FEUDAL LAW is that system of Gothic jurisprudence which reached its full maturity during the middle ages, and which long continued to regulate the tenure of real property in the principal countries of Europe. The relations of lord and vassal have undergone very essential changes, the knight no longer holds his estate on the condition of military service, and most of the feudal incidents have been gradually superseded as unsuitable to the spirit of modern times; but this law has left many deep traces behind it, and is so closely interwoven with our national institutions, that it could not without great difficulty be entirely disentangled. Where the substance has almost totally vanished, the form is in some instances not very advantageously retained.Of the word feudal many different etymologies have been proposed. According to Somner, who treads in the steps of Selden and Spelman, feud is a German compound, which consists of fell, feo, or feoh, signifying a salary, stipend, or wages, and of hade, head, or hode, signifying quality, kind, or nature; so that, in its primary acceptation, fcudum, or land held in :ee, was such as was held in fee-hode, by contraction feud or feod ; that is, in a stipendary way, with the acknowledgment of a superior, and a condition of returning some service for it, on the withdrawing of which, the land was revertible to the superior.^[1. Somner’s Treatise of Gavelkind, p. 106. Lond. 1660, 4to. ] Sir Martin Wright has remarked that “this etymon not only suggests the most probable account of the word, but gives us the clearest description of the thing itself.”^[2. Wright’s Introduction to the Law of Tenures, p. 4. ]

The origin of the feudal system is a question which has been long and much agitated, and different authors have arrived at very different conclusions. “It has puzzled the learned,” says Dr Stuart, “to discover the nation of the barbarians which first gave a beginning to fiefs. No inquiry could be more frivolous. In all of them they must have appeared about the same period; and they prevailed in all of them in consequence of the similarity of their situation on their conquests, and in consequence of their being governed by the same customs. It is not therefore to the principle of imitation that their universality is to be ascribed.”^[3. Stuart’s View of Society in Europe, p. 218. Edinb. 1778, 4to. ] But the most comprehensive and the most decided opinion is that of Mr Pinkerton, who avers that “the feudal system, about which so much noise is made, is the natural fruit of conquest, and is as old in the world as conquest. A territory is acquired, and the state, or the general, bestows it on the leaders and soldiers, on condition of military service, and of tokens acknowledging gratitude to the donors. It was known in the Greek heroic ages. It was known to Lycurgus, for all the lands of Sparta were held on military tenure. It was known to Romulus, when he regulated Rome. It was known to Augustus, when he gave lands to his veterans, on condition that their sons should, at fifteen years of age, do military service. The reason it did not preponderate and corrupt in Greece and Rome was, that it was stifled by the necessary effects of cities, as above mentioned. In Persia, where there were no cities of any power or privilege, it preponderated and corrupted at an early period. The feudal system, whether in its original democracy, or corrupted into aristocracy, must limit the power of kings; for men who hold their possessions on military service, must of course have arms in their hands: and even in absolute governments the soldiers are free, witness the praetorian bands and armies of imperial Rome, and the Turkish janisaries. By the feudal system every man held arms and freedom in his hands. Montesquieu has begun his account of the feudal system with that of the ancient Germans, given by Tacitus,^[4. Montesquieu de l’Esprit des Lois, liv. xxx. chap. ii. seq Dr Stuart commences his researches from the same point. “In the manners of the ancient Germans,” he remarks, “I have found the source and spirit of the feudal law.” See likewise the elaborate work of Meyer, Esprit, Origine et Progrès des Institutions Judiciaires des principaux Pavs de l’Europe, torn. i. p. 4. Haye, 1819-23. 6 tom. 8vo. ] and prides himself in leaving off where others began. A writer more profound would leave off where Montesquieu begins.”^[5. Pinkerton’s Dissertation on the Origin and Progress of the Scythians or Goths, p. 139. Lond. 1787, 8vo. ] This last sentence may be considered as a modest attempt at impressing the reader with an opinion that Pinkerton is a writer more profound than Montesquieu; but, without acquiescing in all his notions, we may at least admit that of the feudal system many authors have taken a view much too narrow and limited. The peculiar relation of lord and vassal, of territorial grants and the tenure of military service, is doubtless to be traced in very remote ages and countries. All the feudal incidents it may often be difficult to detect; but wherever we find portions of land granted to military vassals under the condition, express or implied, of following the standard of their lord, we there find the most essential characters of the feudal system. The order of chivalry may not be found completely engrafted: there may be no denomination equivalent to that of knight, and such incidents as those of relief, aids, and wardships, may be wanting; but instead of a faint analogy, there may still be a very close resemblance between one system and another.
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“It has been very common,” says Mr Hallam, “to seek for the origin of feuds, or at least for analogies to them, in the history of various countries. But, though it is of great importance to trace the similarity of customs in different parts of the world, because it guides us to the discovery of general theorems as to human society, yet we should be on our guard against seeming analogies, which vanish away when they are closely observed. It is easy to find partial resemblances to the feudal system. The relation of patron and client in the Roman republic is not unlike that of lord and vassal, in respect of mutual fidelity; but it was not founded on the tenure of land nor military service. The veteran soldiers, and, in later times, some barbarian allies of the emperors, received lands upon condition of public defence; but they were bound not to an ^ individual lord, but to the state. Such a resemblance to fiefs may be found in the zemindaries of Hindostan, and the timariots of Turkey. The clans of the Highlanders^[6. “They are at present,” says I)r Smollett, “as free and independent of their chiefs as the law can make them; but the original attachment still remains, and is founded on something prior to the feudal system, about which the writers of this age have made such a pother, as if it was a new discovery, like the Copernican system. Every peculiarity of policy, custom, and even temperament, is affectedly traced to this origin, as if the feudal constitution had not been common to almost all the nations of Europe. For my part, I expect to see the use of trunk-hose and buttered ale ascribed to the influence of the feudal system.” ∙ (Miscellaneous TV orks, v ol. vi. p. 275.) ] and Irish followed their chieftan into the field; but their tie was that of imagined kindred and respect for birth, not the spontaneous compact of vassalage. Much less can we extend the name of feud, though it is sometimes strangely misapplied, to the polity of Poland and Russia.^[7. With respect to the state of vassalage in those two countries, consult Mr Coxe’s Travels into Poland, Russia, Sweden, and Denmark, vol. i. p. U8. 137. vol. ii. p. 93. 110. Lond. 1784, 2 vols. 4to. ] All the Polish nobles were equal in rights, and independent of each other; all who were less than noble, were in servitude. No government can be more opposite to the long gradations and mutual duties of the feudal system.”^[8. Hallam’s View of the State of Europe during the Middle Ages, vol. i. p. 200. sec. edit. Lond. 1819, 3 vols. 8vo.. ]

Macieiowski, a learned civilian of our own age, discovers manifest vestiges of the feudal system among the ancient inhabitants of Tuscany.^[9. Macieiowski Historia Juris Romani, p. 36. edit. sec. Varsaviae, 1825, 8vo. “Antiquitus non videntur pertinuisse ŭàpopulum nisi patricii, moribus Etruscorum id ita serentibus; apud quos minime totus populus libertate gavisus est, sed jus, quod dicitur feudale, ibi valuit.” ] To the ancient relation of patron and client, the origin of feudal tenures was traced by Budaeus, one of the first lawyers in modern times who applied a very ample store of classical erudition to the illustration of Roman jurisprudence.^[10. Budaei Annotationes in Pandectas, p. 359. edit. Paris. 1535, fol. ... ] The same opinion was adopted by Zasius, but it has deservedly been rejected by most of the subsequent commentators; nor is it easy to acquiesce in the speculation of Connanus, who deduces the principles of this law from the fraternities of Soldurii among the ancient Gauls.^[11. Connani Commentariorum Juris Civilis torn. i. f. 119. Paris. 1553, 2 tom. fol.—See Caesar de Bello .Galhco, lib. 111. cap. xxιι. andGebaveri Vestigia Juris Germanici antiquissima in C. Cornelii Taciti Germania obvia, p. 148. Gottingae, 17θ6, 8vo. ] The assignment of lands by the Roman emperors makes a nearer approach to the proper point. After Augustus had supplanted his rivals, he parcelled certain lands in Italy among his veteran soldiers; and to the classical reader it is well known that, upon this occasion, Virgil, was deprived of his little patrimony. The example was followed by other emperors. Alexander Severus allotted to officers and soldiers various lands which had been acquired on the frontiers, and which were to descend to their heirs on the condition of performing military service. This was a plan for securing a permanent guard in the outposts of the empire; and, as Taurellus and Gothofredus have remarked, it bears some resemblance to the feudal system;^[12. Taurelli de Militiis ex casu, ad Ant. Augustinum Epistola, p. 83. Gothofredus ad Cod. Theodos, lib. vu. tit. xv. p. 305. “Quae pleraque ad fetidorum naturam proxime accedunt,” says this most able commentator. Haloander supposes feuds to be mentioned in the Novels under the name of milïtìoe. “Animus erat in finem adjicere Feudorum Consuetudines, quas veteres appellare solebant jura militiarum, et Imp. nominat <rτ i a.τι ia . s ." See his dedication prefixed to NoveUarum Constitutionum Dr Justιmam l’rm. ' l P⅛ qu cc exstant, et ut exstant, Volumen.” Norembergae, 1531, fol. This opinion has however been refuted by different writers. , Militiae enim,” says Contins, “fuerunt officia certa ministris magistratuum assignata, quse pecunia vendi poterant, et ideo in com-cercio erant, ut fuit officium apparitorum. Apparet ergo multum differre militiam a feudo. Nam militia est j>A personae; ieuιlum m rebus immobilibus et quasi in possessione consistit.” (Fornerii et Contii Tractatus de leudis, p. 8 . covarci ,, , ·) ] but Hotman has very clearly pointed out the distinction between these military retainers and the feudal vassals.^[13. Hotomani Disputatio de Feudis, p. 10. Lugduni, 1573, fol. ]

Sir Thomas Craig has not overlooked the strong resemblance between the feudal tenures and the Turkish timars.^[14. Cragii Jus Feudale, p. 27∙ edit. Baillie. Edinb. 1732, fol. ] “The Spahyes,” says Dr Thomas Smith, “are another great support of the Turkish empire; soldiers who are obliged to serve on horseback by the tenure of the lands (timars) and estates they are possest of; these being not only the reward of their sweat and blood, but ties and obligations to further service in the field upon the first summons; each bringing so many horses with him according to the value of what he holds, which is the reason they do not receive an asper of pay out of the Grand Signior’s exchequer, and are therefore known by the name of Timar-Spahyes, or Feudatory, to distinguish then from other Spahyes who live in the cities, and have not obtained a piece of land.”^[15. Smith’s Remarks upon the Manners, Religion, and Government of the Turks, p. 133. Lond∙ 1 7 , ''θ∙ ] A more recent author represents this military establishment as still unchanged. “These,” says Dr Walsh, “are a kind of feudal cavalry, possessing hereditary lands, on the tenure of appearing in the field when called on. If they have no male children, the lands devolve to the commander, who assigns them to others on the same terms, and so the corps is kept up. It consists of sixteen legions; who are perhaps the best mountain horsemen in the world.”^[16. Walsh’s Narrative of a Journey from Constantinople to England, p. 186. Lond. 1828, 8vo. ] Major Denham discovered traces of the same system at Bornou in the interior of Africa. “The feudal law,” as he informs us, “exists here in full force; and a man unwilling to serve, provides one or more substitutes, according to his means.”^[17. Denham’s Narrative of Travels and Discoveries in Northern and Central Africa, p. 150. Loud, lö-o, 4to. ] Here however we have but an inadequate representation of the feudal system. In the centre of India, this system is to be found in a more complicated and perfect form. Of its present character and condition in Rajasthan, some very curious and interesting details have been furnished by Lieut. Col. Tod, who supposes Asia to have been the cradle of feudalism. “The perfection of the system in England,” he remarks, “is due to the Normans, who brought it from Scandinavia, whither it was probably conveyed by Odin and the Sacasenae, or by anterior migrations, [7:9:524]from Asia; which would coincide with Richardson’s hypothesis, who contends that it was introduced from Tartary. Although speculative reasoning forms no part of my plan, yet when I observe analogy on the subject in the customs of the ancient German tribes, the Franks, or Gothic races, I shall venture to note them. Of one thing there is no doubt—knowledge must have accompanied the tide of migration from the east: and from higher Asia emerged the Asi, the Catti, and the Cimbric Lombard, who spread the system in Scandinavia, Friesland, and Italy.”^[18. Tod’s Annals and Antiquities of Rajasthan, or the Central and Western Rajpoot States of India, vol. i. p. 132. Lond. 1829-32, 2 vols. 4to. ] Nor was this system confined to the continental part of Asia: Molina informs us that it prevailed to a great extent in the island of Japan.^[19. “Illud obiter dixcrim, apud Japonenses nil videri esse rrequentius quam feuda. Cum enim bellis perpetuo in ea ingenti insula principes inter se contendant, antiquo inter eos more, quae unusquisque bello obtinet, continuo dividit inter suos duces, et alios quos diligit, cum onere sibi serviendi in bello, et alia onera praestandi; mutatque dominos de uno loco in alium, auferendo ab eis quae possidebant, et alia eis largiendo. Majores autem diuastae sub supremo aliquo principe ita constituti, divisa habent loca, qn>bus dominantur, in alios sibi inferiores, cum eisdem oneribus sibi inserviendi in bello et praestandi alia realia onera, et illi in alios, quousque devenitur ad infimos tonos, quos ipsi vocant, qui similiter dominantur unusquisque in suo oppido, et simili fere lege, ut vassalli ipsum comitentur in bellum, et servitia alia realia praestent. Mores tamen et usus feudorum. non iidem, sed diversi in aliquibus sunt apud ipsos ab iis qui in Germania, Gallia, et Italia vigent.” (Molina de Justitia et Jure, tom. ii. coi. 1062. edit. Mogunt. 1659, 6 tom. fol.) ] That the germ of the feudal system first appeared in Asia, is at least highly probable. Its earliest traces have been discovered among the Gothic tribes of Europe. Successive swarms of Goths moved towards the north-western parts of the old world; and when they had subdued many different nations, it may be presumed that they settled the conquered provinces according to some general plan which they had learned in the east. Of the Asiatic tribes it is one great characteristic to adhere, from one century to another, to the customs of their ancestors. This remark is signally verified in the history of the Chinese and Hindus; and it seems applicable to all the other tribes of men who inhabit that quarter of the globe.

Of the early progress of the feudal system, so able a delineation has been given by Dr Stuart, that we are here tempted to introduce a long extract from his work. Having quoted a passage from Tacitus,^[20. Tacitus de Moribus Germanorum, cap-xxvi. ] he proceeds with the subsequent commentary. “This passage abounds in instruction the most important. It informs us that the German had no private property in land, and that it was his tribe which allowed him annually for his support a proportion of territory; that the property of the land was invested in the tribe, and that the lands dealt out to individuals returned to the public, after they had reaped the fruits of them; that, to be entitled to a partition of land from his nation was the distinction of a citizen; and that, in consequence of this partition, he became bound to attend to its defence, and to its glory. With these ideas, and with this practice, the Germans made conquests. In conformity therefore with their ancient manners, when a settlement was made in a province of the empire, the property of the land belonged to the victorious nation, and the brave laid claim to their possessions. A tract of ground was marked out for the sovereign; and, to the inferior orders of men, divisions corresponding to their importance were allotted. But while, in their original seats, such partitions were annual, it was expedient that they should now be invested in the possessor. A more enlarged idea of property had been gradually unfolding itself; and though it was convenient to, and suited the views of a narrow community, t 0 take back its land, the measure was not practicable in an extensive society. Nations were no longer to shift their habitations. The boundaries of particular states were to be respected. The tribe ceasing to wander, the individual was also to be stationary. The lot or partition now received by him, was to continue in his possession, and to be an object of his industry. He was to take root, if I may so speak, in a particular spot. He was to bestow on it his affection; it was to feed and to enrich him with its produce. His family was to feel an interest in his estate; his sons were to succeed him. Heirs were to fail in the blood of the proprietor. It affected him, that the crown or a stranger should possess the subject of his toils and attentions. The powers of sale and donation came to be understood. The right of holding a landed territory with no limitation, and of disposing of it at pleasure, was known and prevailed.... When we mount up to the origin of customs, we are to be struck with their simplicity. The lot or partition to the sovereign was to constitute his domains. It was to support his splendour, to defray the expenses of government, and to maintain his household. The lot or partition to the individual was to give rise to allodiality. It was the land which was free, in contradistinction to tenure; and, being still the mark of a citizen, it subjected him as in Germany, to the general obligation of taking arms in defence of the community.^[21. “I he allodial lands,” as Dr Stuart remarks, “were enjoyed in full property, and are therefore opposed to feudal or beneficiary possessions, which were received with limitations, and under the burden of military service to the grantors.” The word aĩ-od is supposed to be equivalent to all-hood, and therefore to indicate completeness of possession. It is synonymous with udal, which is employed to denote the right of such lands in Orkney and Zetland; “whereby,” as Lord Stair has stated, “without any infeftment, investiture, or other right or writ, they enjoy lands and hereditaments.” (Institutions of the Law of Scotland, b. ii. tit. ii∙ § H∙) $ ee likewise Lord Banktoil’s Institute or the Laws of Scotland, vol. i. p. 541. This word is evidently borrowed from the ancient Norwegian language. In the Islandic language, ódal signifies ail .dial property, but it also signifies res derelicta. (Haldorsonii Lexico Is-landicum, vol ii. p.. 121.) It is not therefore improbable that the term was originally applied to lands which, having been found deserted, were occupied without form or ceremony. ] But the domains of the sovereign, and the lands of lot or partition to the people, could not exhaust all the territory of a conquest. They were principal and natural objects of attention; yet, after their appointment, there were much extensive property, and many fair possessions. The ancient maxims of the people did not allow them to seize these by a precarious occupation. Men who had connected the property of land with the tribe, and not with the individual, could not conceive any title in consequence of which they might arrogate possessions to humour their fancy, or to flatter their pride. Their ancient notions continued their operation: the community was concerned with what no man could claim. The lands accordingly which were assigned neither to the sovereign nor to the people, which formed not the domains of the former, nor the partitions of the latter, were the lands of the state or the fisc.”^[22. Stuart s View of Society in Europe, p. 24—It is not the object of this article to attempt a developement of the feudal system, but meιely a faint outline of the history of the feudal law. Besides the different works which we here have occasion to quote, particularly those of Stuart and Hallam, we may refer the English reader to Dr Robertson’s View of Society in Europe, prefixed to his History of Charles V. ]
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Du Moulin has traced the origin of the feudal law to the Franks, by whom he supposes it to have been introduced into Gaul.^[23. Molinaei Commentarii in Parisienses Consuetudines, p. 10. edit. Genev. 1613, fol—The same opinion is adopted by many other writers, and, among the rest, by Hervé in his Théorie des Matières Féodales et CensuelLs, tom. i. p. 2.« ] Grótius and other writers have, with greater probability, represented it as having been widely diffused at an early period.^[24. Grotius de Jure Belli ac Pacis, ’lib. ii. cap. vii. § 21. See the same illustrious writer’s Historia Gotthoriιm, Vandalorum, et Langobardorum, prol. p. 64. Anjst. 1655, 8vo. ] Lombardy has frequently been regarded as the place of its origin, because to that country we are indebted for the ancient digest of this consuetudinary law.^[25. Panciroli Thesaurus variarum Lectionum utriusque Juris, p. 130. Venetiis, 1611, fol. Giphanii Antinomiae Juris Feudalis, 1 ’ ∙ 29. Francofurti, 1606, 4to. “Manet igitur verum,” says Giphanius, “feuda, quoad originem, ad clientelas Romanorum, vel ad homines Romanorum referre posse. Deinde, feuda sunt ex jure Longobardorum, non si specternus originem, sed si respiciamus ad rerum distinctiones, ordinationes, constitutiones, statuta, quae ex moribus et quotidiana observatione Longobardorum fluxerunt.” ] The Feudorum Consuetudines are said to have been compiled by Gerardus Niger, who is likewise called Capagistus, and by Obertus de Orto or Horto, who were both lawyers and consuls of Milan.^[26. Bieck’s Literargeschichte des Longobardischen Lehenrechts. Halle, 1828, 8vo. Laspeyres ueber die Entstehung und alteste Bearbeitung der Libri Feudorum. Berlin, 1830, 8vo. ] They lived in the reign of Frederick the First, surnamed Barbarossa, which commenced in 1152, and terminated in 1190. Whatever share they might have in preparing the materials, it may perhaps be suspected that they did not digest the work in its present form. Their opinions are on some occasions placed in opposition to each other, and are quoted as if from distinct works. Thus in lib. ii∙ tit. li. § 3. “Similiter si quis investitus fuerit de feudo, ita ut ad foeminas transiret, et duas filias tantum reliquerit, quarum una filium habeat, et altera filiam; utrum post mortem illarum masculus tantum feudum habere debeat? Secundum Gerardum, masculus tantum: Obertus contra.” And in § 6 of the same title: “Similiter feudum lege commissoria datum non valeţ, id est, si ad certum tempus pecunia non solvaturcreditori, ut habeat in feudum. Gerardus. Et secundum Obertum, valet.” On other cecasions, both names are subjoined: “Gerardus et Obertus.” It might indeed be conjectured that the work was arranged by their joint labour; and that when any difference of opinion occurred, they took care to state it in this formal manner. Du Moulin supposes Obertus to have been the sole compiler. We are assured by Odofredus, a commentator on the Code, who lived about the year 1250, that Hugolinus, otherwise called Hugo a Porta Ravennate, who died in the year 1168, added the feudal law to the ninth collation of the Novels, and that it was received as a tenth collation.^[27. B. G. Struvii Historia Juris, p. 721. Jenae, 1718, 4to. ] Some writers consider the statement as a mere device, intended to enhance the authority of this branch of jurisprudence. The feudal law is commonly subjoined to the Corpus Juris Civilis, of which many of the older civilians regarded it as a component part. “The last tome of the civile law,” says Sir Thomas Ridley, “is the Feudes, that is, the books of customes and services that the subject or vassall doth to his prince or lord, for such lands or fees as he holdeth of him.”^[28. Ridley’s View of the Civile and Ecclesiasticall Law, p. 68. sec. edit. Oxford, 1634, 4to. ] In the common editions, the Peudorum Consuetudines are divided into two books; but the edition of Cujacius, Coloniae, 1588, 8vo, exhibits a new arrangement, with a series of five books. 1he first book he ascribes to Gerardus, the second and third to Obertus; the fourth is taken from several ancient authors, and the fifth consists of imperial constitutions relative to matters of feudal cognizance. To the common editions in two books, are likewise appended constitutions of several emperors; and two of them, issued by Henry the Seventh, are described by the term Extravagantes ς a term which is also used in the canon law, to denote documents which wander beyond the limits of a particular collection.^[29. See F. A. Biener’s Geschichte der Novellen Justinian’s, S. 277- Berlin, 1824, 8vq. . . _ ] The work itself is partly composed of such constitutions; and the entire collection closes with an instrument relative to the peace of Constance, De Pace Constantia, concluded, on the one part, between the emperor Frederick the First, his son Henry king of the Romans, and certain nobles of Germany, and, on the other, various cities of Lombardy, the mareĥ of Ancona, and Romagna-

These books of the feudal law are evidently written by individuals familiar with the doctrines and the phraseology of the civil law; and the new system of jurisprudence may be considered as a seion from the old. The composition necessarily partakes of the general barbarism of the age to which it belongs, nor are the materials reduced to a systematic or lucid form.^[30. “Stilus forensis est, qualis jurisconsultorum ejus temporis esse potuit; scripti enim sunt seculo. inerudito, neque fien potuit quin aliquod ejus seculi vitium contraxerint. Verba ipsa Latina, nisi si quae sint fori propria. Phrasis, sive, ut grammatici loquuntur, constructio Longobardica est, ut facile quivis sine interprete sensum percipere potest. Tumultuarie sane sunt conscripti, ex adversariis sive schedis Gerardi et Oberti relictis, ab alio puto quam ipsis collectis. Obertus enim et Gerardus, prout quaeque facti species occurrerat, consulti quid de eo sentirent, scripto declararunt. Haec eorum adversaria,-post eorum excessum, aliquis juris teudorum studiosus in libros redegit, sine delectu, sine methodo, quod non est negandum: ita tamen eorum responsa celebrata sunt, l -t in honore habita, ut pro jure certissimo a posteris adhuc sint usurpata.” (Cragii Jus Feudale, p. 36.) . ........ ] Some of the more classical civilians have therefore treated this law of Lombardy with the utmost contempt.^[31. “Feuda postremo,” says Taurellus, “quae non minus barbaro quam inepto, et sibi parum constanti, ac vix meo judicio legi digno volumine continentur.” (De Militiis ex casu, ad Aut. Augustinum Epistola, p. 81.) See likewise Gravinae Origines Juns Civilis, P∙ 103. edit. Mascovii. . . r ,. ... r , ] As to the authority which properly belongs to it, the feudalists have entered into much discussion, and have maintained various opinions. Some of the early writers represent it as having been sanctioned by different emperors, particularly by the first three Fredericks, but others consider this sanction as more than doubtful. Craig is induced to suppose that the feudal law must have derived its authority from some imperial rescripts, although they have not descended to our time; for he cannot conceive that the emperors would otherwise have permitted it to be taught in the schools, and observed in the judicatories. Du Moulin, on the other hand, considers the private part of the compilation as unwritten law, “jus non scripturn,” adopted at Milan, and the remainder, the constitutions interspersed, as written law, “jus scriptum,” retaining its force within the limits of the empire·^[32. Molinaei Commentarii in Parisienses Consuetudines, p. 24—See likewise Duck de Usu et Authontate Juns Civilis, t. 35. b. htschii Commentarius in Consuetudines Feudorum, p. 14. G. A. Struvii Syntagma Juris Feudalis, p. 30. ] This appears to be a very sound opinion; nor do we think it necessary to mention the various suggestions and speculations of other writers. In many different countries, this compilation has been received and partly adopted as consuetudinary law, and in all those countries has been modified[7:9:526] by tacit usage, or by express enactments, nor has it any other authority except such as it has thus obtained. The Lombardic body of law is described as “Feudorum Consuetudines,” and “Jus Feudale commune the first title denoting that it is consuetudinary or unwritten law, and the second, that it has obtained more or less authority wherever the feudal law has been adopted.

The substance of these books was digested into a new form by Antonius Minuccius a Prato Veteri, a professor in the university of Bologna, who was born about the year 1380 ∙,^[33. Pancirolus de claris Legum Interpretibus, p. 198. Savigny’s Geschichte des Römischen Rechts, Bd. vi. S. 255. Osservazioni e Dissertazioni varie sopra il Diritto Feudale, concernenti Pistoria e le Opinioni di Antonio da Pratovecchio, celebre Giureconsulto dei Secolo XV. e Rifonnatore dei Libri de’ Feudi. Livorno, 17t>4, 4to. This elaborate volume, which appeared without the name of the author, was written by Migliorotto Maccioni, a professor in the university of Pisa. ] and his labours are said to have received the sanction of the emperor Sigismund, as they certainly did that of Frederick the Third.^[34. Laspeyres über die Entstehung und alteste Bearbeitung der Libri Feudorum, S. 12G. Berlin, 1830, 8vo. This is a work of much critical research, and the author, who is now a professor in the university of Halle, belongs to the school of Savigny. ] Haloander had originally intended to subjoin it to his edition of the Novels; but it was not till after a long interval that the work was first published by Schilter. Another digest of the same materials was afterwards undertaken by Bartholomaeus Baraterius or de Barateriis, who was a native of Piacenza, and was successively a professor at Pavia and Ferrara. Having completed his work in 1442, he dedicated it to the duke of Milan. It was first printed at Paris in the year 1612.^[35. The works of Minuccius and I⅛araterius are subjoined to Schilter’s Codex Juris Feudalis Alemannieĩ. Argentorati, 1695, 4to- ] Neither of these works seems to have obtained any permanent footing, even in the universities of Italy. The books of the feudal law were exhibited in a German dress by Dr Lorenz Weidmann, who likewise introduced some changes of arrangement. His work, Pie Lehenrecht verdeutscht, was printed by Schoiffer of Mainz in the year 1530.

The principles of the feudal law had soon begun to be taught in the universities. The text was illustrated by many glosses and commentaries; and many summaries and treatises have from time to time been added. The principal feudalists who preceded his own time, are thus enumerated by Dr Duck: “Horum librorum authoritatem augent egregii illi jurisconsulti qui ad eos glossas, com-mentarios, et tractatus scripserint. Glossas in Feuda scripserunt Bulgarus, Pyleus, Ugolinus, Vicentius, Jac. Gof-fredus, aliique; sed Jac. Columbinus eorum ultimus omnes superavit, et post eum, ait Jason, nemo glossas in Feuda scribere tentavit.^[36. See Savigny’s Geschichte des Römischen Rechts im Mittelalter, Bd. v. S. 82. Heidelberg, 1815-31, 6 Bde. 8vo. ] Alii summas et tractatus dc Fendis composuerunt, Odofredus, Jac. de Arena, Hostiensis, Jac. Ardizoni, Zasius, Rebuffus, Hannetonius, Henr. Rosenthall, aliique, qui omnem Feudorum scientiam amplissime tradiderunt. Commentarios in Feuda scripserunt Jac. de Belvisio, Andr. de Iserma, Baldus, Jac. Alvarottus, Math, de Afflictis, Fr. Curtius, Jac. Cujacius, aliique, in quibus eminct Cujacii elegantia et literarum splendor, authoritas et judicium Jac. de Belvisio et Baldi, quorum ille octies se legisse libros Feudorum Papiae testatur, Baldus vero commentarios suos scripsit postquam jus civile per quadraginta septem annos professus insignem famam acquisiverat. Et inter hos omnes e glossographis Jacobo Columbino, e sum-mistis Jacobo Ardizoni, e commentariis Jacobo de Belvisio primus locus ab omnibus conceditur.”^[37. Huck de Usu et Authoritate Juris Civilis, f. 38. edit. Lond. 1G53, 8vo. A similar account is given by Pancirolus, Thesaurus variarum Lectionum utriusque Juris, p. 131. Venetiis, 1611, fol. See likewise Rittershusii Partitiones Juris Feudalis, p. 15∙ edit. Argentora,t. 1659, 8vo. ] To this enumeration some names ought perhaps to have been added, particularly those of Hotman and Vulteius. Of the more recent commentaries on the text, the most copious is that of Caspar Bitsch, professor of law in the university of Strasburg.^[38. Caspari Bitschiì Commentarius in Consuetudines Feudorum. Argentorati, 1G73, 4to. ] Among the systematic treatises which have appeared since the publication of Duck’s very useful work, it may be proper to mention the elder Struve’s Syntagma Juris Feudalis, which contains much information in a form not very elegant or attractive.^[39. Geo. Ad. Struvii Syntagma Juris Feudalis. Francofurti ad Moenum, 1703, 4to. This is the eighth edition. ] Many elementary works, such as those of Schilter, Stryk, and G. L. Böhmer, and an immense number of detached dissertations, have from time to time been published in Germany, where every province of jurisprudence is most laboriously cultivated. Of separate tracts on the feudal law, an ample collection was published in Jenichen.^[40. Thesaurus Juris Feudalis, continens optuma atque selectissima Opuscula, quibus Jus Feudale explicatur. Francof. ad Moen· 17^0-4, 3 tom. 4to. ] Various writers treat of this law as it has been adopted and modified in different countries. Thus the feudal law, as applied in Scotland, has been illustrated with much learning and ability by Sir Thomas Craig, one of the greatest lawyers whom his country has produced. One of the earliest books on the law of England is Thomas Littleton’s treatise on tenures; and the feudal law of that country was afterwards discussed by Sir Henry Spelman, Sir Martin Wright, Sir Jeffrey Gilbert, and various other writers.

In France the feudal law was embodied in the loi coutumier of different provinces; and many curious reliques of jurisprudence have thus been preserved. The most interesting of these are perhaps the Coustumes de Eeauvoisis, digested by Philippes de Beaumanoir.^[41. Coustumes de Beauvoisis, par Messire Philippes de Beaumanoir, Bailly de Clermont en Beauvoisis, Assises et bons Usages du Royaume de Jerusalem, par Messire Jean d’lbelin, Comte de Japhe et d’Ascalon, S. de Raines et de Baruth, et autres anciennes Coutumes; le tout tire des manuscrits, avec des noteset observations, et un glossaire pour l’intelligence des termes de nos anciens autheurs, par Gaspard Thaumas de la Thaumassiere, Ecuyer, S. de Puy-ferrand, Bailly du Marquisat de Château-neuf-sur-Cher, Avocat en Parlement. Bourges, 1690, fol—Of the Assises de Jerusalem, a new and complete edition, in three volumes quarto, was in 1830 announced by Cotta of Stuttgart!. The editors are E. II. Kausler and J. C. Bluntschli, who promise a very careful révisa ° the text, with copious and various illustrations; and, for the satisfaction of many readers, we may add that they write, not ιn ~ ’. er ' man, but in Latin. Of the second part, the Assise de la Court des Borges, the original has not yet been printed. Some extracts, rela ıv to maritime law, may be found in Pardessus, Collection de Lois Maritimes antérieures au XVHB Siècle, tom. i. p. 275. Paris, 1828, 4to. ] Montesquieu has described it as an admirable work,^[42. Montesquieu de l’Esprit des Lois, liv. xxvi. chap. xv. ] and has quoted it upon many different occasions. “This treatise of Beaumanoir,” says Mr Barrington, “is so systematical and complete, and throws so much light upon our ancient common law, that it cannot be too much recommended to the perusal of the English antiquary, historian, or lawyer. He kept the courts of the Comte de Clermont, and gives an account of the customary laws of Beauvoisis (which is a district about forty miles to the northward of Paris) as they prevailed in the year 1283. He is consequently a more ancient writer than Littleton, and, to speak with all due reverence of this father of our law, perhaps a better writer. It need hardly be said that the customs of [7:9:527] the two countries were at this time very similar, especially of the more northern parts of France: if we wanted other proof, the commentators on the oldest French law books cite Littleton as illustrating their customs.”^[43. Barrington’s Observations on the more ancient Statutes, p. 439. ] Of the customary laws of France the other collections are very numerous.^[44. See Dupin’s edition of Camus’s Lettres sur la Profession d’Avocat, tom. ii. p. 190. ] Nor must we here neglect to particularize a very curious relique of early jurisprudence, the Assises de Jerusalem·, which are decidedly of a French origin. After the conquest of the holy city in the year 1099, the barons who led the crusade elected Godefroy de Bouillon king of Jerusalem; and it was one of the new sovereign’s first cares to form a body of laws for the government of his subjects. By the counsel of the patriarch, and of his princes and barons, “et des plus sages homes qu’il pooit avoir,” he appointed wise men to make enquiry at persons from different countries as to the particular usages of those countries. Having received the desired information in writing, he again assembled his principal adherents; and having laid this document before them, and caused it to be read, he afterwards, with their counsel and concurrence, selected what to him seemed good, “et en fit assises et usages que l’on deust tenir eζ maintenir, et user au royaume de Jerusalem, par lesquels il, ses gens, et son peuble, et toutes antres maniérés des gens alans, et venans, et demorans, fussent governés et menés à droit et à raison el dit royaume.” They were called Assises from the circumstance of their having thus been confirmed in an assembly of the chief persons of the state. They were afterwards modified and enlarged by this king and his successors; and about the year ‘1250 were arranged by Jean d’Ibelin, Comte de Japhe et d’Ascalon, Seigneur de Rames et de Baruth. Having been adopted in the kingdom of Cyprus, they were revised in the year 1369 by sixteen individuals nominated in an assembly of the estates of that kingdom. They had been translated into Greek for the benefit of those subjects who did not understand the original language; and of this version some portions have been preserved in the Royal Library at Paris. After Cyprus had fallen under the dominion of the Venetians,^[45. See Johann Paul Reinhards vollstandige Geschichte des Königreichs Cypern. Erlangen und Leipzig, 1766-8, 2 Bde. 4to. ] the book was translated into the Italian language.^[46. Le Assise et bone Vsanze del Reame de ïlyervsalem. Venetia, 1535, fol. The volume concludes with the following colophon: A laude & honor del Omnipotente Iddio, finisce il presente libro, quai è de le Assise & bone Vsanze del Reame de Hierusalem, stampato in Venetia, regnante l’inclito Meser Andrea Gritti, Doxe di Venetia, nelli anni de la Natiuita del Signor nostro MDXXXV. del niese di Marzo, in la stamparia di Aurelio Pincio Venetiano.” The name of the translator is Florio Bustron. This translation contains both the laws which relate to L'αlta Cοτte and those which relate to La Corte de ll Borgesl. Both parts may be found in the collection of Canciani, Barbarorum Leges antiquee, vol. ii. p. 479. vol. v. p. 107∙ Venetiis. 1781-92, 5 tom. fol. ] It is generally admitted that the laws thus adopted in the kingdoms of Jerusalem and Cyprus, were in a great measure derived from the customs and usages of the kingdom of France.

The feudal system seems to have arrived at maturity during the reign and in the dominions of Charlemagne and his immediate successors. The reliques of their legislation are to be found in the Capitularia Regum Francorum, of which we have given a separate account. As the em- ' pn e of Cnarlemagne not only included France and Germany , but likewise a great portion of Italy, and some portion of Spain, a certain uniformity of laws and usages was naturally promoted by this political union. “Feudal tenures, it is stated by Mr Hallam, “were so general in the kingdom of Aragon, that I reckon it among the monarchies which were founded upon that basis. Charlemagne’s empire, it must be remembered, extended as far as the Ebro. But in Castille and Portugal they were very rare, and certainly could produce no political effect. Benefices for life were sometimes granted in the kingdoms of Denmark^[47. See Dansk Lehns Ret af Peder Kofod Ancher. Kiöbenhavn, 1777, 8vo. ] and Bohemia. Neither of these, however, nor Sweden,^[48. StiemhöÖk de Jure Sueonum et Gothorum vetusto, p. 276. Holmiae, 1682, 4to. ] nor Hungary, comes under the description of countries influenced by the feudal system. That system, however, after all these limitations, was so extensively diffused, that it might produce confusion, as well as prolixity, to pursue the collateral branches of its history in all the countries where it prevailed.”^[49. Hallam’s View of the Middle Ages, vol. i. p. 201. ] The prevalence of the feudal law in Lombardy has already been mentioned; and it sooner or later extended its influence to almost every corner of Italy, including the islands as well as the continental states.^[50. The Sicilians, says Mr Brydone, “still boast that they retain more of the feudal government than any nation in Europe. The shadow indeed remains, but the substance is gone long ago.” (Tour through Sicily and Malta, vol. ii. p. 225. .Lond. 1773, 2 vols. 8vo.) ] In England and Scotland it struck a very deep and vigorous root. Its progress in the former country seems to be correctly stated by Blackstone, “This féodal polity,” he remarks, “which was thus by degrees established over all the continent of Europe, seems not to have been received in this part of our island, at least not universally, and as a part of the national constitution, till the reign of William the Norman. Not but that it is reasonable to believe, from abundant traces in our history and laws, that even in the times of the Saxons, who were a swarm from what Sir William Temple calls the same northern hive, something similar to this was in use; yet not so exclusively, nor attended with all the rigour that was afterwards imported by the Normans. For the Saxons were firmly settled in this island, at least as early as the year 600; and it was not till two centuries after, that feuds arrived to their full vigour and maturity, even on the continent of Europe.”^[51. Blackstone’s Commentaries on the Laws of England, vol. ii. p. 48. See likewise Dr Sullivan’s Historical Treatise on the I eu- ∙' il Ļaw, and the Constitution and Laws of England, p. 18. Lond. 1772, 4to. ] Craig supposes the feudal law to have been established in Scotland before it was established in England;^[52. Cragii Jus Feudale, p. 47∙ Brussii Principia Juris Feudalis, p. 5. Edinb. 1713, 8vo. See Dr Stuart’s Observations concerning the Public Law and the Constitutional History of Scotland, p. 7∙ Edinb. 1779, 8vo. Lord Kames, whose speculations often rest upon a very insecure foundation, is pleased to express himself in the following terms: “I entertain some doubts whether the feudal law was introduced into Scotland so early as in the reign of Malcolm II. What to me brought this thing first under suspicion, is a fact that can be made extremely evident. When one dives into the antiquities of Scotland and England, it will appear that we borrowed all our laws and customs from the English. No sooner is a statute enacted in England, but, upon the first opportunity, it is introduced into Scotland; so that our oldest statutes are mere copies of theirs. Let the Magna Charta be put into the hands of any Scotsman, without giving its history, and he will have no doubt that he is reading a collection of Scots statutes or regulations. Now it is a point settled among the best English antiquaries, that the feudal law was introduced into England by William the Conquιeror. I need not spend time upon this topick, after what is said by the accurate Spelman, and by our countryman Craig. Joining these two things together, a strong presumption arises, that the feudal law made its progress from England to this country, as all the English statutes, making imnrovements and alterations upon it, certainly did. But this presumption receives additional force, when it is considered,, that if we had the feudal law before it came into England, it must have been taken from some other people than the Normans, with whom we had no commerce.” (Essays upon several Subjects concerning British Antiquities, p. 4. Eding. 1747, 8vo.) Of such random assertions as these, it would be superfluous to attempt a formal refutation. ] but this is an opinion which apparently must continue to rest on conjecture, and not on historical evidence. (*∙) [7:9:528]