or DEADLY FEUD, among our Saxon ancestors, was used to signify an irreconcilable enmity, to be satisfied only with blood. Such enmity and revenge were sanctioned by law. Thus when a man was killed, if no pecuniary satisfaction were made to his kindred, it became lawful for them to avenge themselves by slaying his murderer.
FEUDAL LAW is that system of Gothic jurisprudence which reached its full maturity during the middle ages, and which long continued to regulate the tenure of real property in the principal countries of Europe. The relations of lord and vassal have undergone very essential changes, the knight no longer holds his estate on the condition of military service, and most of the feudal incidents have been gradually superseded as unsuitable to the spirit of modern times; but this law has left many deep traces behind it, and is so closely interwoven with our national institutions, that it could not without great difficulty be entirely disentangled. Where the substance has almost totally vanished, the form is in some instances not very advantageously retained.
Of the word feudal many different etymologies have been proposed. According to Sonner, who treads in the steps of Selden and Spelman, feud is a German compound, which consists of fah, fah, or feoh, signifying a salary, stipend, or wages, and of hode, head, or hode, signifying quality, kind, or nature; so that, in its primary acceptation, feudum, or land held in fee, was such as was held in fee-hode, by contraction feud or feod; that is, in a stipendiary way, with the acknowledgment of a superior, and a condition of returning some service for it, on the withdrawing of which, the land was revertible to the superior. Sir Martin Wright has remarked that "this etymon not only suggests the most probable account of the word, but gives us the clearest description of the thing itself."
The origin of the feudal system is a question which has been long and much agitated, and different authors have arrived at very different conclusions. "It has puzzled the learned," says Dr Stuart, "to discover the nation of the barbarians which first gave a beginning to fiefs. No inquiry 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." But the most comprehensive and the most decided opinion is that of Mr Pinkerton, who avers that "the feudal system, about which so much noise is made, is the natural fruit of conquest, and is as old in the world as conquest. A territory is acquired, and the state, or the general, bestows it on the leaders and soldiers, on condition of military service, and of tokens acknowledging gratitude to the donors. It was known in the Greek heroic ages. It was known to Lycurgus, for all the lands of Sparta were held on military tenure. It was known to Romulus, when he regulated Rome. It was known to Augustus, when he gave lands to his veterans, on condition that their sons should, at fifteen years of age, do military service. The reason it did not preponderate and corrupt in Greece and Rome was, that it was stifled by the necessary effects of cities, as above mentioned. In Persia, where there were no cities of any power or privilege, it preponderated and corrupted at an early period. The feudal system, whether in its original democracy, or corrupted into aristocracy, must limit the power of kings; for men who hold their possessions on military service, must of course have arms in their hands; and even in absolute governments the soldiers are free, witness the praetorian bands and armies of imperial Rome, and the Turkish janissaries. By the feudal system every man held arms and freedom in his hands. Montesquieu has begun his account of the feudal system with that of the ancient Germans, given by Tacitus, and prides himself in leaving off where others began. A writer more profound would leave off where Montesquieu begins."
This last sentence may be considered as a modest attempt at impressing the reader with an opinion that Pinkerton is a writer more profound than Montesquieu; but, without acquiescing in all his notions, we may at least admit that of the feudal system many authors have taken a view much too narrow and limited. The peculiar relation of lord and vassal, of territorial grants and the tenure of military service, is doubtless to be traced in very remote ages and countries. All the feudal incidents it may often be difficult to detect; but wherever we find portions of land granted to military vassals under the condition, express or implied, of following the standard of their lord, we there find the most essential characters of the feudal system. The order of chivalry may not be found completely engrafted; there may be no denomination equivalent to that of knight, and such incidents as those of relief, aids, and wardships, may be wanting; but instead of a faint analogy, there may still be a very close resemblance between one system and another.
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1 Sonner's Treatise of Gavelkind, p. 106. Lond. 1669, 4to. 2 Stuart's View of Society in Europe, p. 218. Edinb. 1778, 4to. 3 Montesquieu de l'Esprit des Lois, liv. xxx. chap. ii. seq.—Dr Stuart commences his researches from the same point. "In the manners of the ancient Germans," he remarks, "I have found the source and spirit of the feudal law." See likewise the elaborate work of Meyer, Esprit, Origine et Progres des Institutions Judiciaires des principaux Pays de l'Europe, tom. i. p. 4. Haye, 1819-23, 6 tom. 8vo. 4 Pinkerton's Dissertation on the Origin and Progress of the Scythians or Goths, p. 139. Lond. 1787, 8vo. 5 Wright's Introduction to the Law of Tenures, p. 4. "It has been very common," says Mr Hallam, "to seek for the origin of feuds, or at least for analogies to them, in the history of various countries. But, though it is of great importance to trace the similarity of customs in different parts of the world, because it guides us to the discovery of general theorems as to human society, yet we should be on our guard against seeming analogies, which vanish away when they are closely observed. It is easy to find partial resemblances to the feudal system. The relation of patron and client in the Roman republic is not unlike that of lord and vassal, in respect of mutual fidelity; but it was not founded on the tenure of land nor military service. The veteran soldiers, and, in later times, some barbarian allies of the emperors, received lands upon condition of public defence; but they were bound not to an individual lord, but to the state. Such a resemblance to fiefs may be found in the zemindaries of Hindostan, and the timariots of Turkey. The clans of the Highlanders and Irish followed their chieftain into the field; but their tie was that of imagined kindred and respect for birth, not the spontaneous compact of vassalage. Much less can we extend the name of feud, though it is sometimes strangely misapplied, to the polity of Poland and Russia. All the Polish nobles were equal in rights, and independent of each other; all who were less than noble, were in servitude. No government can be more opposite to the long gradations and mutual duties of the feudal system."
Maciejowski, a learned civilian of our own age, discovers manifest vestiges of the feudal system among the ancient inhabitants of Tuscany. To the ancient relation of patron and client, the origin of feudal tenures was traced by Buddeus, one of the first lawyers in modern times who applied a very ample store of classical erudition to the illustration of Roman jurisprudence. The same opinion was adopted by Zasius, but it has deservedly been rejected by most of the subsequent commentators; nor is it easy to acquiesce in the speculation of Connamus, who deduces the principles of this law from the fraternities of Soldurii among the ancient Gauls. The assignment of lands by the Roman emperors makes a nearer approach to the proper point. After Augustus had supplanted his rivals, he parcelled certain lands in Italy among his veteran soldiers; and to the classical reader it is well known that, upon this occasion, Virgil was deprived of his little patrimony. The example was followed by other emperors. Alexander Severus allotted to officers and soldiers various lands which had been acquired on the frontiers, and which were to descend to their heirs on the condition of performing military service. This was a plan for securing a permanent guard in the outposts of the empire; and, as Taurellus and Gothofredus have remarked, it bears some resemblance to the feudal system? but Hotman has very clearly pointed out the distinction between these military retainers and the feudal vassals.
Sir Thomas Craig has not overlooked the strong resemblance between the feudal tenures and the Turkish timars. "The Spahyes," says Dr Thomas Smith, "are another great support of the Turkish empire; soldiers who are obliged to serve on horseback by the tenure of the lands (timars) and estates they are possess of; these being not only the reward of their sweat and blood, but ties and obligations to further service in the field upon the first summons; each bringing so many horses with him according to the value of what he holds, which is the reason they do not receive an asper of pay out of the Grand Signior's exchequer, and are therefore known by the name of Timar Spahyes, or Feudatory, to distinguish them from other Spahyes who live in the cities, and have not obtained a piece of land." A more recent author represents this military establishment as still unchanged. "These," says Dr Walsh, "are a kind of feudal cavalry, possessing hereditary lands, on the tenure of appearing in the field when called on. If they have no male children, the lands devolve to the commander, who assigns them to others on the same terms, and so the corps is kept up. It consists of sixteen legions; who are perhaps the best mountain horsemen in the world." Major Denham discovered traces of the same system at Bornou in the interior of Africa. "The feudal law," as he informs us, "exists here in full force; and a man unwilling to serve, provides one or more substitutes, according to his means." Here however we have but an inadequate representation of the feudal system. In the centre of India, this system is to be found in a more complicated and perfect form. Of its present character and condition in Rajasthan, some very curious and interesting details have been furnished by Lieut. Col. Tod, who supposes Asia to have been the cradle of feudalism. "The perfection of the system in England," he remarks, "is due to the Normans, who brought it from Scandinavia, whither it was probably conveyed by Odin and the Sacaeans, or by anterior migrations.
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1 "They are at present," says Dr Smollett, "as free and independent of their chiefs as the law can make them; but the original attachment still remains, and is founded on something prior to the feudal system, about which the writers of this age have made such a bother, as if it was a new discovery, like the Copernican system. Every peculiarity of policy, custom, and even temperament, is affectedly traced to this origin, as if the feudal constitution had not been common to almost all the nations of Europe. For my part, I expect to see the use of trunk-hose and buttered ale ascribed to the influence of the feudal system." (Miscellaneous Works, vol. vi. p. 275.)
2 With respect to the state of vassalage in those two countries, consult Mr Coxe's Travels into Poland, Russia, Sweden, and Denmark, vol. i. p. 116, 137, vol. ii. p. 93, 110. Lond. 1724, 2 vols. 4to.
3 Hallam's View of the State of Europe during the Middle Ages, vol. i. p. 200, sec. edit. Lond. 1819, 3 vols. 8vo.
4 Maciejowski Historia Juris Romani, p. 56, edit. sec. Varsovie, 1825, 8vo. "Antiquitus nec videtur pertinuisse ad populum nostrum, sed multum Etruscorum id ita serenissimum; et quod minus tumus populus libertate gavisus est, sed jus, quod dicitur feudale, ibi valuit."
5 Buddei Annotationes in Pandectas, p. 359, edit. Paris. 1435, fol.
6 Connam Commentarium Juris Civilis tom. i. f. 119. Paris. 1553, 2 tom. fol.—See Caesar de Bello Gallico, lib. iii. cap. xxii. et Gaihaveri Vestigia Juris Germanici antiquissima in C. Cornelii Taciti Germania obviam, p. 148. Gottingae, 1796, 8vo.
7 Taurelli de Militiis ex casu, ad Ant. Augustinus Epistolae, p. 83. Gothofredus ad Cod. Theodos. lib. vii. tit. xv. p. 305. "Quae plerique ad feudorum naturam proxime accedunt," says this most able commentator. Halsander supposes feuds to be mentioned in the Novels under the name of militiae. "Animus crat in fines adiacere Feudorum Consuetudines, quae veteres appellare solent jura militarium, et Imp. nominat eorum." See his dedication prefixed to Novellarium Constitutionum Da. Justiniani Priscipis, quo existet, et ut existet, Volumen." Nurembergae, 1531, fol. This opinion has however been refuted by different writers.
8 Militiae enim," says Contius, "fuerunt officia certa ministrii magistratum assignata, quae pecunia vendi poteant, et idee in commercio erant, ut fuit officium apparitorum. Apparet ergo multum differre militiae a feudo. Nam militia est juxta personae; feodium in rebus immobilibus et quasi in possessione consistit." (Forneller et Contii Tractatus de Feudis, p. 84. Leovardiae, 1694, 8vo.)
9 Hotman's Disputatio de Feudis, p. 10. Lugduni, 1573, fol.
10 Smith's Remarks upon the Manners, Religion, and Government of the Turks, p. 133. Lond. 1676, 8vo.
11 Walsh's Narrative of a Journey from Constantinople to England, p. 166. Lond. 1628, 8vo.
12 Denham's Narrative of Travels and Discoveries in Northern and Central Africa, p. 150. Lond. 1626, 4to.