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with the enjoyment of the Roman law, but at length they composed a code of civil and criminal jurisprudence, which superseded those foreign institutions.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.
