Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of the Feudal System
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, without some general acquaintance with the nature and doctrine of feuds, or the feudal law: a system so universally received throughout Europe, upwards of twelve centuries ago, that Sir Henry Spelman1 does not scruple to call it the law of nations in our western world. This chapter will be therefore dedicated to this inquiry. And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student will imagine his time mis-employed, when he is led to consider that the obsolete doctrines of our laws are frequently the foundation, upon which what remains is erected; and that it is impracticable to comprehend many rules of the modern law, in a scholarlike scientifical manner, without having recourse to the ancient. Nor will these researches be altogether void of rational entertainment as well as use: as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it administers both pleasure and instruction to compare them with the drafts of the same edifices, in their pristine proportion and splendor.
The constitution of feuds2 had its original from the military policy of the northern or Celtic nations, the Goths, the Hunns, the Franks, the Vandals, and the Lombards, who all migrating from the same officina gentium [storehouse of nations], as Crag very justly entitles it,3 poured themselves in vast quantities 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 or allotments to the inferior officers and most deserving soldiers.4 These allotments in the northern languages5 signifies a conditional stipend or reward.6 Rewards or stipends they evidently were; and the condition annexed to them was, that the possessor should do service faithfully, 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:7 and in case of the breach of this condition and oath, by not performing the stipulated service, or by deserting the lord in battle, the lands were again to revert to him who granted them.8
Allotments thus acquired, naturally engaged such as accepted them to defend them: and, as they all sprang form 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 others 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 and 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 defense of each man’s own several property, but also in defense of the whole, and of every part of this their newly acquired country:9 the prudence of which constitution was soon sufficiently visible in the strength and spirit, with which they maintained their conquests.
The universality and early use of this feudal plan, among all those nations which in complaisance to the Romans we still call barbarous, may appear from what is recorded10 of the Cimbri and Teutones, nations of the same northern original as those whom we have been describing, at their first irruption into Italy about a century before the Christian era. They demanded of the Romans, “ut martius populus aliquid sibi terrae daret, quasi stipendium: caeterum, ut vellet, minibus atque armis suis uteretur.” The sense of which may be thus rendered; they desired stipendiary lands (that is, feuds) to be allowed them, to be held by military and other personal services, whenever their lords should call upon them. This was evidently the same constitution, that displayed itself more fully about seven hundred years afterwards; when the Salii, Burgundians, and Franks broke in upon Gaul, the Visigoths on Spain, and the Lombards upon Italy, and introduced with themselves this northern plan of polity, serving at once to distribute, and to protect, the territories they had newly gained. And from hence it is probable that the emperor Alexander Severus11 took the hint, of dividing lands conquered from the enemy among his generals and victorious soldiery, on condition of receiving military service from them and their heirs for ever.
Scarce had these northern conquerors established themselves in their new dominions, when the wisdom of their constitutions, as well as their personal valor, alarmed all the princes of Europe; that is, of those countries which had formerly been Roman provinces, but had revolted, or were deserted by their old masters, in the general wreck of the empire. Wherefore most, if not all, of them thought it necessary to enter into the same or a similar plan of policy. For whereas, before, the possessions of their subjects were perfectly allodial; (that is, wholly independent, and held of no superior at all) now they parceled out their royal territories, or persuaded their subjects to surrender up and retake their own landed property, under the like feudal obligation of military fealty.12 And thus, in the compass of a very few years, the feudal constitution, or the doctrine of tenure, extended itself over all the western world. Which alteration of landed property, in so very material a point, necessarily drew after it an alteration of laws and customs: so that the feudal laws soon drove out the Roman, which had hitherto universally obtained, but now became for many centuries lost and forgotten; and Italy itself (as some of the civilians, with more spleen than judgment, have expressed it) belluinas, atque ferinas, immanesque Longobardorum leges accepit [received the wild, fierce, and barbarous laws of the Lombards].13
But this feudal polity, which was thus by degrees established over all the continent of Europe, seems not to have been received in this part of our island, at least not universally and as a part of the national constitution, till the reign of William the Norman.14 Not but that it is reasonable to believe, from abundant traces in our history and laws, that even in the times of the Saxons, who were a swarm from what Sir William Temple calls the same northern hive, something similar to this was in use: yet not so extensively, nor attended with all the rigor that was afterwards imported by the Normans. For the Saxons were firmly settled in this island, at least as early as the year 600: and it was not till two centuries after, that feuds arrived to their full vigor and maturity, even on the continent of Europe.15
This introduction however of the feudal tenures into England, by king William, does not seem to have been effected immediately after the conquest, nor by the mere arbitrary will and power of the conqueror; but to have been consented to by the great council of the nation long after his title was established. Indeed from the prodigious slaughter of the English nobility at the battle of Hastings, and the fruitless insurrections of those who survived, such numerous forfeitures had accrued, that he was able to reward his Norman followers with very large and extensive possessions: which gave a handle to the monkish historians, and such as have implicitly followed them, to represent him as having by right of the sword seized on all the lands of England, and dealt them out again to his own favorites. A supposition, grounded upon a mistaken sense of the word conquest; which, in its feudal acceptation, signifies no more than acquisition: and this has led many hasty writers into a strange historical mistake, and one which upon the slightest examination will be found to be most untrue. However, certain it is, that the Normans now began to gain very large possessions in England: and their regard for the feudal law, under which they had long lived, together with the king’s recommendation of this policy to the English, as the best way to put themselves on a military footing, and thereby to prevent any future attempts from the continent, were probably the reasons that prevailed to effect its establishment here. And perhaps we may be able to ascertain the time of this great revolution in our landed property with a tolerable degree of exactness. For we learn from the Saxon Chronicle,16 that in the nineteenth year of king William’s reign an invasion was apprehended from Denmark; and the military constitution of the Saxons being then laid aside, and no other introduced in its stead, the kingdom was wholly defenseless: which occasioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landholder, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might co-operation with the king’s remonstrances, and the better incline the nobility to listen to his proposals for putting them in a posture of defense. For, as soon as the danger was over, the king held a great council to inquire into the state of the nation;17 the immediate consequence of which was finished in the next year: and in the latter end of that very year the king was attended by all his nobility at Sarum; where all the principal landholders submitted their lands to the yoke of military tenure, became the king’s vassals, and did homage and fealty to his person.18 This seems to have been the era of formally introducing the feudal tenures by law; and probably the very law, thus made at the council of Sarum, is that which is still extant,19 and couched in these remarkable words: “statuimus, ut omnes liberi homines foedere et sacramento affirment, quod intra et extra universum regnum Angliae Wilhelmo regi domino suo fideles esse volunt; terras et honores illius omni fidelitate ubique servare cum eo, et contra inimicos et alienigenas defendere.” [“We decree that all freemen bind themselves by homage and fealty, that within and without the whole kingdom of England, they will be faithful to King William their lord, and everywhere preserve his lands and honors with all fidelity, and defend him against all foreign and domestic enemies.”] The terms of this law (as Sir Martin Wright has observed20) are plainly feudal: for, first, it requires the oath of fealty, which made in the sense of the feudists every man that took it a tenant or vassal; and, secondly, the tenants obliged themselves to defend their lord’s territories and titles against all enemies foreign and domestic. But what puts the matter out of dispute is another law of the same collection21 which exacts the performance of the military feudal services, as ordained by the general council. “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 sint semper prompti et bene parati ad servitium suum integrum nobis explendum et peragendum cum opus fuerit; secundum quod nobis debent de feodis et tenementis suis de jure facere; et sicut illis statuimus per commune consilium totius regni nostri praedicti.” [“That all earls, barons, soldiers, servants, and freemen of our whole kingdom aforesaid, keep and hold themselves always well furnished with arms and horses, as is suitable and proper: and be always ready and well prepared for fulfilling and performing their entire service to us when need shall be; according to what they are by law bound to do for us by reason of their fees and tenements, and as we have ordained by the common council of our whole kingdom aforesaid.”]
This new polity therefore seems not to have been imposed by the conqueror, but nationally and freely adopted by the general assembly of the whole realm, in the same manner as other nations of Europe had before adopted it, upon the same principle of self-security. And, in particular, they had the recent example of the French nation before their eyes; which had gradually surrendered up all its allodial or free lands into the king’s hands, who restored them to the owners as a beneficium or feud, to be held to them and such of their heirs as they previously nominated to the king: and thus by degrees all the allodial estates of France were converted into feuds, and the freemen became the vassals of the crown.22 The only difference between this change of tenures in France, and that in England, was, that the former was effected gradually, by the consent of private persons; the latter was done at once, all over England, by the common consent of the nation.23
In consequence of this change, it became a fundamental maxim and necessary principle (though in reality a mere fiction) of our English tenures, “that the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man does or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feudal services.” For, this being the real case in pure, original, proper feuds, other nations who adopted this system were obliged to act upon the same supposition, as a substruction and foundation of their new polity, though the fact was indeed far otherwise. And indeed by thus consenting to the introduction of feudal tenures, our English ancestors probably meant no more than to put the kingdom in a state of defense by establishing a military system; and to oblige themselves (in respect of their lands) to maintain the king’s title and territories, with equal vigor and fealty, as if they had received their lands from his bounty upon these express conditions, as pure, proper, beneficiary feudatories. But, whatever their meaning was, the Norman interpreters, skilled in all the niceties of the feudal constitutions, and well understanding the import and extent of the feudal terms, gave a very different construction to this proceeding; and thereupon took a handle to introduce not only the rigorous doctrines which prevailed in the duchy of Normandy, but also such fruits and dependencies, such hardships and services, as were never known to other nations;24 as if the English had in fact, as well as theory, owed every thing they had to the bounty of their sovereign lord.
Our ancestors therefore, who were by no means beneficiaries, but had barely consented to this fiction of tenure from the crown, as the basis of a military discipline, with reason looked upon these deductions as grievous impositions, and arbitrary conclusions from principles that, as to them, had no foundation in truth.25 However, this king, and his son William Rufus, kept up with a high hand all the rigors of the feudal doctrines: but their successors, Henry I, found it expedient, when he set up his pretensions to the crown, to promise a restitution of the laws of king Edward the confessor, or ancient Saxon system; and accordingly, in the first year of his reign, granted a charter,26 whereby the gave up the greater grievances, but still reserved the fiction of feudal tenure, for the same military purposes which engaged his father to introduce it. But this charter was gradually broke through, and the former grievances were revived and aggravated, by himself and succeeding prince; till in the reign of king John they became so intolerable, that they occasioned his barons, or principal feudatories, to rise up in arms against him: which at length produced the famous great charter at Running-mead, which, with some alterations, was confirmed by his son Henry III. And, though its immunities (especially as altered on its last edition by his son27) are very greatly short of those granted by Henry I, it was justly esteemed at the time a vast acquisition to English liberty. Indeed, by the farther alteration of tenures that has since happened, many of these immunities may now appear, to a common observer, of much less consequence than they really were when granted: but this, properly considered, will show, not that the acquisitions under John were small, but that those under Charles were greater. And from hence also arises another inference; that the liberties of Englishmen are not (as some arbitrary writers would represent them) mere infringements of the king’s prerogative, extorted from our princes by taking advantage of their weakness; but a restoration of that ancient constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived by the force of the Norman arms.
Having given this short of their rise and progress, we will next consider the nature, doctrine, and principal laws of feuds; wherein we shall evidently trace the groundwork of many parts of our public polity, and also the original of such of our own tenures, as were either abolished in the last century, or still remain in force.
The grand and fundamental maxim of al feudal tenure is this; that all lands were originally granted out by the sovereign, and are therefore held, either mediately or immediately, of the crown. The grantor was called the proprietor, or lord; being he who retained the dominion or ultimate property of the feud or fee: and the grantee, who had only the use and possession, according to the terms of the grant, was styled the feudatory or vassal, which was only another name for the tenant or holder of the lands; though, on account of the prejudices we have justly conceived against the doctrines that were afterwards grafted on this system, we now use the word vassal opprobriously, as synonymous to slave or bondman. The manner of the grant was by words of gratuitous and pure donation, dedi et concessi [given and granted]; which are still the operative words in our modern infeudations or deeds of feoffment. This was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vassals, which perpetuated among them the era of the new acquisition, at a time when the art of writing was very little known: and therefore the evidence of property was reposed in the memory of the neighborhood; who, in case of a disputed title, were afterwards called upon to decide the difference, not only according to external proofs, adduced by the parties litigant, but also by the internal testimony of their own private knowledge.
Besides an oath of fealty, or profession of faith to the lord, which was the parent of our oath of allegiance, the vassal or tenant upon investiture did usually homage to his lord; openly and humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the lord, who sat before him. And there professing that “he did become honor:” and then he received a kiss from his lord.28 Which ceremony was denominated homagium, or manhood, by the feudists, from the stated form of words, devenio vester homo [I become your man].29
When the tenant had thus professed himself to be the man of his superior or lord, the next consideration was concerning the service, which, as such, he was bound to render, in recompense for the land he held. This, in pure, proper, and original feuds, was only 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. 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,30 (which were instituted in every manor or barony, for doing speedy and effectual justice to all the tenants) in order as well to answer such complaints as might be alleged against themselves, as to form a jury or homage for the trial of their fellow-tenants; and upon this account, in all the feudal institutions both here and on the continent, they are distinguished by the appellation of the peers of the court; pares curtis, or pares curiae. In like manner the barons themselves, or lords of inferior districts, were denominated peers of the king’s court, and were bound to attend him upon summons, to hear causes of greater consequence in the king’s presence and under the direction of his grand justiciary; till in many countries the power of that officer was broken and distributed into other courts of judicature, the peers of the king’s court still reserving to themselves (in almost every feudal government) the right of appeal from those subordinate courts in the last resort. The military branch of service consisted in attending the lord to the wars, if called upon, with such a retinue, and for such a number of days, as were stipulated at the first donation, in proportion to the quantity of the land.
At the first introduction of feuds, as they were gratuitous, so also they were precarious and held at the will of the lord,31 who was the sole judge whether his vassal performed his services faithfully. Then they became certain, for one or more years. Among the ancient Germans they continued only from year to year; an annual distribution of lands being made by their leaders in their general councils or assemblies.32 This was professedly done, lest their thoughts should be diverted from war to agriculture; lest the strong should encroach upon the possessions of the weak; and lest luxury and avarice should be encouraged by the erection of permanent houses, and too curious an attention to convenience and the elegant superfluities of life. But, when the general migration was pretty well over, and a peaceable possession of their new-acquired settlements had introduced new customs and manners; when the fertility of the soil had encouraged the study of husbandry, and an affection for the spots they had cultivated began naturally to arise in the tillers; a more permanent degree of property was introduced, and feuds began now to be granted for the life of the feudatory.33 But still feuds were not yet hereditary; though frequently granted, by the favor of the lord, to the children of the former possessor; till in process of time it became unusual, and was therefore thought hard, to reject the heir, if he wee capable to perform the services:34 and therefore infants, women, and professed monks, who were incapable of bearing arms, were also incapable of succeeding to a genuine feud. but the heir, when admitted to the feud which his ancestor possessed, used generally to pay a fine or acknowledgment to the lord, in horses, arms, money, and the like, for such renewal of the feud: which was called a relief, because it re-established the inheritance, or, in the words of the feudal writers, “incertam et caducam hereditatem relevabat” [“it raised up the uncertain and fallen inheritance”]. This relief was afterwards, when feuds became absolutely hereditary, continued on the death of the tenant, though the original foundation of it had ceased.
For in process of time feuds came by degrees to be universally extended, beyond the life of the first vassal, to his sons, or perhaps to such one of them, as the lord should name; 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 sons succeeded him in equal portions; and as they died off, their shares reverted to the lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation.35 But when such a feud was given to a man, and his heirs, in general terms, then a more extended rule of succession took place; and when a feudatory died, his male descendants in infinitum [forever] 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. For this was an unalterable maxim in feudal 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.”36 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 upon many accounts inconvenient, (particularly, by dividing the services, and thereby weakening the strength of the feudal union) and honorary feuds (or titles of nobility) being now introduced, which were not of a divisible nature, but could only be inherited by the eldest son;37 in imitation of these, military feuds (or those we are now describing) began also in most countries to descend according to the same rule of primogeniture, to the eldest son, in exclusion of all the rest.38
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 devise it by will, without the consent of the lord.39 For, the reason 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 his posterity who were perfumed to inherit his valor, to others who might prove less able. And, as the feudal obligation was looked upon as reciprocal, the feudatory being entitled to the lord’s protection, in return for his own fealty and service; therefore the lord could no more transfer his seigniory or protection without consent of his vassal, than the vassal could his feud without consent of his lord:40 it being equally unreasonable, that the lord should extend his protection to a person to whom he had exceptions, and that the vassal should owe subjection to a superior not of his own choosing.
These were the principal, and very simple, qualities of the genuine or original feuds; being then all of a military nature, and in the hands of military persons: 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. And by this means the feudal polity was greatly extended; these inferior feudatories (who held what are called in the Scots law “rere-fiefs”) being under similar obligations of fealty, to do suit of court, to answer the stipulated renders or rent-service, and to promote the welfare of their immediate superiors or lords.41 But this at the same time demolished the ancient simplicity of feuds; and an inroad being once made upon their constitution, it subjected them, in a course of time, to great varieties and innovations. Feuds came to be bought and sold, and deviations were made from the old fundamental rules of tenure and succession; which were held no longer sacred, 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 divisions were comprehended such, and such only, of which we have before spoken; and under that of improper or derivative feuds were comprised all such as do not fall within the other description: such, for instance, as were originally bartered and sold to the feudatory for a price; such as were held upon base or less honorable services, or upon a rent, in lieu of military service; such as were in themselves alienable, without mutual license; and such as might descend indifferently either to males or females. But, where a difference was not expressed in the creation, such new-created feuds did in all other respects follow the nature of an original, genuine, and proper feud.42
But as soon as the feudal system came to be considered in the light of a civil establishment, rather than as a military plan, the ingenuity of the same ages, which perplexed all theology with the subtlety of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon, began also to exert its influence on this copious and fruitful subject: in pursuance of which, the most refined and oppressive consequences were drawn from what originally was a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defense. From this one foundation, in different countries of Europe, very different superstructures have been raised: what effect it has produced on the landed property of England will appear in the following chapters.
1. of parliaments. 57.
2. See Spelman of feuds, and Wright of tenures, per tot.
3. De jure feud. 19, 20.
4. Wright: 7.
5. Spelm. Gl. 216.
6. Pontoppidan in his history of Norway (page 290) observes, that in the northern languages odh signifies proprietas [property] and all totum [the whole]. Hence he derives the odhal right in those countries; and hence too perhaps is derived the udal right in Finland, etc. (See Mac Doual. 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 fee (which signifies, we have seen, a conditional reward or stipend) feeodh or feodum will denote stipendiary property.
7. See this Oath explained at large in Feud. l. 2. t. 7.
8. Feud. l. 2. t. 24.
9. Wright. 8,
10. L. Florus. l. 3. c. 3.
11. “Sola, quae de hostibus capta sunt limitaneis ducibus et militibus donavit; ita ut eorum ita essent, si haeredes illorum militarent, nec unquam ad privatos pertinerent: dicens attentius illos militaturos, si etiam sua rura defenderent. Addidit sane his et animalia et servos, ut possent colere quod acceperant; nec per inopiam hominum vel per senectutem deserentur rura vicina barbariae, quod turpissimum ille ducebat.” [“The lands which were taken from the enemy on the borders he gave to his generals and soldiers; on condition that their heirs should be soldiers, and never belong to private stations: saying, that they would fight more resolutely, if they at the same time defended their own lands. He also gave animals and slaves with them, that they might cultivate what they had acquired; lest, through want of men, or by reason of old age, the neighboring lands should be utterly neglected, a thing which he considered most disgraceful.”] (æl. Lamprid. In vita Alex. Severi.)
12. Wright. 10.
13. Gravin. Orig. l. 1. §. 139.
14. Spelm. Gloss. 218. Bract. l. 2. c. 16. §. 7.
15. Crag. l. 1. t. 4.
16. A. D. 108;
17. Rex tenuit magnum concilium, et graves sermones habuti cum suis proceribus de hac terra, quo modo incoleretur, et a quibus hominibus. [The King held a great council, and had important debates with his nobles concerning this land, how it should be inhabited and by what men.] Chron. Sax. Ibid.
18. Omnes praedia tenentes, quotquot essent notae melioris per totam Angliam, ejus homines facti sunt, et omnes sfe illi subdidere, ejusque facti sunt vassalli, ac ei fidelitatis juramenta praestiterunt, se contra alios quoscunque illi fidos futuros. [All holding such estates as were of a better condition throughout all England became his men, subjected themselves to him, were made his vassals, and took the oath of fealty, that they would be faithful to him against all, whomsoever they might be.] Chron. Sax. A. D. 1086.
19. cap. 52. Wilk. 228.
20. Tenures. 66.
21. cap. 58. Wilk. 228.
22. Montesq. Sp. L. b. 31. c. 8.
23. Pharoah thus acquired the dominion of all the lands in Egypt, and granted them out to the Egyptians, reserving an annual render of the fifth part of their value. (Gen. c. 47.)
24. Spelm. of feuds, c. 28.
25. Wright. 81.
26. LL. Hen. I. c. 3.
27. 9 Hen. III.
28. Litt. §. 85.
29. It was an observation of Dr. Arbuthnot, that tradition was nowhere preserved so pure and incorrupt as among children, whose games and plays are delivered down invariably from one generation to another. (Warburton’s notes on Pope. vi. 134. 80.) Perhaps it may be thought puerile to observe (in confirmation of this remark) that in one of our ancient pastimes (the bafilinda of Julius Pollux, Onomastic. l. 9.c. 7.) the ceremonies and language of feudal homage are preserved with great exactness.
30. Feud. l. 2. t. 55.
31. Feud. l. 1. t. 1.
32. Thus Tacitus: (de mor. Germ. c. 26.) “agri ab universis per vices occupantur: arva per annos mutant.” [“They all occupy the lands by turns: the arable lands they change annually.”] And Caesar yet more fully; (de bell. Gall. l. 6. c. 21.) “Neque quisquam agri modum certum, aut fines proprios habet; sed magistratus et principes, in annos singulos, gentibus et cognationibus hominum qui una coierunt quantum cis et quo loco visum est, attribuunt agri, atque anno post alio transire cogunt.” [“Neither has any one a certain proportion or fixed boundaries to his land; but the magistrates and princes every year assign to the people, and the kindred of those men who have assembled together, as much land, and in whatever place, as seems to them fit, and oblige them the next year to remove from it to another portion.”] 33. Send. l. t. 1.
34. Wright. 14.
35. Wright. 17.
36. Ibid. 183.
37. Feud. 2. t. 55.
38. Wright. 32.
39. Ibid. 29.
40. Ibid. 30.
41. Wright. 20.
42. Feud. 2. t. 7.