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§ 333. Its origin and nature. While it is not intended, nor is it necessary here, to give a minute account of the feudal system of England, some acquaintance with its principal features is requisite to an understanding of the subject of estates in land. The germs of a feudal system existed among the Romans, but in its entireness it never subsisted anywhere before it arose in the middle ages in those parts of Europe in which the Germanic nations settled themselves after the subversion of the Roman empire. The essential character of the estate denominated "feud," or "fief" was that from the first and always it continued to be not an estate of absolute ownership. The property, the ownership remained in the grantor, the grantee was a mere tenant. Originally, these "fiefs" were resumable at the pleasure of the grantor, which made the tenure precarious and kept the tenant in a state of timorous vassalage. To incur the displeasure of his chief or grantor meant expulsion from his estate. The grantor was known as the suzerain or lord, and the grantee as vassal or tenant. Subsequently, the relation of lord and tenant was ameliorated, first by giving the tenure a fixed duration for a term of years. Later still, the relation and tenure became permanent, the

vassal taking an oath of fealty to his lord, in which he bound himself to render fixed services, in return for which he was to have his lands, so long as the service was rendered. The obligation was mutual and an attempt of the lord to dispossess a tenant, who was faithful, was looked upon as an act of injustice. These fiefs were then extended to life tenures. Then they be

came descendible to the eldest son, and afterwards to the collateral lines, and still later they became inheritable by females. When fiefs first became hereditary is a matter of dispute with historians, but in all the changes in the system the relation of lord and tenant survived, the ultimate property was still in the lord. Even after fiefs became descendible, the new occupant was required to make a new oath of fealty and acknowledge his vassalage, and thus obtain, in form at least, a new grant from his lord, and he was bound to the same service which was the consideration for the first grant. In case of the extinction of the descendible line, or where the fief was lost or forfeited by the crime of the vassal, it escheated to the lord. At first it was only sovereign princes who granted fiefs, but when they became hereditary and fixed, the vassal himself would grant portions of his fief to others, and thus there grew up the practice of subinfeudation.

§ 334. Allodial estates.-Fiefs were not the only sort of land tenures in the ancient Germanic provinces. Some lands were allodial, that is they were held by absolute and independent title, and the holder owing no fealty to an overlord was free from the exactions and burdens to which the holder of a fief was subject. But this freedom from vassalage had its disadvantages. If the holder by such a tenure owed no fealty, he did not enjoy the protection of a superior, which was due to a vassal

who held a fief. Wars were frequent among the feudal lords, and these allodial proprietors were often the victims of oppression. They were without organization, had no superior, and were at the mercy of their more powerful neighbors. This led to a surrender of their tenures to the lords, to whom they made their oath and fealty and secured protection. This absorption of the allodial lands was general in Italy, France, Germany and England. William, the Norman, had witnessed in France the evil effects of the divided allegiance of the people. The vassal's first and paramount allegiance was to his lord, and in cases of conflict with his king, the vassal was true to his immediate protector. After the conquest, William imposed new conditions upon those to whom he gave the lands of England. The vassal took a double oath, first to the king and under him to the lord. So that Coke could say, in writing of English tenures, that "All the lands and tenements in England, in the hands of subjects, are holden mediately or immediately of the king; for in the law of England we have not, properly, allodium."

§ 335. Wardship and marriage. Some of the incidents of the system, as it existed in some parts of Germany and France and in England, bore with oppressive weight upon the vassals. These were the incidents of ·wardship and marriage. The lord was guardian of the person and estate of the infant tenant during minority, and the profits accruing there from added greatly to the lord's revenues. So, before a female ward became of age, the lord claimed and asserted the right of tendering her a husband. If she rejected the offer she forfeited the value of the marriage, that is, as much as any one would give to the lord for permission to marry her. This right

was extended to male and female heirs, and also to widows.

§ 336. Local courts.-The grant of land as a fief was usually accompanied by a grant of jurisdiction, under which local courts were established, in which legal controversies arising among the subjects living within the bounds of the manor were adjudicated. These manorial courts founded by the Normans exist under different names in England.

§ 337. Homage and fealty.-Primarily, the feudal tenure was based upon the obligation or duty of the vassal to render military service to his lord. When the fief was granted, the vassal made homage to his lord in this fashion: "He shall be ungirt, and his head uncovered, and his lord shall sit, and the tenant shall kneel before him on both his knees, and hold his hands jointly together between the hands of his lord and shall say thus: 'I become your man from this day forward of life and limb, and of earthly worship, and unto you shall be true and faithful, and bear to you faith for the tenements that I claim to hold of you, saving the faith that I owe unto our sovereign lord the king;' and then the lord so sitting shall kiss him." The obligation of homage, says Fleta, is mutual, binding the lord to protection of the vassal, as well as the vassal to fidelity. Homage was done without an oath, but when a freeholder did fealty to his lord it was required that, "he shall hold his right hand upon a book, and shall say thus: 'Know ye this, my lord, that I shall be faithful and true unto you, and faith to you shall bear for the lands which I claim to hold of you, and that I shall lawfully do to you the customs and services which I ought to do, at the terms assigned, so help me God and His saints,' and he

shall kiss the book. But he shall not kneel when he maketh his fealty, nor shall make such humble reverence as is aforesaid in homage."

§ 338. Military service.-The extent of military service due to the lord from his tenant or vassal was indeterminate at first, but afterwards, as the vassal became more independent, it was fixed by usage or custom at forty days on every occasion in which his lord required his services. Women and the clergy were obliged to send substitutes. Certain public officers were wholly exempt from personal military service. The other duties of the vassal, as Mr. Hallam gives them, were as follows: "It was a breach of faith to divulge the lord's counsel, to conceal from him the machinations of others, to injure his person or fortune, or to violate the sanctity of his roof and the honor of his family. In battle he was bound to lend his horse to his lord, when dismounted; to adhere to his side while fighting, and to go into captivity as a hostage for him when taken. His attendance was due at the lord's courts, sometimes to witness and sometimes to bear a part in the administration of justice."

§ 339. Other obligations of the tenant.-We have mentioned wardship and marriage as two of the incidents of the relation of lord and tenant which were a source of pecuniary profit to the lord. His revenues were replenished by other means. Every new entrant upon a fief paid a sum of money which was called a "relief.” When a tenant left no heir or forfeited his estate for crime, it escheated to the lord. When a tenant sold any part of his fief, a fine was paid for the permission to sell, and finally there were sums paid for various "aids," -to ransom the lord when a prisoner, to make his eldest son a knight, to marry the lord's eldest daughter by giv

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