The service which the tenant was bound to render in recompense for the lands that he held, was in original feuds, twofold; to follow or do suit to the lord in his courts in time of peace; and in his armies or warlike retinue when necessity called him. to the field (e). The lord was in early times the legislator and judge over all his feudatories: and therefore the vassals of the inferior lords were bound by their fealty to attend their domestic courts baron, which were instituted in every manor Feud. 1, 2. or barony, in order to answer such complaints as might be t. 55. alleged against themselves, and to form a jury or homage for the trial of their fellow tenants; and, upon this account, in all the feodal institutions both here and on the continent, they were distinguished by the appellation of pares curiæ, the peers of the court. At the introduction of feuds, as they were gratuitous so they were precarious, and held at the will of the lord who Feud. 1, 1, was their sole judge, whether his vassals performed their t. 1. services faithfully. Then they became certain for one or more years. But when the fertility of the soil had encouraged the study of husbandry a more permanent degree of property was introduced, and feuds began to be granted for the life of the Feud. 1, 1, feudatory. But still they were not hereditary, though fre- t.1. quently granted by the favor of the lord to the children of the former possessor, till it became unusual, and was thought hard to reject the heir, if he was capable of performing the services; and, therefore, infants, women and professed monks, who were incapable of bearing arms, were also incapable of succeeding to a genuine feud. In process of time, feuds came by degrees to be universally extended beyond the life of the first vassal to his sons; and in this case the form of the donation was strictly observed; for if a feud was given to a man and his sons, all his

(e) That the artificial relation between the lord and his man or vassal was accurately understood, and its duties faithfully performed by the Anglo-Saxons is evident from numerous instances in their history. When Cynewalf (a 785) was surprised in the dead of the night at Merton, his men refused to abandon or even to survive their lord; and when, on the next morning, the eighty-four followers of Cyneheard were surrounded by a superior force, they also spurned the offer of life and liberty, and chose rather to yield up their breath in a hopeless contest than to violate the fealty they had sworn to a murderer and an outlaw. An attachment of this romantic and generous kind cannot but excite our sympathy. It grew out of the doctrine that of all the ties which nature has formed or society invented, the most sacred was that which bound the lord and his vassal; whence it was inferred that the breach of so solemn an engagement was a crime of the most disgraceful and unpardonable atrocity. By Alfred it was declared inexpiable; the laws pronounced against the offender the sentence of forfeiture and death.-Cron. Sax. 58; Leg. Sax. p. 33, 34, 35, 142, 143; Lingard's England, v. 1, p. 316.

Wright, 17.

Wright, 183.

Ibid. 32.

sons suceeeded him in equal proportions, and as they died off, their shares reverted to the lord, and did not descend to their children, or come to their surviving brothers, as not being specified in the donation. But when such a feud was given to a man and his heirs, then a more extended rule of succession took place, and when the feudatory died, his male descendants in infinitum, were admitted to the succession. When any such descendant who thus had succeeded died, his male descendants were also admitted in the first place, and in defect of them, such of his male collateral kindred as were of the blood or lineage of the first feudatory, but no others; it being an unalterable maxim in feodal succession, that " none was capable of inheriting a feud but such as was of the blood of, that is lineally descended from the first feudatory." And the descent being thus confined to males, originally extended to all the males alike; all the sons without any distinction of primogeniture succeeding to equal portions of the father's feud. But this being found inconvenient, by dividing the services, and weakening the strength of the feodal union, and honorary feuds being now introduced, which were not of a divisible nature, the feud began to descend according to the same rule of primogeniture to the eldest son in exclusion of all the rest (ƒ).

(f) The most striking point of difference between the Roman and the feudal course of succession, is the prerogative allowed by the latter to primogeniture. To the eldest son the Roman law showed no preference; wherever the feudal polity has been established he has been allowed several important prerogatives. In England, primogeniture obtained in military fiefs, as early as William the Conqueror; but with this qualification, that where the father had several fiefs the primum patris feudum only belonged to the eldest son. In the reign of Hen. 2, primogeniture prevailed absolutely in military fiefs, and in the reign of Henry 3, or soon afterwards, the same absolute right to the succession by primogeniture obtained in socage lands. Thus, in all countries where the feud has been established, a marked distinction in the order of succession has, in direct opposition to every principle and practice of the Roman law, been shewn to primogeniture. But a total exclusion of the younger sons is perhaps peculiar to England. In other countries some portion of the fief, or some charge upon it, is, in many cases, at least, secured by law to the younger sons. In some places this is secured for their lives only, in others their descendants succeed to it; still the eldest son in the eye of the law represents the fee.-Co. Litt. 191 a, note, sect. 6.. The principle of hereditary succession is universal, but the order has been variously established by convenience or caprice, by the spirit of national institutions, or by some partial example, which was originally decided by fraud or violence. The jurisprudence of the Romans appears to have deviated from the equality of nature, much less than the Jewish, the Ottoman, or the English institutions. On the death of a citizen, all his descendants, unless they were already freed from his paternal power, were called to the inheritance of his possessions. -Gibbon, R. E. ch. 44.

The feudal polity prevailed with the Germans, of whom Tacitus wrote: "The son is

Other qualities of the feud were, that the feudatory could not alien or dispose of his feud, nor could he exchange, mortgage, Wright, 29. or devise it by will, without the consent of the lord. And as the feodal obligation was looked upon as reciprocal, the feudatory being entitled to the lord's protection in return for his own fealty and service, the lord could no more transfer his seignory or protection without the consent of his vassal than the vassal could his feud without the consent of his lord. Wright, 30. These were the principal and very simple qualities of the genuine or original feuds, which were all of a military nature, though the feudatories being under frequent incapacities of cultivating and manuring their own lands, soon found it necessary to commit part of them to inferior tenants; obliging them to such returns in service, 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; these inferior feudatories being under similar obligations of fealty as their superior lords. But this demolished the antient simplicity of feuds, which then began to be bought and sold, and deviations were made from the old fundamental rules of tenure and succession. Hence feuds began now to be divided into proper and improper feuds. The former being those already treated of, and the latter those derived out of them, and not falling within their description (g).

always heir to his father. In case of failure of issue the brothers of the deceased are next in succession, or else the paternal or maternal uncles."-Murphy's Tacitus, Germ. s. 20. By custom, the unwritten law of the Germans, the females were excluded from the succession to the lands of their deceased father. Every hut or cabin had a precinct of ground, and that was the estate which descended to the sons or went in the male line. It was called salic land, because the mansion of a German was called sal, and the place inclosing it salbac, the homestead. When the Franks issued from their own country and gained possessions in Gaul, they still continued to give to their new settlements the name of salic land, and hence the law of the Franks that regulated the course of descent was called the salic law.—Id. Note (ƒ).

(9) The reader is referred to Mr. Butler's valuable note (Co. Litt. 191 a) for an historical view of the revolutions of the feud in England.

CHAPTER V.

tenures.

OF THE ANTIENT ENGLISH TENURES.

Of the antient ALMOST all the real property of this kingdom is, by the policy of our laws supposed to have been granted by, to be dependent upon, and holden of some superior lord, in consideration of certain services. The thing holden is therefore styled a tenement, the possessors, tenants, and the manner of their possession, a tenure. Thus all the land of the kingdom is supposed to be holden mediately or immediately of the king, who is styled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king, and thus partaking of a middle nature were called mesne or middle lords. So that if the king granted a manor to A., and he granted a portion of the land to B.; B. was said to hold of A., and A. of the king; B. held his lands immediately of A., but mediately of the king. The king, therefore, was styled lord paramount; A. was both tenant and lord, or was a mesne lord, and B. was called tenant paravail, or the lowest tenant; being he who was supposed to make a profit of the land. In this manner, are now held all the lands of the kingdom in the hands of subjects; all tenures being thus derived, or supposed to be derived from the king; those that held immediately under him, were called his tenants in capite or in chief (a), which was the most honourable species of tenure, but yet subjected the tenants to greater and more burthensome services, than inferior tenures did. There seems to have subsisted, among our ancestors, four species of lay tenures, to which all others may be reduced, the

2 Inst. 296. 1 Inst. 1.

The principal lay tenures.

(a) Domesday presents a correct picture of the state of the country, not only under the Norman William, but also under his Anglo-Saxon predecessor Edward. Taking the county of Kent as a specimen, we find that out of four hundred and thirty places described as lying within its precincts, not fewer than one hundred and ninety-four, nearly one-half, belonged to the crown, and that the remainder was unequally divided among eleven great tenants in chief, the king's principal thanes, the real peers of the county.-Lingard's England, vol. 1, p. 319.

grand criteria of which were the natures of the several services or renders that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services; in respect of their quantity, and the time of exacting them, were either certain or uncertain. Free services were such, as were not unbecoming the character of a soldier or a freeman to perform; as to serve under the lord in the wars, to pay a sum of money, and the like. Base services were such as were only fit for peasants or persons of a servile rank; as to plough the lord's land, or other mean employment. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies; as to do military service in person, or to pay an assessment in lieu of it when called upon. From the various combinations of these services, arose the four kinds of lay tenure which formerly subsisted in England. Of these, Brac. 1, 4. Bracton gives the best account, wherein he states, "Tenements are of two kinds, frank tenement and villenage, and of frank tenements some are held freely, in consideration of homage and knight service, others in free socage, with the service of fealty only. And again of villenages, some are pure and others 5. privileged; he that holds in pure villenage, shall do whatsoever is commanded him, and always be bound to an uncertain service; the other kind of villenage, is called villein socage, and these villein socmen, do villein services, but such as are certain and determined."

tr. 1, c. 28.

To make a tenure by knight service, a determinate quantity of land was necessary, which was called a knight's fee; and he who held this land was bound to attend the lord to the wars for forty days in the year if called upon, which attendance was his reditus or return; if he held only half a knight's fee, he was bound to attend only twenty days, and so in proportion. There were as inseparately incident to this tenure, seven Litt, s. 95. fruits and consequences, viz. aids, reliefs, primer seisin, ward- Aids. ship, marriage, fines for alienation, and escheat. The three principal aids which were taken by the lord of his tenant, were

to ransom the lord's person if taken prisoner: to make the

lord's eldest son a knight, and to marry the lord's eldest 2 Inst. 233. daughter, by giving her a suitable portion.

Relief was incident to every feodal tenure by way of fine or Relief. composition with the lord for taking up the estate, which was