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payable before the time of fun-set of the day whereon it is reserved '; though perhaps not absolutely due till mida night* (29).

WITH regard to the original of rents, something will be said in the next chapter ; and, as to distresses and other remedies for their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part of our commentaries, which will treat of civil injuries, and the means whereby they are redressed,

i Co. Litt. 302. 1 Anderl. 253.
* 1 Saund. 287. Prec. Chanc. 555. Salk. 578.

(29) If the lessor dies before sun-set on the day upon which the rent is demandable, it is clearly settled that the rent unpaid is due to his heir, and not to his executor ; but if he dies after sun-set and before midnight, it seems to be the better opinion, that it shall go to the executor and not to the heir. i P. Wms. 178. '

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. CHAPTER THE FOURTH,

: OF THE FEODAL SYSTÉ M.

IT is imposible to understand, with any degree of accu. 1 racy, either the civil constitution of this kingdom (1), or the laws which regulate it's landed property, without some general acquaintance with the nature and doctrine of feuds, or the feodal law: a system so universally received throughout Eu. rope upwards of twelve centuries ago, that fir Henry Spel. man 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 misemployed, 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

' of partaments, 57.

(1) An intimate acquaintance with the feudal system is absolutely necessary to the attainment of a comprehensive knowledge of the first principles and progress of our conftitution. And this subject, in my opinion, might with great propriety have preceded the chapter apon parliament. The authority of lord Coke, upon conftitutional questions, is greatly diminished by his neglect of the study of the feudal law; which fir Henry Spelman, who well knew it's value and importance, feelingly laments : “I do marvel many “ times, that my lord Coke, adorning our law with so many « flowers of antiquity and foreign learning, hath not turned into to this field, from whence so many roots of our law have, of old, s been taken and transplanted.” Spelm. Orig. of Terms, c. viii.

law,

law, in a scholarlike fcientifical manner, without having recourse to the antient. 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 draughts of the fame edifices, in their pristine proportion and Splendor.

The constitution of feuds had its original from the Pas 1 military policy of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals, and the Lombards, who all migrating from the fame officina gentium, as Crag very juftly entitles its poured themselves in vaft 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 fuperior officers of the army, and by them dealt out again in smaller parcels or allotments to the inferior officers and most deserving soldiers d. These allotments were called feoda, feuds, fiefs, or fees; which last appellation in the northern languages e signifies a conditional ftipend or reward f. Rewards or ftipends they evi

o See Spelman of feuds, and Wright right in Finland, &c. (See Mac Doual of teneres, per tot.

Inft. part. 2.) Now the transposition of
De jure feod. 19, 20.

these northern fyllables, allodh, will d Wright, 7.

give us the true etymology of the allo e Spelm. Gl. 216.

dium, or absolute property of the feu. f Pontoppidan in his history of Nore dists (2): as, by a limilar combination way, (page 290) observes, that in the of the latter fyVable with the word fee northern languages odh fignifies propri (which fignifies, we have seen, a con. etas and all ictum. Hence he derives ditional reward or ftipend) teeodh or the ophal right in those countries; and feodum will denote ftipendiary property thence too perhaps is derived the udal

(2) This is the same as all-hood in English, and is suggested as the derivation of allodium in Woll. Religion of Nat. del. p. 136.

Dr. Robertson adopts the derivation of allodium from an and lot, or allotment, the mode of dividing what was not granted as stipen

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dently were: and the condition annexed to them was, that the poffeffor 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 8: 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.

ALLOTMENTS, thus acquired, naturally engaged such as

accepted them to defend them; and, as they all sprang from | 46 ) the same right of conquest, no part could fubfift independent

of the whole ; wherefore all givers as well as receivers were mutually bound to defend each other's possessions. But, as that could not effectually be done in a tumultuous irregular way, government, and to that purpose subordination, was necessary. Every receiver of lands, or feudatory, was there fore 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 likewife subordinate to, and under the command of, his immediate benefactor or supe. rior; and so upwards to the prince or general himself: and the several lords were also reciprocally bound, in their respec. tive gradations, to protect the possessions they had given. Thus the feodal connection was established, a proper military subjection was naturally introduced, and an army of feudatories was always ready enlisted, and mutually prepared to muster, not only in defence of each man's own several pro

& See this oath explained at large in Feud. l. 2. t. 7
h Feud. I. 2. 1. 24.

diary property; and he relates the memorable story of the fierce foldier who refused to grant a sacred vase to his general Clovis, the founder of the French monarchy, who wished to return it at the request of the bishop to the church from which it had been taken as spoil, by striking it violently with his battle-axç, and de. claring “ that you should have nothing but that to which the lot " gives you a right!" Hift. of Ch. V, 1 vol. notes 7 & 8.

perty, perty, but also in defence of the whole, and of every part of this their newly-acquired country'; the prudence of which constitution was soon sufficiently visible in the strength and {pirit, with which they maintained their conquests.

The universality and early use of this feodal plan, among all those nations, which in complaisance to the Romans we till call barbarous, may appear from what is recorded k of the Cimbri and Teutones, nations of the fame northern ori. ginal as those whom we have been describing, at their first irruption into Italy about a century before the christian æra. They demanded of the Romans, “ ut martius populus aliquid fibi terrae daret, quafi ftipendium : caeterum, ut vellet, manibus atque armis fuis 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 conftitution, 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. [ 49 ] with themselves this northern plan of polity, serving at once to distribute and to protect the territories they had newly gained. And from hence too it is probable that the emperor Alexander Severus ' took the hint, of dividing lands conquered from the enemy among his generals and victorious Loldiery, duly Locked with cattle and bondmen, on condition of receiving military service from them and their heirs for ever.

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SCARCE had these northern conquerors established them selves in their new dominions, when the wisdom of their conftitutions, as well as their personal valour, alarmed all the Wright, S.

« militaturos, fi etiam fwa rure defender * L. Florus, l. 3. 6. 3.

ut rent. Addidit sane bis et animalja et 1 « Sola, quae de beftibus capra funt, " feruos, us pollent colere quod acceperant ; si limitaneis ducibus & militibus donavit; "ne per inopiam bominum vel per fenec. " ita ut corum ita cflent, fo baeredes illon "intem defererentur rura vicina barbaIl rum militarent, mhic unquam ad priva. "rise, quod rurpissimum itte ducebar." . 301 pertinerent: dicens attentius illos (Æl. Lamprid. in vita Alex. Severi.)

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