payable before the time of fun-fet of the day whereon it is reserved; though perhaps not abfolutely due till midnight* (29). WITH regard to the original of rents, fomething will be faid in the next chapter; and, as to diftreffes 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 redreffed. 1 Co. Litt. 302. 1 Anderf. 253. * 1 Saund. 287. Prec. Chanc. 555- Salk. 578. (29) If the leffor dies before fun-set on the day upon which the rent is demandable, it is clearly fettled that the rent unpaid is due to his heir, and not to his executor; but if he dies after fun-set and before midnight, it feems to be the better opinion, that it fhall go to the executor and not to the heir. 1 P. Wms. 178. IT CHAPTER THE FOURTH. OF THE FEODAL SYSTEM. T is impoffible to understand, with any degree of accuracy, either the civil conftitution 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 fyftem fo univerfally received throughout Europe upwards of twelve centuries ago, that fir Henry Spel. man does not fcruple 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 prefent book, we may have occafion to search pretty highly into the antiquities of our English jurisprudence, yet furely no industrious student will imagine his time mifemployed, when he is led to confider that the obfolete 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 parliaments, 57. (1) An intimate acquaintance with the feudal fyftem is abfolutely neceffary to the attainment of a comprehenfive knowledge of the first principles and progress of our conftitution. And this fubject, in my opinion, might with great propriety have preceded the chapter upon 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 fo many "flowers of antiquity and foreign learning, hath not turned into this field, from whence fo many roots of our law have, of old, "been taken and tranfplanted." Spelm. Orig. of Terms, c, viii. law law, in a scholarlike fcientifical manner, without having recourfe to the antient. Nor will these researches be altogether void of rational entertainment as well as ufe: as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it adminifters both pleasure and inftruction to compare them with the draughts of the fame edifices, in their priftine proportion and splendor. b THE conftitution of feuds had its original from the [ 45 ] 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 justly entitles it, poured themselves in vast quantities into all the regions of Europe, at the declenfion 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 fecure their new acquifitions: 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 fmaller parcels or allotments to the inferior officers and moft deferving foldiers ". Thefe allotments were called feoda, feuds, fiefs, or fees; which laft appellation in the northern languages e fignifies a condi tional ftipend or reward f. Rewards or ftipends they evi b See Spelman of feuds, and Wright of tenures, per tot. c De jure feod. 19, 20. f Pontoppidan in his hiftory of Norway, (page 290) obferves, that in the northern languages odh fignifies proprietas and all totum. Hence he derives the obhal right in those countries; and thence too perhaps is derived the udal right in Finland, &c. (See Mac Doual (2) This is the fame as all-bood in English, and is fuggested as the derivation of allodium in Woll. Religion of Nat. del. p. 136. Dr. Robertfon adopts the derivation of allodium from an and lot, or allotment, the mode of dividing what was not granted as ftipendiary E 3 dently were: and the condition annexed to them was, that the poffeffor fhould do fervice 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 :: and in cafe of the breach of this condition and oath, by not performing the ftipulated service, or by deserting the lord in battle, the lands were again to revert to him who granted them b. ALLOTMENTS, thus acquired, naturally engaged fuch as accepted them to defend them: and, as they all sprang from [46] the fame right of conqueft, no part could fubfift independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each other's poffeffions. But, as that could not effectually be done in a tumultuous irregular way, government, and to that purpose fubordination, was neceffary. 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 fubordinate to, and under the command of, his immediate benefactor or fupe rior; and fo upwards to the prince or general himself: and the feveral lords were also reciprocally bound, in their respec tive gradations, to protect the poffeffions they had given, Thus the feodal connection was established, a proper military subjection was naturally introduced, and an army of feudatories was always ready enlifted, and mutually prepared to mufter, not only in defence of each man's own feveral pro 8. See this oath explained at large in Feud. 1. 2. 1.7. h Feud. 1. 2. 1. 24. diary property; and he relates the memorable ftory of the fierce foldier who refused to grant a facred vafe 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-axe, and declaring "that you should have nothing but that to which the lot "gives you a right!" Hift. of Ch. V, 1 vol. notes 7 & 8. 5 perty, perty, but also in defence of the whole, and of every part of this their newly-acquired country; the prudence of which conftitution was foon fufficiently vifible in the ftrength and fpirit, with which they maintained their conquefts. THE univerfality and early use of this feodal plan, among all those nations, which in complaifance to the Romans we ftill call barbarous, may appear from what is recorded of the Cimbri and Teutones, nations of the fame northern ori. ginal as those whom we have been defcribing, at their firft 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, mani"bus atque armis fuis uteretur." The fenfe of which may be thus rendered; they defired ftipendiary lands (that is, feuds) to be allowed them, to be held by military and other perfonal fervices, whenever their lords fhould call upon them. This was evidently the fame conftitution, that displayed itself more fully about seven hundred years afterwards: when the Salii, Burgundians, and Franks broke in upon Gaul, the Vifigoths on Spain, and the Lombards upon Italy; and introduced [ 47 ] with themselves this northern plan of polity, ferving 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 foldiery, duly stocked with cattle and bondmen, on condition of receiving military fervice from them and their heirs for ever. SCARCE had these northern conquerors eftablished themfelves in their new dominions, when the wisdom of their conftitutions, as well as their perfonal valour, alarmed all the |