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. (6) And, as the feodal obligation was looked upon as reciprocal, the feudatory being entitled to the lord's protection, in return for his own fealty and service; therefore, the lord could no more transfer his seignory 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 vasal 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, soon 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 original 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 [58] obligations of fealty, to do suit of court, to answer the stipulated renders or rent-service, and to promote the welfare of their immediate superiors or lords. But this at the same time demolished the antient simplicity of feuds; and an inroad

(6) When a feud had descended on any one, the restraint on alienation went a step farther, and he was not allowed to alien without the consent of the next collateral heir; for though the law trusted an ancestor with the interest of his own immediate descendants, yet it would not allow him to prejudice the distinct, though remote, interest in the donation which the next collateral heir had. Wright on Tenures, 167.

being once made upon their constitution, it subjected them in a course of time, to great varieties and innovations. Feuds began to be bought and sold, and deviations were made from 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; such, 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 licence; 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 respects 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 bewildered philosophy in the mazes of metaphysical jargon, began also to exert its influence on this copious and fruitful subject: in pursuance of which, the most refined and oppressive consequences were drawn from what originally was a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection 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. (7)

Feud. 2. t. 7.

(7) Upon the subject of the feudal system, its rise and decline, its spirit, and the comparative evils and benefits of which it was the cause, I cannot do better than refer the reader to Mr. Hallam's masterly disquisition. Mid. Ages, ch. 8. part 2.

CHAPTER THE FIFTH.

OF THE ANTIENT ENGLISH TENURES.

IN

N this chapter we shall take a short view of the antient 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 easily 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 holden of, some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore stiled a tenement, the possessors thereof tenants, and the manner of their possession 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 also 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 mesne, 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 [60] 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 Sir Edward Coke', in the law of England, we have not properly allodium; which, we have seen, is the name by which the feudists 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, those 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. This distinction ran through all the different sorts of tenure, of which I now proceed to give an account.

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I. THERE seem to have subsisted 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 uncertain. Free services were such as were not unbecoming the character of a soldier or a freeman to perform; as to serve 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

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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.

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FROM the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England till the middle of last century: and three of which subsist 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 modern; of which the following is the outline or abstract. "Tenements are of "two kinds, frank-tenement and villenage. And, of frank"tenements, some are held freely in consideration of homage "and knight-service; others in free socage with the service "of fealty only." And again", "of villenages some are pure, and others privileged. He that holds in pure ville"nage shall do whatever is commanded him, and always be "bound to an uncertain service. The other kind of vil"lenage is called villein-socage; and these villein socmen 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 chivalry, per ser[ 62 ] vitium militare, or by knight-service. Secondly, where the

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service was not only free but also certain, as by fealty only, by rent and fealty, &c. that tenure was called liberum socagium, or free socage. These were the only free holdings or tenements; the others were villenous or servile, as thirdly, where the service was base in its nature, and uncertain as to time

el. 4. tr. 1. c. 28.

privilegiatum.

Qui tenet in puro villef Tenementorum aliud liberum, aliud nagio faciet quicquid ei praeceptum villenagium. Item, liberorum aliud te- fuerit, et semper tenebitur ad incerta. netur libere pro homagio et servitio mili- Aliud genus villenagii dicitur villanum tari; aliud in libero socagio cum fideli- socagium; et hujusmodi villani socmanni tate tantum. § 1. -villana faciunt servitia, sed certa, et Villenagiorum aliud purum, aliud determinata, § 5.