« ForrigeFortsett »
his title was eftablished. Indeed, in its stead, the kingdom was from the prodigious flaughter of wholly defenceless : which occathe English nobility at the battle fioned the king to bring over of Hastings, and the fruitlefs in- large army of Normans and Brefurrections of those who survived, tons, who were quartered upon fuch numerous forfeitures had ac- every landholder, and greatly opcrued, that he was able to reward pressed the people. This apparent his Norman followers with very weakness, togecher with the grie. large and extenfive pofsefsions: vances occafioned by a foreign which gave a handle to the monkish force, might co-operate with the historians, and such as have impli- king's remonftrances, and the betcitly followed them, to represent ter incline the nobility to liften to him as having by right of the his proposals for purting them in fword seized on all the lands of Eng- a posture of defence. For, as soon land, and dealt them out again as the danger was over, the king to his own favourites. A suppo- held a great councit, to enquire fition, grounded upon a mistaken into the state of the nation ; fenfe of the word conqueft; which, the immediate consequence of in its feodal acceptation, signifies which was the compiling of the no more than acquisition : and this great survey called domesday book, has led many hafty writers into a which was finished in the nextyear: Itrange historical mistake, and one and in the latter end of that very which upon the flightest examina- year the king was attended by all tion will be found to be most un- his nobility at Sarum ; where all trae. However, certain it is, that the principal landholders fubmitted the Normans now began to gain their lands to the yoke of military very large poffeffion in England: tenure, became the king's vaffals, and their regard for the feodal law, and did homage and fealty to his under which they had long lived, person. This seems to have been together with the king's recom- the aera of formerly introducing mendation of this policy to the the feodal tenures by law; and English, as the bett way to put probably the very law, thus made themselves on a military footing, at the council of Sarum, is that and thereby to prevent any future which is still extant, and couched attempts from the continent, were in these remarkable words : “
“fa. probably the reasons that prevailed " tuimus, ut omnes liberi homines to effect its establishment here. “ foedere et facramento affirment, And perhaps we may be able to “ quod intra, et extra uiverfum ascertain the time of this great re- regnum Angliae Wilhelma regi volution in our landed property “ domino fuo fideles effe volunt ; with a tolerable degree of exact. “ serras et honores illius omni fide. ness. For we learn from the Saxon
“ litare ubique fervare cum eo, et Chronicle, that, in the nineteenth “ contra inimicos et alienigenas der year of King William's reign, an "fendere."! The terms of this law invasion was apprehended from (as Sir Martin Wright has obDenmark; and the military confti. lerved) are plainly "feodal: for tution of the Saxons being then firft, it requires the oath of laid aside, and no other introduced fealty, which made in the sense
of the feudifts every man that took land, was, that the former was efit a tenant or vassal; and, secondly, fected gradually, by the consent of the tenants obliged themselves to private persons; the latter was done defend their lords” territories and at once, all over England, by the titles against all enemies, foreign common consent of the nation. and domestic. But what puts the In consequence of this change, matter out of dispute is another it became a fundamental maxim law of the fame collection, which and neceffary principle (though in exacts the performance of the mili- reality a mere fiction) of our Eng. tary feodal services, as ordained by lifh tenures, that the king is the general council.
56 Omnes co
*"* the universal lord and original « mites, et barones, et milites, et proprietor of all the lands in “ fervientes, et univerp liberi ho- « his kingdom; and that no man “' mines totius regni notri praedicti, “ doth or can possess any part of “ habeant et teneant je femper bene " it, but what has mediately or « in armis et in equis, ut decet et “ immediately been derived as a
oportet : et fant semper prompii et gift from him, to be held upon “ bene parati ad fervitinm fitum “ feodal services." For, “ integrum vobis explendum et pera- being the real case in pure, ori.
gendum cum opus fuerit ; fecundum ginal, proper feuds, ether nations
quod nobis debent de frodis et tene- who adopted this system “ mentis fuis de jure facere ; et ficut obliged to act upon the fame (up. « illis ftatuimus per commune conci- pofition, as a
substruction and « lium totius regni nostri praedicti,” foundation of their new polity,
This new policy therefore seems though the fact was indeed far not to have been imposed by the otherwise. And indeed by thus conqueror, but nationally and free- consenting to the introduction of ly adopted by the general assembly feodal tenures, our Englith Asof the whole realm, in the fame cestors probably meant no more manner as other nations of Europe than to put the kingdom in a state had before adopeed it, upon the of defence, by establishing a mi. fame principle of felf-security. litary system ; and to oblige them. And, jo particular, they had the felves (in respect of their lands) recent example of the French na- to maintain ihe king's title and tion before their eyes ; which had territories, with equal vigour ai gradually surrendered up all its fealty, as if they had received their allodial or free lands into the lands from his bounty upon these king's hands, who restored them express conditions, as pure, proto the owners as a beneficium or 'per, beneficiary feudatories, bui, feud, to be held to them and such whatever their meaning was, the of their heirs as they previously Norman interpreters, skilled in nominated to the king; and thus all, the niceties of the feodal conby degrees all the allodial estates ftitutions, and well understanding of France were converted into the import and extent of the feofeuds, and the freemen became the dal terms, gave a very different vassals of the crown. The only construction to this proceeding; difference between this change of and thereupon took'a handle to in. tenures in France, and that in Eng- iroduce not only the rigorous doc.
trines which prevailed in the Henry III. And, though its imdutchy of Normandy, but also munities (especially as altered on fuch fruits and dependencies, such its last edition by his fon) are very hardships and services, as were greatly short of those granted by never known to other nations, as Henry I. it was juftiy esteemed if the English had, in fact, as well at the time a vait acquisition to as theory, owed every thing they English liberty. Indeed, by the had to the bounty of their sove- farther alteration of tenures that reign lord...
has since happened, many of these Our ancestors, therefore, who immunities may now appear, to a were by no means beneficiaries, common observer, of much less but had barely consented to this consequence than they really were fiction of tenure from the crown, when granted : but this, properly as the basis of a military discipline, considered, will sew, not that with reason looked upon thefé the acquisitions under John were deductions as grievous impof- small, but that those under Charles tions, and arbitrary conclusions were greater. And from hence from principles that, as to them, also arifes another inference; that had no foundation in truth. How. the liberties of Englishmen are noc ver, this king, and his son Wil. (as fome arbitrary writers would liam Rufus, kept up with a high represent them). mere infringehand all the rigours of the feodal 'ments of the king's prerogative, doctrines : but their successor, extorted from our princes by Henry I. found it expedient, taking advantage of their weakwhen he set up his pretenfions to ness; but a restoration of that an. the crown, to promise a restitution cient conftitution, of which our of the laws of King Edward the ancestors had been defrauded by Confeffor, or ancient Saxon system: the art and finefie of the Norman and accordingly, in the first year lawyers, rather than deprived by of his reign, granted a charter, the force of the Norman arms. whereby he gave up the greater Having given this thort hila grievances, but still reserved the tory of their rise and progress, we fiction of feodal tenure, for the will next confider the nature, docJame military purposes which en. trine, and principal laws of feuds ; gaged his father to introduee it. wherein we fall evidently trace But this charter was gradually the ground work of many parts of broke through, and the former our public polity, and also the grievances were revived and ag- original of such of our own te. gravated, by himself and succeed
nures, as were either abolished in ing princes i till; in the reign of the last century, or fill remain in King John, they became so in force. tolerable, that they occafioned his The grand and fundamental barons, or principal feudatories, maxim of all feodal tenure is this : to rise up in arms against him : that all lands were originally which at length produced the fa- granted out by the fovereign, and mous great charter at Roning- are therefore holden, either me. mead, which, with some altera diately or immediately, of the tions, was confirmed by his son crown. The grantes was called
the proprietor, or lord; being he who fate before him; and there who retained the dominion or ul- profeffing that “ he did become timate property of the feud or "his man, from that day forth, fee: and the grantee, who had " of life and limb and earthly hoonly the ofe and poffeffion, ac- “ nour:” and then he received a cording to the terms of the grant, kiss from his lord. Which cerewas styled the feudatory or valsal, mony was denominated bomagium, which was only another name for or manhood, by the feudifts, from the tenant or holder of the lands; the stated form of words, devenia though, on account of the preju. vefter homo. dices we have justly conceived When the tenant had thus proagainst the doctrines i hat were af. fessed himself to be the man ot his terwards grafted on this system, fuperior or lord, the next confide. we now use the word vallal oppro- ration was concerning the services briously, as synonymous to flave or which, as fuch, he was bound to bondman. The manner of the render, in recompence for the land grant was by words of gratuitous he held. This, in
This, in pure, proper, and pure donation, dedi et concelli; and original feuds, was only iwowhich are still the operative words fold: to follow, or do fuit to, the in our modern infeodations, or- lord in his courts in time of peace; deeds of feoffment. This was and in his armies or warlike, reperfected by the ceremony of cor- tinue, when neceflity called him to poral inveftiture, or open and no- the field. The lord was, in early torioas delivery of pofleflion in the times, the legislator and judge over presence of the other vafsals, all his feudatories : and therewhich perpetuated among them fore the vallals of the inferior lords the aera of the new acquisition, at were bound by their fealty to at. a time when the art of writing tend their domeftic courts baros, was very little known: and there (which were instituted in every fore the evidence of property was manor or barony, for doing speedy reposed in the memory of the and effectual juftice to all the te neighbourhood; who, in case of nants) in order as well to answer a disputed citle, were afterwards such complaints as might be alcalled upon to decide the difference, ledged against themselves, as to not only according to external form a jury or homage for the trial proofs, adduced by the parties of their fellow.tenants; and upon litigani, but also by the internal this account, in all the feodalinteftimony of their own private ftitutions both here and on the knowledge.
continent, they are diftinguished Besides an oath of fealty, or pro- by the appellation of the peers of fession of faith to the lord, which the court; pares curtis, or pares was the parent of our oath of als curiae. In like manner the barons legiance, the vasfal or tenant upon themselves, or lords of inferior inveftiture did usually homage to districts, were denominated peers his lord ; openly and humbly of the king's court, and were kneeling, being ungiri, uncover- bound to attend him upon fum. ed, and holding up his hands both mons, to hear causes of greater tugether between ihose of the lord, consequence in the king's pre
sence and under the direction of tivated began naturally to arise in his grand justiciary : till in many the tillers : a more permanent decountries the power of that officer gree of property was introduced,. was broken and distributed into and feuds began now to be grante, other courts of judicature, the ed for the life of the feudatory. peers of the king's court ftill re. But still feuds were not yet hereserving to themselves (in almost ditary; though frequently granted, every feodal government) the by the favour of the lord to the right of appeal from those subor- children of the former poffeffor ; dinate courts in the last resort. till in process of time it became The military branch of service unusual, and was therefore thought confited in attending the lord to hard, to reject the heir, if he the wars, if called upon, with such were capable to perform the sera retinue, and for such a number vices : and therefore infants, woof days, as were ftipulated at the men, and professed monks, who first donation, in proportion to the were incapable of bearing arms, quantity of the land.
were also incapable of succeeding At the first introduction of to a genuine feud. But the heir, feuds, as they were gratuitous, fo · when admited to the feud which also they were precarious, and held his ancestor poffefled, ased geneat the will of the lord, who was rally to pay a fine of acknowledge the role judge whether his vassal ment to the lord, in horses, arms, performed his fervices faithfully. money, and the like, for such reThen they became certain, for one newal of the feud : which was or more years. Among the an. called a relief, because it re-efta. cient Germans they continued only blished the inheritance, or, in the from year to year; an annual dib. words of the feodal writers, “ intribution of lands being made by certam et caducam heriditatem re. their leaders in their general coun. " levebat." This relief was af. cils or assemblies. This was pro. terwards, when feuds became abfessedly done, left their thoughts folutely hereditary, continued on should be diverted from war to the death of the tenant, though agriculture ; left the strong should the original foundation of it had encroach upon the poffeflions of ceased. the weak; and left luxury and For in process of time feuds avarice should be encouraged by came by degrees to be universally the erection of permanent houses, extended, beyond the life of the and too curious an attention to firit vassal, to his fons, or perhaps convenience and the elegant fu. to such one of them as the lord perfuities of life. But, when mould name; and in this case the general migration was pretty the form of the donation was well over, and a peaceable por. Itrialy observed : for if a feud session of their new acquired set- was given to a man and his fons, tlements had introduced new cuf- all his fons succeeded him in equal toms and manners ; when the ‘fer. portions ; and as they died off, tility of the foil had encouraged their thares reverted to the lord, the Itudy of husbandry, and an af. and did not descend to their chilfection for the spots they had.cul. dren, or even to their surviving broVot. X.