feodal writers, incertam et caducam hereditatem relevabat." This relief was afterwards, when feuds became abfolutely hereditary, continued on the death of the tenant, though the original foundation of it had ceafed.

FOR in procefs of time feuds came by degrees to be ufiiverfally extended, beyond the life of the firft vafal, to his fons, or perhaps to fuch one of them as the lord fhould name; and in this cafe the form of the donation was strictly obferved: for if a feud was given to a man and his fons, all his fons fucceeded him in equal portions: and, as they died off, their fhares reverted to the lord, and did not defcend to their children, or even to their furviving brothers, as not being fpecified in the donation ". But when fuch a feud was given to a man and his heirs, in general terms, then a more extended rule of fucceffion took place; and when the feudatory died, his male defcendants in infinitum were admitted to the fucceflion. When any fuch defcendant, who thus had fucceeded, died, his male defcendants were alfo admitted in the first place; and, in defect of them, fuch 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 feodal fucceffion, that "none was capable of inheriting "a feud, but fuch as was of the blood of, that is, lineally de"fcended from, the first feudatory"." And the defcent, being thus confined to males, originally extended to all the males alike; all the fons, without any diftinétion of primogeniture, fucceeding to equal portions of the father's feud. But this being found upon many accounts inconvenient, (particularly, by dividing the fervices, and thereby weakening the ftrength of the feodal union) and honorary feuds (or titles of nobility) being now introduced, which were not of a divifible nature, but could only be inherited by the eldeft fon; in imitation of thefe, military feuds (or those we are [57] now defcribing) began alfo in moft countries to defcend, according to the fame rule of primogeniture, to the eldest fon,

in exclufion of all the reft P.

m Wright, 17. a Ibid 183. VOL. II.

F

Feud. 2. t. 55.

P Wright. 32.

OTHER

[58]

57
OTHER qualities of feuds were, that the feudatory could
not aliene or difpofe of his feud; neither could he exchange,
nor yet mortgage, nor even devise it by will, without the
confent of the lord . For, the reason of conferring the feud
being the perfonal abilities of the feudatory to serve in war,
it was not fit he should be at liberty to transfer this gift, either
from himself, or from his posterity who were prefumed to in-
herit his valour, to others who might prove lefs able. And,
as the feodal obligation was looked upon as reciprocal, the
feudatory being intitled to the lord's protection, in return for
his own fealty and fervice; therefore the lord could no more
transfer his feignory or protection without consent of his
vafal, than the vafal could his feud without confent of his
lord it being equally unreasonable, that the lord fhould
extend his protection to a person to whom he had exceptions,
and that the vafal fhould owe fubjection to a superior not of
his own choofing.

THESE were the principal, and very fimple, qualities of the genuine or original feuds; which were all of a military nature, and in the hands of military perfons: though the feudatories, being under frequent incapacities of cultivating and manuring their own lands, foon found it necessary to commit part of them to inferior tenants; obliging them to fuch returns in fervice, 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 feodal polity was greatly extended; thefe inferior feudatories (who held what are called in the Scots law "rere-fiefs") being under fimilar obligations of fealty, to do fuit of court, to answer the ftipulated renders or rent-fervice, and to promote the welfare of their immediate fuperiors or lords. But this at the fame time demolished the antient fimplicity of feuds; and an inroad being once made upon their conftitution, it fubjected them, in a courfe of time, to great varieties and innovations. Feuds began to be bought and fold, and deviations were made from

9 Wright. 29.

: Ib d. 30.

■ Ibid. zo.

the

57
OTHER qualities of feuds were, that the feudatory could
not aliene or dispose of his feud; neither could he exchange,
nor yet mortgage, nor even devife it by will, without the
confent of the lord 9. For, the reafon of conferring the feud
being the personal abilities of the feudatory to serve in war,
it was not fit he should be at liberty to transfer this gift, either
from himself, or from his pofterity who were prefumed to in-
herit his valour, to others who might prove lefs able. And,
as the feodal obligation was looked upon as reciprocal, the
feudatory being intitled to the lord's protection, in return for
his own fealty and fervice; therefore the lord could no more
transfer his feignory or protection without confent of his
vafal, than the vafal could his feud without confent of his
lord: it being equally unreasonable, that the lord should
extend his protection to a person to whom he had exceptions,
and that the vafal should owe subjection to a superior not of
his own choofing.

[58]

THESE were the principal, and very fimple, qualities of the genuine or original feuds; which were all of a military nature, and in the hands of military perfons: though the feudatories, being under frequent incapacities of cultivating and manuring their own lands, foon found it neceffary to commit part of them to inferior tenants; obliging them to fuch returns in fervice, 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 thefe means the feodal polity was greatly extended; these inferior feudatories (who held what are called in the Scots law "rere-fiefs") being under fimilar obligations of fealty, to do fuit of court, to answer the ftipulated renders or rent-fervice, and to promote the welfare of their immediate fuperiors or lords. But this at the fame time demolished the antient fimplicity of feuds; and an inroad being once made upon their conftitution, it fubjected them, in a courfe of time, to great varieties and innovations. Feuds began to be bought and fold, and deviations were made from

9 Wright. 29.

. Ib.d. 30.

• Ibid. 20.

the

the old fundamental rules of tenure and fucceffion; which were held no longer facred, 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 divifions were comprehended such, and fuch only, of which we have before spoken; and under that of improper or derivative feuds were comprized all fuch as do not fall within the other defcription: fuch, for inftance, as were originally bartered and fold to the feudatory for a price; fuch as were held upon base or lefs honourable services, or upon a rent, in lieu of military service; fuch as were in themselves alienable, without mutual license; and fuch as might defcend indifferently either to males or females. But, where a difference was not expreffed in the creation, fuch new-created feuds did in all respects follow the nature of an original, genuine, and proper feud.

BUT as foon as the feodal fyftem came to be confidered in the light of a civil establishment, rather than as a military plan, the ingenuity of the fame ages, which perplexed all theology with the subtilty of scholaftic difquifitions, and bewildered philofophy in the mazes of metaphyfical jargon, began also to exert it's influence on this copious and fruitful fubject: in pursuance of which, the most refined and oppreffive confequences were drawn from what originally was a plan of fimplicity 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 fuperftructures have been raifed: what effect it has produced on the landed property of England will appear in the following chapters.

t Feud. 2. t. 7.

F 2