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Commentaries on American Law (1826-30)
Chancellor James Kent
Of the History of the Law of Tenure
TENURE is inseparable from the idea of property in land, according to the theory of the English law. All the land in England is held mediately or immediately of the king. There is no allodial property, or lands to which the term tenure does not strictly apply, nor any proprietors of land, except the king, who are not legally tenants. To express the highest possible interest that a subject can have in land, the English law uses the terms fee simple, or a tenancy in fee, and supposes that some other person retains the absolute and ultimate right. The king is, by fiction of law, the great lord paramount, and supreme proprietor of all the lands in the kingdom, and for which he is not bound by services to any superior. Praedium Domini Regis est directum Dominium, cujus nullus author, est nisi Deus.1
So thoroughly does this notion of tenure pervade the common law doctrine of real property, that the king cannot grant land to which the reservation of tenure is not annexed, though he should even declare, in express words, the grant to be absque aliquo inde reddendo.2 Sir Henry Spelman3 defines a feud to be usus fructus rei immobilis sub conditione fidei; vel jus utendi praedio alieno. The vassal took the profits, but the property of the soil remained in the lord, and the seignory of the lord and the vassal’s feud made together, saith Spelman, that “absolute estate of inheritance, which the feudists, in time of old, called allodium.”
This idea of tenure pervades, to a considerable degree, the law of real property in this country. The title to land is essentially allodial, and every tenant in fee-simple has an absolute and perfect title, yet, in technical language, his estate is called, an estate in fee-simple, and the tenure free and common socage. I presume this technical language is very generally interwoven with the municipal jurisprudence of the several states, even though not a vestige of feudal tenure may remain. By the statute of New York, of the 20th February, 1787,4 entitled, An Act concerning Tenures, the Legislature re-enacted the statute of 12 Car. II. ch. 24, abolishing the military tenures, and turning all sorts of tenures into free and common socage. Under that statute, all estates of inheritance at common law, are held by the tenure of free and common socage; but all lands held under grant of the people of the state, (and which includes, of course, all the lands in the western and northern parts of this state, which have been granted and settled since the revolution,) are declared to be allodial and not feudal, and to be owned in free and pure allodium. All the lands in this state are,, therefore, in contemplation of law, either held by the tenure of free and common socage, or enjoyed as allodial; and though the distinction has become merely nominal, it is impossible to give to the student any intelligible explanation of it, without bestowing some attention to the history and character of feudal tenures.
(1.) Of the origin and establishment of feudal tenures on the continent of Europe.
Some writers have supposed, that the sources of feuds were not confined to the northern Gothic nations who overturned the western empire of the Romans; and that an image of feudal policy had been discovered in almost every age and quarter of the globe.5 But the resemblances which have been suggested are too loosely stated, and are too faint and remote, to afford any solid ground for comparison. The institutions which seem to have been most congenial to the feudal system, were to be found in the Roman policy. The relation of patron and client resembled, in some respects, the feudal lord and vassal. But the grants of forfeited lands, by the Roman conquerors to their veteran soldiers, as a recompense for past service, and more especially the grants of the Emperor Alexander Severus, and in the time of Constantine, on the condition of rendering future military service, afford the most plausible argument for deducting the feudal customs and tenures from the Roman law. There were, however, strong and essential marks of difference between the two systems. The connection between the patron and client was civil, and not military, and the Roman estates and military grants were stable, and of the nature of allodial property. The leading points of difference between the Roman and feudal jurisprudence, in relation to land, have been abundantly shown, by the most able and the most learned of the modern legal antiquaries.6
The better, and the prevailing opinion is, that the origin of the feudal system is essentially to be attributed to the northern Gothic conquerors of the Roman empire. It was part of their military policy, and devised by them as the most effectual means to secure their conquests. The chieftain, as head or representative of his nation, allotted portions of the conquered lands, in parcels, to his principal followers, and they, in their turn, gave smaller parcels to their sub-tenants or vassals, and all were granted under the same condition of fealty and military service. The rudiments of the feudal law have been supposed by many modern feudists to have existed in the usages of the ancient Germans, as they were studied and described by Caesar and Tacitus.7 But there could not have been anything more among the ancient Germans, than the manners and state of property fitted and prepared for the introduction of the feudal tenures. Land, with them, was not subject to individual ownership, but belonged as common property to the community, and portions of it were annually divided among the members of each respective tribe, according to rank and dignity.8 The German nations beyond the Rhine and the Danube prescribed limits to the march of the Roman legions; and while the latter successfully established the government, arts, institutions, and laws of their own country, in Spain, Gaul. and Britain, the free and martial Germans resented every such attempt, and preserved unimpaired their native usages, fierce manners, and independent genius.9
The traces of the feudal policy were first distinctly perceived among the Franks, Burgundians and Lombards, after they had invaded the Roman provinces. They generally permitted the Roman institutions to remain in the cities and towns, but they claimed a proportion of the land and slaves of the provincials, and brought their own laws and usages with them.10 The crude codes of the barbarians were reduced to writing after they had settled in their new conquests, and they supplanted, in a very considerable degree, the Roman laws.11 The conquered lands which were appropriated by the military chiefs to their faithful followers, had the condition of future military service annexed, and this was the origin of fiefs and feudal tenures. The same class of persons who had been characterized as volunteers or companions in Germany, became loyal vassals under the feudal grants.12
These grants, which were first called benefices, were, in their origin, for life, or perhaps only for a term of years.13 The vassal had a right to use the land, and take the profits, and he was bound to render in return such feudal duties and services as belonged to a military tenure. The property of the soil remained in the lord from whom the grant was received. The right to the soil, and to the profits of the soil, were regarded as separate and distinct rights. This distinction continued when feuds became hereditary. The king or lord had the dominium directum, and the vassal, or feudatory, the dominium utile; and there was a strong analogy between lands held by feudal tenure, and lands held in trust, for the trustee has the technical legal title, but the cestui que trust reaps the profits. The leading principle of feudal tenures, in the original and genuine character of feuds, was the condition of rendering military service. Prior to the introduction of the feudal system, lands were allodial, and held in free and absolute ownership in like manner as personal property was held. Allodial land was not suddenly, but very gradually supplanted by the law of tenures, and some centuries elapsed between the first rise of these feudal grants and their general establishment.14
They were never so strictly introduced as to abolish all vestiges of allodial estates. Considerable portions of land in continental Europe continued allodial, and to this day, in some parts of it, the courts presume lands to be allodial until they are shown to be feudal, while, in other parts, they presume the lands to be feudal until they are shown to be allodial.15
The precise time when benefices became hereditary, is uncertain. They began to be hereditary in the age of Charlemagne, who facilitated the conversion of allodial into feudal estates.16 The perpetuity of fiefs was at last established by a general law, which allowed fiefs, in imitation of allodial estates, to descend to the children of the possessor.17 The perpetuity of fiefs was established earlier in France than in Germany; but throughout the continent it appears they had become hereditary, and accompanied with the right of primogeniture, and all the other incidents peculiar to feudal governments, long before the era of the Norman conquest.18 The right of primogeniture, and preference of males in the line of succession, became maxims of inheritance in pursuance of the original military policy of the feudal system.
It was the object of these rules to preserve the fee entire and undivided, and to have at all times a vassal competent, from his sex and age, to render the military services which ought be required. The practice of subinfeudations, or arriere fiefs, by the higher ranks of feudal vassals, grew with the growth of tenures, and were created on the same condition military service by the inferior vassals to their immediate lords. The feudal governments gradually assumed the appearance of combinations of military chieftains, fit a regular order of subordination, but loosely connected with each other, and feebly controlled bo the monarch, or federal head.
It would appear, at first view, to he very extraordinary that such a free and rational species of property as allodial, and which was well calculated to meet the natural wants of individuals, and the exigencies of society, should ever, in any one instance, have been voluntarily laid aside, or exchanged for a feudal tenure. As a general rule, the allodial proprietor had the entire right and dominion. He held of no superior to whom he owed homage, or fealty, or military service. His estate was deemed subservient to the purposes of commerce. It was alienable at the will of the owner.19 It was a pledge to the king for the good behavior of the subject, and was liable to forfeiture for crimes against the state. It was a security to individuals for the performance of private contracts, and might be taken and sold for debt. It passed to all the children equally by inheritance. In these respects allodial estates were the very reverse of lands held by a feudal tenure. Land under that servitude was locked up from commerce, and from that control over it by the owner, which is so necessary in the intercourse and business of social life.
But it appears to be well ascertained, that the feudal policy was gradually adopted throughout Europe, after the overthrow of the western empire, upon the principle of self preservation. The turbulent state of society, consequent upon the violent fall of that empire, and the want of regular government competent to preserve peace and maintain order and justice, encouraged and recommended the feudal association. A feudal lord and his vassals, connected by the mutual obligation of protection and service, acted in concert and with efficacy. The strength and spirit of these private combinations made amends for the weakness of the civil magistrate. A proud and fierce feudal chief was sure to revenge any injury offered to himself or any of his dependents, by the united force of this martial combination. Much higher compositions were exacted, even by law and in the courts of justice, for injuries to vassals, than to allodial proprietors.20 They were, in some measure, in the condition of aliens or outlaws, in the midst of society; and the feudal tenants, united by regular subordination under a powerful chieftain, had the same advantage over allodial proprietors, as has been justly observed by an eminent historian,21 which a disciplined army enjoys over a dispersed multitude; and were enabled to commit, with impunity, all injuries upon their defenseless neighbors. Allodial proprietors, being thus exposed to violence, without any adequate legal protection, were forced to fly for shelter within the enclosure of the feudal association. They surrendered their lands to some powerful chief, paid him the reverential rites of homage and fealty, received back their lands tinder the burdensome services of a feudal tenure, and partook of the security of vassals, at the expense of the dignity of freemen. Allodial estates became extinguished in this way and from these causes, and the feudal system gradually spread, and was extended over the principal kingdoms of Europe.22
A state of anarchy, according to Mr. Hallam, was the cause, rather than the effect, of the general establishment of feudal tenures. The original policy of the system was generous and reasonable, for it had in view public defense and private protection. Very able and eloquent champions of the cause of civil liberty have admitted that the feudal system was introduced and cherished by the spirit of freedom; and that it had a tendency, before the original design of it was perverted and abused, to promote good faith, to purify public morals, and to refine and elevate social sympathies.23
But this same loyal association, which was so auspicious in its beginning as in a great degree to destroy the value of allodial property, degenerated in process of time, and became the parent of violence and anarchy, promoted private wars, and led to a system of the most grievous oppression. Except. in England, it annihilated the popular liberties of every nation in which, it prevailed, and it has been the great effort of modern times to check or subdue its claims, and recover the free enjoyment and independence of allodial estates.
(2.) Of the history of feudal tenures in England.
England was distinguished above every part of Europe for the universal establishment of the feudal tenures. There is no presumption or admission in the English law, of the existence of allodial lands. They are all held by some feudal tenure. There were traces of feudal grants, and of the relation of lord and vassal, in the time of the Anglo-Saxons, but the formal and regular establishment of feudal tenures in their genuine character, and with all their fruits and services, was in the reign of William the Conqueror.24
The tenures which were authoritatively established in England, in the time of the Conqueror, were principally of two kinds, according to the service annexed. They were either tenures by knight service, in which the services, though occasionally uncertain, were altogether of it military nature, and esteemed highly honorable, according to the martial spirit of the times; or they were tenures by socage, in which the services were defined and certain, and generally of a praedial or pacific nature.25 Tenure by knight service, in addition to the obligation of fealty and the military service of forty days in a year, was subject to certain hard conditions. The tenant was bound to afford aid to his lord by the payment of money, when his lord stood in need of it, on certain emergent calls, as when he married his daughter, when he made his son a knight, or when he was taken prisoner. So, when a tenant died, his heir at law was obliged to pay a relief to the lord, being in the nature of a compensation for being permitted to succeed to the inheritance. If the heir was under age, the lord was entitled to the wardship of the heir, and he took to himself the profits of the land during the minority.
Various modes were devised to elude the hardships of this guardianship in chivalry, incident to the tenure by knight service. The lord had also a right to dispose of his infant ward in marriage, and if the latter refused, he or she forfeited as much as was arbitrarily assessed for the value of the match. If the tenant aliened his land, he was liable to pay a fine to the lord, for the privilege of selling. Lastly, if the tenant died, without leaving an heir competent to perform the feudal services, or was convicted of treason or felony, the land escheated, or reverted to the feudal lord.26 The greatest part of the lands in England were held by this tenure by knight service; and several of these fruits and consequences of the feudal tenure, belonged also to tenure in socage. Those abuses of the feudal connection took place equally in England, and in other parts of Europe. The spirit of rapacity met, however, with a more steady and determined resistance, by the English of the Saxon blood, than by any other people. This resistance produced the memorable national compact of Magna Carta, which corrected the feudal policy, and checked many grievances of the feudal tenures; and the intelligence and intrepidity of the House of Commons, subsequent to the ere of the great charter, enabled the nation to struggle with better success than any other people against the enormous oppression of the system
A feoffment in fee did not originally pass an estate in the sense we now use it. It was only an estate to be enjoyed as a benefice, without the power of alienation, in prejudice of the heir or the lord; and the heir took it as an usufructuary interest, and in default of heirs the tenure became extinct, and the lend reverted to the lord. The heir took by purchase, and independent of the ancestor, who could not alien, nor could the lord alien the seignory without the consent of the tenant. This restraint on alienation was a violent and unnatural state of things, and contrary to the nature and value of property, and the inherent and universal love of independence. It arose pertly from favor to the heir, end partly from favor to the lord, end the genius of the feudal system was originally so strong in favor of restraint upon alienation, that by a general ordinance mentioned in the Book of Fiefs,27 the hand of him who knowingly wrote a deed of alienation, was directed to be struck off.
The first step taken to mitigate the severe restriction upon alienation of the feudal estate, was the power of alienation by the tenant with leave of the lord, end this tended to leave the heir dependent upon the ancestor. The right of alienation was first applied to the lands acquired by the tenant by purchase; and Glanville says,28 that in his time, it was, generally speaking, lawful for a person to alien a reasonable part of his land by inheritance, or purchase, and if he had no heirs of his body, he might alien the whole of his purchased lands. If, however, he had a son and heir, he could not disinherit him), and alien the whole even of his purchased lands. The restraint was almost absolute when the tenant was in by descent, and quite relaxed when he was in by purchase; and there was no distinction on this subject, whether the fief was held by a military or socage tenure.
The free alienation of land commenced with burgage tenures, and was dictated by the genius of commerce.29 The next variation in favor of the tenant was the right to alien without the lord’s license, when the grant was to him and his heirs and assigns, and the general right of alienation seems to have been greatly increased, and extensively established, in the age of Bracton.30 The tenant gained successively the power of alienation, if the grant was only to him and his heirs; and the power to charge, or encumber the land. The lord’s right was still further affected by acts of Parliament, and judicial determinations, for the fee was made subject by elegit to the tenant’s debt, and also by process under the statutes merchant and staple.31 It was further, and as early as the reign of Edw. III., made subject to the dower of the wife.32 Subinfeudation was also an indirect mode of transferring the fief, and resorted to as an artifice to elude the feudal restraint upon alienation; and when the statute of Quia Emptores, 18 Edw. 1 was enacted, prohibiting subinfeudations to all but the king’s vassals, this feudal restraint had essentially vanished, and the policy of that statute was to recall the stability and perpetuity of landed estates.33
Successive improvements in the character of the estate, and the condition of the tenant, greatly relieved the nation from some of the prominent evils of the feudal investiture. But the odious badges of the tenure still existed; and Lord Bacon, in his speech at a conference before the Lords, on behalf of the Commons, in the reign of James I, strongly recommended, by way of composition with the crown, the abolition of wards and tenures, as having become troublesome and useless.34 At length, upon the restoration of Charles II, tenure by knight service, with all its grievous incidents, was by statute abolished, and the tenure of land was, for the most part, turned into free and common socage, and every thing oppressive in that tenure was also abolished. The statute of 12 Charles II essentially put an end to the feudal system in England, although some fictions, (and they are scarcely any thing more,) founded on the ancient feudal relation and dependence, are still retained in the socage tenures.
(3.) Of the doctrine of tenure in these United States.
Socage tenure denotes lands held by a fixed and determinate service, which is not military, nor in the power of the lord to vary at his pleasure. It was the certainty, and pacific nature of the service, duty, or render, which made this species of tenure such a safeguard against the wanton exactions of the feudal lords, and rendered it of such inestimable value in the view of the ancient English. It was deemed by them a point of the utmost importance, to change their tenures by knight service into tenure by socage. Socage tenures are, however, of feudal extraction and retain some of the leading properties of feuds, as has been shown by Sir Martin Wright, in his learned treatise on tenures;35 and which work has been freely followed by Sir William Blackstone, in his perspicuous and elegant, and we may truly add, masterly disquisitions on the feudal law.
But most of the feudal incidents and consequences of socage tenure, are expressly abolished in New York, by the act of 1787, already mentioned; and they are all annihilated by statute in Connecticut; and they have never existed, or they have ceased to exist, in all essential respects, in every other state. The only feudal fictions and services which appear to be retained in this state, consist of the feudal principle, that the lends in socage are held of some superior or lord, to whom the obligation of fealty, and to pay a determinate rent, are due. The act of 1787 provided, that the socage lands were not to be deemed discharged of “any rents certain, or other services incident, or belonging to tenure in common socage, due to the people of this state, or any mean lord, or other person, or the fealty or distresses incident thereunto.” The lord paramount of all socage land is none other than the people of this state, and to them, and them only, the duty of fealty ought to be rendered; and the quit-rents which were due to the king on all colonial grants, and to which the people succeeded at the revolution, have been gradually diminished by commutation, under various acts of the legislature, and are now nearly, if not entirely extinguished.
In our endeavors to discover the marks or incidents which still discriminate socage tenure from allodial property, we are confined to the doctrine of fealty, and of holding of a superior lord. Fealty was regarded by the ancient law as the very essence and foundation of the feudal association. It could not on any account be dispensed with, remitted, or discharged, because it was the vinculum commune, the bond or cement of the whole feudal policy.36 Fealty was the same as fidelitas. It was an oath of fidelity to the lord, and, to use the words of Littleton,37 when a freeholder does fealty to his lord, he shall lay his right hand upon a book, and shall say, “Know ye this, my lord, that I shall be faithful and true unto you, and faith to you shall bear, for the lands which I claim to hold of you, and that I shall lawfully do to you the customs and services which I aught to do at the terms assigned: so help me God and his saints.”
This oath of fealty every where followed the progress of the feudal system, and created all those interesting ties and obligations between the lord and his vassal, which, in the simplicity of the feudal ages, they considered to he their truest interest and greatest glory. It was also the parent of the oath of allegiance, which is exacted by sovereigns in modern times. The continental jurists frequently considered homage and fealty as synonymous; but this was not so in the English law, and the incident of homage was expressly abolished, in New York, by the act of 1787, while the incident of fealty was as expressly retained. Homage, according to Littleton, was the most honorable and the most humble service of reverence that a Frank tenant could make to his lord; but it is quite too abject and servile a ceremony of submission, allegiance, and reverence, to be admissible at this day.
Lands held in this state by socage tenure, (and all lands granted or patented before the revolution are so held,) would seem, in theory, to be chargeable with this oath of fealty; and every tenant, whether in fee, for life, or for years, was, by the English law, obliged to render it when required, as being an indispensable service, due to the lord of whom he hold. Fealty was at common law deemed inseparable from tenure of every kind, except the tenure in Frankalmoigne; but a tenant at will was not hound to it, as his estate was too precarious; and though Littleton says, that a tenant for years was bound to render fealty to the lessor, Mr. Hargrave has referred to some cases which raise a doubt upon that point.38 He also observes, that no statute has ever varied the law of fealty, and that the title to fealty still remains, though it is no longer the practice to exact its performance. However, if required, it must be repeated on every change of the lord, and the remedy for compelling the performance of fealty is by distress.39 Sir Matthew Hale40 says, the oath of fealty may be due to an inferior lord, and then the oath must have the saving salva fide et ligentia domini regis.
The question here occurs, can this oath of fealty be exacted in this state by landlords, and lords of manors, from tenants other than tenants at will, or from year to year? The statute I have so often referred to, saves the services incident to tenure in common socage, and which, it presumes, may be due, not only to the people of this state, but to any mean lord, or other private person, and it saves the fealty and distresses incident thereunto. It would not be fit or expedient to retain this doctrine of the feudal fealty, in reference to any other superior than the chief lord of the fee, or, in other words, the people of this state, and then it resolves itself into the oath of allegiance which every citizen, on a proper occasion, may be required to take. Lord Coke did not designate any very material difference between the oath of fealty, and the general oath of allegiance, though he raised the question as to the difference which might exist between then41 but Sir Matthew Hale,42 in a long and learned dissertation, undertakes to explain the difference between the oath of allegiance and the oath of fealty. The statute of 1787 was only a transcript of the statute of 12 Charles II., and the provision was probably retained for greater caution; and as the practice of exacting fealty has gone entirely out of use in England, and was never known in this state, and is altogether inconsistent with our policy and mariners, fealty, in the technical sense, may fairly be considered as a dormant incident of feudal tenure never to be revived.43
The Statute of 1787, declares that the tenures upon all grants from the people of this state, shall be allodial, and not feudal, and be discharged from all services whatsoever, and shall be taken to be, and continue in, free and pure allodium only.44
Thus, by one of those singular revolutions incident to human affairs, allodial estates, once universal in Europe, and then almost universally exchanged for feudal tenures, have now, after the lapse of many centuries, regained their primitive estimation in the minds of freemen. Though the doctrine of a feudal tenure by free and common socage, may be applicable in theory to a great part of the real property in this country, chartered and possessed before our revolution, and though every proprietor be considered as holding an estate in fee simple, none of the inconveniences of tenure are felt or known. We have very generally abolished the right of primogeniture, and preference of males, in the title by descent, as well as the feudal services, and the practice of subinfeudation, and all restraints on alienation. Socage tenures do not exist any longer, even in theory, in those parts of this state which have been patented since the revolution; and where they do exist, they partake of the qualities of allodial estates.
An estate in fee simple means an estate of inheritance, and nothing more, and in common acceptation it has lost entirely its original meaning as a beneficiary or usufructuary estate, in contradistinction to that which is allodial. It was used even by Littleton and Coke, to denote simply an inheritance; and they are followed by Sir Martin Wright, and Sir William Blackstone.45 Whether a person holds his land in pure allodium, or has an absolute estate of inheritance in fee simple, is perfectly immaterial, for his title is the same to every essential purpose. The distinction between the two estates has become merely nominal, and a very considerable part of Littleton’s celebrated treatise on tenures, on which Lord Coke exhausted his immense stores of learning, has become obsolete. But those parts of it which have ceased to be of modern application, will, nevertheless, continue, like the other venerable remains of the Gothic system, to be objects of examination and study, not only to the professed antiquarian, but to every inquisitive lawyer, who, according to the advice of Lord Bacon, is desirous “to visit and strengthen the roots and foundation of the science.”46
1. Co Litt. 1. b. 65. a. 2 Blacks. Com. 105.
2. Bro. tit Tenures, 3. 52. 6 Co. 6. b. 9 Co. 123. a. Wright on Tenures, 137, 138.
3. Treatise of Feuds and Tenures by Knight Service, ch. 1.
4. Laws N. Y. sess. 10. ch. 36.
5. Voet, in his Digressio de Feudis, sec. 1. and Mr. Hargrave in note 1. to lib. 2 Co. Litt. have referred to the several authors by whom this opinion has been advanced, and also by whom it has been refuted. I would further add, that the feudal policy is declared by Doctor Robertson to have existed in its most rigid form among the ancient Mexicans; and the government of the Birman [Burmese] empire is said to exhibit, at this day, a faithful picture of Europe during the feudal ages. The same resemblances have been traced among the Mahrattas, and in the island of Ceylon. Robertson’s History of America, b. 7. vol. ii. 280. Col. Symes’ Embassy to Ava, vol. ii. 356. Asiatic Annual Register, for 1799, tit. Miscellaneous Tracts, p. 116.
6. Harg. note 1 to lib, ii. Co. Litt. Butler’s note 77. to lib. iii. Co. Litt. Sullivan’s Treatise on the Feudal Law lec. 3. Mr. Spence, in a recent work, entitled, An Inquiry into the Origin of the Laws and Political Institutions of Modern Europe, London, 1826 p. 5. 32. 32, has examined the Roman policy on this subject, and studied the Roman laws, and particularly the Theodosian code, with the utmost attention. He has drawn from that copious source of legal antiquities, a body of facts to sustain and illustrate an ancient, and now seemingly exploded theory, that the Barbarians adopted, in a great degree, the laws and institutions of the Romans, as they found them in the provinces which they invaded and subdued. His conclusion would apply better to France than to any other part of Europe. In Spain, it is said that the early Spanish lawgivers disliked the Roman laws, and drove them from their tribunals. The Visigoths prohibited the use of them. See Institutes of the Civil Law of Spain, by Asso & Manuel. pref. A historian more learned, even in the antiquities of Spain, than, probably, either of those Spanish doctors, admits that the Visigoths of Spain indulged their subjects at first with the enjoyment of the Roman law, but at length they composed a code of civil and criminal jurisprudence, which superseded those foreign institutions. Gibbon’s history of the Roman Empire, vol. vi. 378.
On the other hand, the Theodosian code, and the books of the jurisconsults, authorized by that code, were the law of Gaul when it was conquered by the Visigoths, Burgundians, and Franks; and those laws continued to be almost universally observed under the kings of the first race. It is a remarkable fact, that the Emperor Charlemagne, in the year 788, caused the Theodosian code to be transcribed from the edition of Alaric, king of the Visigoths, and that code, which is sometimes called the Anian Breviary, was the only one from which a knowledge of the civil law was gained by the jurists of Gaul, prior to the recovery of the Pandects. Histoire du Droit Francais, par l’Abbe Fleury, ch. 4 and 11. There is no doubt that villenage, or the servitude of the glebe, existed in the Roman provinces. This appears from the contents of the code De Agricolis, et Censitis, et Colonis. Code, lib. ii. tit. 47, and Montesquieu has justly and sagaciously inferred, even from the laws of the Burguardians, that praedial servitude existed in Gaul before it was invaded by those barbarians. Esprit des Loix, liv. xxx. ch. 10. But this humble service bore no resemblance to grants by military chiefs to their freeborn soldiers and companions, on condition of rendering future military service.
7. Sir Henry Spelman on Feuds and Tenures by Knight Service, ch. 2. Grotius, De Jure Belli et Pacis. lib. i. ch. 3. sec. 23. Wright on Tenures, ch. 1, p. 6, 7. Sullivan on Feudal Law, lec 3. Dalrympel’s Essay on Feudal Property. ch. 1. Hic contractus (scilicet feudalis) proprius est Germanicorum Gentrum neque usquam invenitus, nisi ubi Germani sedes posuerunt. This is the language of Grotius, and Craig is to the same effect: Constat, feudorum originem a septentrionstibus Gentibus defluxisse. Craig, De Jure Feud, 25. In a few passages of Caesar and Taciitus concerning the customs of the Germans, may be seen, says Dr. Sullivan, the old feudal law, and all its original parts, in embryo.
8. Caesar, De Bel. Gal. b. 6. Tacitus, Mor. Ger. ch. 5. 11. 26.
9. Vellius Pater, b. 2. ch. 117, 118. It was their custom, said the Germans to Julius Caesar, delivered down to them from their ancestors, to oppose, not to implore, whoever made war upon them. Caesar, De Bel. Gal. b. 6.
10. The barbarian conqueror of Gaul and Italy generously allowed every man to elect by what law he would be governed. Esprit des Loix, b. 25. ch. 2. Hallam on the Middle Ages, vol. 1. 83.
11. Esprit des Loix, b. 28, passim, ibid. b. 30. ch. 6, 7, 9. Montesquieu has given a very interesting account of the institutions and character of the laws of the northern nations, which they introduced and established in France, Spain and Italy, and the struggle which those laws and usages maintained with the provincial laws of the Romans. See also, Spence’s Inquiry, b. 3. c. 2, 3.
12. Esprit des Loix, b. 3. c. 16.
13. Hallam on the Middle Ages, vol. i. 89. insists, in opposition to most of the writers on the feudal system, that these beneficiary grants were never precarious and at will. He controverts, on this point, the position of Craig, Spelman, Du Cange, Montesquieu, Mably, Robertson, and all the other feudists.
14. Hallam, vol. i. 97, 112, says, that five centuries elapsed before allodial estates had given away, and feuds had attained to maturity, and he considers, that the establishment of feuds on the continent was essentially confined to the dominions of Charlemagne, and that they had not great influence either in the peninsula, or among the Baltic powers.
15. Voet, in his Digressio de Feudis, sec. 4 Com. ad Pand. lib. 28, says, that if it be uncertain whether an estate be feudal or allodial, the presumption is in favor of its being allodial, as being the free and natural state of things. And in Germany allodial estates are prevalent even to this day. (Heinec. Elem. Jur. Germ. tom. vi. 230. 231.) The feudal tenures and services existed in France down to the period of the late revolution, but in those parts of France governed by le droit erril all lands were presumed to be allodial until the contrary was shown, while in the pays contumiers the rule was, that there was no land without a lord and those who pretended their lands were free were bound to prove it. (Inst. au Droit Francais, par Argou tom. i. 195) But now, in France, the feudal law, with all its rights and incidents, is abolished, as being incompatible with freedom and social order. Touillier, Droit Civil Francais, tom. iii. 64. Ibid, tom. vi. 192.
16. The Abby de Mably, in his Observations sur l’Hist. de France, b. 2. ch. 5. note 3, says that Louis le Debonnaire, the son and successor of Charlemagne, first rendered fiefs hereditary in France, but a much greater authority says, that hereditary benefices existed under the first race of French kings, or before Pepin, the father of Charlemagne. Hallam on the Middle Ages, vol. i 91.
17. This was by a capitulary of Charles the Bald, A. D. 877. Esprit des Loix, b. 31. c. 25.
18. Consuetudines Feudorum, b. 1. tit 1 and 8. b. 2. tit. 1. Esprit des Loix, b. 31. ch 28, 29, 31, 32. Inst. au Droit Francais par Arzou, tom. 1. b. 2. ch.2. Des Fiefs. Hallam on the State of Europe during the Middle Ages. vol. i. 91, 96. The Book of Fiefs, under the title of Consuetudines Feudorum is supposed to have been compiled by two Milanese lawyers. A.D. 1176, from the law of fiefs in Lombardy; but Voet, in his Digressio de Feudis, sec. 2. says, that it is uncertain who were the authors of the collection. This code of feudal law is usually annexed to the Corpus Juris Civilis, and, therefore, conveniently accessible to the American lawyer. It is the source from which modern lawyers and historians have drawn much of their knowledge of the feudal jurisprudence of continental Europe. Mr. Butler says, it attained more authority in the courts of justice than any other compilation, and was taught classically in most of the academies of Italy and Germany.
19. The term allodial is said to have been derived from al, which signifies integer, and od, which signified status or possessio; so that al od, or allodium, signified integra possessio, or absolute dominion. This etymology of the word, Dr. Gilbert Stuart says, was communicated to him by a learned Scots judge. (Stuart’s View of Society in Europe. p. 205.) Whether this idea be well founded, or be merely ingenious, (for Dr. Robertson, in his View of Society, prefixed to his history of Charles V. note 8. quotes a German glossary which makes allodium to be compounded of the German particle an, and lot, i.e. land obtaining by lot,) it at least corresponds with the character of allodial estates. Mr. Hallam says, that allodial lands are commonly opposed to beneficiary or feudal, and in that sense the word continually occurs in ancient laws and documents. But it sometimes stands simply for an estate of inheritance, and hereditary fiefs are frequently termed allodia. See his View of the State of Europe during the Middle Ages, (vol. i. 80.) a work which appears to be equally admirable for vigor of mind, for profound research, for manly criticism, and for the spirit of freedom. In the French law, Franc-aleu signifies allodial land, or an estate entirely free, and not holden of any superior, and wholly exempt from all seignorial rights and services. Inst. au Droit Francais, par Argou, tom. i. 193. Allodium est proprietas quae a nullo recognoscitur. Ferriere’s Dict. tit. Franc-aleu.
20. Montesquieu, in his account of the changes of allodial into feudal estates, says it was the privilege of a vassal of the king, by the Salic and riparian laws, to pay 600 sous for the murder of a vassals, and 200 sous for killing a freeman or allodial proprietor, whether Frank or Barbarian, and only 100 sous for killing a Roman! Esprit des Loix, b. 3l. ch. 8.
21. Hume’s History of England, appendix,
22. Esprit des Loix, b. 31. ch. 8. Robertson’s History of Charles V. vol. i. note 8, annexed to his View of Society. Hallam’s View of Society in the Middle Ages, vol. i. ch. 2. p. 93, 94. Stuart’s View of Society in Europe, b. 1. ch. 2. sec. 3. Spence’s Inquiry, p. 346. This last writer shows, from the capitularies of Charlemagne, that in his time there was scarcely a person in his widely extended empire, who was not the vassal either of the monarch, or of some bishop, or count, or other powerful individual.
23. Dr. Stuart’s View, b. 2. ch. 1. sec. 1. Hallam, ub. sup. vol. i. 99-178, 179. Sir Henry Spelman, in his Treatise of Feuds and Tenures, ch. 2, viewed the feudal law in the same light. “It was,” he observes, “carried by the Lombards, Saliques, Franks, Saxons, and Goths, into every kingdom. and conceived to be the most absolute law for supporting the royal estate, preserving union, confirming peace, and suppressing robbery, incendiaries, and rebellions.”
24. The ordinances of William the Norman, establishing the feudal tenure of lands to be held jure haereditario in perpetuum, are quoted as authentic by the most learned of the English lawyers; (Wright on Tenures, p. 65 to 76. Blacks. Com. vol. ii. p. 60.) and they are collected in Lambard’s Archaionomia, p. 170. L. L. Conq. Wm. I. ch. 52, 55. Those laws purport to have been enacted, per commune concilium totius regni.
It has been a subject of great dispute, and one which has occasioned the most laborious investigations, whether feudal tenures were in use among the Saxons. This is to us a question of no moment, and it is nowhere anything more than a point of speculative and historical curiosity; but even in that view it may command the attention of the legal antiquarian. Though in a general sense, military services and feuds might have been known to the Anglo-Saxons, yet the weight of authority, even in opposition to such names as Coke and Seldon, would rather seem to be in favor of the conclusion, that hereditary fiefs, with their servitudes, such as aid, wardship, marriage, and perhaps relief, (for Sir Henry Spelman and Mr. Hallam differ on that point,) were introduced by the Conqueror. Spelman wrote his great work on Feuds and Tenures by Knight Service, to refute the argument of the Irish judges, and to support the position in his Glossary, that feuds were introduced at the Norman conquest, and he insists that feuds were not hereditary in England under the Saxon dynasty. He declares, that there is not a single charter in the Saxon tongue. before the conquest, in which any feudal word is apparently expressed. His discussion of the general question is distinguished for its acuteness and research, and he has been followed in his opinion, either wholly, or in a great degree by Sir Matthew Hale, Sir Martin Wright, Sir William Blackstone, and Mr. Butler. To these great authorities may be added the equal name of Mr. Burke, who, in his admirable Abridgment of English History, b. 2. ch. 7, maintains the position, that the Anglo Saxons, those fierce and ruthless conquerors, who swept before them the laws, language and religion of the ancient Britons, and lived in savage ignorance amid the ruins of Roman arts and magnificence, knew nothing of hereditary fiefs, or any thing analogous to feudal tenures.
Mr. Turner, on the other hand, in his recent History of the Anglo-Saxons, throws the weight of his authority, and great Saxon learning, into the opposite scale. He says, there can be no doubt, that the most essential part of what has been called the feudal system, actually prevailed among the Anglo Saxons. He admits, that though all their lands were charged with the trinoda necessitas, yet that the military service, (the most material of those three servitudes) might be commuted by a pecuniary mulct, and lands were hereditary without primogeniture. These admissions destroy the force of his conclusion. (Turner’s History, vol. ii. 541,542 or Appendix, No. 4. b. 6. ch. 3). Mr. Reeve and Mr. Hallam take a middle course, and perceive, in the dependence in which free, and even noble tenants held their estates of other subjects under the Anglo Saxon constitution, much of the intrinsic character of the feudal relation, though in a less mature and systematic shape, than it assumed after the Norman conquest. (Reeve’s History of the English Law, vol. i. p. 9. Hallam on the Middle Ages, vol. ii. ch. 8. part 1.) It would be presumption in me, even if the occasion called for it, to attempt much discussion of such a question, inasmuch as I have no means of access to original documents. There is one, and only one Saxon monument which I have examined, and I would suggest, though with very great diffidence, that the Anglo-Saxon laws, as collected and translated from Saxon into Latin, by William Lambard, in his Archaionomia, (Whelock’s edit. Cambridge, 1644.) seem to show sufficiently by their silence on the topic of feuds, and by the general tenor of their provisions, that the feudal system was not then in any kind of force or activity. These laws are the crude productions of a semi barbarous race. Their chief objects were, (1.) True preservation of the peace. (2.) The settling the rate of pecuniary mulcts or compositions for all sorts of crimes, and when corporeal punishment was resorted to, the prescription was cruel. (3.) The settling the ceremonies of religious observances, and the oaths of purgation and proof in judicial trials. (4.) The regulation of the fraternities of frank pledges. Those laws are evidence, however, of the existence and great extent of the evils of predial and domestic servitude: and they show, also, even amidst their gross superstitions, numerous indications of the civilizing genius of Christianity, and the effect of religious discipline and restraint, in taming savage manners, and, inculcating upon the minds of a rude and illiterate people the obligations of peace, good order, and justice.
It is worthy of observation, and goes in confirmation of the conclusion, that the English law of feuds was essentially of Norman, and not of Anglo-Saxon origin, that allodial lands were changed into feudal, throughout the kingdom of Scotland, and the feudal structure completed there, about the same time, with the like revolution in landed property in England. This event took place under Malcolm III who began his reign A. D, 1057. Dalrymple’s Essay on the History of Feudal Property, p. 20, 21.
25. Wright on Tenures, 139-142.
26. Littleton’s Tenures, b. 2. Wright on Tenures, passim. 2 Blacks. Com. ch. 5. Mr. Hallam, vol. i. 101-106, vol. ii. 23, says, that reliefs, fines upon alienation, escheats, and aids, were feudal incidents belonging to feuds, as established on the continent of Europe: and that wardship and marriage were no parts of the grant or feudal system, but were introduced into England, and perhaps, invented by the rapacious feudal aristocracy, under the Norman dynasty. He, however, gives instances of their prevalence afterwards all over Europe.
The Master of the Rolls, in the great case of Burgess v. Wheate, 1 Eden’s Rep. 177, says, that the right of escheat was not founded on want of an heir, but of a tenant to perform the services, and that the words had been used promiscuously, because before the power of alienation, want of tenant and heir was the same thing, for at the death of the ancestor, none but the heir could be tenant.
27. Lib. 2. tit. 55.
28. B. 7. ch. 1.
29. Dalrymple’s Essay on Feudal Property, ch. 3. sec. 1.
30. Bracton b. 2. c. 5, sec. 4. and 7, ch. 6. fo. 18. b. ch. 27, sec. 1.
31. West, 11, 13 Edw. I. ch. 18, also 13 Edw. I. De Mercatoribus, and 27 Edw. III.
32. Bro. tit. Dower, pl. 64.
33. Sir Thomas Clarke, the Master of the Rolls, in Burgess v. Wheate, 1 Eden’s Rep. 191, has given a short, but clear view, of the progress of the feudal estate in its recovery from the feudal restraint of non alienation. See also, Mr. Butler’s note, 77. to lib. 3. Co. Litt. V. No. 6, 7, 8, 9, 10, and 11: and see especially the able and learned history of the alienation of land, in Dalrymple’s Essay on Feudal Property, ch. 3.
34. Lord Bacon’s Works, vol. iii. 359.
35. P. 141 to 144.
36. Wright on Tenures, p. 35, 55, 138, 140, 145.
37. Sec. 91.
38. Littleton, sec. 117, 130, 131, 132, 139. Co. Litt. 63. a. 67. b. Harg. n. 13 to lib. ii. Co. Litt.
39. Harg. n. 20, to lib. ii. Co. Litt.
40. H P C, vol. i. 67.
41. Co. Litt. 68. b.
42. H. P. C. vol. i, p. 62-70.
43. In Cornel v. Lamb, 2 Cowen’s Rep. 652, it was declared by Woodworth, J. that fealty was not, in fact, due on any tenure in this state, and had become altogether fictitious.
44. The statute would seem, according to the feudal theory, not to have been penned with philological accuracy, when it declares, that the tenure of all lands derived from the people of this state shall be allodia’, and not feudal. Allodial estates have no mark of tenure, and are enjoyed in absolute right, and tenure signifies the holding of a superior lord. Sir Henry Spelman says, that the first place in which he met with tenure in a feudal sense, was among the laws of the Saliques and Germans, in the constitution of the Emperor Conrad, about the year 915, when beneficia afterwards called feuds, first became hereditary. (Spelman’s Treatise of Feuds,ch. 3. Tenure est la maniere par quay les tenements sont tenus des Seigneurs. Custum. de Norm. cited by Sir Martin Wright on Tenures, p. 139. note.) But the statute has not committed any mistake, because it used the word, not in a feudal, but in the popular sense, for right or title, in like manner as in England, the king, whose inheritance cannot possibly import a tenure, is said to be seized in his demesne as of fee.
45. Co. Litt. 1. 2 Blacks. Com. 106.
46. C’est un beau spectacle que celui des loix feudales; un chene antique s’éleve: il faut perrer la terre pour les racines trouver. Montesquieu’s account of the feudal laws is the best and most solid part of his work. He traces them up to the forests of Germany, and shows that they were suggested by the usages, promoted by the policy, and matured by the martial genius of the ancient Germans. Those fierce tribes of barbarians, having long been inured to turbulent warfare, at length broke through the restraints imposed by disciplined valor, put to flight the Roman eagles in all the northern provinces of the empire, and finally prostrated the most extensive and best cemented monarchy which had ever insulted and enslaved mankind.