lieu of which, in the course of time, a fine was exacted. Hence in England the Herriot multiplies with the subdivision of the land for a plain reason; viz., that the service was personal, and each tenant of any part of a subdivided feod was required to profess arms, to perform his military service to the lord, without whose consent the division could not be effected. An attempt has been made to identify the feodal system with the customs of the ancient Germans or Hermanni (Warriors), as described by Tacitus, but on nearer examination the resemblance falls to the ground; young men dedicating themselves to the profession of arms attached themselves to the person of some chief, to whom they swore fidelity, and from this juramentum fidelitatis some authors would fain derive the feodal system. But nothing can be less analogous in its inception or principle. The more recent and systematized feodal law was based on the possession of landed property; whereas the old German system was that of personal service more nearly resembling that of the age of chivalry, and any German scholar must be at a loss to conceive how certain authors have translated Hermanus (a) by frater. We must not, therefore, search so far back for the origin of the feodal system as it existed in Lombardy and later in the middle ages.

The partition of the land among the principal Lombard leaders had the effect of reducing the inhabitants to a state little above slavery, and the maintenance of their masters in armed idleness by the industry of others.

Moveable property was of little value, and their legislative efforts were therefore directed to land, which, vesting in the conquering race, carried with it the incidents of military service, and gradually developed itself into a system.

Indeed, it is much more reasonable to suppose that it did not acquire that definite type or development with which we are more immediately acquainted, even among the Longobardi themselves, before their inroad, and that of other warlike Teutonic races into the more southern parts of the

(a) Hermanus, another form of Germanus, may either mean Heer Mann War Man, or Herr (Herus) Lord Man; nor is it improbable that the words are of the same root and synonymous, the warrior par excellence being Lord or Ruler.

European continent. The system pursued by all these nations is ably developed by Savigny in his History of the Roman Law in the Middle Ages, already alluded to in a former paper in the "Transactions" of this society by the author of the present treatise, and more amply in his work on the Roman Civil Law. Synoptically, the system generally pursued by the "barbarians" was, to take a certain proportion of the landed property from the possessors, or to compel them to pay a certain proportion of the produce. The sovereignty they assumed. The greater feodataries sub-infeodated their own countrymen of portions of this sovereignty with the obligation of military service, while the native proprietors stood to them in the relation of base tenants.

Hence we have at once the origin of the military and base tenures, and the rule thus explained will be found to be of general application. The feodatory was bound to the lordparamount in feodal or military service, and the peasant to him in base or villein service; the one, bound to supply armed aid when called upon, assumed the position thereafter known as noble, the other formed the non-noble class; hence nobility was based on, and originally inseparable from, the exercise of the profession of arms and possession of land; at the same time the peasant, when armed by the lord for his service, was not on that account noble; on the contrary, the Germans termed such a Waffen or Wappen knecht, or slave-at-arms, nor must this word be confounded with the word knight. In the same sense, this word, undoubtedly derived from knecht, was applied in another sense to him who served his novitiate to a knight until it should please his military chief to emancipate him, which we vulgarly term winning his spurs; this in chivalry was done by the Roman form of the buffet. On his knees the novitiate did homage to his military master, and received the blow of the sword, according to the old Roman form of manumission, in token that this was the last insult he was to submit to; that his period of military servitude was completed, and he rose a freeman in arms. These knights-servient were called in the language of Provence bas chevaliers or lower knights, whence knight-bachelors. These slaves of the church had their origin

with the Crusades, and, as knights of military and religious orders, were quite distinct from the territorial knights of Germany, whence James took the idea of the knight-baronet or hereditary knight, the origin of which must be sought in the ordo equitum of Rome; but this notable difference existed between the two, that the qualification of the latter was a certain amount of property according to the census, which might be personal, whereas that of the former was landed estate.

The feodal system, as established by the nations of northern origin, but especially by the Lombards, had taken so deep a root on the continent of Europe, that it survived the destruction of their rule, and proceeded in its development until Charles the Great, in the eighth and ninth centuries, established it as the fundamental law of his almost boundless empire. The allodal tenants, oppressed and harassed by his unceasing wars and the Heerbann, were often obliged, from want of the leisure necessary for the cultivation of their possessions, to resign them into the hands of the crown, and receive them back as feofs. Many, however, succeeded in resisting all the means taken to suppress their tenure, and demanded from time to time Sendgrafen, or counts demissary, to obtain justice from their feodal neighbours. Charles's first measure was to declare himself lord-paramount, and every member of the state obligated to him in feodal service; those who accepted the feodal regimen were excused from many oppressive exactions and services, and above all from the Heerbann or military service to the empire, to remedy the loss of which assistance he formed a mercenary band, termed the Scaren or Schaaren, who received pay from the imperial treasury; and of this band, clad in red, the probable predecessors of the British army, mention is often made in history. (a)

The administration of justice was another means by which Charles sought to suppress allodal tenures; the tenants were no longer permitted to appear in court armed as of yore, and

(a) The regular army was introduced by William of Orange, and the red uniform by the Hanoverian dynasty. Menzel, Gesch. der Teutschen. Thus, too, the Othoman dynasty established the Yeni shaaler, or new host, composed originally of Christian children taken prisoners on the countries of the Danube and brought up as Moselmeen.

the judicial power was transferred from the communities to counts nominated by himself. The new laws or capitularies were drawn up in the Latin language, which being beyond the comprehension of the general public, a guild of lawyers arose in every community; although these retained the denomination of scabini or schoeppen, they must not be confounded with the free jurymen of the anti-feodal period. The national law in substance he left as it was, though travestied in its new dress; shorn, however, of the characteristics of freedom it formerly possessed, and with the addition of new imperial and ecclesiastical laws, the numbers, diversity, and origin of which tended to exclude public interference. The introduction of religious houses was another mode of oppressing the free tenants, who in all cases were obliged to testify their supreme duty to God by the payment of tithes.

To render this feodal rule more perfect, he suppressed the dukes and substituted counts, (a) through whom he administered the empire, and whose reduced power rendered them more obedient to his will; over these he exercised a direct surveillance by missi dominici, or counts demissary. The better to hold these feodal counts in check he divided the ecclesiastical from the lay feodatories, holding synods with the former, and placita with the latter.

The free tenants were naturally excluded from both these assemblies, nor had they any place but in the Maifeld, or general assembly of the empire, as of ancient right accustomed, in which, however, their numerical proportion was so small, as to leave them no choice but that of confirming the decrees already passed in the synods and placita. Conspiracies and fraternities are often inveighed against in the capitularies, and threatened with the heaviest penalties, which were clearly directed against the free tenants.

By such means, foul and fair, Charles the Great sought to extirpate the remains of the old Scandinavian constitutional system, and establish the principle of governing through the church and an aristocracy too weak to oppose him, yet suf

(a) The Count Palatine of the Rhine is the last representative of these.

ficiently numerous to enable him without difficulty to crush any individual who threatened opposition to his will. As his empire included the ancient tribes of the Franks, Goths, Lombards, Burgundians, Allemans, Thüringians, Bavarians, Saxons, and Triesians, a uniform feodal system was made to penetrate all these peoples and countries, and fixing a firm root, endured with more or less vigour as the recognized law, for the long period of 900 years.

Such was the condition of the feodal system down to the reign of the emperor Conrad in 1037, who found the time had arrived at which it was necessary to reform certain parts of it, check the abuses which had arisen in practice, and had become incorporated into it by custom, and to afford some protection to the few remaining allodal tenants.

It may be said that in his day feods, under the new organization of Charles the Great, first became hereditary, and that what was before conferred as of grace now became demandable as of right. Every vassal acquired by this constitution a vested interest of the most complete description in his feod, which he was enabled to transmit to his son; in other words, he no longer held it at the will of the lord, but according to the custom of the manor, and arbitrary fines and forfeitures were abolished. We find the same object effected in this country by the decisions of our ordinary courts of law. The copyholder, who occupies a position analogous to the heir of the vassal, could not be compelled to pay more than two years' improved value of his land as a fine on admission, and upon payment of this the lord was debarred from re-entry.

Another important provision consisted in the prohibition to the lord to alienate a feod without the consent of his inferior vassals; they had sworn homage and fealty to him, and had thereupon received investiture, and, as these were personal contracts, entered into by mutual consent, they could only be dissolved by like means: the lord must therefore also be released from his part of the obligation.

We now arrive at that period in which the feodal law was regulated by the Assize of Jerusalem in 1009, under the presidency of Gothofried of Bouillon, assisted by the