FKUDAL SYSTKM. 



FKDDAL SYSTEM. 



tinctly or more shortly described than in the word* of Littleton : 

 " Homage u the niwt honourable service, and moat bumble service of 

 reverrnoe.that frank tenant may do to hi* lord : for when the tenant 

 hll make homage to hiit lord, he ahall be ungirt and hi head 

 uncovered, and hi* lord ahall sit and the tenant ahall kneel before him 

 on both hi* kneei, and hold hi* hood jointly together between the 

 hands of hi* lord, and ahall gay thiu : I become your man, from thU 

 day forward, of life and limb, and of earthly worship, and tint., you 

 ahall be true and faithful, and bear you faith for the tenements that I 

 claim to hold of you, Having the faith that I owe to our sovereign lord 

 the king ; and then the lord, ao sitting, ahall kiss him." Heligious 

 persons and women instead of "I become your man," said, " 1 do 

 homage unto you." Here it is to be observed there was n 

 taken ; the doing of fealty consulted wholly in taking an oath, without 

 any obeisance. " When .1 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 ui to you, and faith to you shall bear for the lands whieh 1 

 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 hu maketh his fealty, nor shall make such (that is. any 

 such, riW.i humble reverence as U aforesaid in homage." " Investiture 

 or the actual conveyance of feudal lands," says Mr. Hallam, " wan of 

 two kinds ; proper and improper. The first was an actual putting in 

 possession upon the ground, either by the lord or his deputy ; which 

 is now called in our law livery of seisin. The second was symbolical, 

 and consisted in the delivery of a turf, a stone, a wand, a branch, or 

 whatever else might have been made usual by the caprice of local 

 custom. Du Conge enumerates not less than 98 varieties of investi- 

 tures." The mode of conveying lands in England by feoffment is 

 derived from the feudal investiture. [FEOFFMEXT.] The practice of 

 giving infef tmeut in Scotland, is neither more nur less than symbolical 

 investiture. 



The feudal system may be regarded as having nearly reached its 

 maturity and full development at the time of the Norman conquest. 

 It appears accordingly to have been established here 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, aa 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 Terras Kegis of the Domesday 

 Survey), and thus the crown hod a number of immediate tenants, like 

 any other lord, in the various lands reserved in nearly every part of 

 the kingdom. No where 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 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 right* 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 perUhcd. 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 honour, which in some degree supplied the place of what 

 wa* 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 

 neceaaary development of it~ otvn principle. 



Other cause* called into action by the progress of evento conspired 

 to bring about the same result. The very military spirit which waa 

 fostered by the feudal institutions, and the wars, defensive and aggres- 

 sive, 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 

 moot distinguishing of his original obligations, and thereby, it may be 

 said, to the rupture of the strongest bond that had attached him to 

 hii lord. The feudal military army was at length found so incon- 

 venient a force that soon after the accession of Henry II. the personal 

 nervice of vassals was dispensed with, and a pecuniary payment, under 

 the name of eacuage, accepted in its stead. From this time the vassal 

 waa no longer really the ! f.-nd- r of hi lord; he waa 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 farther to wear down what remained 

 of the old imprewiiTeneai of these solemnities, and to reduce them 

 nearer to mere dead forms. The acquisition by the crown of an army 

 of aubcervient mcrciiiaricH, in exchange for its former inefficient and 



withal turbulent and unmanageable army of vamals, waa in fact the 

 discovery of a substitute for the main purpose of the feudal polity. 

 Whatever nourished a new power in the commonwealth, alao, took 

 sustenance and strength from this ancient power. Such must in an 

 especial degree have been the effect of the growth of town*, and of the 

 new specie* of wealth, and, it may be added, the new manners and 

 modes of thinking, created by trade and commerce. 



The progress of sub-infeud.ition lias sometimea been repreaeoted as 

 having upon the whole tended to weaken and loosen the fal 

 in. It " demolished," observes Blackstone (ii. 4), " the .-. 

 simplicity of feuds; and an inroad being once made upon tin 

 .-.million] 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 tin- !.! fundamental rules of tenure and succession, which 

 were held no longer sacrud when the feuds themselves no longer con- 

 tinued to be purely military." Hut the practice of sub-infeu 

 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. 

 ami this has been found to be the effect in Scotland. It would In- 

 more correct to ascribe the demolition of the fabric of feudalism, to 

 which we have now nearly arrived, to the prohibition against sub- 

 infeudation. The effect of this practice was to deprive the lord of hi 

 forfeitures and escheats and the other advantages of his seignioi 

 various attempts therefore were mode to check or altogether prevent 

 it, in which the crown and the tenants in chief, whose interests were 

 most affected, seem to have joined. One of the clauses of the great 

 charter of Henry III. (the thirty-second) appears to be intended to 

 restrict sub-infeudation (although the meaning is not quite clear), and 

 it is expressly forbidden by the statute of Qiiia Emplvrtt (18 Edw. 1., 

 c. 1). This however was originally the only way in which the holder 

 of a fief could alienate any port of his estate without the consent of 

 his lord ; and it therefore 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 sub- 

 infeudation, to restrain it altogether would be no longer possible. 

 The consequence was, that, as a compensation for the prohibition of 

 sub-infeudation, 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 wag effected 

 by the statute of Quia Emptara with regard to all persons except the 

 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. Ti, 

 the same time that a practice strictly accordant to the spirit of feu- 

 dalism, and eminently favourable to its conservation and ext< 

 was stopped, another practice, altogether adverse to its fundamental 

 principles, was introduced and established, that of allowing na 

 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 iarvl"Htarii alienation has been removed by ihe 

 successive enactments which have had for their object to make a 

 man's lands liable for his debts : although, it is only after a lapse of 

 nearly six hundred years since the statute of Acton liurnell, that the 

 lands of a debtor have been subjected to the just demands of hi* 

 creditors. This statute of Acton Burnell, passed 11 Ed. I. (lliSS). 

 made the devisable burgages, or burgh tenements, of a debtor saleable 

 in discharge of his debts. By the Statute of Merchants (13 Ed. I., 

 st. 13), a debtor'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 was subjected to execution for debts reco- 

 vered by judgment (KLKHIT] ; and finally, by several modern statutes, 

 the whole of a bankrupt debtor's lands have become absolutely sale- 

 able for the payment of his debts. Further, by 3 4 4 Will. IV. c. 104, 

 all a deceased person's estate in lands, of whatever kind, is liable to the 

 payment of his debts, both those on specialty and those on simple 

 contract. 



An attempt had early been made to restore in part the old restraint* 

 upon voluntary alienation by the statute 18 Ed. I. c. 1, entitled 

 ' De Donis Conditioualibus,' which had for its object to enable auy 

 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 feudaUsm. 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 lie subject if 

 he were seised of the same lands in fee-simple. [ESTATE.} The power 

 which was thus conferred upon landholders of preventing the alien- 

 ation 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. [RECOVERY, COMBO*.] 



The practice of conveying estates by tine, which was of great 

 antiquity in England, and the origin of which is referred to the time 

 of Stephen or Henry II., was regulated by various statutes (among 

 other*, by 4 Henry VII.) and contributed materially to facilitate the 

 transfer of lands in general, but more particularly to bar estates tail. 



