By England Howlett.

PRACTICALLY all the landed property in England is, by the policy of our laws, supposed to be granted by, dependent upon, and holden of some superior lord, in consideration of certain services to be rendered to such lord by the possessor of this property, and the terms or manner of their possession is therefore called a tenure. Thus all the land in the kingdom is supposed to be held, mediately or immediately, of the sovereign who is consequently styled the lord or lady paramount.

All tenures being thus derived, or supposed to be derived, from the sovereign, those who held directly under such sovereign, and in right of the crown and dignity, were called tenants in capite, or in chief, which was the most honourable species of tenure, although at the same time it subjected the tenants to far greater and more burthensome services than the inferior tenures did, and this distinction ran through all the different sorts of tenure. William I., and other feudal sovereigns, although they made large and numerous grants of land, always reserved a rent or certain annual payments, which were collected by the sheriffs of the counties in which the lands lay, to show that they still retained the dominium directum in themselves.

With our ancestors the most honourable and highly esteemed species of tenure was that by knight service, and this was purely and entirely a military tenure, being, in fact, the result of the feudal establishment in England. Now to make a tenure by knight service, a determinate quantity of land was necessary, which was called a knight’s fee, feodum militare; the measure of which in 3 Edward I., was estimated at twelve ploughlands, and its value (although it varied with the times) in the reigns of Edward I. and Edward II. was stated at £20 per annum. The knight who held this proportion of land was bound to attend his lord to the wars for forty days in every year, if called upon so to do, which attendance was his rent or service for the land he claimed to hold. If, however, he held only half a knight’s fee, he was only bound to attend his lord twenty days, and so on in proportion. This tenure of knight service drew with it several consequences as inseparably incident to the tenure in chivalry, and one of the most profitable, and, at the same time, arbitrary of these was marriage. This incident called marriage was the right which the lord possessed of disposing of his infant wards in matrimony, at their peril of forfeiting to him, in case of their refusing a suitable match, a sum of money equal to the value of the marriage; that is, what the suitor was willing to pay down to the lord as the price of marrying his ward; and double the market value was to be forfeited, if the ward presumed to marry without the consent of the lord.

The personal attendance rendered necessary by knight service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; first, by sending others in their stead, and then in process of time making a pecuniary satisfaction to the lord in lieu of it. This pecuniary satisfaction at last came to be levied by assessments at so much for every knight’s fee; the first time this appears to have been done was in 5 Henry II., on account of his expedition to Toulouse; but it soon became so universal that personal attendance fell quite into disuse. From this period we find, from our ancient histories, that when the kings went to war, they levied scutages on their tenants, that is, on all the landowners of the Kingdom, to defray their expenses, and to pay for the hire of troops.

These assessments, in the time of Henry II., seem to have been made in a most arbitrary manner, and entirely at the king’s will and pleasure. The prerogative became, indeed, abused to such an extent, that at last it became a matter of national clamour, and King John was obliged to consent by his Magna Carta, that no scutage should be imposed without the consent of Parliament. But this clause was omitted in the Charter of Henry III., where we only find that scutages, or escuage, should be taken as they were used to be taken in the time of Henry II.; that is, in a reasonable and moderate manner. Yet afterwards, by statute 25 Edward I., and many subsequent statutes, it was again provided, that the king should take no aids or tasks but by the common assent of the realm; hence it was held that scutage, or escuage, could not be levied except with the consent of Parliament; such scutages being indeed the groundwork of all succeeding subsidies, and the land tax of later times.

It will easily be seen that with the degenerating of knight service, or personal military duty into a pecuniary assessment, all the advantages were destroyed, and nothing in fact remained but the hardships. Instead of having a national militia, composed of barons, knights, and gentlemen, bound by their interests and their honour to defend the king and country, the whole system of military tenures tended to nothing else but a wretched means of raising money to pay an army of occasional mercenaries. At length the military tenures, with all their heavy appendages were destroyed at one blow by statute, 12 Charles II., C. 24, which enacts “that the courts of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienation, tenures by homage, knight service, and escuage, and also aids for marrying the daughter, or knighting the son, and all tenures of the king in capite, be likewise taken away. And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frank almoign, copyholds, and the honorary services of grand serjeanty.”

Another ancient tenure was that by Grand Serjeanty, whereby the tenant was bound, instead of serving the king generally in the wars, to do some special honorary service for the king in person; as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer at his coronation. Tenure by cornage was a species of grand serjeanty, being a grant of land upon condition that the tenant was to wind a horn when the Scots or other enemies entered the land, in order to warn the king’s subjects.

The tenure of petit serjeanty bears a great resemblance to the tenure of grand serjeanty; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king’s person. Petit serjeanty as defined by Littleton, consists in holding lands of the king, by service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. This, of course, is but socage in effect, for it is no personal service, but a certain rent. The tenure by which the grants to the Duke of Marlborough and the Duke of Wellington, for their great military services to the country, are held, are of this kind, each rendering a small flag or ensign annually, which is deposited in Windsor Castle. Bury House (New Forest), the property of Sir Charles Mill, Bart., is held by the tenure of presenting the king whenever he enters the New Forest with a brace of milk-white greyhounds. A breed of these dogs is preserved by the family in readiness. King George III. received dogs in recognition of this tenure in 1789, and the incident is the subject of one of Lawrence’s pictures.

In Beckwith’s edition of Blount’s “Fragmenta Antiquitatis,” the following tenure is inserted from the “Black Book of Hereford.”—“The tenants at Hampton Bishop, in the county of Hereford, were to get yearly six horse loads of rods or wattels, in the Hay Wood, near Hereford, and bring them to Hereford to make booths (or hurdles to pen sheep in) at the fair when they should be required; and for every load of the said rods they were to be allowed a halfpenny at the fairs.”

This tenure would appear to relate to one particular fair only, and not to all the fairs formerly held at Hereford. The particular fair is supposed to have been the one beginning on May 19th, and commonly called the nine-days’ fair, from the circumstance of its continuing for that length of time. From time immemorial this fair was proclaimed, with certain formalities, by the Bishop of Hereford’s bailiff, or his deputy, the tolls of the fair belonging to one or both of these officers. During the continuance of the fair, the Bishop’s bailiff superseded the Mayor of Hereford as acting magistrate, the fair being held in a street opposite the Bishop’s palace.

Brienston, in Dorsetshire, was held in grand serjeanty by a curious jocular tenure, viz.:—by finding a man to go before the king’s army for forty days when he should make war in Scotland (some records say in Wales) bareheaded and bare-footed, in his shirt, and linen drawers, holding in one hand a bow, and in the other an arrow without feathers.[6]

The Dukes of Athol hold the Blair Athol estate by the tenure of presenting a white rose to the sovereign whenever he visits them there.

Land was frequently held by the tenure of protecting the church property in times of war. Scott tells us how the Bishop of Durham gave lands to the Danish Count, Witikind, to be held by this tenure. The story is not true, but the tenure is;

Broad lands he gave him on Tyne and Wear,

To be held of the Church by bridle and spear;

Part of Monkwearmouth, of Tynedale part,

To better his will and soften his heart.

Harold the Dauntless.

Canto i., IV.

The tenure of ancient demesne exists in those manors, and in those only, which belonged to the crown in the reigns of Edward the Confessor and William the Conqueror, and in Domesday Book are called Terrœ Regis Edwardi. The tenants are freeholders and possessed certain privileges, the chief of which was a right to sue and be sued only in their lord’s court.

Another kind of ancient tenure, still subsisting, is the tenure of frankalmoign, or free alms, and this is the tenure by which the lands of the church are for the most part held. This tenure is expressly excepted from the statute, 12 Charles II., by which the other ancient tenures were destroyed. It has no peculiar incidents, the tenants not being bound even to do fealty to the lords, because, as Littleton says, the prayers and other divine services of the tenants are better for the lords than any doing of fealty. As the church is a body having perpetual existence, there is, moreover, no chance of any escheat. By this tenure almost all the monasteries and religious houses held their lands. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shewn to religion and religious men in ancient times. This too, no doubt, is the reason that tenants in frankalmoign were discharged from all other services except the repairing of highways, building castles, and repelling invasions; just in fact as the Druids, among the Ancient Britons, had similar privileges. The tenure being purely spiritual, the lord had no remedy for neglect by distress or otherwise, but merely a complaint to the ordinary to correct it.

One of the most interesting tenures is that of Borough English. There are a great number of manors throughout the country in which this tenure prevails; they are not however confined to one county or one district. Borough English is the right of succession of the youngest son, instead of the eldest, to real estate in case of intestacy, but the custom is not always the same; it differs in different manors. In some it is confined to the sons only, and if there should be no son the estate is shared equally amongst all the daughters. In other manors, principally Sussex, the youngest daughter inherits. Again, there are cases to be found where if there be no children, the youngest brother inherits, and in others it goes according to the rules of the common law. There are, moreover, places in which the copyhold land only is Borough English, while the freehold is held by the ordinary tenure, and in others the freehold and copyhold alike follow the Borough English custom.

The area over which this Borough English tenure prevails is an exceedingly wide one. It is found in nearly every part of Europe, except perhaps Italy and Spain—in Germany, Hungary, the Ural mountains, and in Asia as far as the borders of China. Many attempts have been made to explain the custom. Littleton suggests that the youngest son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. It is possible the origin may have come to us from the Tartars, amongst whom this custom of descent to the youngest son also prevails. That nation is composed almost entirely of shepherds and herdsmen, and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle, and go to seek a new habitation. And thus we find that, among many other northern nations, it was the custom for all the sons, but one, to migrate from the father, which one became his heir.

The tenure of Gavelkind prevails principally in the County of Kent. It is universally known what struggles the Kentish men made to preserve their ancient liberties, and with how much success those struggles were attended. It seems fair therefore, to conclude that this custom was a part of those liberties, agreeably to the general opinion, that Gavelkind, before the Norman Conquest, was the general custom of the realm. The distinguishing properties of this tenure are various; some of the principal are these: 1. The tenant is of age sufficient to alienate his estate by feoffment at the age of fifteen. 2. There never was any escheat in case of an attainder and execution for felony; their maxim being “the father to the bough, the son to the plough.” 3. In most places, the tenant had the power of devising his lands by will, before the statute for that purpose was made. 4. The lands descend not to the eldest, youngest, or any one son only, but to all the sons together. This last incident is, of course, the most important affecting the tenure, and not only this, but also the most interesting, in that, like Borough English, it prevails to the present day. True it is that certain lands in Kent, once Gavelkind, have been made descendable according to the rules of the common law, by special statutes; however, these statutes only affect a very small portion of the county.

Gavelkind and Borough English, being customs already acknowledged by the law, need not be specially pleaded; it is sufficient to show that the lands are affected and regulated by the same; but all other private customs must be pleaded.

The ancient Barons of Buccleuch, both from feudal splendour and from their frontier situation, retained in their household at Branksome a number of gentlemen of their own name, who held lands from their chief for the military service of watching and guarding his castle.

Nine and twenty knights of fame

Hung their shields in Branksome Hall

Nine and twenty squires of name

Brought them their steeds from bower to stall.

Nine and twenty yeomen tall

Waited duteous on them all.

They were all knights of metal true,

Kinsmen to the bold Buccleuch.

“Lay of the Last Minstrel.”—Scott.

Canto i., III.

I am in the process of publishing my new book series “the non-legal guide”. As directed by my publisher, I started the marketing and pre-selling activities.

Last week, I was asked twice about the contents of the book and “Why do you write about an illegal guide?” As a shocking question, I want to answer, I wrote this blog to describe what is the book about.

A series of contractual relationships between the upper classes, designed to maintain control over land.
Feudalism flourished between the tenth and thirteenth centuries in western Europe. At its core, it was an agreement between a lord and a vassal. A person became a vassal by pledging political allegiance and providing military, political, and financial service to a lord. A lord possessed complete sovereignty over land, or acted in the service of another sovereign, usually a king. If a lord acted in the service of a king, the lord was considered a vassal of the king.
As part of the feudal agreement, the lord promised to protect the vassal and provided the vassal with a plot of land. This land could be passed on to the vassal’s heirs, giving the vassal tenure over the land. The vassal was also vested with the power to lease the land to others for profit, a practice known as subinfeudation. The entire agreement was called a fief, and a lord’s collection of fiefs was called a fiefdom.
The feudal bond was thus a combination of two key elements: fealty, or an oath of allegiance and pledge of service to the lord, and homage, or an Acknowledgment by the lord of the vassal’s tenure. The arrangement was not forced on the vassal; it was profitable for the vassal and made on mutual consent, and it fostered the allegiance necessary for royal control of distant lands.
The bond between a lord and a vassal was made in a ceremony that served to solemnize the fief. The vassal knelt before the lord and placed his hands between those of the lord as a sign of subordination. Immediately afterward, the lord raised the vassal to his feet and kissed him on the mouth to symbolize their social equality. The vassal then recited a predetermined oath of fealty, and the lord conveyed a plot of land to the vassal.
In the seventeenth century, more than three centuries after the death of this particular social practice, English scholars began to use the term feudalism to describe it. The word was derived by English scholars from foedum, the Latin form of fief. The meaning of feudalism has expanded since the seventeenth century, and it now commonly describes servitude and hierarchical oppression. However, feudalism is best understood as an initial stage in a social progression leading to private ownership of land and the creation of different estates, or interests in land.
Before feudalism, the European population consisted only of wealthy nobility and poor peasants. Little incentive existed for personal loyalty to sovereign rulers. Land was owned outright by nobility, and those who held land for lords held it purely at the lords’ will. Nevertheless, the feudal framework was preceded by similar systems, so its exact origin is disputed by scholars. Ancient Romans, and Germanic tribes in the eighth century, gave land to warriors, but unlike land grants under feudalism, these were not hereditary.
In the early ninth century, control of Europe was largely under the rule of one man, Emperor Charlemagne (771–814). After Charlemagne’s death, his descendants warred over land ownership, and Europe fell apart into thousands of seigniories, or kingdoms run by a sovereign lord. Men in the military service of lords began to press for support in the late ninth century, especially in France. Lords acquiesced, realizing the importance of a faithful military.
Military men, or knights, began to receive land, along with peasants for farmwork. Eventually, knights demanded that their estates be hereditary. Other persons in the professional service of royalty also began to demand and receive hereditary fiefs, and thus began the reign of feudalism.
In 1066, William the Conqueror invaded England from France and spread the feudal framework across the land. The feudal relationship between lord and vassal became the linchpin of English society. To become a vassal was no disgrace. Vassals held an overall status superior to that of peasants and were considered equal to lords in social status. They took leadership positions in their locality and also served as advisers for lords in feudal courts.
The price of a vassal’s power was allegiance to the lord, or fealty. Fealty carried with it an obligation of service, the most common form being knight service. A vassal under knight service was obliged to defend the fief from invasion and fight for a specified number of days in an offensive war. In wartime, knight service also called for guard duty at the lord’s castle for a specified period of time. In lieu of military service, some vassals were given socage, or tenure in exchange for the performance of a variety of duties. These duties were usually agricultural, but they could take on other forms, such as personal attendance to the lord. Other vassals were given scutage, in which the vassal agreed to pay money in lieu of military service. Priests received still other forms of tenure in exchange for their religious services.
A lord also enjoyed incidental benefits and rights in connection with a fief. For example, when a vassal died, the lord was entitled to a large sum of money from the vassal’s heirs. If the heir was a minor, the lord could sell or give away custody of the land and enjoy its profits until the heir came of age. A lord also had the right to reject the marriage of an heiress to a fief if he did not want the husband as his vassal. This kind of family involvement by the lord made the feudal relationship intimate and complex.
The relationship between a lord and a vassal depended on mutual respect. If the vassal refused to perform services or somehow impaired the lord’s interests, the lord could file suit against the vassal in feudal court to deprive him of his fief. At the same time, the lord was expected to treat the vassal with dignity, and to refrain from making unjust demands on the vassal. If the lord abused the vassal, the vassal could break faith with the lord and offer his services to another lord, preferably one who could protect the vassal against the wrath of the defied lord.
Predictably, the relationship between lord and vassal became a struggle for a reduction in the services required by the fief. Lords, as vassals of the king, joined their own vassals in revolt against the high cost of the feudal arrangement. In England, this struggle culminated in the Magna Charta, a constitutional document sealed by King John (1199–1216) in 1215 that signaled the beginning of the end for feudalism. The Magna Charta, forced on King John by his lords, contained 38 chapters outlining demands for liberty from the Crown, including limitations on the rights of the Crown over land.
Other circumstances also contributed to the decline of feudalism. As time passed, the power of organized religion increased, and religious leaders pressed for freedom from their service to lords and kings. At the same time, the development of an economic wealth apart from land led to the rise of a bourgeoisie, or middle class. The middle class established independent cities in Europe, which funded their military with taxes, not land-based feudal bonds. Royal sovereigns and cities began to establish parliamentary governments that made laws to replace the various rules attached to the feudal bond, and feudal courts lost jurisdiction to royal or municipal courts. By the fourteenth century, the peculiar arrangement known as feudalism was obsolete.
Feudalism is often confused with manorialism, but the two should be kept separate. Manorialism was another system of land use practiced in medieval Europe. Under it, peasants worked and lived on a lord’s land, called a manor. The peasants could not inherit the land, and the lord owed them nothing beyond protection and maintenance.
Feudalism should also be distinguished from the general brutality and oppression of medieval Europe. The popular understanding of feudalism often equates the bloody conquests of the medieval period (500–1500) with feudalism because feudalism was a predominant social framework for much of the period. However, feudalism was a relatively civil arrangement in an especially vicious time and place in history. The relationship of a vassal to a lord was servile, but it was also based on mutual respect, and feudalism stands as the first systematic, voluntary sale of inheritable land.
The remains of feudalism can be found in contemporary law regarding land. For example, a rental agreement is made between a landlord and a tenant, whose business relationship echoes that of a lord and a vassal. State property taxes on landowners resemble the services required of a vassal, and like the old feudal lords, state governments may take possession of land when a landowner dies with no will or heirs.
Further readings
Amt, Emilie, ed. 2000. Medieval England 1000–1500: A Reader. Orchard Park, N.Y.: Broadview Press.
Boureau, Alain. Lydia G. Cochrane, trans. 1998. The Lord’s First Night: The Myth of the Droit de Cuissage. Chicago: Univ. of Chicago Press.
Chen, Jim, and Edward S. Adams. 1997. “Feudalism Unmodified: Discourses on Farms and Firms.” Drake Law Review 45 (March): 361–433.
Dunbabin, Jean. 2000. France in the Making: 843–1180. Oxford: Oxford Univ. Press.
Ganshof, F.L. 1996. Feudalism. Toronto, Buffalo: Univ. of Toronto Press in Association with the Medieval Academy of America.
Hoyt, Robert S., and Stanley Chodorow. 1976. Europe in the Middle Ages. 3d ed. New York: Harcourt Brace, Jovanovich.
Lazarus, Richard J. 1992. “Debunking Environmental Feudalism: Promoting the Individual through the Collective Pursuit of Environmental Quality.” Iowa Law Review 77.

Laws exist for five basic reasons, and all of them can be abused.

1. The Harm Principle

Laws created under the Harm Principle are written to protect people from being harmed by others. Laws against violent crime and property crime fall into this category. Without basic Harm Principle laws, a society ultimately degenerates into despotism–the rule of the strong and violent over the weak and nonviolent. Harm Principle laws are essential, and every government on Earth has them.

2. The Parental Principle

In addition to laws intended to discourage people from harming each other, some laws are written to prohibit self-harm. Parental Principle laws include compulsory attendance laws for children, laws against neglect of children and vulnerable adults, and laws banning the possession of certain drugs. Some Parental Principle laws are essential to protect children and vulnerable adults, but even in those cases they can be oppressive if they are not narrowly written and sensibly enforced.

3. The Morality Principle

Some laws are based not strictly on harm or self-harm concerns, but also on promoting the personal morality of the law’s authors. These laws are usually, but not always, grounded in religious belief. Historically, most of these laws have something to do with sex–but some European laws against Holocaust denial and other forms of hate speech also appear to be motivated primarily by the Morality

4. The Donation Principle

All governments have laws granting goods or services of some kind to its citizens. When these laws are used to control behavior, however, they can give some people, groups, or organizations unfair advantages over others. Laws promoting specific religious beliefs, for example, are gifts that governments extend to religious groups in hopes of gaining their support. Laws punishing certain corporate practices are sometimes used to reward corporations that are in the government’s good graces, and/or to punish corporations that are not. Some conservatives argue that many social service initiatives are Donation Principle laws intended to buy the support of low-income voters, who tend to vote Democratic.

5. The Statist Principle

The most dangerous laws are those intended to protect the government from harm, or to increase its power for its own sake. Some Statist Principle laws are necessary–laws against treason and espionage, for example, are essential to the stability of government. But Statist Principle laws can also be dangerous–laws restricting criticism of the government, such as flag burning laws that prohibit the desecration of symbols that remind people of the government, can easily lead to a politically oppressive society full of imprisoned dissidents and frightened citizens who are afraid to speak out.

By Cuming Walters.

TO the historian proper feudalism presents a wide subject with diverse points of interest, but its legal aspect is comparatively a small matter, and it can be considered without detailed reference to the whole vast scheme which existed from early German and Gothic times, and overspread the greater part of Europe. It is a common error to suppose that it was introduced into England by the Normans. William the Conqueror only superimposed a French form of feudalism upon that which already existed; and all historians agree that the measures he adopted, the restrictions he made, and the original conditions he established, were evidence of his farseeing genius, and a masterpiece of statecraft. His was a feudalism which, while giving the lords great personal power and influence, retained them still as the servants of the king, and totally prevented them from using their strength against the throne. In this respect the feudal system in England never resembled that of Germany and France, or even that which the Norman barons established in Scotland. The Conqueror had no intention of allowing the owners of territory to supersede his own authority, and to be beyond the sovereign’s control. While, therefore, he allowed them all liberty in dealing with their dependents, he made it impossible for them to defy his own authority, first by distributing their possessions so that they could not have a great army of followers at command, and, secondly, by insisting upon a formal declaration of allegiance from both the barons and their vassals. The former, therefore, were not beyond the law, and the latter had nominally, if not actually, some right of appeal to the monarch. These points it is necessary to bear in mind for a full understanding of legal procedure during the long period feudalism prevailed.

The feudal lord’s claims upon his vassals were numerous. First came his claim to their military service. He could demand from them service as assessors in his courts of various fines and payments and confiscations of land. He could dispose of females in marriage; not infrequently he consigned them to a debased existence. When the tenant was invested with possession of his feud or fief, he paid homage to his lord, that is, he proclaimed himself the “man” to help and to serve his master. Kneeling humbly before the baron, he took oath of fealty, and practically enslaved himself. It was here that King William showed his wisdom by ordaining that the oath of allegiance should be not only to the feudal superior, but to the monarch as the head of all, and thus he secured the ultimate service of all vassals to the crown, and deprived the barons of autocratic power.

The Saxon feudalism had been of the most tyrannical character, the owners of slaves making their own laws, and carrying them out with the utmost barbarism. Records exist which prove that for slight offences mistresses were accustomed to order their servants to be scourged to death, or subjected to fearful tortures. For breaking a dish, or spilling wine from a cup, for example, a servant might have his ears cut off, his nose slit, or suffer the loss of his hand, according to the caprice or fancy of his lord or lady. While murderers and robbers could find sanctuary in the Church, servants had no such refuge. They were torn away from the altar to which they clung in their terror, and none could or would intervene to protect them. According to the decree of King Ethelred, public punishments were to be mild, and death sentences were seldom to be passed; but the sovereign’s wishes had no effect upon the treatment of bondmen. High-born women were as cruel as their husbands, and King Ethelred’s own mother is said to have beaten him so severely when he was a child that he regarded whipping instruments with horror to the end of his life. Flagellation was not recognised as a legal punishment by the Saxons, though a husband might beat his wife and incur no penalty, while the whipping of slaves was accounted no more than the whipping of animals, and perhaps less. For all other classes money-fines were almost the only authorised penalty, a fixed price being set upon persons of different degrees. But the slave had no real value, and hence could be mutilated or killed at the pleasure of his lord.

The ideal of feudalism, never realised in England, was that the king and his tenants-in-chief should hold law-courts, which the tenant or the sub-tenants should be bound to attend to have their cases tried according to statute rules. But the system was only imperfectly carried out, and the fact that the tenant-in-chief, or feudal lord, had the right to levy taxes (called “tallage” or “tailles”) on his vassels, speedily led to all sorts of tyranny and abuse. Still, the feudal courts could not engross the legislation for the excellent reason that the quick-witted Conqueror had preserved the Witanagenot and the courts of the shire and the hundred to check the barons. The latter made a big effort to introduce the Continental system of feudalism, by which each of them would have been supreme in his domain; but the plans were defeated as we have seen. William’s successors were men of a different stamp, and the system proved unworkable in the hands of weaker men. “The prince,” says Hume, “finding that greater opposition was often made to him when he enforced the laws than when he violated them, was apt to render his own will and pleasure the sole rule of government, and on every emergency to consider the power of the persons whom he might offend rather than the rights of those whom he might injure.” The mischievous course pleased none, and the royal prerogative was at last systematically assailed by the barons in the time of John, and the Magna Charta wrestled from him. The concessions then made were of benefit to the barons rather than to the landless and dependent classes, and it remained for the third Edward to diminish their power and increase the liberties of the populace.

Law in England during all this period was chiefly a system of oppression, proceeding stage by stage from the highest to the lowest. The revenues of the crown were obtained by extravagant rents, forfeits, taxes, reliefs, fines, aids, and other devices which show the amazing ingenuity of the extortioners. The result was that most tyrannical exactions were made in turn by the feudal lords, and the dependents groaned for six centuries under these lawless yet legalised oppressions. Personal property was at the mercy of the lords, who adopted the most cruel means to enforce their “rights.” They, in turn, could be the victim of extortions, as was proved in the case of Roger of Dudley, who was summoned to receive the honour of knighthood in 1233. He found the honour so expensive that he declined to appear, whereupon a writ was issued—“Because Roger de Someri, at the feast of Pentecost last last, has not appeared before the King to be girded with the military girdle, the Sheriff of Worcestershire is hereby commanded to seize on the house of Dudley and all other lands of the said Roger within his jurisdiction, for the King’s use; and to keep them with all the cattle found upon them, so that nothing may be moved off without the King’s permission.” The same Roger had a twelve years’ dispute with William de Birmingham touching the service due for the manor of Birmingham, for which the latter was required to perform the service of eight knights’ fees, a half and a fourth part, and also to do suit to the court at Dudley once every three weeks. In such wise did these cheftains rule. Another curious piece of law relating to the Dudley lands is told by Leland:—“The lorde Powis, grauntfather that is now, being in a controversy for asawte made upon hym goying to London by the lord Dudeley, Dudeley castelle condesended by entreaty, that his son and heir should mary the olde lorde of Dudleis’ daughter.” A very amiable method of atoning for personal violence.

The feudal lord had absolute power over his own family, as well as over his dependents, the laws of household government being entirely of his own devising and prompted by his passion, his ignorance, and his wickedness. Robert de Belesme, Earl of Shropshire and of Arundel and Shrewsbury, one of the most powerful and defiant barons of Norman times, tore out the eyes of his own children when they had, in sport, hidden their faces beneath his cloak. He cast his wife in a dungeon, heavily fettered; but every night he sent his servants to drag her to his bed, and in the morning sent her back to her prison. This torture he inflicted upon her to gain money from her family. He disdained to allow his captives in war to be ransomed, but impaled them, men and women, upon stakes. His friends were terrified to approach him, for by way of pleasantry he would engage them in merry chat and suddenly plunge his sword into their sides with a loud laugh. No law could touch this man, and no avenger arose to overcome him. The Warden of the Welsh and English Marches made also his own laws, which were conceived in a spirit of the utmost cruelty. Border foragers, for example, were cast into a dungeon, and subjected to the punishment of having their right hands chopped off with the axe. This prescribed penalty was often aggravated by additional torture or death.

Feudalism was deep-rooted, so deep-rooted that not the enactments of all the Normans and Plantagenets could do more than check its growth and gradually ameliorate its severities. But while some of the old customs were abolished, the bulk of the laws remained based upon the Anglo-Saxon customs, so that as one writer has tersely explained, “the Land Laws and Game Laws are derived from the Normans, the Common Law from the Anglo-Saxons, and almost all our Statute Laws breathe the spirit of pre-Norman England.” To this Macaulay refers with ill-disguised scorn in his History: “Our laws and customs have never been lost in general irreparable ruin. With us the proceedings of the Middle Ages are still valid precedents, and are still cited on the gravest occasions by the most eminent statesmen…. Thus in our country the dearest interests of parties have been staked on the results of the researches of antiquaries.” The historian, however, does admit that there is compensation for the anomalies which result from this polity. “Other societies possess written constitutions more symmetrical. But no other society has yet succeeded in uniting revolution with prescription, progress with stability, the energy of youth with the majesty of immemorial antiquity.” That the spirit of olden feudalism should sometimes be found surviving in modern laws is inevitable. Villenage is extinguished, and yet in the very character of certain classes, as well as in the operation of certain laws affecting lands and personal privileges, we see a direct connection between the submission of the bondman in the past to his hereditary master and the readiness of the poor in the present to yield to one in higher station. What struck the philosophic Emerson most, on his visit to England, was that Englishmen should maintain their old customs, repeat the ceremonies of the eleventh century, and consider in so many things that “antiquity of usage is sanction enough.” “The Middle Ages,” he said, “still lurk in the streets of London.”

The stocks and the whipping-post, which stood in front of every castle, were the commonest instruments in use for the punishment of the ceorl and villein who displeased their masters. For the ceorl, who could not quit the land on which he was born, or free himself from slavery, life was particularly hard. He could not absolve himself by money payments, like the rest of his fellow-men, if once he gave offence; while the majority could rob and murder and escape with a fine, the ceorl’s slightest defect, real or imagined, was punished with merciless rigour. Tithings and the process of compurgation came to the assistance of other criminals, but the ceorl could appeal to none, and expect neither pity nor aid. Such facts give point to Emerson’s dictum that “Castles are proud things, but ’tis safest to be outside them.” The villein was in a much happier state than the ceorl. He was free against everybody except his lord, and the criminal code accorded him the same privileges as a free man. The lord was even liable to punishment for killing or mutilating his villein, and the Mirror of Justice in the thirteenth century laid down the fact that “the villein is no serf in any sense of the word; he is a free man; his land is a free tenure.” But all this is largely comparative, and our estimate of the advantages enjoyed by the villein must depend upon whether we view it by the standards of the time, or by modern standards. At all events, while the ceorl tasted all the bitterness of his serfdom, the adjudged felon in other stations was able to obtain much leniency. The common form of oath or abjuration in King Edward’s time was this: “This heare, thou Sir Coroner, that I am a robber and a murderer, and a fellow of our Lord the King of England; and because I have done many such evils in his lande I do abjure the lande of our Lord Edward, and I shall haste me towards the port of ——, which thou hast given me, and that I shall not goe out of the highway, and if I doe, I will that I be taken as a robber and a felon. And that at such a place I will diligentlie seeke for passage, and I will tarrie there but one ebbe and flood, if I can have passage; and unlesse I can have it in such a place I will goe every day into the sea up to my knees, assaying to pass over; and unlesse I can do this within fortie days I will put myselfe again into the Church as a robber and a felon, so God me helpe and his holy judgment.” But King Richard showed no disposition to put so much trust in the honour of these gentry, and when setting out for Palestine, he made a law against peculating sailors, which was calculated to dismay them: “Whosoever is convicted of theft shall have his head shaved, melted pitch poured upon it, and the feathers from a pillow shaken over it, that he may be known; and shall be put on shore on the first land which the ship touches.” This punishment reminds us of a modern American institution.

The law of “Englishry” deserves a passing note. It dates back to the time of Canute, and was continued by the Normans. When Canute sent away the greater portion of his Danish troops, “the Witan pledged themselves that the rest should be safe in life and limb, and that any Englishman who killed any of them should suffer punishment. If the murderer could not be discovered, the township or hundred was fined.” The proud and tyrannical Normans used this law to their own advantage. A mere Englishman being a vassal, and of no importance, could be killed with impunity, but it was ordained that when a man was found killed, and evidence was not brought to prove that he was English, he should be held to be a Frenchman, so that a penalty could be imposed upon the township. This law of “Englishry” is often illustrated in old chronicles. Men were found murdered by the roadside, on heaths, and in woods; the chronicles state that “no Englishry was proved,” and the towns were accordingly amerced. The “Frankpledge” was not so feudal in character, though it was based upon the principle that “every landless man shall have a lord who shall answer for his appearance in the courts of law.” The custom prevailed before the Conquest, ten men forming a “tithing,” the members of which were answerable each for others. The present Court Leet is a survival of the system, though in a very modified form.

The feudalism which the Norman barons imposed upon Scotland, and which was unchecked by King William, so that it reproduced all the evils of the ferocious Continental system, was marked by terrible excesses. No institution was more shameful and abhorrent, or so vividly reveals the baseness to which unrestricted feudalism sank, than the horrible depravity of maiden-rights, or droits de seigneur. Beaumont and Fletcher founded upon the historic incidents their drama of “The Custom of the Country,” and though a few mild attempts have been made to throw doubt upon the facts, there is no question that these domestic tyrannies spread rapidly from Scotland to France and Germany, and took numerous odious forms. Isaac Disraeli, in his “Curiosities,” devotes a chapter to the subject, which can scarcely be dealt with in detail in a work appealing to the general reader. The shameful institution was abolished by Malcolm III., who, however, put the matter upon a business basis by ordering that it should be redeemed by a quit-rent. But the lord still considered himself privileged to manifest his authority over his vassals by thrusting his booted leg into the bed of a newly-married couple, or by sousing the bridegroom in a river. The wardships enjoyed by the feudal lords were equally absurd, one of their favourite methods of raising money being to arrange an unsuitable marriage, and on the refusal of the persons to carry out the contract, to claim the revenue of the wards’ estate as “forfeit.” The feudal lord could sell his vassals as he did his animals, and they were often bartered away with fields and houses. The value of a serf was roughly apprised as four times that of an ox, and he could also be used as “live money.”

Mr. Ruskin, in his third letter in “Fors Clavigera,” gives an account of the laws promulgated by King Richard, Cœur de Lion, whom he declared to be the truest representative of the British “Squire,” under all the significances of that name. The ideal lord was an admixture of the patriarch and the tyrant, and if we examine Richard’s legislation, and endeavour to recognise the objects he had in view, we see that with a considerable amount of selfishness he also possessed a real wish to add to the welfare of his people. He simplified and adjusted the weights and measures of the country to put an end to cheating, and he took severe measures “to prevent the extortions of the Jews.” If the people would be honest, he was quite willing to do the fighting for them; if they made good cloth, he was ready to see that they got good pay; and when they bought and sold, he was determined that each should give the other good measure. But with much power comes caprice, and the feudal lords too soon forgot the interests of their dependents in serving their own ends. The English barons never made the formal claim of the German barons to rob on the highways in their own territories, though, without asserting the right, they frequently performed the act. A case in point is that of William de Birmingham, who so late as the sixteenth century went out with a hundred men to molest and rob travellers on foot. The ordinary laws were unequal to calling them to account for these misdeeds; nothing but conquest by battle could have checked them. Besides, there were Lord Palatines whose rule in their own domains was equal to that of the sovereigns, and they could make or abrogate laws at will. These kings in petto appointed their own judges and courts, could reverse sentences, pardon at will for any crime, and indict at pleasure. Offences committed in the County Palatine were said to be “against the peace” of the lord, and not against the peace of the king, and it was with a rod of iron that these despots governed the territory allotted to them. Still there was a show of legality in this. It differed from the wanton caprice of Geoffrey of Coventry, who oppressed the inhabitants, was amenable to no law for so doing, but consented to remit the burdensome taxes if his wife would ride naked through the streets. As a specimen of the barbarous humour of these lords, the Godiva story is instructive.

At the end of King Stephen’s troublous reign, there were eleven hundred and fifteen castles in England, each of them a centre of power, at that particular time almost absolute. The wise provisions of the Conqueror had to some extent been overcome, and the feudal lords had become so unmanageable that Henry II. found himself compelled to stipulate for the destruction of a number of the strongholds. At the same time he prevented the erection of others except by royal licence, and so began to limit the oppression which had prevailed. We find, too, that in consequence of the frequent over-riding of the common law by men in authority, the monarch reserved to himself more and more of sovereign power, “by which,” says Sir Robert Filmer in his famous “Patriarcha”—answered by John Locke in the still more famous treatises on Civil Government—“he did supply the want or correct the rigour of the common law, because the positive law, being grounded upon that which happens for the most part, cannot forsee every particular which time and experience bring forth. Already sundry things do fall out,” he continues later, “both in war and peace, that require extraordinary help … so that rare matters do grow up meet to be referred to the absolute authority of the prince.” We find such a case in the time of Richard II., when, on a question of freehold, the appeal went direct to the king because “of maintenance, oppression, or other outrages the common law cannot have duly her course.”

How the lords could avoid and defy the common law is proved by two curious instances in the history of the Dudleys, the family previously referred to. Lord Edward Dudley, in 1592, had a dispute with the neighbouring Lyttelton family, and raising some 150 persons, he went one night and stole all the cattle on the latter’s estate. Lyttelton obtained judgment against Dudley, who was ordered to return the cattle, but he posted his servants at the gates, and bade them cut the bailiffs to pieces. Lyttelton then armed sixty men and took the cattle back by force; Dudley armed 700 men to fetch them back and kill them. For this offence the nobleman and eighty followers were indicted, but by one means and another the proceedings were made to last four years, and then an agreement was entered into by the parties. Lord Edward’s son, Ferdinando, was the hero of the next exploit. He purchased the property of an oppressed widow, named Martha Grovenor, for £1200, but only paid £100. She sued him in the Exchequer for the remainder, and obtained judgment for the balance. No notice was taken of this. The following year the widow obtained a second decree, and this again was ignored. His lordship was next called upon for costs, and this led him to make an effort to compromise the matter. He entered into an agreement to pay all arrears and costs, but, having done so much, refused to fulfil his obligations. An execution of ejectment was then levied against his lordship. This he avoided for nine years, and it was only twelve years after negotiations had begun that the widow was able to obtain her dues.

A very brief glance at Continental feudalism and its influence upon statute law may now be given. It enables us to mark some of the differences between the English and the foreign systems, the one with its restrictions and the other all-powerful. In the eleventh century, all France and the German Empire were one vast feudal possession. The powers of the lords have been classed by the historian Hallam as follows—First, the right of coining money; second, that of waging private war; third, exemption from all public tributes except the feudal aids; fourth, freedom from legislative control; and fifth, the exclusive exercise of original judicature in their dominions. It is easy to perceive how, with these initial powers conceded, the seigneurs were enabled to make themselves the veritable masters of the kingdom. In Germany the lawlessness of the barons became as proverbial as did their cruelty towards their slaves. The whole country was divided up into territories over which the feudal chiefs reigned as absolute and despotic kings. Nor is the spirit of feudalism in that country yet extinct, for, unlike France, it has not had its bloody revolt against “aristocrats.” No one can have travelled in Germany and seen the castle towering high on crag or rock, and the diminutive houses scattered about its base, without realising at a glance how the chieftains and their serfs lived in the old days. In Germany the feudal system was seen at its strongest and its worst, and law was paralysed while the men of lust and blood were supreme in their own dominions. Austria has a similar story to tell of barbarity towards serfs, and the abrogation of law by powerful chieftains. But it is remarkable that in Russia, where the feudal spirit still most strongly survives, and is marked by many excesses utterly repugnant to the feeling and customs of the times, the earliest attempts to establish a feudal system were quelled by the princes. In this land, where a mistress might, until recently, have her maid whipped to death for dropping a teacup, or for any other trivial offence, real or imagined, where again it was taken for granted that

“A Count carbonadoes

His ignorant serfs with the knout,”

feudalism, once instituted, deepened its hold with the progress of years. While there was no law for the lower classes, save that dictated by the caprice of their masters, there were special exemptions and priveleges for the noble and wealthy. The Russian lords pay no taxes, and they retain, in almost undiminished force, that power to abuse, insult, and destroy the peasantry which was possessed by the ancienne noblesse of France before the Revolution. Mr. Morley Roberts, in one of his Russian historical sketches, relates that not long ago a noble threw a Hebrew into a dungeon for an offence, and a week later asked his jäger what had become of him. “Oh,” said the fellow with a laugh, “he made so much noise that I shot him.”

The state of Bohemia from the ninth to the fourteenth century shows to what deplorable depths a race may sink under an unrestrained and licentious feudalism. The Bohemian nobles practically abolished the marriage laws, and in addition to oppressing their dependents, frequently sold them into slavery. When St. Adalbert endeavoured to effect a reformation, he found every impediment put in his way, and his wishes openly defied. He had a horror of bloodshed, and preached the hatefulness of murder. By way of response, a man, whose wife had been put in a nunnery to save her from his brutality, was dragged out and butchered in the streets. Adalbert had to wait long before he could influence these men who, secure in their castles, could indulge their rapacity without fear of punishment. Reforms, effected in the tenth century, however, were not permanent, and in the twelfth century the nobles had succeeded in converting the local assembly, with its power of appointing judges, to their own uses. Mr. Edmund Maurice, in his history of Bohemia, relates that the nobles began to secure the judgeships for themselves, and then sold or bequeathed the offices to heirs. They thus made the appointments a means of tyranny and a source of profit, and with the money acquired purchased the lands of freemen. Others, owing to the unpopularity of the local tribunals, strengthened the power of their own feudal courts, and again reduced their dependents to abject slavery.

“The coolness,” says Mr. Maurice, “with which many of the grants of land transferred workmen of various kinds as mere appendages of fields and fishponds, is in itself a proof of the degraded position to which the peasant class had been reduced; and the fact that military service seemed one of the few means of escaping from serfdom, led the peasants to favour those wars which in the end increased their misery.” Eventually King Wenceslas, famed in ballad, and still more famed in Bohemian history, came to the rescue, and ordained “that no baron or noble of the land shall have power in the city of Brünn, or shall do any violence in it, or shall detain anyone, without the license and proclamation of the judge of the city.”

The wide survey we have taken enables a fair estimate to be made of the state of the law in Europe when the castle was the court of justice, and the baron was the judge. England alone of all Europeon countries seems to have been able to place a check upon the more flagrant abuses, and in later times of reform to have succeeded, while abolishing what was essentially evil in the system, in retaining whatever of it was of worth. Whether there be still laws too deeply impressed with feudal ideas for modern acceptance is a question for legislators to consider.