3 



FEUDAL SYSTEM. 



FEUDAL SYSTEM. 



64, 



From whatever cause it may have happened (which is matter of dis- 

 pute), 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. [ ALLODIUM.] 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 10th and llth 

 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 damtnium di- 

 rectum, or property of all the land in the kingdom, was 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, he took two onths, one to his lord and another to his lord's lord. 

 It may be ob*erved, however, that in those times in which the feudal 

 principle was in its greatest vigour the fealty of a vassal to his imme- 

 diate 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 allegi- 

 ance to the crown was always to be understood as reserved in the 

 fealty which a vassal swore to his lord ; and the Emperor Frederick 

 Barbarogsa 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 ol 

 lords generally over their vassals by what were called the incidents ol 

 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 no where else except in 

 England and Normandy. The right of marriage (maritagium) origin- 

 ally 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 afterwards extended so as to include male as well as female heirs 

 and it also appears that although the practice might not be sanctionec 

 by the 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 marriagef 

 as they proposed. The seignorial prerogative of marriage, like that o 

 wardship, was peculiar to England and Normandy, and to some parts 

 of Germany. 



It has been very usual to represent military service as the essentia 

 peculiarity of a feudal tenure. But the constituent and distinguishing 

 element of that form of tenure was its being a tenancy merely, and no 

 an ownership ; the enjoyment of land for certain services to be per 

 formed. In the state of society however in which the feudal system 

 grew up, it was impossible that military service should not become the 

 chi<jf duty to which the vassal was bound. It was in such a state o 

 society the most important service which he could render to his lord 

 (t was the species of service which the persons to whom fiefs were firs 

 granted seem to have been previously accustomed to render, and th 

 continuance of which accordingly the grant of the fief was rliidl 

 to secure. Yet military service, or knight service, as it wa 

 called in this country, though the usual, was by no means the necessar 

 nit'orin condition on which fiefs were granted. Any othe 

 honourable condition might be imposed which distinctly recognisec 

 the d'jminium directum of the lord. [KftiOHT-SERVifE.] 



Another common characteristic of fiefs, which in like manner arose 

 incidentally out of the circumstances of the times in which they 

 riginated, was that they usually consisted of land. Laud was in those 

 imes nearly the only species of wealth that existed ; certainly the only 

 orm of wealth that had any considerable security or permanency. 

 Tet there are not wanting instances of other things, such as pensions 

 and offices, being granted as fiefs. It was a great question nevertheless 

 mong the feudists whether a fief could consist of money, or of any 

 hing else than land ; and the most eminent authorities have main- 

 tained that it could not. The preference thus shown for land by the 

 pirit of the feudal customs has perhaps left deeper traces both upon 

 he law, the political constitution, and the social habits and feelings of 

 jur own and other feudal countries than any other part of the system. 

 We have thence derived not only the marked distinction by which our 

 aw still discriminates certain amounts of interest in lands and tene- 

 ments under the name of 4 real property from property of every other 

 und, but also the ascendency retained by the former in nearly every 

 espect in which such ascendency can be upheld either by institutions 

 T by opinion. 



The grant of land as a fief, especially when it was a grant from the 



uzerain, or supreme lord, whether called king or duke, or any other 



name, was, sometimes at least, accompanied with an express grant of 



urisdiction. Thus every great tenant exercised a jurisdiction civil and 



riminal over his immediate tenants : he held courts and administered 



he laws within his lordship like a sovereign prince. It appears 



hat the same jurisdiction was often granted by the crown to the 



abbeys with their lands. The formation of MANORS in this country 



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 



hich the Normans stamped upon this 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 

 luring which his services might be required. Afterwards, when the 

 situation of the vassal became more independent, the amount of this 

 und 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 

 5eld at his own expense for forty days on every occasion on which his 

 lord chose to call upon him. For smaller quantities of land propor- 

 tionately shorter terms of service were due : at least such is the 

 common statement ; although it seems improbable that the individuals 

 composing a feuda^ 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 ite extent in other respects, varied greatly 

 in different ages and countries. 



The other duties of the vassal were rather expressive of the relation 

 of honourable 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 honour 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. " These," observes Mr. Hallam, " depended a 

 great* deal upon local custom, and were often extorted unreasonably. 

 Du Cange mentions several as having existed in France ; such as an 

 aid for the lord's expedition to the Holy Land, for mnrrying his sister 

 or eldest son, and for paying a relief to his suzerain on taking 

 possession of his laud. Of these the last appears to have been the 

 most usual in England. But this and other aids occasionally exacted 

 by the lords were felt as a severe grievance ; and by Magna Charta 

 three only are retained to make the lord's eldest son a knight, to 

 marry his eldest daughter, and to redeem his person from prison. 

 They were restricted to nearly the same description by a law of 

 William I. of Sicily, and by the customs of France. These feudal aids 

 are deserving of our attention as the beginnings of taxation, of which 

 for a long time they in a great measure answered the purpose, till the 

 craving necessities and covetous policy of kings substituted fur them 

 more durable and onerous burthens." 



The principal ceremonies used in conferring a fief were homage, 

 fealty, and investiture. The two firt of these cannot be more dis- 



