although never, we believe, merely nominal, it is often extremely trifling in proportion to the value of the property. In Erskine's "Principles of the Law of Scotland," in the section "On the several kinds of holding" (book ii., tit. 4), we find the following passage respecting feu-holding, which may be taken as curiously illustrating the derivation of fief that has just been quoted from another writer: "It has a strong resemblance to the Roman emphyteusis, in the nature of the right, the yearly duty payable by the vassal, the penalty in the case of not punctual payment, and the restraint frequently laid upon vassals not to alien without the superior's consent." As for the English term fee, which is generally if not universally assumed to be the same word with fief and feud, (and of which it may be the abbreviated form, as we may infer from the words "feoffor," "infeoff" and "feoffment"), it would be easy enough to show how, supposing that notion to be correct, it may have acquired the meaning which it has in the expression fee simple, fee tail, etc.
—The origin of the system of feuds has been a fertile subject of speculation and dispute. If we merely seek for the existence of a kind of landed tenure resembling that of fief in its essential principle, it is probable that such may be discovered in various ages and parts of the world. But feuds alone are not the feudal system. They are only one of the elements out of which that system grew. In its entireness it is certain that the feudal system never subsisted anywhere before it arose in the middle ages, in those parts of Europe in which the Germanic nations settled themselves after the subversion of the Roman empire.
—Supposing feud to be the same word with the Roman emphyteusis, it does not follow that the Germanic nations borrowed the notion of this species of tenure from the Romans. It is perhaps more probable that it was the common form of tenure among them before their settlement in the Roman provinces. It is to be observed that the emphyteusis, the precaria, the beneficium, only subsisted under the Roman scheme of polity in particular instances, but they present themselves as the very genius of the Germanic scheme. What was only occasional under the one became general under the other. In other words, if the Romans had feuds, it was their Germanic conquerors who first established a system of feuds. They probably established such a system upon their first settlement in the conquered provinces. The word feudum indeed is not found in any writing of earlier date than the beginning of the eleventh century, although, as Mr. Hallam has remarked, the words feum and fevum, which are evidently the same with feudum, occur in several charters of the preceding century. But, as we have shown, feudum or feud, in all probability, was not the Teutonic term. "Can it be doubted," asks Mr. Hallam, "that some word of barbarous original must have answered, in the vernacular languages, to the Latin beneficium?" There is reason to believe, as we have seen, that this vernacular word must have been lehn, or some cognate form, and that feud was merely a corrupted term of the Roman law which was latterly applied to denote the same thing.
—We know so little with certainly respecting the original institutions of the Germanic nations, that it is impossible to say how much they may have brought with them from their northern forests, or how much they may have borrowed from the imperial polity, of the other chief element which enters into the system of feudalism, the connection subsisting between the grantor and the grantee of the fief, the person having the property and the person having the usufruct, or, as they were respectively designated, the suzerain or lord, and the tenant or vassal. Tenant may be considered as the name given to the latter in reference to the particular nature of his right over the land; vassal, that denoting the particular nature of his personal connection with his lord. The former has been already explained; the consideration of the latter introduces a new view. By some writers the feudal vassals have been derived from the comites, or officers of the Roman imperial household; by others from the comites, or companions, mentioned by Tacitus (German., 13, etc.) as attending upon each of the German chiefs in war. The latter opinion is ingeniously maintained by Montesquieu (xxx., 3). One fact appears to be certain, and is of some importance, namely, that the original vassali or vassi were merely noblemen who attached themselves to the court and to attendance upon the prince, without necessarily holding any landed estate or beneficium by royal grant. In this sense the words occur in the early part of the ninth century. Vassal has been derived from the Celtic gwas and from the German gesell, which are probably the same word, and of both of which the original signification seems to be a helper, or subordinate associate, in labor of any kind.
—If the vassal was at first merely the associate of or attendant upon his lord, nothing could be more natural than that, when the lord came to have land to give away, he should most frequently bestow it upon his vassals, both as a reward for their past and a bond by which he might secure their future services. If the peculiar form of tenure constituting the fief or lehn did not exist before, here was the very case which would suggest it. At all events, nothing could be more perfectly adapted to the circumstances. The vassal was entitled to a recompense; at the same time it was not the interest of the lord to sever their connection, and to allow him to become independent; probably that was as little the desire of the vassal himself; he was conveniently and appropriately rewarded, therefore, by a fief, that is, by a loan of land, the profits of which were left to him as entirely as if he had obtained the ownership of the land, but his precarious and revocable tenure of which, at the same time, kept him bound to his lord in the same dependence as before.
—Here then we have the union of the feud and vassalage—two things which remained intimately and inseparably combined so long as the feudal system existed. Nevertheless they would appear, as we have seen, to have been originally quite distinct, and merely to have been thrown into combination by circumstances. At first it is probable that, as there were vassals who were not feudatories, so there were feudatories who were not vassals. But very soon, when the advantage of the association of the two characters came to be perceived, it would be established as essential to the completeness of each. Every vassal would receive a fief, and every person to whom a fief was granted would become a vassal. Thus a vassal and the holder of a fief would come to signify, as they eventually did, one and the same thing.
—Fiefs, as already intimated, are generally supposed to have been at first entirely precarious, that is to say, resumable at any time at the pleasure of the grantor. But if this state of things every existed, it probably did not last long. Even from the first it is most probable that many fiefs were granted for a certain term of years or for life. And in those of all kinds a substitute for the original precariousness of the tenure was soon found, which, while it equally secured the rights and interests of the lord, was much more honorable and in every way more advantageous for the vassal. This was the method of attaching him by certain oaths and solemn forms, which, besides their force in a religious point of view, were so contrived as to appeal also to men's moral feelings, and which, therefore, it was accounted not only impious but infamous to violate. The relation binding the vassal to his lord was made to wear all the appearance of a mutual interchange of benefits—of bounty and protection on the one hand, of gratitude and service due on the other; and so strongly did this view of the matter take possession of men's minds, that in the feudal ages even the ties of natural relationship were looked upon as of inferior obligation to the artificial bond of vassalage.
—As soon as the position of the vassal had thus been made stable and secure, various changes would gradually introduce themselves. The vassal would begin to have his fixed rights as well as his lord, the oath which he had taken measuring and determining both these rights and his duties. The relation between the two parties would cease to be one wholly of power and dominion on the one hand, and of mere obligation and dependence on the other. If the vassal performed that which he had sworn, nothing more would be required of him. Any attempt of his lord to force him to do more would be considered as an injustice. Their connection would now assume the appearance of a mutual compact, imposing corresponding obligations upon both, and making protection as much a duty in the lord, as gratitude and service in the vassal.
—Other important changes would follow this fundamental change, or would take place while it was advancing to completion. After the fief had come to be generally held for life, the next step would be for the eldest son usually to succeed his father. His right so to succeed would next be established by usage. At a later stage fiefs became descendible in the collateral as well as in the direct line. At a still later, they became inheritable by females as well as by males. There is much difference of opinion, however, as to the dates at which these several changes took place. Some writers conceive that fiefs first became hereditary in France under Charlemagne; others, however, with whom Mr. Hallam agrees, maintain that there were hereditary fiefs under the first race of French kings. It is supposed not to have been till the time of the first Capets in the end of the tenth century that the right of the son to succeed the father was established by law in France. Conrad II., surnamed the Salic, who became emperor in 1024, is generally believed to have first established the hereditary character of fiefs in Germany.
—Throughout the whole of this progressive development of the system, however, the original nature of the fief was never forgotten. The ultimate property was still held to be in the lord; and that fact was very distinctly signified, not only by the expressive language of forms and symbols, but by certain liabilities of the tenure that gave still sharper intimation of its true character. Even after fiefs became descendible to heirs in the most comprehensive sense, and by the most fixed rule, every new occupant of the estate had still to make solemn acknowledgment of his vassalage, and thus to obtain, as it were, a renewal of the grant from the lord. He became bound to discharge all services and other dues as fully as the first grantee had been Above all, in certain circumstances, as, for example, if the tenant committed treason or felony, or if he left no heir, the estate would still return by forfeiture or escheat to the lord, as to its original owner.
—Originally fiefs were granted only by sovereign princes; but after estates of this description, by acquiring the hereditary quality, came to be considered as property to all practical intents and purposes, their holders proceeded, on the strength of this completeness of possession, themselves to assume the character and to exercise the rights of lords, by the practice of what was called sub-infeudation, that is, the alienation of portions of their fiefs to other parties, who thereupon were placed in the same or a similar relation to them as that in which they stood to the prince. The vassal of the prince became the lord over other vassals; in this latter capacity he was called a mesne (that is, an intermediate) lord; he was a lord and a vassal at the same time. In the same manner the vassal of a mesne lord might become also the lord of other arrere vassals, as those vassals that held of a mesne lord were designated. This process sometimes produced curious results; for a lord might in this way actually become the vassal of his own vassal, and a vassal a lord over his own lord.
—From whatever cause it may have happened (which is matter of dispute), in all the continental provinces of the Roman empire which were conquered and occupied by the Germanic nations, many lands were from the first held, not as fiefs, that is, with the ownership in one party and the usufruct in another, but as allodia, that is, in full and entire ownership. The holder of such an estate, having no lord, was of course free from all the exactions and burdens which were incidental to the vassalage of the holder of a fief. He was also, however, without the powerful protection which the latter enjoyed; and so important was this protection in the turbulent state of society which existed in Europe for some ages after the dissolution of the empire of Charlemagne, that in fact most of the allodialists in course of time exchanged their originally independent condition for the security and subjection of that of the feudatory. "During the tenth and eleventh centuries," says Mr. Hallam, "it appears that allodial lands in France had chiefly become feudal; that is, they had been surrendered by their proprietors, and received back again upon the feudal conditions; or more frequently, perhaps, the owner had been compelled to acknowledge himself the man or vassal of a suzerain, and thus to confess an original grant which had never existed. Changes of the same nature, though not perhaps so extensive or so distinctly to be traced, took place in Italy and Germany. Yet it would be inaccurate to assert that the prevalence of the feudal system has been unlimited; in a great part of France allodial tenures always subsisted, and many estates in the empire were of the same description."
—After the conquest of England by the Normans, the dominium directum, or property of all the land in the kingdom, appears to have been considered as vested in the crown. "All the lands and tenements in England in the hands of subjects," says Coke, "are holden mediately or immediately of the king; for in the law of England we have not properly allodium." This universality of its application, therefore, may be regarded as the first respect in which the system of feudalism established in England differed from that established in France and other continental countries. There were also various other differences. The Conqueror, for instance, introduced here the practice unknown on the continent of compelling the arrere vassals, as well as the immediate tenants of the crown, to take the oath of fealty to himself. In other countries a vassal only swore fealty to his immediate lord; in England, if he held of a mesne lord, be took two oaths, one to his lord and another to his lord's ford. It may be observed, however, that in those times in which the feudal principle was in its greatest vigor the fealty of a vassal to his immediate lord was usually considered as the higher obligation; when that and his fealty to the crown came into collision, the former was the oath to which he adhered. Some feudists, indeed, held that his allegiance to the crown was always to be understood as reserved in the fealty which a vassal swore to his lord; and the emperor Frederic Barbarossa decreed that in every oath of fealty taken to an inferior lord there should be an express reservation of the vassal's duty to the emperor. But the double oath exacted by the Norman conqueror did not go so far as this. It only gave him, at the most, a concurrent power with the mesne lord over the vassals of the latter, who in France were nearly removed altogether from the control of the royal authority. A more important difference between the English and French feudalism consisted in the greater extension given by the former to the rights of lords generally over their vassals by what were called the incidents of wardship and marriage. The wardship or guardianship of the tenant during minority, which implied both the custody of his person and the appropriation of the profits of the estate, appears to have been enjoyed by the lord in some parts of Germany, but nowhere else except in England and Normandy. "This," observes Mr. Hallam, "was one of the most vexatious parts of our feudal tenures, and was never perhaps more sorely felt than in their last stage under the Tudor and Stuart families." The right of marriage (maritagium) originally implied only the power possessed by the lord of tendering a husband to his female ward while under age: if she rejected the match, she forfeited the value of the marriage; that is, as much as any one would give to the lord for permission to marry her. But the right was afterward extended so as to include male as well as female heirs; and it also appears that although the practice might not be sanctioned by law, some of the Anglo-Norman kings were accustomed to exact penalties from their female vassals of all ages, and even from widows, for either marrying without their consent or refusing such marriages as they proposed. The seignorial prerogative of marriage, like that of wardship, was peculiar to England and Normandy, and to some parts of Germany.
—It has been very usual to represent military service as the essential peculiarity of a feudal tenure. But the constituent and distinguishing element of that form of tenure was its being a tenancy merely, and not an ownership; the enjoyment of land for certain services to be performed. In the state of society, however, in which the feudal system grew up, it was impossible that military service should not become the chief duty to which the vassal was bound. It was in such a state of society the most important service which he could render to his lord. It was the species of service which the persons to whom fiefs were first granted seem to have been previously accustomed to render, and the continuance of which, accordingly, the grant of the fief was chiefly intended to secure. Yet military service, or knight service as it was called in England, though it was the usual, was by no means the necessary or uniform condition on which fiefs were granted. Any other honorable condition might be imposed which distinctly recognized the dominium directum of the lord.
—Another common characteristic of fiefs, which in like manner arose incidentally out of the circumstances of the times in which they originated, was that they usually consisted of land. Land was in those times nearly the only species of wealth that existed; certainly the only form of wealth that had any considerable security or permanency. Yet there are not wanting instances of other things, such as pensions and offices, being granted as fiefs. It was a great question nevertheless, among the feudists, whether a fief could consist of money, or of anything else than land; and perhaps the most eminent authorities have maintained that it could not. The preference thus shown for land by the spirit of the feudal customs has perhaps left deeper traces both upon the law, the political constitution, and the social habits and feelings of England and other feudal countries than any other part of the system. England has thence derived not only the distinction (nearly altogether unknown to the Roman law) by which her law still discriminates certain amounts of interest in lands and tenements under the name of real property from property of every other kind, but also the ascendency retained by the former in nearly every respect in which such ascendency can be upheld either by institutions or by opinion.
—The grant of land as a fief, especially when it was a grant from the suzerain, or supreme lord, whether called king or duke, or any other name, was, sometimes at least, accompanied with an express grant of jurisdiction. Thus every great tenant exercised a jurisdiction, civil and criminal, over his immediate tenants: he held courts and administered the laws within his lordship like a sovereign prince. It appears that the same jurisdiction was often granted by the crown to the abbeys with their lands. The formation of manors in England appears to have been consequent upon the establishment of feudalism. The existence of manor courts, and so many small jurisdictions within the kingdom, is one of the most permanent features of that polity which the Normans stamped upon the country.
—In the infancy of the feudal system it is probable that the vassal was considered bound to attend his lord in war for any length of time during which his services might be required. Afterward, when the situation of the vassal became more independent, the amount of this kind of service was fixed either by law or by usage. In England the whole country was divided into about 60,000 knights' fees; and the tenant of each of these appears to have been obliged to keep the field at his own expense for forty days on every occasion on which his lord chose to call upon him. For smaller quantities of land proportionately shorter terms of service were due; at least such is the common statement; although it seems improbable that the individuals composing a feudal army could thus have the privilege of returning home some at one time, some at another. Women were obliged to send their substitutes: and so were the clergy, certain persons holding public offices, and men past the age of sixty, all of whom were exempted from personal service. The rule or custom, however, both as to the duration of the service, and its extent in other respects, varied greatly in different ages and countries—The other duties of the vassal were rather expressive of the relation of honorable subordination in which he stood to his lord, than services of any real or calculable value. They are thus summed up by Mr. Hallam: "It was a breach of faith to divulge the lord's counsel, to conceal from him the machinations of others, to injure his person or fortune, or to violate the sanctity of his roof and the honor of his family. In battle he was bound to lend his horse to his lord when dismounted: to adhere to his side while fighting, and to go into captivity as a hostage for him when taken. His attendance was due to the lord's courts, sometimes to witness and sometimes to bear a part in the administration of justice."
—There were, however, various other substantial advantages derived by the lord. We have already mentioned the rights of wardship and of marriage, which were nearly peculiar to the dominions of the English crown. Besides these, there were the payment, called a relief, made by every new entrant upon the possession of the fief, the escheat of the land to the lord when the tenant left no heir, and its forfeiture to him when the tenant was found guilty either of a breach of his oath of fealty, or of felony. There was, besides, a fine payable to the lord upon the alienation by the tenant of any part of the estate, if that was at all permitted. Finally, there were the various aids, as they were called, payable by the tenant.
—The principal ceremonies used in conferring a fief were homage, fealty and investiture. The first two of these can not be more distinctly or more shortly described than in the words of Littleton. "Homage," says the Treatise of Tenures, "is the most honorable service, and most humble service of reverence, that a frank tenant may do to his lord: for when the tenant shall make homage to his lord, he shall be ungirt and his head uncovered, and his lord shall sit and the tenant shall kneel before him on both his knees, and hold his hands jointly together between the hands of his lord, and shall say thus: I become your man, from this day forward, of life and limb, and of earthly worship, and unto you shall be true and faithful, and bear you faith for the tenements that I claim to hold of you, saving the faith that I owe to our sovereign lord the king; and then the lord, so sitting, shall kiss him." Religious persons and women, instead of "I become your man," said, "I do homage unto you." Here, it is to be observed, there was no oath taken; the doing of fealty consisted wholly in taking an oath, without any obeisance. "When a freeholder (frank tenant)," says Littleton, "doth fealty to his lord he shall hold his right hand upon a book, and shall say thus: Know ye this, my lord, that I shall be faithful and true unto you, and faith to you shall bear for the lands which I claim to hold of you, and that I shall lawfully do to you the customs and services which I ought to do at the terms assigned, so help me God and his saints; and he shall kiss the book. But he shall not kneel when he maketh the fealty, nor shall make such (that is, any such, tiel), humble reverence as is aforesaid in homage." The investiture or the conveyance of feudal land is represented by the modern feoffment.
—The feudal system may be regarded as having reached its maturity and full development when the Norman conquest of England took place. It appears accordingly to have been established there immediately or very soon after that event in as pure, strict and comprehensive a form as it ever attained in any other country. The whole land of the kingdom, as we have already mentioned, was, without any exception, either in the hands of the crown, or held in fief by the vassals of the crown, or of them by sub-infeudation. Those lands which the king kept were called his demesne (the terræ regis of the domesday survey), and thus the crown had a number of immediate tenants, like any other lord, in the various lands reserved in nearly every part of the kingdom. Nowhere else, also, before the restrictions established by the charters, were the rights of the lord over the vassal stretched in practice nearer to their extreme theoretical limits. On the other hand, the vassal had arrived at what we may call his ultimate position in the natural progress of the system; the hereditary quality of the feuds was fully established; his ancient absolute dependence and subjection had passed away; under whatever disadvantages his inferiority of station might place him, he met his lord on the common ground of their mutual rights and obligations; there might be considerable contention about what these rights and obligations on either side were, but it was admitted that on both sides they had the same character of real, legally binding obligations, and legally maintainable rights.
—This settlement of the system, however, was anything rather than an assurance of its stability and permanency. It was now held together by a principle altogether of a different kind from that which had originally created and cemented it. That which had been in the beginning the very life of the relation between the lord and the vassal, had now in great part perished. The feeling of gratitude could no more survive than the feeling of dependence on the part of the latter after feuds became hereditary. A species of superstition, indeed, and a sense of honor, which in some degree supplied the place of what was lost, were preserved by oaths and ceremonies, and the influence of habit and old opinion; but these were at the best only extraneous props; the self-sustaining strength of the edifice was gone. Thus it was the tendency of feudalism to decay and fall to pieces under the necessary development of its own principle.
—Other causes, called into action by the progress of events, conspired to bring about the same result. The very military spirit which was fostered by the feudal institutions, and the wars, defensive and aggressive, which they were intended to supply the means of carrying on, led in course of time to the release of the vassal from the chief and most distinguishing of his original obligations, and thereby, it may be said, to the rupture of the strongest bond that had attached him to his lord. The feudal military army was at length found so inconvenient a force that soon after the accession of Henry II the personal service of vassals was dispensed with, and a pecuniary payment, under the name of escuage, accepted in its stead. From this time the vassal was no longer really the defender of his lord; he was no longer what he professed to be in his homage and his oath of fealty; and one effect of the change must have been still further to wear down what remained of the old impressiveness of these solemnities, and to reduce them nearer to mere dead forms. The acquisition by the crown of an army of subservient mercenaries, in exchange for its former inefficient and withal turbulent and unmanageable army of vassals, was in fact the discovery of a substitute for the main purpose of the feudal polity. Whatever nourished a new power in the commonwealth, also took sustenance and strength from this ancient power. Such must in especial degree have been the effect of the growth of towns, and of the new species of wealth, and, it may be added, the new manners and modes of thinking, created by trade and commerce.
—The progress of subinfeudation has sometimes been represented as having upon the whole tended to weaken and loosen the fabric of feudalism. It "demolished," observes Blackstone (ii., 4), "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." But the practice of subinfeudation would rather seem to have been calculated to carry out the feudal principle, and to place the whole system on a broader and firmer basis. It would be more correct to ascribe the effects here spoken of to the prohibition against subinfeudation. The effect of this practice, it is true, was to deprive the lord of his forfeitures and escheats and the other advantages of his seigniory, and various attempts, therefore, were at length made to check or altogether prevent it, in which the crown and the tenants in chief, whose interests were most affected, may be supposed to have joined. One of the clauses of the great charter of Henry III. (the thirty-second) appears to be intended to restrict subinfeudation (although the meaning is not quite clear), and is expressly forbidden by the statute of Quia Emptores (the 18 Edw. I., c. 1). Subinfeudation was originally the only way in which the holder of a flef could alienate any part of his estate without the consent of his lord; and it therefore now became necessary to provide some other mode of effecting that object, for it seems to have been felt that after alienation had been allowed so long to go on under the guise of subinfeudation, to restrain it altogether would be no longer possible. The consequence was, that as a compensation for the prohibition of subinfeudation, the old prohibition against alienation was removed; lands were allowed to be alienated, but the purchaser or grantee did not hold them of the vendor or grantor, but held them exactly as the grantor did; and such is still the legal effect in England when a man parts with his entire interest in his lands. This change was effected by the statute of Quia Emptores with regard to all persons except immediate tenants of the crown, who were permitted to alienate on paying a fine to the king by the statute 1 Edw. III., c. 12. Thus at the same time that a practice strictly accordant to the spirit of feudalism, and eminently favorable to its conservation and extension, was stopped, another practice, altogether adverse to its fundamental principles, was introduced and established, that of allowing voluntary alienation by persons during their lifetime.
—It was a consequence of feudal principles, that a man's lands could not be subjected to the claims of his creditors. This restraint upon what may be called involuntary alienation has been in a great degree removed by the successive enactments which have had for their object to make a man's lands liable for his debts; although, after a lapse of near six hundred years since the statute of Acton Burnell, the lands of a debtor are not yet completely subjected to the just demands of his creditors. This statute of Acton Burnell, passed 11 Edw. I. (1283), made the devisable burgages, or burgh tenements, of a debtor salable in discharge of his debts. By the statute of Merchant, passed 13 Edw. I. (1285), called statute 3, a debitor's lands might be delivered to his merchant creditor till his debt was wholly paid out of the profits. By the 18th chapter of the statute of Westminster the second, passed the same year, a moiety of a debtor's land (not copy-hold) was subjected to execution for debts or damages recovered by judgment. But the lands are not sold: the moiety of them is delivered by the sheriff to him who has recovered by judgment, to occupy them till his debt or damages are satisfied. Finally, by the several modern statutes of bankruptcy, the whole of a bankrupt debtor's lands have become absolutely salable for the payment of his debts. Further, by a recent act (3 and 4 Wm. IV., c. 104), all a deceased person's estate in land, of whatever kind, not charged by his will with the payment of his debts, whether he was a trader within the bankrupt laws or not, constitutes assets, to be administered in equity, for the payment of debts, both those on specialty and those on simple contract.
—An attempt had early been made to restore in part the old restraints upon voluntary alienation by the statute 13 Edw. I., c. 1, entitled "De Donis Condition-alibus," which had for its object to enable any owner of an estate, by his own disposition, to secure its descent in perpetuity in a particular line. So far as the statute went, it was an effort to strengthen the declining power of feudalism. The effect was to create what were called estates tail, and to free the tenant in tail from many liabilities of his ancestor to which he would be subject if he were seized of the same lands in fee simple. The power which was thus conferred upon landholders of preventing the alienation of their lands remained in full force for nearly two centuries, till at last, in the reign of Edward IV., by the decision of the courts (A. D. 1472), the practice of barring estates tail by a common recovery was completely established.
—The practice of conveying estates by fine, which was of great antiquity in England, and the origin of which is by some referred to the time of Stephen or Henry II, was regulated by various statutes (among others, particularly by the 4 Henry VII), and contributed materially to facilitate the transfer of lands in general, but more particularly (as regulated by the statute just mentioned) to bar estates tail. By a statute passed in the 32 Henry VIII., c. 28, tenants in tail were enabled to make leases for three lives or twenty-one years, which should bind their issue. The 26 Hen VIII., c. 13, also had declared all estates of inheritance, in use or possession, to be forfeited to the king upon conviction of high treason, and thus destroyed one of the strongest inducements to the tying up of estates in tail, which hitherto had only been forfeitable for treason during the life of the tenant in tail—Another mode by which the feudal restraints upon voluntary alienation came at length to be extensively evaded, was the practice introduced, probably about the end of the reign of Edward III., of granting lands to persons to uses, as it was termed; that is the new owner of the land received it not for his own use, but on the understanding and confidence that he would hold the land for such persons and for such purposes as the grantor then named or might at any time afterward name. Thus an estate in land became divided into two parts, one of which was the legal ownership, and the other the right to the profits or the use; and this use could be transferred by a man's last will at a time when the land itself, being still bound in the fetters of feudal restraint, could not be transferred by will, except where it was devisable, as in Kent and some other parts of England, by special custom. The person who thus obtained the use or profits of the estate—the cestut que use, as he is called in law—was finally converted into the actual owner of the land to the same amount of interest as he had in the use (A. D. 1535) by the statute of Uses (the 27 Hen. VIII., c. 10), and thus the power of devising land which had been enjoyed by the mode of uses was taken away. But this important element in the feudal system, the restraint on the disposition of lands by will, could no longer be maintained consistently with the habits and opinions then established, and accordingly, by stat. 23 Hen. VIII. (which was afterward explained by the stat. 34 Hen. VIII.), all persons were allowed to dispose of their freehold lands held in fee simple by a will in writing, subject to certain restrictions as to lands held by knight service either of the king or any other, which restrictions were removed by the stat. 12 Chas. II., c. 24, which abolished military tenures.
—Notwithstanding these successive assaults upon certain parts of the ancient feudalism, the main body of the edifice still remained almost entire. It is said that the subject of the abolition of military tenures was brought before the parliament in the 18th of James I., on the king's recommendation, but at that time nothing was done in the matter. When the civil war broke out in 1641, the profits of marriage, wardship, and of most of the other old feudal prerogatives of the crown, were for some time still collected by the parliament, as they had formerly been by the king. The fabric of the feudal system in England, however, was eventually shattered by the storm of the great rebellion. The court of wards was in effect discontinued from 1645. The restoration of the king could not restore what had thus been in practice swept away. By the above mentioned statute, 12 Car. II., c. 24, it was accordingly enacted that from the year 1645 the court of wards and liveries, and all wardships, liveries, primer-seizins, values, forfeitures of marriage, etc., by reason of any tenure of the king's majesty, or of any other by knights' tenures should be taken away and discharged, together with all fines for alienations, tenure by homage, escuage, aids pur filz marrier and pur fair fitz chevalier, etc.; and all tenures of any honors, manors, lands, tenements or hereditaments, or any estate of inheritance at the common law held either by the king or of any other person or persons, bodies politic or corporate, were turned into free and common soccage, to all intents and purposes. By the same statute every father was empowered by deed or will executed in the presence of two witnesses, to appoint persons to have the guardianship of his infant and unmarried children, and to have the custody and management of their property. It was not till after the lapse of nearly another century that the tenures and other institutions of feudalism were put an end to in Scotland by the statutes, passed after the rebellion, of the 20 Geo. II., c. 43, entitled "An act for abolishing heritable jurisdictions;" and the 20 Geo. II., c. 50, entitled "An act for taking away the tenure of ward-holding in Scotland, for giving to heirs and successors a summary process against superiors, and for ascertaining the services of all tenants, etc." Nor have estates tail in Scotland yet been relieved from the strictest fetters of a destination in perpetuity, either by the invention of common recoveries, or by levying a fine, or by any legislative enactment.
—We have enumerated the principal statutes which may be considered as having broken in upon the integrity of the feudal system, considered in reference to the power which the tenant of land can now exercise over it, and the right which others can enforce against him in respect of his property in it. But the system of tenures still exists. The statute of Charles II. only abolished military tenures and such parts of the feudal system as had become generally intolerable; but all lands in the kingdom are still held either by soccage tenure, into which military tenures were changed, or else by the respective tenures of frankalmoigne, grand serjeanty and copyhold, which were not affected by the statute.
—Some of the consequences of tenures as they at present subsist, can not be more simply exemplified than by the rules as to the forfeiture and escheat of lands, both of which, however, have undergone modifications since the statute of Charies II.
—To attain a comprehensive and exact view of the present tenures of landed property in England and thier incidents and consequences, it would be necessary for the reader to enter upon a course of study more laborious and extensive than is consistent with pursuits not strictly legal.
—The notions of loyalty, of honor, of nobility and of the importance, socially and politically, of landed over other property, are the most striking of the feelings which may be considered to have taken their birth from the feudal system. These notions are opposed to the tendency of the commercial and manufacturing spirit, which has been the great moving power of the world since the decline of strict feudalism; but that power has not yet been able to destroy, or perhaps even very materially to weaken, the opinions above mentioned in the minds of the mass.
—We are not, however, to pass judgment upon feudalism, as the originating and shaping principle of a particular form into which human society has run, simply according to our estimate of the value of these its relics at the present day. The true question is, if this particular organization had not been given to European society after the dissolution of the ancient civilization, what other order of things would in all likelihood have arisen, a better or a worse than that which did result?
—As for the state of society during the actual prevalence of the feudal system, it was, without doubt, in many respects exceedingly defective and barbarous. But the system, with all its imperfections, still combined the two essential qualities of being both a system of stability and a system of progression. It did not fall to pieces, neither did it stand still. Notwithstanding all its rudeness, it was, what every right system of polity is, at once conservative and productive. And perhaps it is to be most fairly appreciated by being considered, not in what it actually was, but in what it preserved from destruction, and in what it has produced.
—The earliest published compilation of feudal law was a collection of rules and opinions supposed to have been made by two lawyers of Lombardy, Obertus of Otto and Gerardus Niger, by order of the emperor Frederic Barbarossa. It appeared at Milan about the year 1170, and immediately became the great text-book of this branch of the law in all the schools and universities, and even a sort of authority in the courts. It is divided in some editions into three, in others into five books, and is commonly entitleld the "Libri Feudorum"; the old writers, however, are wont to quote it simply as the Textus, or Text. But the great sources of the feudal law are the ancient codes of the several Germanic nations; the capitularies or collections of edicts of Charlemagne and his successors; and the various coutumiers or collections of the old customs of the different provinces of France.The laws of the Visigoths, of the Burgundians, the Salic law, the laws of the Alemanni, of the Baiuvarii, of the Ripuarii, of the Saxòns, of the Anglii, of the Werini, of the Frisians, of the Lombards, etc., have been published by Lindenbrogius in his Codex Legum Antiquarum, fol. Francof., 1613. The best editions of the capitularies are that by Baluze, in 2 vols. fol, Paris, 1677, and that by Chiniac, of which, however, we believe only the first two volumes have appeared, Paris. fol., 1780. Richebourg's Nouveau Coutumier Général, 4 vols. fol., Paris. 1724, is a complete collection of the contumiers, all of which, however, have also been published separately. All these old laws and codes, as well as the Milan text-book, have been made the subject of voluminous commentaries.
Return to top