the constitution of FEUDS or FEUDS.

This remarkable system, so universally received throughout Europe upwards of 12 centuries ago, that Sir Henry Spelman does not scruple to call it the law of nations in our western world, forms a subject that merits particular attention; as, without a general knowledge of the nature and doctrine of feuds, it is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom, or the laws which regulate its landed property.

The constitution of feuds had its original from Origin of the military policy of the northern or Celtic nations, feuds, the Goths, the Huns, the Franks, the Vandals, and the Lombards; who, all migrating from the same gentium, or "storehouse of nations," as it has been justly called, poured themselves in vast multitudes into all the regions of Europe at the declension of the Roman empire. It was brought by them from their own countries, and continued in their respective colonies as the most likely means to secure their new acquisitions: and, to that end, large districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels and allotments to the inferior officers and most deserving soldiers. These allotments were called feoda, "feuds," "fields," or "fees;" which appellation, in the northern languages, signifies a conditional stipend or reward (a). Rewards, or stipends, they evidently were; and the condition annexed to them was, that the possessors should do service faithfully,

(a) Pontoppidan, in his history of Norway (p. 290.) observes, that, in the northern languages, o signifies proprietar, and all totum. Hence he derives the odhal right in those countries; and hence too, perhaps, is derived the uadal right in Finland. (See Macdonald's Inst. part 2.) Now, the transposition of these northern syllables, allodh, will give us the true etymology of the allodium or absolute property of the feudists; as, by a similar combination of the latter syllable with the word pes (which signifies, as we have seen, a conditional reward or stipend), freooh, or freedum, will denote stipendiary property. fully, both at home and in the wars, to him by whom they were given; for which purpose, he took the juramentum fidelitatis, or oath of fealty: (see the article Feudal Tenure): and in case of the breach of this condition and oath, by not performing the stipulated service, or by defeating the lord in battle, the lands were again to revert to him who granted them.

Allotments, thus acquired, naturally engaged such as accepted them to defend them; and as they all sprang from the same right of conquest, no part could subsist independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each other's possessions. But as that could not effectually be done in a tumultuous irregular way, government, and to that purpose subordination, was necessary. Every receiver of lands, or feudatory, was therefore bound, when called upon by his benefactor, or immediate lord of his feud or fee, to do all in his power to defend him. Such benefactor or lord was likewise subordinate to or under the command of his immediate benefactor or superior; and so upwards to the prince or general himself. And the several lords were also reciprocally bound in their respective gradations, to protect the possessions they had given. Thus the feudal connection was established; a proper military subjection was naturally introduced; and an army of feudatories were always ready enlisted, and mutually prepared to muster, not only in defence of each man's own several property, but also in defence of the whole and of every part of this their newly acquired country; the prudence of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquests.

But while possessions were to flow in the range of feudality, and were to uphold a regular militia, there were also estates which were to be received and to be retained under more enlarged maxims. To these every person who was free had a title. He could lay claim to his lot or portion of territory, and could dispose of it at his pleasure (n). In contradistinction to the feudal grant, which, as we have seen, was burdened with service and confined by limitation, these lands were known by the name of allodiality; a term which denoted their entire freedom and exemption from superiority.

(n) The curious reader may see the remote sources of the feudal laws particularly traced in the manners of the Germanic tribes before they left their woods, by the learned and spirited author of A view of Society in Europe, Book I. chap. ii. sect. i. The members of a German nation, according to Tacitus, cultivated, by turas, for its use, an extent of land corresponding to their number; which was then parcelled out to individuals in proportion to their dignity. When a German tribe obtained possession of a Roman province, they continued to be governed by their ancient principles in the distribution of their possessions. The king or sovereign, as the person of greatest dignity, had the most considerable portion; which came to constitute his domain. Each citizen and warrior had his lot or share; which gave rise to allodiality. That part of the territory which was not exhausted by partitions to individuals, was considered, agreeably to the ancient ideas, as belonging to the community; and was called, in the barbaric codes, the lands of the fisc. The situation of a German state, which had acquired a settlement, produced the necessity of drawing closer the connection of the sovereign and the chiefs, and of the chiefs and the people. The lands of the fisc were the medium which was employed in effecting this design. The sovereign took the direction of these; hence possessions flowed to the chiefs, under the burden of preserving themselves in arms at the call of the sovereign; hence the chiefs dealt out lands to their retainers, under the like injunction of continuing to them their aid; and thus a political system was founded, which was to act in society with infinite efficacy.

Of this system (says Dr. Stuart) the intention and the spirit were national defence and domestic independence. While it called out the inhabitant and the citizen to defend his property, and to secure his tranquillity, it opposed barriers to depopulation. Growing out of liberty, it was to promote the freedom of the subject. The power of the sovereign was checked by the chiefs, who were to form a regular order of nobility; and the aristocracy, or the power of the chiefs, was repressed by the retainers and vassals, who, constituting their greatness, were to attract their attention. The chief who oppressed his retainers, was to destroy his own importance. It was their number, and their attachment, which made him formidable to his prince and to his equals." sword, revenge their wrongs, and gratify their avarice and cruelty, the holders of fiefs enjoyed a supreme advantage over allodial proprietors. A lord and his retainers, connected together in an intimate alliance, following the same standard, and adopting the same positions, could act with concert and efficacy. But allodial proprietors were altogether disqualified to defend themselves. Being distant and disengaged, they could form and support no continued or powerful confederacy; and the laws, in fact, did not permit them to enter into factions and hostilities. The violence of the times created an absurdity. It gave to gifts under service and revertible to the grantor, a value superior to lands which were held in full property and at the disposal of the proprietor. It made necessary the conversion of propriety into tenure.

Nor was this the only consideration which had weight with the possessors of property. In every monarchy, but in one more particularly that is governed by feudal ideas, rank and pre-eminence attract chiefly the attention, and excite the ambition of individuals. The king being the fountain of honour, and distinctions flowing from his favour, the ranks of men were nicely adjusted; and in proportion as they approached to his person, they exacted and received respect. From this principle it naturally proceeded, that allodial proprietors were treated with contempt. Holding by no tenure, and occupying no place in the feudal arrangements, they could not draw observation. Their pride was alarmed, and they wished for the respect and security of vassals.

Princes, bent on the extension of fiefs, discouraged the proprietors. Their ambition, their abilities, and their prerogatives, furnished them with the greatest influence; and they employed it to give universality to a system, which was calculated to support the royal dignity and the national importance. Compositions for offences inferior to those which were allowed to a vassal, were deemed insufficient for the proprietors of allodiality. In the courts of justice, they felt the disadvantages of their condition. Mortified with regal neglect; without sufficient protection from the laws; exposed to the capricious insolence, and the destructive ravages, of the great; disgusted with rudeness, contempt, and indignity, they were driven into the circle of fiefs. They courted the privileges and protection which were enjoyed by vassals. They submitted their estates to tenure, selecting to themselves a superior the most agreeable, granting to him their lands, and receiving them back from him as a feudal donation.

In this direction of affairs, the extension of the feudal institutions was unavoidable. The landed property was everywhere changed into feudality. The empire of fiefs was universal (c).

While the greatness and simplicity of those maxims which

(c) It has puzzled the learned to discover the nation of the barbarians which first gave a beginning to fiefs. No inquiry, in Dr Stuart's opinion, could be more frivolous. In all of them they must have appeared about the same period. And they prevailed in all of them in consequence of the similarity of their situation on their conquests, and in consequence of their being governed by the same customs. It is not, therefore, to the principle of imitation that their universality is to be ascribed.

The annals of France make mention of fiefs in the age of Childebert. The Longobards at an early period introduced them into Italy; and the customs and laws which relate to them seem to have advanced rapidly among this people.

In Spain, the introduction of feudal tenures preceded the devastations of the Saracens or Moors, which began in the year 710. Among the Goths, who established the monarchy of Spain, lands were granted for service and attachment; and the receiver was the retainer of the grantor. He was said to be in patrocinio; and if he refused his service, he forfeited his grant. It also appears, that the retainer, or vassal, swore fealty to his patron or lord. And it was on this scheme that their militia was regulated.

In England, there is little doubt that the feudal law was known in the Saxon times, as we shall see above §.

In Scotland, the history of fiefs is more obscure than in any other nation. This imperfection has been ascribed partly to the melancholy condition of the Scottish records, but chiefly to the want of able antiquaries of that nation.

But, according to Dr Stuart, "the two great divisions of landed property, feudality and allodial possession, were coeval with its monarchy. And they must have sprung from the same peculiarity of manners, and of situation, which had given them existence in other nations. It has been conceived, indeed, that Malcolm II., building upon some foreign model, introduced these customs into Scotland; and the great body of the Scottish historians and lawyers have subscribed to this notion. It has likewise been thought, that they were imported thither expressly from England; and the policy of Malcolm III. has been highly extolled as the effective cause of their establishment. But it seems to Dr Stuart, that no reasons of any authority support these opinions.

They bear either expressly, or by implication, that the feudal system was introduced into Scotland, in consequence of a principle of adoption or imitation. Now, the peculiarities of fiefs are so strong, and so contradictory to all the common maxims which govern men, that they could not possibly be carried, in any stage of their progression, from one people to another. To transplant the feudal usages, when the grants of land were precarious, or at the will of the prince, to a country where superiority and vassalage had been unknown; to alter the orders of men, from the sovereign to the peasant; and to produce the corresponding chain of customs; with respect to legislation, and the details of the higher and the lower jurisdiction, must have been an attempt infinitely wild, and altogether impracticable. To transplant fiefs in their condition of perpetuity, must have been a project, involving an equal, or rather a greater, number of absurdities.

But, while it is to be imagined, that fiefs could not be transported with success, in any period of their progression, from one people to another; it is also obvious, that a nation so cultivated, as to have the knowledge and the practice of them in any degree, could not be inclined to make a conquest for the purpose of a settlement. The existence of fiefs implies an establishment and a fixed residence; and history has no notice of any tribe or people under this description, who ever wandered from home to fight for a tract of country which they might inhabit.

Wherever feudality was to flourish, it was to grow from the root. The tree could not be carried to a foreign soil. Its native earth could alone preserve it in existence, and give the aliment that was to make it rise into height, and shoot into branches.

Scotland was a feudal kingdom; and we can point pretty exactly to the time when fiefs were hereditary there. which the conquerors of Rome brought with them from their woods continued to animate their posterity, the feudal association was noble in its principles, and useful in its practice. It was an exercise of bounty on the part of the lord, of gratitude on that of the vassal. On the foundation of their connection, and of that of the land or fief which the former bestowed on the latter, a train of incidents was to arise, the unequivocal expressions of friendship and habituée, the tender and affectionate fruits of an intercourse the most devoted and zealous.

While the grants of lands were precarious, or for life, the superior chose to educate, in his hall, the expectants of his fiefs. And, when they descended to heirs, he was careful, on the death of his vassal, to take the charge of his son and his estate. He protected his person, directed his education, and watched over his concerns. He felt a pride in observing his approaches to manhood, and delivered to him, on his majority, the lands of his ancestor, which he had been studious to improve. These cares were expressed in the incident of wardship.

The vassal, on entering to his fief, conscious of gratitude, and won with the attention of his lord, made him a present. This acknowledgment, so natural, and so commendable, produced the incident of relief.

Grateful for the past, and anxious for the future favour of his chief, the vassal did not incline to ally himself with a family which was hostile to him. The chief was ambitious to add to his power and splendour, by consulting the advantageous alliance of his vassal. They joined in finding out the lady whose charms and whole connections might accord with the passions of the one and the policy of the other. This attention gave establishment to the incident of marriage.

When the superior was reduced to distress and captivity in the course of public or of private wars, when he was in embarrassment from prodigality or waste, when he required an augmentation of means to support his grandeur, or to advance his schemes and ambition, the vassal was forward to relieve and assist him by the communication of his wealth. On this foundation there grew the incident of aid.

When the vassal gave way to violence or disorder, or when by cowardice, treachery, or any striking delinquency, he rendered himself unworthy of his fief, the sacred ties which bound him to his lord were infringed. It was necessary to deprive him of his land, and give it to a more honourable holder. This was the origin of the incident of eftecat.

Amidst the contention of friendship and the mutuality of mind which informed the lord and his vassal, there was experienced a condition of activity, liberty, and happiness. The vassals attended to the retainers who were immediately below them. In their turn, they were courted by the lords, whose strength they constituted. And the lords gave importance to the sovereign. A subordination was known, which was regular, compact, and powerful. The constituent parts interested in government as well as war, were attentive, in their several departments, to the purposes of order and justice; and, in national operations, they acted with an uniformity which made them formidable. Of this association public liberty was the result. And, while this fortunate state of things continued, the people, in every country of Europe, came in arms to their national assembly, or appeared in it by their representatives.

Such, in a more particular manner, was the condition of the Anglo-Saxon period of our history; and the people, happy alike in their individual and politic capacity, as men and as citizens, were to bear more reluctantly the oppressions of the Normans.

But the original manners which the conquerors of the Romans brought from their forests, were to spend their force. The high sentiments which had resulted from the limited ideas of property, were to decay. The generous maxims of the feudal association, and the disinterested wildness of chivalry, were to suffer with time. Property was unfolded in all its relations, and in all its uses. It became a distinction more powerful than merit, and was to alter the condition of society. By separating the interests of the lord and the vassal, it was to destroy forever the principles of their association; and the incidents, which, in a better age, had foiled their friendship, were to feed their rage, and to prolong their animosity. As their confederacy had been attended with advantages and glory, their disaffection was marked with detestation and subjection. Out of the sweets of love, a fatal bitterness was engendered. Sufferance was to succeed to enjoyment; oppression to freedom. Society and government were to be tumultuous and disorderly; and diseases and infirmities were to threaten their decay.

In the prevalence of property and of mercenary views, the ward of the infant-vassal, which the superior once considered as a sacred care and an honourable trust, was to be regarded in no other light than as a lucrative emolument. The acquisitions of the vassal, which, in their state of agreement and cordiality, were a strength to the lord, seemed now to detract from his domains. He committed spoil on the estate which, of old, it was his pride to improve. He neglected the education of the heir. He gave repeated insults to his person. The relations of the vassal were often to buy from the superior the custody of his person and his lands. This right was more frequently to be let out to exercise the capacity of strangers. The treasury of princes was to increase with this traffic; and subject-superiors were to imitate, as well from necessity as from choice, the example of princes. The heir, on his joyful majority, received the lands of his ancestor; and, while he surveyed, with a melancholy eye, his cattle, which bore the marks of neglect, and his fields, which were deformed with waste, new grievances were to

Now, in that form, they could not be imported by any of its princes; and, it is evident, that no conquering nation, advanced to the practice of fiefs in this degree, made a conquest and establishment in Scotland. In consequence, therefore, of a natural progress, fiefs must have grown to this condition of refinement. And, before fiefs were hereditary, they were for a series of years; before they were for a series of years, they were for life; and, before they were for life, they had been precarious or at pleasure.

"In every feudal country, the progress from the precarious grant, to the gift in perpetuity, was experienced. In Scotland, the same progress must have been known; and the consideration of it carries us back to a remote antiquity. For fiefs, in this kingdom, being hereditary about the days of Malcolm II. or Malcolm III., some centuries must have passed away in the production of the previous steps of feudality." to embitter his complaints, and to swell his passions.

The relief, which originally was no more than a present, at the pleasure of the vassal, on his entering into the fief, was consolidated into a right. An expression of gratitude was converted into a debt and a burden.

The superior, before he invested the heir in his land, made an exaction from him, in which he had no rule but his rapacity. His demand was exorbitant and grievous. And, if the heir delayed too long to extinguish this fine of redemption, or was unable to pay it, the superior continued his possession of the estate. Rigours, so humiliating, and so frantic, produced clamour, discontent, and outrage. Mitigations were to be applied to them, and to prove ineffectual. Laws were to be made against them, and to be disregarded.

The marriage of the vassal, which could not be abused while their association was firm and their interest mutual, became a most ruinous perquisite, when their association was broken, and their interest discordant. The superior could give his vassal in marriage to whom he pleased. This right he exerted as a property. It might be purchased from him by the vassal himself, or by a stranger. The marriage of the vassal, without the consent of the superior, involved the forfeiture of the estate, or was punished with oppressive penalties. It was a rule, indeed, resulting out of their former habits, that the heir should not be married to his disparagement. But this rule was overlooked amidst the violence of the times. The superior had no check but from his humanity, the vassal no relief but in remonstrance.

This right, so mortifying to the male heir, was a stretch of still wilder oppression, and more ferocious cruelty, when exercised on the female ward. Her hand might be tendered at the will of the superior. He might pay no attention to her affections. She was to submit, at his mandate, to indecent embraces, unseasoned with love. Her beauty was to lose its sweets, and her heart its enjoyments, to feed his avarice, and to gratify his whim. Her relations were often to buy from him a privilege so frightful; and the unfeeling tyrant was to paint the horrors of its exertion, to extort his demand.

The aid which, in happier times, the vassal bestowed out of benevolence to relieve the distresses and to assist the grandeur of his lord, became a burden and a tax in the misery of their disaffection. It was arrogated as a duty and a tax. The lord called for an aid or contribution, when his eldest daughter was married, when his eldest son was made a knight, and when, having been taken in war, his own person was to be ransomed. These were esteemed the legal occasions when exactions could be made. But custom and practice authorised the requisition of aids on pretences the most frivolous. When the crown or the lord was disposed to be oppressive, they could find a reason for an aid; and wants, not his own, were to affect every moment the substance of the vassal.

While their confederacy was maintained, it was not on any slight foundation that the fief could be taken from the vassal. Cowardice, dishonour, treachery, or treason, were then the causes of ejectment. The lord was not to be so offended with lesser delinquencies, as to take possession of the estate. In the times, however, of their disagreement, the causes of forfeiture were to multiply, and he was to be active to enforce them. Trespasses and trifles were to be sufficient grounds for the seizure of lands, of which the possessor was offensive. The vassal held a precarious and dangerous territory; and, with a mind disposed to be hostile to his chief, was to observe to him an attentive and punctilious demeanour. If he refused too long to attend the court of the superior, and to give his oath of fidelity; if he happened to commit the slightest infringement of his oath; if he foresaw any misfortune that was to befall his lord; and neglected to inform him of it; if, by any act, he was to affect the credit or the reputation of his superior; if he should chance to reveal any private circumstance concerning him; if he should grant an infatuation in any other form than that in which he held his own; if he should make love to the wife or the daughter of his lord, or should care for his sister, while yet a virgin and unmarried; these, and reasons still more absurd, were to forfeit the estate to the superior, and to involve the ruin of the vassal and that of his family.

But though the cordiality of the lord and the vassal consequent was decayed, the grant of land from the former to the latter continued its obligations. The vassal was held by a tie, which he could not renounce without forfeiting his importance. His property and subsistence fattened him to an enemy. His passions and his duties were at variance. He might hate the person of his lord, but he was to bow to him as his superior. The grant of land he enjoyed, bound him to the performance of military service. With a cold heart, he was to buckle himself in his armour; and, with reluctant steps, he was to follow the march of his chief. Of old, it had been his fondest attention to carry all his strength against an enemy, that he might display his own greatness, and add to the magnificence of his superior. He now furnished unwillingly the least assistance in his power. The fervour of his former conduct was never more to advance the measures of ambition. And, in this state of things, the feudal militia was to obstruct and retard, rather than to forward, the operations of princes.

In the heart of a populous kingdom, and surrounded with subjects accustomed to arms, the feudal sovereign was thus to feel an unnatural weakness. A malady so formidable, could not but produce an anxiety for its cure. And, what is no less certain than peculiar, in the different countries of Europe the same remedy was applied to it.

Fiefs, or the grants of land under military service, had advanced from being annual to be for life; and, from being donations for life, they were to proceed to be hereditary. It was before the establishment of this ultimate point in their progression, that the happiness of the feudal association was disturbed. And, it was the establishment of this point which was to afford the opportunity to princes of recovering, in some degree, their greatness. While the cordiality of the vassal was maintained, a general obligation of military service was for its recollection sufficient to induce him to marshal all his force in the field. When this cordiality was destroyed, policy was to extort what his generosity and attachment had conferred. Lands were to be burdened with a full and exact proportion of soldiers. The giving them out in perpetuity was the season for annexing this burden. An expedient, natural, and not to be opposed, suggested The tenure of knight-service was invented.

A portion of land, of which the grant, by the agreement of the giver and the receiver, entitled to the service of a soldier or a knight, was a knight's fee. An estate, of 200 fees, furnished, of consequence, 200 knights. Manors, baronies, and earldoms, were thus powerful, in proportion to their extentiveness. The grants from the sovereign to the nobles claimed the service of so many knights; and the sub-infeudations of the nobles enabled them to perform this service. The tenants of the crown who were not noble, had also their fees, and furnished proportionally their knights. Grants in capite, or from the sovereign, and the sub-infeudations of vassals, called out the force of the kingdom. The prince, the nobility, and the people, were in the capacities of a general, officers, and soldiers. A call to arms put the nation into motion. An army, numerous and powerful, could be assembled with expedition, exact in its arrangements, and in a state for defence and hostility.

Such, Dr Stuart conceives, was the origin and nature of Knight-service: A tenure which came to recover the feudal militia at a time when it was perishing in weakness. But though it bound more closely, in the connection of land, the superior and the vassal, by the fixedness of the service it enjoined, it could not bring back their ancient cordiality. It gave a strength and consistence to the military department of the feudal institutions; but it removed none of their civil inconveniences and burdens. These, on the contrary, were to increase during its prevalence. It was to brace, only, with a temporary vigour, a system which no prudence or art could accommodate to refining manners.

The incidents, which had grown with the progress of fiefs, still continued their operation. Every grant by the tenure of knight-service, was attended with homage and fealty, and was exposed to wardship and relief, to marriage, aid, and escheat. The superior had still his pretensions and his claims; the vassal was still to suffer and to complain. Promises of the relaxation of the feudal perquisites, were to be made by princes, and to be forgotten. Legal solemnities of restraint were to be held out, and, occasionally, to produce their effect. But, palliatives, feeble or forced, were not to controul the spirit of the system and the times. Fiefs, while they sustained, in the tenure of knight-service, the grandeur of the European states, were wasting with internal debilities. And the eye, in surveying their strength and magnificence, can trace the marks of an approaching weakness and decline.

Thus, in the history of the feudal institutions, there are two remarkable periods; the epoch which preceded the invention of knight-service (b), and the epoch during which it prevailed.

From the conquests of the barbarians till the ninth century, fiefs were in their state of fluctuation. It was about the year 877 that the perpetuity of the fief was established in France; and it was known in every country of Europe, in the commencement of the tenth.

The tenure of knight-service soon followed the perpetuity of the fief, and was connected with it. There is an instance of a knight-fee in the 880s. In the reign of Hugh Capet, who was raised to the throne in the year 987, this tenure extended itself over France; and after having appeared in other nations, it was introduced into England (e). But, in this last country, there are peculiarities, concerning the beginnings and the progress of fiefs, which have been the subject of much inquiry and conjecture. Many learned writers are positive that the Anglo-Saxons were strangers to fiefs, which they assert were introduced into England by William duke of Normandy. There are writers not less learned who affirm, that fiefs were not introduced into England by the duke of Normandy, but prevailed among the Anglo-Saxons in the condition in which they were known under William. Dr Stuart observes, that it cannot be true, that the Saxons who settled in England should be strangers to fiefs.—The hereditary grant of land, as well as the grant in its preceding fluctuations, was known to our Saxon ancestors. Of this, the conformity of manners which must necessarily have prevailed between the Saxons and all the other tribes of the barbarians, is a most powerful and a satisfactory argument. Nor is it fingle and unsupported. History and law come in aid to analogy; and these things are proved by the spirit and text of the Anglo-Saxon laws, and by actual grants of hereditary estates under military service (v).

(b) For the difference between the knights produced by this service and the more ancient knights or knights of honour, see the word Knight.

(e) Knight service was established in Scotland before the time of Malcolm IV. anno 1153. Records of his reign instruct its existence, and do not mention it as a novelty. It even appears probable that this tenure was known in the times of David I. See Dr Stuart's Observ. on the Law and Const. Hist. of Scotland, p. 16, and 156–160.

(v) The use of entails, which was not unknown in the Anglo-Saxon times, and the succession which obtained in allodial estates, must have contributed very much to the establishment of the perpetuity of the fief; LL. Alfredi, ap. William. The general tendency of the fief to this ultimate step, and the immense power of many of the Anglo-Saxon nobles, seem also to confirm the idea, that the existence of its perpetuity might, in some cases, be known in the Anglo-Saxon times. But presumptive arguments, though of great weight, are not to be entirely relied upon in questions of this sort.

There is actual evidence that Ethelred possessed, as an hereditary fief and earldom, the territory which had constituted the kingdom of Merceland. He had this grant from king Alfred, when he married his daughter Ethelfleda; Selden, Tit. Hon. part 2. ch. 5. It is testified out of records, that the earldom of Leicester was an inheritance in the days of Ethelbald; and the regular succession of its earls, for a long period, is to be pointed out: Camden's Britannia, by Gibbon, vol. I. p. 542. It is known from old historians of credit, that Deireland and Bernicia were Saxon earldoms, which were not only feudal, but inheritable; Tit. Hon. part 2. ch. 5.

The grant of Cumberland by king Edmund to Malcolm king of Scotland, was also feudal and inheritable; and this appears from the Saxon Chronicle, and from the following version of the terms employed in it. "Eadmundus Rex totam Cumberland praedavit et contrivit, et commendavit eam Malcolmo Regi Scotiae, hoc pacto quod in auxilio sibi foret terra et mari." H. Huntndon, ap. Prefat. Episc. Dereris, ad LL. Anglo-Sax. p. 7. The expression But although fiefs prevailed in the Anglo-Saxon times, yet their condition was different then, from what it afterwards became. Under the Anglo-Saxon princes, no mention is made of those feudal severities which shook the throne under William and his successors. The varying spirit of the feudal association, which Dr Stuart has been careful to remark, accounts for this difference. When the connection between the superior and vassal was warm and generous, the feudal incidents were acts of cordiality and affection. When the introduction of luxury, and an acquaintance with the use of riches, had given birth to those interested passions which set the superior and vassal at variance, the same incidents became acts of oppression and severity. This was more remarkably the case under William and his immediate successors; and until the time of king John, the people of England complained loudly of the feudal severities, and to their complaints always joined the request, that the laws of Edward the Confessor should be restored. "What these laws of Edward the Confessor were (says Mr Hume), which the English, every reign, during a century and a half, desired so passionately to have restored, is much disputed by antiquarians; and our ignorance of them seems one of the greatest defects of the ancient English history." The train of thinking into which Dr Stuart has been led, points to an explanation of this mystery.

By the laws or customs of the Confessor, that condition of felicity was expressed, which had been enjoyed during the fortunate state of the feudal association. The cordiality, equality, and independence, which then prevailed among all ranks in society, continued to be remembered in less prosperous times, and occasioned an ardent desire for the revival of those laws and usages which had been the sources of so much happiness.

But, while the times of duke William and his successors were discriminated from those of the Confessor and the Anglo-Saxon princes, by the different states they displayed of the feudal association, there is another circumstance in the progress of fiefs, by which they were to be distinguished more obviously.

Knight-service, which, in France, and in the other kingdoms of Europe, was introduced in the gentle gradation of manners, was about to be discovered in England, after the same manner, when the battle of Hastings facilitated the advancement of William the Norman to the crown of the Confessor. The situation of the Anglo-Saxons in an island, and the Danish invasions, had obstructed their refinement. In the memorable year 1066, when they lost king Edward, and acquired duke William, they knew the perpetuity of the liege; but they were altogether strangers to knight-service and a knight's fee. The duchy of Normandy, when granted to Rollo by Charles the Simple, in the year 912, had yet experienced all the vicissitudes of fiefs. And William, being the fifth prince in the duchy, was familiar with the most extended ideas of the feudal system. Thence he brought with him into England, and they were to govern and direct his conduct.

The followers of Harold having forfeited their estates, they reverted to the crown. An immense number of lordships and manors being thus in the disposal of William, he naturally gave them out after the forms of Normandy. Each grant, whether to a baron or a gentleman, was computed at so many fees; and each fee gave the service of a knight. To the old beneficiary tenants, he was to renew their grants under this tenure. By degrees, all the military lands of the kingdom were to submit to it. And with a view, doubtless, to this extension, the book of Domesday was undertaken, which was to contain an exact state of all the landed property in the kingdom. Instead, therefore, of bringing fiefs into England, this prince was only to introduce the last step of their progress, the invention of the knight's fee, or the tenure of knight-service.

In fact, it is to be seen by his laws, that he introduced knight-service, and not fiefs. Nor let it be fancied, that this improvement was made by his single authority and the power of the sword. His laws not only express its enactment in his reign, but mention that it was sanctioned with the consent of the common-council of the nation. It was an act of parliament, and not the will of a despot, that gave it validity and establishment.

The measure, it is to be conceived, was even highly acceptable to all orders of men. For, a few only of the benefices of the Anglo-Saxon princes being in perpetuity, the greatest proportion of the beneficiary or feudal tenants must have enjoyed their lands during life, or to a series of heirs. Now, the advancement of such grants into hereditary fiefs, under knight-service, was commendable, indeed, is said by Spelman not to mean a feudal homage; (Feuds and Tenures, p. 35.) But the original Saxon evinces this sense; and in fact the word commendare, notwithstanding the authority of this learned glossographer, is used with the utmost propriety to express a feudal homage. Commendare se aliqui, was even the marked expression for faire l' hommage a un suzerain. See Du Cange, voc. Commendare et Brugel, Usage general des fiefs, p. 35, 276.

There are laws which bear the name of Edward; but it is acknowledged on every hand, that their authority is not to be fully trusted. And in the question treated, they are not of any use; unless it be, perhaps, that they illustrate the existence of fiefs among the Anglo-Saxons. This compilation, however, though posterior to the age of the Confessor, deserves to be examined with more attention than has hitherto been bestowed upon it. M. Howard, a foreign lawyer, whose acquaintance with the Norman customs is more intimate than with those of the Anglo-Saxons, is the latest writer who seems to have made a study of it.

The following very curious law of William the Norman makes express mention of the knight's fee and knight-service. It does more. It alludes to a prior law which actually established this tenure, and which was the act of William and his parliament. It is, of consequence, a decisive proof of the introduction of the knight's fee, or of knight-service, by this prince, and of this only. "Statutum estiam et firmiter praecipimus, ut omnes comites, et barones, et milites, et servientes, et universi liberi homines totius regni nostri praedicti, habeant et teneant se semper bene in armis, et in equis, ut decet et oportet, et quod sint semper prompti et bene prata ad servitium suum integram nobis explendum, et peragendum, cum semper opus aduerit, secundum quod nonis debent de feudis, et tenementis suis de jure facere, et fecit illis statutum per commune consilium totius regni nostri praedicti, et dedimus et concedimus in feodo jure hereditario." LL. Guill. c. 58. was an important advantage and acquisition. While it operated to the convenience and the grandeur of the sovereign, it bettered the property, and secured the independence of the subject.

When the feudal association was cordial, there existed no necessity for the knight's fee. The vassals of a chief gave with pleasure their assistance. When the association was discordant, different interests actuating the superior and the vassal, art and policy were to prefer the exact service to be performed. Nothing was to be left to friendship and cordiality. A rule, certain and definite, pointed out the duties of the vassal. This rule was the tenure of knight-service.

A duchy, barony, or earldom, were the estates possessed by the nobles; and, being divided into fees, each of these was to supply its knight. A tenant of the crown, who was not created into nobility, but enjoyed a grant of land, furnished also his knights in proportion to his fees. The nobles and the gentry of a feudal kingdom were thus its defenders and guardians. And they granted out territory to persons inferior to them in the divisions of fees, and under the burden of knights. In proportion, therefore, to the extent of its lands, there was, in every feudal state, an army, or a body of militia, for its support and protection.

But while a force, numerous and sufficient, was in this manner created, a care was also bestowed to hold it in readiness to take the field. The knights, who were to appear in proportion to the fees of each estate, were bound to assemble at a call, in complete armour, and in a state for action. The feudal militia, of consequence, could be marched, with expedition, to defend the rights of its nation, to support its honour, or to spread its renown.

The usual arms of a knight were the shield and helmet, the coat of mail, the sword, or the lance. It was, also, his duty to have a horse. For, a growing luxury, and the passion for show, encouraged by tournaments, had brought discredit to the infantry, which had distinguished the barbarians in their original feats, and facilitated their victories over the Romans. The horsemen were called the battle, and the success of every engagement was supposed to depend upon them. No proprietor of a fee, no tenant by knight-service, fought on foot. The infantry consisted of men, furnished by the villages and the towns in the demesnes of the prince or the nobles. The bow and the flag were the arms of these; and tho', at first, of little consideration, they were to grow more formidable.

During the warmth of the feudal association, the military service of the vassal was every moment in the command of the superior. When their association was decayed, it was not to be depended on; and, when afforded, was without zeal, and without advantage. The invention of knight-service, which was to recover, in some degree, the vigour of this connection, while it ascertained the exact duty to be rendered, was to fix its duration. Each possessor of a fee was, at his own expense, to keep himself in the field during 40 days. To this obligation, the great vassals of the crown were bound, and inferior proprietors were to submit to it. When a single battle was commonly to decide the fate and the disputes of nations, this portion of time was considerable and important. And, if any expediency demanded a longer duty, the prince might retain his troops, but under the condition of giving them pay for their extraordinary service.

Such was the military system, which, during a long period of time, was to uphold the power of the monarchies of Europe; a system, of which it was the admirable consequence, that those who were the proprietors of the land of a kingdom, were to defend it. They were the most interested in its welfare and tranquillity; and, while they were naturally disposed to act with union and firmness against a foreign enemy, they were induced not less strongly to guard against domestic tyranny. Their interest and happiness, their pleasure and convenience, urged them equally to oppose invasions from abroad, intestine commotions, and the stretches of prerogative. A strength, so natural, and which could never be exhausted; a strength, in which the prince was to have less authority than the nobles, and in which the power of both was checked by the numerous clasps of inferior proprietors; a strength, which had directly in view the preservation of civil liberty, seems, on a slight observation, the perfection of military discipline.

But, notwithstanding this advantage, the feudal militia was found incompatible with refining manners. It had been usual, from the earliest times, for the superior to levy a fine from the military tenant, who refused to take the field at his summons. As luxury increased, men became less willing to join the army. Hence the commutation of service for money, and the introduction of the tenure of seignage, which, instead of exacting the personal attendance of the knight, only obliged him to pay an annual sum to his superior. As the king was lord paramount of the whole kingdom, consequently, the money thus collected ultimately centered in him; and princes, instead of recruiting their armies, filled under the their exchequers. In order to defend their dominions, they hired mercenaries, composed of the dregs of the people. These were disbanded at the end of every campaign; and the disturbances which such numbers of idle banditti occasioned all over Europe, shewed the necessity of standing armies. The use of mercenaries gave birth to taxation, which began to be levied in every kingdom of Europe at the will of the prince. This produced contentions between sovereigns and their subjects. In most countries of Europe the kings acquired the right of taxation, which, united to the command of the military force, forms the completion of despotism. In England, the prerogative of taxation, which the prince had assumed, was wrested from him by the great charter of liberties. He was to command his mercenaries; but he was to depend, for their support and their pay, on the generosity of his people.