that independent species of property, before described, which had originally become vested by allotment in the conquerors of the country. There began thus to arise two distinct modes of holding or possessing land. The stipendiary held of (that is, in relation to and dependence upon) a superior; the allodialist held of no one, but enjoyed his land as free and independent property; the first of these methods applying exclusively to royal domains granted out in the manner we have described, the other to such land as had been allotted to the troops on the original conquest, or to land never appropriated by the barbarians, but left in the possession of the antient owners; for the holding of this was of the same independent character, and received the same appellation of allodium.

The interest of the stipendiary or beneficiary tenant did not originally extend beyond his own life, if it was not even determinable at the royal pleasure; but in course of time it gradually improved in stability, and acquired an hereditary character, which led by a natural progress to the practice of subinfeudation; for the stipendiary, (or feudatory, as he should now rather be termed,) considering himself as substantially the owner, began to imitate the example of his sovereign, by carving out portions of the benefice or feud, to be held of himself by some other person, on terms and conditions similar to those of the original grant; and a continued chain of successive dependencies was thus established, connecting each stipendiary, or vassal as he was termed (i), with his immediate superior or lord.

The beneficiary or feudal relation was well suited to those times of violence and insecurity, and was found by experience to be attended with great advantage both to the lord and the vassal: to the former, as it secured to him a band of military retainers, attached by duty and by

(i) From gwas, a Celtic word for a servant.-Hallam's Middle Ages, p. 155, 7th ed.

sentiment to his person; and to the latter, as it brought them into close connection with a powerful superior, under whom they found that shelter from oppression, which the law was then too weak to afford. The effect of this, as regarded the allodial species of property, was remarkable : the allodialist, though enjoying a nominal independence, found himself exposed to all the evils and dangers attendant on a state of civil confusion, and began to contemplate with envy the comparative security of the feudal vassal: he was therefore gradually induced to place himself under the same relation, by changing the nature of his property from allodial to feudal; in order to effect which, he gave up or surrendered his land to some powerful lord, and received it back again from him in the shape of a beneficium or feud, to be held upon some kind of service: or, instead of resorting to this formal transaction, he would in other cases merely acknowledge himself to hold as a vassal to some chosen lord, under specified services, as if by the effect of a former grant, which had, in truth, never taken place. In one or other of these methods, allodial lands were gradually changed into feudal, in every part of the continent where the feudal system had been introduced; and this conversion became, in some countries, almost universal; though, in others, there were many estates which always continued to be held allodially (k).

Such, according to the best informed and most discriminating writers on the subject (1), is the true history of the origin and establishment of the feudal system; by which we may perceive that it was not, according to the theory adopted by Blackstone (m), an invention of government applied systematically by the barbarous tribes to the management of the conquered countries, with a view to

(k) See Co. Litt. by Harg. 65 a, n. (1).

(1) See particularly Robertson's Charles V. vol. i. n. (8); and Hal

lam's Middle Ages, vol. i. p. 142323, 7th edit.

(m) 2 Bl. Com. pp. 45, 46.

security from foreign invasion or domestic insurrection; but rather a conventional arrangement of property, established by gradual usage among the new dynasties, and brought into general acceptance by its tendency to aggrandize powerful lords, and to protect persons of inferior rank from the inconveniences of civil disorder. It seems probable, however, that the principle of the beneficium, or of that contract by which the temporary use of land was bestowed on the one hand, as the stipend for military service to be performed on the other, had been known to the barbarians in their native countries, and before their invasion of the Roman provinces; and some authority for the supposition seems to be supplied by the passage which Blackstone cites from Florus, relative to the demand which the Cimbri and Teutones are recorded to have made of the Roman people, about a century before the Christian era:—“ Ut martius populus aliquid sibi terræ daret, quasi stipendium; cæterum, ut vellet, manibus atque armis suis uteretur" (n).

[The feud was conferred by words of gratuitous and pure donation, dedi et concessi,] which would still be the operative words in a modern infeudation or deed of feoffment in the English law. [This was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vassals; which perpetuated among them the era of the new acquisition, at a time when the art of writing was very little known, and therefore the evidence of property was reposed in the memory of the neighbourhood; who, in case of a disputed title, were afterwards called upon to decide the difference, not only according to external proofs adduced by the parties litigant, but also by the internal testimony of their own private knowledge.

Besides an oath of fealty, or profession of faith to the lord, which was the parent of our oath of allegiance, the vassal or tenant, upon investiture, did usually homage to (n) 2 Bl. Com. p. 46.

[his lord; openly and humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the lord, who sat before him, and there professing that he did become his man, from that day forth, of life and limb and earthly honour;" and then he received a kiss from his lord (o). Which ceremony was denominated homagium, or manhood, by the feudists, from the stated form of words, devenio vester homo (p).]

Besides the fealty and homage, the relation of lord and vassal was ordinarily attended with the following feudal incidents (q):—1. Aid, which was originally a mere benevolence granted by the vassal to his lord in time of difficulty and distress (r); but in process of time came to be considered as a matter of right. 2. Relief, which was a tribute paid to the lord for taking up the estate which was lapsed or fallen in by the death of the last tenant for while the feuds were not properly hereditary, but granted by favour of the lord only to the children of the former possessor, the heir [used generally to pay a fine or acknowledgment to the lord, in horses, arms, money or the like, for such renewal of the feud; which was called a relief, because, in the words of the feudal writers, “incertam et caducam hereditatem relevant."] And this relief was afterwards, when the feuds became absolutely hereditary, continued on the death of the tenant, though the original reason of it had ceased to apply. 3. Fine on alienation, being a sum of money paid to the lord by the

tenant whenever he had occasion to make over his land to another. This depended on the nature of the feudal connection; [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,] without the lord's consent. [And, as the feudal 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 seigniory or protection, without consent of his vassal, than the vassal could his feud without consent of his lord (s); it being equally unreasonable that the lord should extend his protection to a person to whom he had exceptions, and that the vassal should owe subjection to a superior not of his own choosing.] 4. Escheat (t) and forfeiture (u), being two different modes by which the relation between the lord and vassal might be dissolved. The first was where the tenant in possession of a feud not granted for life only, but transmissible by hereditary descent, died without leaving any heir behind him upon whom, according to the terms of the original grant, the feud could any longer descend; in which case it reverted to the lord, that is, the gift, being determined, resulted back to the giver. The second case (that of forfeiture) occurred where the tenant committed some act in violation of his duty towards his lord, such as rendered him unfit to be longer trusted as a vassal; the effect of which was that his interest in the feud became forfeited, and returned to the lord, as for a breach of that condition of fidelity on which the grant was made (x).

Feuds, as we have seen, did not originally extend beyond the life of the first vassal, but in process of time they were universally extended [to his sons, or perhaps to such

(s) Wright's Tenures, 30.

(t) As to escheat, see further post, bk. 11. pt. 1. c. XII.

(u) As to forfeiture, see further

post, bk. II. pt. 1. c. XIV.

(x) Wright's Tenures, 44.