History.

II. Aids were Incidents to which the possession of a Fief rendered the Vassal always liable; but even before II. Reliefs. he could enter upon its inheritance, he was compelled to make a pecuniary payment to the Lord of another kind, under the name of a Relief. Of the origin of a custom which early became universal, opposite explanations have been given. While Benefices were being rendered hereditary only by the slow sanction of time, and by long succession from father to son, it might be natural for the heir on the death of his parent, to obtain the formal confirmation of the Lord in his estate by a pecuniary offering; and the practice, so profitable to Sovereigns, might be continued from long usage, and by the rapacity of Feudal superiors, even after the absolute recognition of hereditary right in Fiefs made it no longer necessary for the security of a doubtful title.* Or, instead of having been first employed to legitimize the seizure by the heir of lands which should in strict ness have reverted to the Lord; Reliefs may, on the contrary, have been introduced, after Fiefs had become hereditary, by the injustice and violence of Feudal Sovereigns, who would avail themselves of the death of a Vassal to despoil his helpless son of a free inheritance, and deny him possession of his Lands until he had reheved them, as it was termed, or taken them up anew by a pecuniary composition.† But, whatever was the origin of Reliefs, they were universally established before the maturity of Feudalism; and the uncertainty of their amount was rendered one of the most grievous Incidents of that Polity. Where, as in France and other Countries, the demand was arbitrary at the will of the Sovereign, it was known as a Relief à mercy, and contra-distinguished from a reasonable Relief, which it was the object of Vassals to fix at a certain rate. This in England was at length defined by the Great Charter at one hundred pounds for an Earldom, as many marks for an inferior Barony, as many shillings for a Knight's fee, and for smaller Sub-infeudations in proportions regulated by ancient custom. These rates have been estimated at about a fourth of the annual value of each Fief: but in France an old customary law gave the whole fruits of the first year to the Lord; and an Ordinance of Louis IX. in conformity, as it should seem, with this provision, asserted the right of the Lord, in default of payment by the Vassal, to enter on possession of the Fief for the same period.‡

1. Fines

III. Of the same nature with Reliefs, but far less Aliena questionable in their original right and the general equity of their principle, were the Fines paid by the Feudal Vassal to his immediate Lord, on every alienation of a Fief. The justice of the demand is obvious: for, as the Fief was granted only upon the condition of personal service, the Vassal was not at liberty either to abdicate or transfer his duties to another; and his Fief became forfeited, when he failed to perform the service, in re* Du Cange, v. Relevare Feudum.

Such is the hypothesis of Mr. Hallam, Middle Ages, vol. i. p. 181. But the opinion of Du Cange on the origin of Reliefs, seems, on the whole, in better agreement with the history of Benefices, and their gradual assumption of a strictly hereditary character. The argument adduced by Mr. Hallam, from the fact that a large proportion of Fiefs had been absolute Alodial inheritances never really granted by the superior, possesses no great weight: because, from whatever source Reliefs were introduced, such tenures in be coming Feudal would equally fall under the usual obligations of the general System; and all its Incidents were as foreign as Reliefs to the primitive nature of Alodial property.

Etablissemens de St. Louis, c. 60. Du Cange, vv. Relevium,

Rachetum.

VOL. XI.

spect of which he held it. In fact, the Feudal compact The Feudal was one of such strict mutual and personal obligation, System. that it could not be dissolved on either side without consent of the other. The Fief by such dissolution lapsing to the Lord, he had a right, before he granted a new investiture of it, to claim any share that he pleased of the price which his Vassal received for alienating it to a purchaser. The amount of Fines in such cases seems to have varied in different Countries; being often arbitrary, sometimes fixed by a law or custom, sometimes regulated even prospectively in particular Fiefs by special terms of investiture. Thus, in one private French Charter of the XIIth Century, it is provided, that whenever the Feudatories desire to alienate their lands by sale, the Lord should have a denarius for every solidus, or a twelfth of the purchase-money.* Of the conditions under which alienation of Fiefs might take place in England, our knowledge is very uncertain; until a famous Statute of Edward I. fixed the amount of Fine upon which a Vassal might alienate, or sell his lands, at one-third of their annual value.†

IV. The principle which required a fine upon every IV. Esalienation of a Fief with consent of a Lord, was ex- cheats. tended with equal justice to a total relapse, or Escheat as it was called, of the estate to the Superior, when the contract had ended by the failure of lineal heirs. For, as the original grant had been limited to one man and his descendants, it was of course determined and ended by the extinction of such posterity; and in this case the Fief reverted to the representative of the original donor. By parity of reasoning, the violation of the original compact, by the treason of the Vassal, produced also an Escheat through forfeiture; and advantage was taken of this conclusion to deduce a second, that the guilt of the traitor attainted or corrupted the blood of his children, and incapacitated his descendants from succession to the Fief. This cruel law of Attainder afforded a ready pretext, and a vicious temptation, in times of violence, for tyrannical Princes to multiply Escheats; and thus a principle, originally just, and founded on the very nature and condition of Feudal grants, was converted into an engine of iniquitous proscription.

Besides these four Incidents which were common to Further InFeudalism in every Kingdom where it prevailed, there cidents nearly pecu were three others peculiar to England, or at least pre- liar to Engvalent to the same degree in no other State than Nor- land. mandy, which are equally deserving of notice to the British Student, as illustrating the aspect of the System in his own Country. These were the rights or usurpations of Primer-Seisin, of Wardship, and of Maritage. All these in England were grievous sources of extortion out of Feudal inheritances, discovered or enlarged by our Norman Princes, for indulging their rapacity at the expense of their Vassals. The first was derived from V. Primerthe same claim as that of Relief. At the death of a Seisin. Vassal, the Sovereign took possession of his lands under pretext of keeping out intruders until the heir should appear for investiture; and during this interval, which was construed by a fiction of fraud to extend to a whole year, he seized the profits of the land. In other words, then, Primer-Seisin, which was confined to the case of lands held immediately of the Crown, was nothing else than the appropriation to the Sovereign of the first fruits,

* Du Cange, v. Accaptare.

+ Blackstone, Commentaries, vol. ii. c. 5.

Libri Feudorum, ii. tit. 86. Blackstone, ub: supra.

History, or a year's value of the Fief, over and above the Relief demanded on investiture.*

VI. Ward ship,

and VIL Maritage

This exaction was confined to England; but the next in our enumeration, the right of Wardship, though no where else so perverted, was not unknown in other Feudal Kingdoms.† Indeed, the claim of the Lord during the minority of a Vassal to have the charge of his Fief, and even the guardianship of his person, does not seem unreasonable: since, while the heir, by reason of infancy, was unable to do Feudal service in person, no one had such a fair interest as the superior to provide a substitute for its performance out of the profits of the estate; or to see that his young Vassal was properly educated for the future discharge of the martial duties which he was bound to render. But, in England, the right of Wardship was shamefully abused by the Crown; and the guardianship of infants in chivalry, as it was called, was often deputed to rapacious favourites, unconnected with the heir by any ties of nature, who, without restraint, or liability to be called to account, enjoyed the fruits, and spoliated the property of his Fief.

The extension of the right of Wardship to the disposal of the heir or heiress in marriage, formed a yet more iniquitous usurpation. In all Feudal Countries, indeed, the consent of the Lord to the marriage of a female Vassal was requisite; and this was only in conformity to the general spirit of the System: since, as a lady was incapable of discharging Feudal services herself, the superior had a right to see that the husband of her choice was competent to perform them for her, and still more that she did not marry one of his enemies. In the Latin Kingdom of Jerusalem, the same circumstances of the exposure of that State to perpetual attacks, which compelled the rigorous enforcement of Feudal law in other respects, produced in this instance a very remarkable extension of the Lord's authority. He could call equally upon the young heiress of a Fief, or the widow of its last possessor, to choose for her husband one out of any three persons whom he should please, provided only that they were her equals in birth; and no reason was allowed to justify the lady in refusing this selection, except she could urge that she was above sixty years of age in which case only it was gravely admitted by the Feudal legislators, that it might be "contrary to God and to reason to oblige her to take a husband against her will." If, on any other score, the lady refused to accept one of the presented suitors, or if she married otherwise without consent of the Lord, her lands escheated to him: but, on the other hand, if the Lord omitted to exercise his right, it was hers to require him to produce three eligible suitors; and if he still demurred, she was free to marry without his consent. In England, without the same urgent plea of public necessity, the right of interference claimed by the Crown was carried to a far more tyrannical and outrageous extent: for Royal wards, as well male as female, were absolutely sold in marriage; or compelled, if they refused the tendered consort, to forfeit to their guardian, whether the King or an inferior Lord, the price which would have been obtained by the bargain.*

* Blackstone, ubi suprà.

+ Du Cange, v, Custodia Pupillorum. Blackstone, ubi suprà.

**

§ Assises de Jérusalem, c. 180. Etablissemens de St. Louis, c. 63. Du Cange, vy. Disparagare, Maritagium.

Bracton, 1. ii. c. 37.

Assises de Jérusalem, c. 224, &c. **Blackstone, vol. ii. c. 5. p. 70, 71.

of these

This enumeration of the degree to which three Feudal The Feudal Incidents were perverted under our English tenures, System, may convey some idea of the intolerable grievances and Intolerable burthens of the System as it existed in this Country. Nor were its abuses lessened in the general decline of grievance Feudalism; for the oppression of families by the Royal Incidents in usurpation of Wardships in chivalry, was never more England. ruinous than in the last stages of Feudal tenures under the Tudors and Stuarts.* In summing up the practical effects of the whole System, it is impossible to offer a more lively sketch than in the eloquent language of a great legal authority. "The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by way of relief and primer seisin; and if under age, of the whole of his estate during infancy. And then, as Sir Thomas Smith very feelingly complains, when he came to his own, after he was out of wardship, his woods decayed, houses fallen down, stock wasted and gone, lands let forth and ploughed to be barren;' to reduce him still further, he was yet to pay half a year's profits as a fine for suing out his livery; and also the price or value of his marriage, if he refused such a wife as his Lord or guardian had bartered for, and imposed upon him; or twice that value if he married another woman. Add to this, the untimely and expensive honour of knighthood, to make his poverty more completely splendid. And when by these deductions his fortune was so shattered and ruined, that perhaps he was obliged to sell his patrimony, he had not even that poor privilege allowed him without paying an exorbitant fine for a licence of alienation.Ӡ

Having described the Incidents justly enjoyed, or RIGHTS of tyrannically usurped by Feudal Sovereigns, we have Vassalage, next to notice the Privileges which, on the other hand, through a similar admixture of right and violence, were asserted and obtained by their Vassals. Of such pretensions, it may in general terms be observed, that they stood highest at the outset in France, and subsequently in Germany; and were always lowest in England. The most important of these Privileges of Vassalage were, the rights of coining Money, of waging Private Wars, of exemption from all other pecuniary burthens than the regular Feudal Aids, and of Territorial Jurisdiction.

I. At what epoch before the complete establishment I. Coina of Feudalism, the privilege of coining Money was usurped by the Provincial Governors in the Carlovingian Empire, it is here not material to inquire: it may suffice to mention, that the practice was sufficiently ancient to have produced a prohibition by Charlemagne against its continuance. If thereby suppressed for a time, it revived during the feeble reigns of his successors; and before the end of the Xth Century, it is asserted, that in France alone, the privilege of coining Money without the Royal mark, and with no other stamp than their own, was assumed by no less than one hundred and fifty Feudatories of all ranks.§ In the same Kingdom, even so late as the middle of the XIIIth Century, the right, now become prescriptive, was still maintained by about half that number of Nobles; and though, as the Kings increased their authority, efforts were successfully made to abridge the privilege into the issuing of copper money only, yet some of the great Feudatories continued to coin their own gold and silver until their Fiefs suc

*Hallam, vol. i. p. 191.

+ Blackstone, vol. ii. c. 2. p. 76,

Baluzii, Cap. Car. Mag. s. D. 808. c. 7.

§ Du Cange, v. Moneta.

History. cessively lapsed to the Crown. In Germany, the growing independence of the Imperial Vassals extended this, with other rights, in the same ratio in which they were narrowed in France: but in England, though the Barons might sometimes avail themselves, as during the Civil wars in Stephen's reign,* of the suspension of regular government to usurp the lucrative functions of the Royal mint, yet their right to coin their own Money was never recognised, and the practice seldom attempted. This, like all other restrictions upon the power of the great English Vassals, was an effect of the more vigorous and jealous authority possessed by our Norman Princes than by the contemporary Feudal Sovereigns of the Continent. For the Baronial privilege of coining in other States not only intrenched upon the proper prerogative of the Throne, and naturally wounded the pride of Monarchs, but it likewise deprived them of the profits of the exorbitant seigniorages as well as of the scandalous debasements, which in those Ages were levied and practised on the coinage of the precious metals, equally by Paramount Sovereigns and Feudatories.†

II. Private War.

Its extent.

Throughout the Countries which had composed the Carlovingian Empire, no Feudal right was better or more universally established and exercised, than the deplorable and fatal custom of Private War. It is not necessary, as some Writers have done, to revert to the Age of Tacitus for the remote origin among the ancient Germans of a practice, the immediate cause and systematic commencement of which are sufficiently to be found in the anarchy of the IXth and Xth Centuries. During the abeyance of all regal or national authority, the great Feudatories were, in fact, in the condition of foreign enemies towards each other; they were without any superior and common jurisdiction to which, even if they had been so inclined, they might appeal for the redress of injuries; and the power of the sword alone remained to decide their quarrels. Their example was naturally followed by their Sub-vassals; and the face of Continental Europe was continually wasted with the ravages of internal hostility. In England alone, of all Feudal Countries, this scourge was little felt; and though it would be inaccurate to say that the practice of Private Wars was unknown under our Norman Kings, yet the right of waging these feuds was never recognised; and on the contrary, their occurrence was denounced and sometimes punished as an offence against the King's peace that is to say, against the supreme authority and dignity of the Crown.

By the Feudal customs of the Continent, the right of Private War was extended and confined to all persons of noble quality; or in other words, to all possessors of Fiefs on Knightly tenure. But they must also be equals in the scale of Infeudation with their adversaries; nor was it every civil cause of offence which justified an appeal to arms, but such deadly injuries only as are usually deemed capital crimes in modern jurisprudence, or such outrageous insults as no gentleman might endure.§ When the war was once commenced, it might be legally espoused by the relations of both bellige rents, and it was even incumbent on them in some cases to give aid in the quarrel, under pain of forfeiting the claims and inheritance of kindred. Still more were

exercise.

the Vassals of each combatant involved in the contest: The Feudal since, by the very essence of the Feudal obligations, System. they were bound to defend and assist their Lords.* The means by which a custom so pernicious to the Attempts to good order and improvement, and so contrary to the repress its first principles of Civil Society, was finally abrogated, belong for the greatest part to a later period than that before us: but some of the attempts earliest made to restrain its exercise, deserve notice here. The most famous of these was the TRUCE OF GOD, to which we Truce of have before alluded:† a pious fraud of the French God. Church in the beginning of the XIth Century, by which, under a pretended revelation, men were forbidden to assail their adversaries during any of the Holy Festivals; and also during the interval between every Wednesday Evening and Monday Morning, as embracing those days of the week which had been sanctified by the Passion and Resurrection of the Redeemer. At first the Truce of God, extending from France, was adopted throughout Europe, and tolerably well observed: but notwithstanding the laudable anxiety of the Church, and repeated decrees of Popes and Councils to enforce its salutary provisions, they appear in the sequel to have been little regarded. The gradual interposition of Royal authority was necessary to restrain, and finally to extinguish, the sanguinary feuds which the voice of Religion had vainly striven to mitigate; and the first step in this wholesome exercise of power, in France at least, may be dated from an ordinance of Louis IX., by which that benevolent Prince forbade, under penalty of treason, the commencement of any Private War until forty days after the commission of the crime or offence which had originated the quarrel. The opportunities of accommodation between hostile parties given by this edict, which was known under the name of the King's Peace, or Royal Truce, appear to have contributed essentially to diminish the number and frequency of the French Private Wars; and the endeavours of St. Louis being followed up by Philip the Fair, and successfully completed by Charles VI. and Louis XI., led soon after the middle of the XVth Century, to the total abolition of the practice. In Spain and in Germany, as we shall hereafter observe, it continued nearly fifty years later.

III. Exemption from all other pecuniary burthens III. Exemp than the Feudal Aids was a condition naturally implied tion from in the granting of a Fief; and this right, though it general eventually became a partial and odious immunity of the taxation, Aristocratic Order, was in its origin, while national taxation was unknown, founded on reason and justice. For, the special services and aids due by the Feudal tenant were recognised by the compact between him and his Sovereign, as a sufficient return for the beneficiary use of his Fief. Even the rights of toll, custom, and other local exactions from the commonalty within the limits of Fiefs, were not possessed by the Sovereign Paramount, but by each immediate Feudatory; and the degrees through which the power of general taxation passed to the Crown are foreign to the Polity and History of Feudalism.