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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 ?, 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 from his posterity who were presumed to inherit his valour, to others who might prove less able. And, as the feodal obligation was looked upon as reciprocal, the feudatory being intitled to the lord's protection, in return for his own fealty and service; therefore the lord could no more transfer his feignory or protection without consent of his vasal, than the vasal could his feud without consent of his lord": it being equally unreasonable, that the lord should extend his protection to a person to whom he had exceptions, and that the vafal 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; which were 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, foon 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 ori. ginal of rents. And by these means the feodal 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 stipu
lated renders or rent-service, and to promote the welfare of 158)
their immediate superiors or lords s. But this at the same time
* IL 2. 30.
& Itid. 20.
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 comprized all such as do not fall within the other description: fuch, for instance, as were originally bartered and sold to the feudatory for a price ; such as were held upon base or less honourable 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 refpects follow the nature of an original, genuine, and proper feud.
But as soon as the feodal 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 subtilty of scholastic disquisitions, and be wildered philosophy in the mazes of metaphysical jargon, began also to exert it's influence on this copious and fruitful subject : in pursuance of which, the most refined and oppreffive consequences were drawn from what originally was a plan of fimplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual prote&tion and defence. 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 Feud. 2. 6. 70
CẢAPTER THE FIFTH.
OF THE ANTIENT ENGLISH TENURES.
IN this chapter we shall take a short view of the antient
I tenures of our English estates, or the manner in which lands, tenements, and hereditaments might have been holden; as the same stood in force, till the middle of the last century. In which we shall casily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other; being fruits of, and deduced from, the feodal policy
ALMOST all the real property of this kingdom is by the policy of our laws supposed to be granted by, dependent upon, and holilen of some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or pofleffor of this property. The thing holden is therefore stiled a tenement, the poffeflors thereof tenants, and the manner of their poífellion a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king, who is stiled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became allo lords with respect to those inferior persons, as · they were still tenants with respect to the king; and, thus partaking of a middle nature, were called me ne, or middle, lords. So that if the king granted a manor to A, and he granted a portion of the land to B, now B was said to hold
of A, and A of the king; or in other words, B held his lands immediately of A, but mediately of the king. The king therefore was stiled lord paramount; A was both tenant and lord, or was a mesne lord; and B was called tenant paravail, or the lowest tenant; being he who was supposed to make avail, or profit, of the landa. In this manner are all the lands of the kingdom holden, which are in the hands of subjects: for according to fir Edward Coke", in the law of England we have not properly allodium ; which, we have seen, is the name by which the feudifts abroad distinguish such estates of the subject, as are not holden of any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the feodal nature.
All tenures being thus derived, or supposed to be derived, from the king, thofe that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the most honourable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures did 4. This distinction ran through all the different sorts of tenure ; of which I now proceed to give an account.
1. There seem to have sublisted among our ancestors four principal species of lay tenures, to which all others may be reduced : the grand criteria of which were the natures of the several services or renders, that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services ; in respect of their quantity and the time of exacting them, were either certain or uncer. tain. Free services were such as were not unbecoming the character of a soldier, or a freeman to perform ; as to serve
* 2 Inst. 296. b; Inft. I.
pag. 47 d In the Germanic conftitution, the dectors, the bidops, the fecular prin.
ces, the imperial cities, &c. which hold directly from the emperor, are called the immediate states of the empire; all other land holders being denominated mediare ones. Mod. Un. Hift. xlii. 61.
under his lord in the wars, to pay a sum of money, and the like. Base services were such as were fit only for peasants, or persons of a servile rank; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies: as, to do military service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm ; which are free services : or to do whatever the lord should command; which is a base or villein service.
From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England, till the middle of the last century; and three of which subhit to this day. Of these Bracton (who wrote under Henry the third) seems to give the clearest and most compendious account, of any author antient or moderno; of which the following is the outline or abstract f. « Tene~ ments are of two kinds, frank-tenement, and villenage. « And, of frank-tenements, some are held freely in con“ fideration of homage and knight-service ; others in free“ focage with the service of fealty only.” And again , “ of « villenages some are pure, and others privileged. He that “ holds in pure villenage shall do whatsoever is commanded “ him, and always be bound to an uncertain service. The « other kind of villenage is called villein focage ; and these « villein-focmen do villein services, but such as are certain « and determined.” Of which the sense seems to be as follows: first, where the service was free but uncertain, as military service with homage, that tenure was called the tenure in el. 4. tr. 1. c. 28.
privilegiarum. Qui tenet in puro villeraf Ti nemertcrum aliud liberum, aliud go faciet quicquid ei praeceptum fuerit, et vi!!cnagism. Trom, liberorum aliud tene- femper tenebitur ad incerla. Aliud genus ar lib re pro bomagio et servitio militari; villenagii dicitur villanum. socagium; et aliud in libero focagio cum fidelitate tan. kujufmodi villani fominni-villana fatui, 5 I.
ciunt fervitia, sed certa et determinata. . Vidinagiorum aliud purum, aliud $5.