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was said, in the subsequent language of the feudal law, to hold the land of his sovereign; and the method or relation by which he thus held was denominated a tenure, or holding. (Pom. p. 255).
Sometimes the grant was for the life of the grantor; but more generally for that of the grantee. At what time custom or agreement made the enjoyment of the property hereditary in the family of the grantee, we have no means of accurately ascertaining in any country. As late as the end of the sixth century, the lands which had been parcelled out returned in most European states to the prince, and were only continued to the family as an act of favor, and by a new gift; although undoubtedly instances of hereditary tenure occurred even at this early date.
Now a benefice (beneficium), or grant of land by a chief to his followers upon condition of military service, was called a fief, feud, fee, or feo (from feo, wages, and od, land), and it constituted the grantee a feudatory, or vassal of the chief or superior to whom he owed service in consideration of the land. The use of the land was his wages, which he earned for doing service to his master, the owner or grantor of the land. This, we repeat, is the cornerstone of the feudal system. It is the root from which all its peculiarities spring.
Attempts have been made to deduce the feudal relations from other sources. It has been said that traces of it are to be found in the customs of the Germans and Saxons; and the relation of chief and follower was no doubt the moving cause which led those hardy people to adopt the system so universally. But it is to be remembered that the companions of the chief cannot be likened to vassals, to whom, indeed, they bear a very faint resemblance; and that, in their primitive abode, payment of any kind, an ly in land, was altogether wanting. Some have imagined that the feudal relation is to be traced in the Roman connection of patrons and clients—a practice, among men of consequence and power, of taking under their protection inferior persons, who rendered in return such services as were within their means, often paying money, and not unfrequently bequeathing property, to their patron. But no real resemblance exists between the two cases; for here, again, in the Roman custom there is no holding of land in consideration of allegiance and service. The only case which resembles feudal ser. vice in the early history of Europe is to be found in the reign of Alexander Severus at the beginning of the third century, who settled some barbarous tribes along the Danube, making to them grants of land on the express condition of their serving him in wars against the neighboring tribes.
This was a simple feudal tenure, arising out of circumstances identical with those out of which the feudal relation grew and became general two centuries later; and on reflection it seems probably the most natural form in which the custom of free companionship prevailing in the unsettled German tribes could coalesce with the imperial power appropriated by their chiefs, on their establishment as settled rulers of the conquered Romans and provincials.
When a chief, then, established himself and parcelled out the lands seized, the leading companions of the expedition shared some of the lands taken, on condition of allegiance and military service. When the feuds became hereditary and the favor of succeeding princes had increased the grants, the comites or counts possessing large tracts exercised great influence in the state. For the acquisition of feuds, when the tenures became hereditary, and perhaps even sooner, was attended with another operation. As the practice of renting land was unknown, whoever had more land given him than he could cultivate, whether a count or any inferior
person, was obliged to make a similar grant to other persons, in return for which they were to do him service. Thus every one who had a considerable estate given him, retained part for himself, and parcelled out the rest among inferiors, who rendered him the same service as he rendered to the chief or prince—following him in war when he followed the prince, assisting him in peace, and attending his courts. The practice of making these inferior grants of land was called sub-infeudation, and originally there was no limit to it. The smaller proprietors had of course fewer inferior vassals, or subfeudatories; but, like the counts and other important vassals of the crown, they had the same courts and administration of justice over their vassals as the king himself over his tenants in capite, or tenants in chief. From this distribution of land among the crown's vassals, and by them among their dependants, arose the great power of the feudal lords or barons; for the allegiance of their feudatories to them was in theory as rigorous as their own to the sovereign; and in practice it was much more effectual. The count or baron passed his whole time at home, surrounded by his followers, who also were the suitors or members of his courts where justice was administered, while the more distinguished among them were his companions in the chase and at his feasts. Occasionally the great lord might go to the sovereign's court, and in his wars he accompanied his armies; but the constant occupation of his life was such as to maintain his power over his own vassals."
It happened, however, that in every country overrun by the barbarians, a considerable portion of the land remained the property of the former inhabitants, and some part of it was granted out in absolute possession, without any direct obligation of service. This land was called allodial, and its holders allodists, or allodial proprietors; but its amount in every country underwent constant diminution. This was principally owing to the disordered state of society, and the insecurity arising from thence and from foreign invasion, During many centuries there was continual commotion; petty private wars were waged between the feudal lords; there was no generally acknowledged law and no respect for private property; and the allodial proprietors having incurred no obligation of service, and therefore having no title to protection from the sovereign and no laws from which to seek redress, were exposed to the perpetual rapacity of counts and other nobles. “The owners of the castles and fastnesses would sweep down upon these proprietors, ravage their possessions, and carry them off, to be ransomed at any exorbitant charges. The military tie of lord and vassal was the only barrier to these attacks, for while it imposed a duty of warlike service upon the vassal, it also afforded the protection of the lord.” Hence many allodial proprietors surrendered their lands into the hands of some more powerful proprietor, to receive them back as feuds, with the condition of allegiance and service imposed upon them, but also with the duty of protection cast upon the lord. Even those lords themselves, owners of larger allotments, were frequently reduced by similar apprehensions to become vassals of the crown in respect of lands formerly held by them as allodial; and to such an extent was this practice of infeudation carried, that in the tenth and eleventh centuries it appears that almost all the allodial possessions of France had been converted into feudal tenures held by vassals of superior lords on the condition of military service.
When the feudal relation had become established, it extended itself to various kinds of property, not in their nature the subject of such a conditional holding. Thus rents, tolls, pensions, tithes, and offices were made the subjects of feudal grant, and given on condition of military service. Even perquisites of the priests for saying mass were soinetimes seized by the barons, and held by them of the church, on the condition of giving their service in protecting it; and such spoils were shared by sub-infeudation among their followers. But some lands, and generally property in towns, were in England held for fixed payments, or for services not military; and this was called socage, or free and certain service.
Having now traced the establishment of the feudal relation of lord and vassal, we are next to examine the rights and duties which it constituted, and the important effects which it produced upon the structure of the government and the condition of society.
The first duty of the vassal to the lord was allegiance. He did homage by uncovering his head and ungirding his sword, and kneeling before the lord, in whose hands he placed his own. In this attitude he solemnly promised to become his man-homme (whence the word homage); and to serve him faithfully with life and limb in return for the land held of him. This ceremony generally was ended by his kissing the lord's cheek, and the lord kissing his mouth; and a remnant of this is retained in England at the coronation of the king, the peers all kneeling before the king uncovered, and then kissing his cheek. The bishops still do homage to him for their temporal possessions, which return to the crown on the see being vacant, and are granted again to the successor. The homage, chiefly confined to military tenure, was performed to the lord in person. The oath of fidelity, or fealty, which belonged to all tenures, followed; but the lord might receive it by proxy.' The investiture of the vassal in the land was that for which he owed allegiance, and the lord either gave actual possession on the spot, or delivered it over by symbols, as turf for a field, a stone for a house, and so forth.
Allegiance comprehended the duty of attempting nothing against the lord, disclosing all information that might affect him, and not divulging his counsel when trusted by him. The vassal was also bound to side with him in war, and be a hostage for him if captured. But military service, to which was added suit service, or attendance on the lord's court, was the most important duty, and in most cases, perhaps at first in all, was the foundation of the tenure.
Allegiance was at all times due, and continued always the same. Military service was originally coextensive with allegiance, and was due whenever the lord was attacked. Whether, if he waged offensive war, the same absolute right existed to the vassal's service, may be questioned. Cæsar tells us that the ancient Germans volunteered to accompany their chief on an expedition which he announced at a general assembly, and that, having once promised, it was infamy not to perform. Probably, then, the barbarians, when they settled and granted out lands in feudal tenure, held assemblies where the expedition was resolved upon, and the lord had a right to service while it lasted. But by degrees this came to be regulated and limited, and the vassals became bound to serve only a given number of days, each according to the extent of his possession. Thus, for a knight's fee (or land of the value of twenty pounds a year), forty days were due ; which in France was extended to sixty days. But in the course of time the extent of service came to be specified in the deed or charter by which the land was granted. Men of sixty, women, priests, and public functionaries, were allowed to find substitutes. Sometimes the service was limited to the lord's territory; sometimes it was general and unrestricted. The non-performance incurred a forfeiture of the land to the lord, because it was a breach of the condition upon which the grant had been made. But afterward the practice grew up of commuting the service for a fine, which was called escuage, or scutage, and proved a source of revenue to the chief.
But besides the service of war, other rights were possessed by the lord, some of them connected with the land, and arising from its having been originally his own altogether, and never wholly given to the vassal; others acquired by usurpation upon the vassal
As the land was at one time granted for life, when the lord gave