Anglo-Saxon Feudalism Author(s): George Burton Adams Reviewed work(s): Source: The American Historical Review, Vol. 7, No.

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ANGLO-SAXON

FEUDALISM

influence public or privatelaw, a more profoundor morepermanent to than in England. In regard to public law it is enough to refer the fact that the controllingprinciplewhich created the English limited monarchywas found in feudal law, or to this that the organizationof the English judicial systemof the presentday bears plainlythe marksof its feudalorigin. In the fieldof privatelaw it not anyentirecountry, certainly if thereis any country, is doubtful were so thoroughlyand so logicof feudalism where the principles ally applied to the land law as in England, and it is an interesting factthat in some of the United States aftera lapse of six hundred years considerable trouble and expense may be occasioned by to century statutesfiamedin England at the end of the thirteenth of a conveyance of the feudal lord, ifthe writer protectthe interest is careless in the formof words which he uses. to know-hardly any merely Since this is the case it is important in fact-when and underwhat question is more important historical the feudal system entered English history. Was it circumstances at a certain formed fully an indigenousproduct? Was it introduced in parttrue? Was abroad? Are both thesesuppositions date from in England whenthatnatuthe feudalsystemin process offormation upon it of a more complete ral growthwas cut offby the grafting from systemwhich had grown up elsewhere,a systemthat differed developed? the nativeEnglish only in being more perfectly ProfessorMaitland's DomesdayBook and Beyond seems to give an answer to these questionswhich stronglysupports the theory in England beforethe Norman thatthe feudalsystemwas forming to shake the faithof those tends at least which or one Conquest, introduced first by the Conqueror. feudalism was who have held that an argument book to consider Mr. Maitland's It would be improper fortheexistenceof feudalismin Saxon England. lt is rathera full some exthemin the recordswitlh of the factsas he finds statement planatorycommentand the raisingof various questionissuggested by themwhich are forthe most part leftwithout definiteanswer. work, much The book is a fineexample of undogmatic scientific less dogmaticthan most men would have made it. It does, low(
II)

IN no countryof Europe did the feudalsystemexert,eitheron

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ever, unquestionably create the impressionthat institutionally the Conquest made no reallyimportantchange, that it introduced no important practical differences, but that at most it brought in institutions which were not different in kind but only so-mestages further along in a development whichhad been long underway in England itself.' The argument for Anglo-Saxon feudalism whichis presented in thislimited way restsupon the existencebeforethe Conquest of threegroups of institutional facts. dependent tenures,private jurisand military dictions, serviceas an element in land tenure. The special questionhere is this: ifwe grantthe existence of thesefacts in Saxon England have we admitted the existencethereof the feudal systemproper, as it existedin England at the end of the eleventh less fullydevelopedin the earliertimeperhaps,but institucentury, tionallythe same system? Have we admittedthat that development was going on therewhich, advancing more rapidly in the Frankish state,had produced completed feudalismtwo hundred years beforethe Conquest,and whichif left to itself would have producedthe same systemin England ? Have we admitted that the Conquest introducednothingwhichwas new in principlebut merelyprinciples more logicallyworked out ? The answerwe give to this questionwill depend largelyon the meaningwe attachto the word "-feudalism." This word is used at present as manywords in its own medievalvocabularywere used, in a narrowand technical, and at the same time in a broaderand more generalsense. We sometimesmean by it the special system
1 And thus we see already a feudal ladder with no less than five rungs." Domesday Book and Beyond, p. 15 5. "Feudalism was not perfected in a day. Still here [the fivehide system] we have the root of the matter . . . . " P. 159. " We are not doubting thatthe Conqueror defined the amount of militaryservice that was to be due to him fronm each of his tenants in chief, nor are we suggesting that he paid respect to the rule about the five hides, but it seems questionable whether he introdluced any very new principle. A new theoreticelement may come to the front,a contractual element :-the tenant in chief must bring up his knights because that is the service that was stipulated forwhen he received his land. But we cannot say that even this theorywas unfamiliarto the English." P. i6o. "Whether a man who will lose land for such a cause [failure of militaryservice] shall be said to hold it by militaryservice is little better than a question about the meaninigof words. At best it is a question about legal logic." P. 295. " Dependent tenure is here and, we may say, feudal tenure, and even tenure by knight's service, for though the English cniht of the tenth centurydiffers much from the knight of the twelfth,still it is a change in militarytactics rather than a change in legal ideas that is required to convert the one into the other." P. 309. To the interestingand suggestive introductionto Essay II,, pp. 220-226, no excep tion can be taken since it is made entirelyclear that the subject is feudalism in the wide not in the institutionalsense.

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Anglo-Saxon Feudalism

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and to the services by which they of ideas and law relatingto fiefs were held which prevailedin the European world betweenthe ninth and the fourteenth centuries. Sometimeswe include in the term which seems characteristic of that society from top to everything sum total of its peculiarities, withoutdisbottom-the arithmetical of originor relationship. In this lattersense serfdom is as tinction a p3art truly of feudalismas the systemof fiefs; in thissense we find are to be foundfeudalismwhereversome of these characteristics in Japan,in some Mohammedanstates,in variousAfricancommuniwhether the institutions ties of the presentday,' without of inquiring in the narrower sense occur in these places or not. feudalism But in the study of medieval institutions should we not raise the question whether than this are not possible sharperdistinctions ?2 and necessary Must we not seek to determinemore specifically the source of the determining featuresof the age and of its most ? Is it not possible that in history importantpermanent influences the peculiar economic and politicalconditionswhich prevailedover Europe fromthe fouirth centuryto the tenthproduced a numberof groups of peculiar institutional formsadapted to meet the more or less permanent needs of different sortswhich arose fromthose conand oftenin appearance closely relatedto one another; that ditions, some of these formsspeedily perished; that others survived and was one group passed on to latertimes; thatamong those surviving of institutions which,by the importance of the relationships and of the classes which it primarily at once obtaineda controlconcerned, ing positionin the age that followedits origin,drew underits influence and moulded into a great system the other institutions that had survivedlike itself, and stampedits impressupon all the features of an age which we call the age of feudalismbecause this dominatingand controlling element was the feudalsystemproper, the system in whichthe fief was a fundamental element?3
'Japanese feudalism is often referred to. On Mohammedansee Von Tischendorf, in den Moslernischen Saei!en. Leipzig, 1872. Das Lehnwesen On African see Herbert Spencer,DesciiptiveSodiology,. Vol. on Africa,Tables XXI., XXVIII., and XXX. 2- Eben solche Institutionen aber, die weit uiberden urspriinglichen Boden der Entstehung hinaus ihreWirkungerstrecken, vor allem in ihrenoft dunklen verdienen Anfalngen und auf den erstenStufen der Entwickelung, so vollstandig und so scharfwie moglich ist, ermittelt und festgestellt zu werden: es giltzugleich das Charakteristische zu erfassen und der Mannigfaltigkeit der Thatsachen,die sich allmalichin bestimmtere Formenfilgen,gerechtzu werden." Waitz, Deutsche Verfassungsgeschichte,Bd. IV.
p. 36I. 3 Feudal comesof coursefrom feudun., fief, and thefief was normally an estateheld

This paragraph follows immediately thosequotedat the end of thisarticle.

by thissortof tenure, and in strictness feudalism is the system of suchestates and tenures " was in Englandapplied to all freeholds only. That the word " fief oughtnotto confuseus as to its real meaning. It is quitepossiblethatthiswas a usage transferred from

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That this was the factis at least the underlyingassumptionof of this article,and its special thesis is that those characteristics feudalism in the widersense, which Mr. Maitland has shown, more clearlythan any one beforehim,to have existed in Saxon Enigland, of feudalism proper. T hey are to are not in the line of the ancestry age, the prodbe classed among the otherproductsof the pre-feudal ucts whichdisappeared,or if they survivedwere broughtunderthe of feudalideas and intothe systemwhichthese controlled. influence feudalinThe manor for example appears to be a characteristic stitutionbecause feudalism,coming into existence alongside the and independentorigin, manorial system,though froma different a greatestateperfectly adapted and finding this methodof exploiting its on needs of own, seized it and interpreted to certainfundamental accordingto its own ideas formsand processes which had been originallyin no propersense feudal.' This must not be uniderstood
of of thelogical completeness and thatit was a result whereit also prevailed, Normandy fortenlocallyelsewhere use of theterm in thatcountry. There was a similar feudalism and Toulouse. See Glasson,Histoire du Droit et feudal,as in Brittany uresnotstrictly the suggeshowever, des Inseitidions te la France, Tome IV. pp. 285-6. If we follow, on NormanLaw in Pollock and Maitlands History of English tionmade in the chapter but reached in Normandy, " not yet consciously La7w, that thiswas a " generalization into at in England as earlyas the DomesdayBook, it must have been brought arrived of the conquered but bythe treatment of tenure, there notbytheactualfacts consciousness was made for to which reference the data of experience, lands, and the bodyof facts, musthave been in the main Normanand not English. of thistreatment, the explanation into of England by the act of the kingwould forcethe theory The rapid feudalization theprocess, at anyrateas explaining fortheking'sright, perhapsas accounting attention, from thefactsas inference in the sense thatit is a legitimate butit is nota generalization of the purely a generalization sort, theoretical theyever existedanywhere. It is rather in whichprevailed of thenotion one whichstatesthe ideal, and it is a morelogical form to fiefs, held according thatthegreatallods mustbe really partsof France and Germany of thesun. It is indeedthe same idea to another of God and according one explanation in the later Frenchmaxim,Nulleterre sans seigneur-, and in bothcases as thatexpressed was due to thelawyers. thereeverwas in the facts tothistheory conformity alike whatever in the facts or to see it in moreor less conscious,to realize this theory It was the effort, whichextendedfeudalideas, and especiallythefeudal existing previously arrangements, of all intolowerspheres. most belonging to them, intospheresnotoriginally vocabulary, i It seemsnecessary to take an appeal fromMr. Maitland'sidea of whatconstituted A manor is a house against as statedin Domesday Book and Beyond, p. I20-" a manor in the Entglish Historical whichgeld is charged," of which see Mr. Round's criticism in i888, in Select Pleas in ManRevieW, Vol. XV., p. 293-to his opinionas expressed century p. xl. In speakingof the manorof the thirteenth orial Courts, Selden Society, thanlegal doctrine. was rather economic practice he says: "What as yetgave it itsunity and agrarian as a singleeconomic It was an estatewhichcould be and was administered of the singlegroupoftenprimarily theythought whole. When menspoke of a manor, of thesinglehall or and their at theirplowings reapings, antswho workedin commnon were filled, by the manorhouse whose needswere supplied,whoselardersand garners to be managed in thisway laborsof thisgroup. An estatetoo large or too scattered would not,accordingto the commonuse of words,be a manor." And, we mayadd, economic and as an independent by itself how small an estatewas, if mnanaged no matter thanthisof whata manorwas in it might be called a manor. No otherstatement uinit,

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Anglo-Saxon Feud-alism

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applied to the wider to mean that the term feudal is improperly ifwe understandclearlythe use we make of it range of inlstitutioIns, and are led to no confusionof mind thereby. But it does mean do not properly belong to that special system thatthoseinstitutions as the great feudal whichmakes the middleages distinctively feudal, in of to the from the which the most age the history world, system important legal and iinstitutional consequences followedin England anld elsewhere,but that they belong eitherto systemswhichwere gradually supplanted by feudalismproper,or which were clearly fromn it in the days of its supremacyas different and distiniguished subordiniate systems, I. In the matter of dependent tenure,the tendencyis almost irresistible to regardall formsof dependent tenureas alike feudal. In the wide sense alreadyexplained it is properenough to call themn so, at least after feudalismis fullyesta.blished. No fact is more of the age when feudalismwas at its height than the characteristic great varietyof these tenures. They are essentialto our concepof the feudalsociety fromits highest ranges to its lowest,and tionl it is necessaryto considerwlhetlher all these dependenttenureswere sense of the term; whether in realityfeudalin the institutional the developmentof dependent tenuresof any kind means a growthtowards feudalism. When we seek forlight upon this question,two factsat once strikeus as very suggestive. First,that while great varietyof tenureis just as characteristic of the earlierage out of which feudalismis seen slowly emerging, as of the feudal age proper,it is fromone group of these earlier takes place; only one particular tenuresonly that this emerg,ence kind of ante-feudaldependenttenuresgrows into the feudal proper. whileall tenureshave certain Second, thatin the feudalage itself is drawn,clear to featuresin common,a clear distinction important the men of that time at least, between certain which are feudal are not. proper,and two other classes wlhich to prove the first here of these It is not necessaryto take space propositions. The proof has been repeatedlymade, perhaps in its most complete form by Fustel de Coulanges, in his Instituxtions but though he carriesthe line of I'oliliqucs de I'AncicnneFr-ance, in descentfurther back, his conclusions on this matterdo not differ
it from of thetestwhichdistinguished the feudalage, of thepurposeforwhichit existed, explainall the facts-such facts,for example,as the the non-nanor, will satisfactorily or theatof the unionof two mnanors together, formation ofone manorwithin another, belonging to it, all apparently tachment to a manorof outlying bitsof land not formerly the economic of administration, at the sole will of the proprietor. It is the efficiency or theeconomicrelationship to a given person,which are the colntrolling convenience, considerations.

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or stated, thoseof Waitz,less plainly from particular anyessential precarium, The tenure called accepted. thosenowuniversally from in itsexin character greatly in Romandays,modified originating as a meanis extendedin practice widely use by thechurch, tensive of and ordering days of thefounding in theturbulent of protection of thefeudal ancestor becameat lastthedirect state, the Frankish Mayors to bytheCarolingian becauseitwas resorted proper1 tenure wllich tactics forthechange in military as the meansof providing upon themby the attackof theArabs in the eiglhth was forced century. thatthefeudal thefact to emphasize necessary Butit is perhaps of thisprewhatever development created any by was not system if left to itself. feudalism theend of timeit wouldnothave created but it of Japan, as we speakof the fetudalism called a feudalism, quite in form and consequences, would have been institutionalty, Europe. of western feudalism from the actual,historical different statemadeit in theFrankish circumstances It was becausepeculiar this institution with of thestate to combine to thesafety essential whichhad character, of a personaland notof a property another, thesetwo a to combine and different history, origin had a different and single of a sides as thetwo institutions together quitedifferent not economicin character, political, mainly reallynew institution, arose. thatfeudalism was thata cleardistinction The second of these propositions, feudaland certain properly tenures madein feudal timesbetween sight werenotso regarded, appearsat first twootherclasses which tenure ofdependent to maintain. Werenotall forms difficult more
I Fustelde Coulanges, Les Orilginesdu Systeue Feoda4, Chaps.I-VI I; Waitz,Deutsche II. pp. Deu scheRechtsgeschiclzte, II. I, pp. 290-305; Brunner, Verfassunizgsgeschichte, agreeVIII. 2, p. 89. These are in practical Dahn, A-5nige de- Germwanten, 246-25I; on all essentialpoints. ment whichhave of theoriginof the feudalsystem problems On almostall the important and definite uniform in thepast,a fairly bodyof been the subjectof so muchcontroversy years. One of the last twenty-five of the studies as a result has now been formed opinion as littleas possible by the comwho wishesto get a clear idea of whatthisis, confused minorpointsstillmoreor less in dispute,can do it best by puttingtogether paratively givenin thosemostusefulmanualsof legal and the accountsof the originof feudalism Esmein'sCours slkmentaire d'Ilistoire du Droit Franjtais, and institutional history, of later feudal account Lehrbichder DeutschenRechtsgeschichite. Esmein's Schroeder's of feudalism as the best briefdescription recommended is also to be highly institutions of the characteristics the strictly feudal,and the non-feudal whichkeeps clearlydistinct article of Mr. MIaitdoes notgo beyondthecomparison age. The purposeofthepresent of the withwhatmayperhapsbe called the orthodox doctrine of theorigin land's results feudalsystem.

the naturallines of its own development. To carium tenurealongr

whichcould have been properly It mighthave growninltosomething

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Feudalism Antglo-Saxoon

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as they existed in the eleventh centuryconsidered alike feudal? They were so in the popular and wide sense of the word and in that only. Institutionally therewere threewell marked classes of which the men of that time had no difficulty in distinguishtenures and servile. ing as classes: feudal,common freehold, To the men who workedthe feudalmachinery the distinguishing mark of the feudaltenurewas, thatit was upon condition of honorable service. It was not necessary that the thing held should be land. It might be any object of real value or any to which a fictitiousvalue could be given. It was not necessary that the service-shouldbe military, thoughthiswas so commonlya required service that it was usually taken as the typical one,' especially in the phrases knight'sserviceor knight'sfee. The one requirement was merely, as in the patrociniutm contract, quoted below, that it should be serviceworthy of the freeman, the vassal beiingdistinctively thze freeman of feudaldays. With this provisoit mightbe of sometimesnominalonly. any sort,and was of great variety, With this distinction a sharp line was drawn betweenthe feudal tenures proper and the servile. In one respect indeed, no one thinks of confusingthese, that is, in the personal position of the forthe presentpurpose,to noticethat holders. But it is important the difference in the tenures themselves,leaving the holders out of account,was not one of degree but one of kind, one created by difference of determining cause and purpose, and by difference of origin. In the servile tenures the controlling cause and purpose was purely economic. No other considerationentered into the case. In the feudal proper, the typically feudal,economic considerationswere entirely disregarded and those that prevailedwere political, drawn fromthe sphere of public relations. The three chief duties of the vassal, military service,court service,and allepublic duties transformed into privateobligiance, were distinctly gations. As to origin,historically the servile tenures were in existenceand presentedmost,at least, of their characteristic features when the feudal tenureshad scarcelybegun to form.2 Legally the feudaltenures originatedin a lease, a contract; the servile in the or enforcedoccupation of a piece of land to be cultivated permitted by the slave in lieu of the general servile labor which the master mightdemand. Equally significant is the fact that in many parts
I Debet sequi curiamde Broughtone ad rationabiles sumnmonitiones, et facitaliud servitium militare. RamseyCartlary, I. p. 4I3. 2 This has been shown with abundanceof proofcovering the whole manorialorganization by Fustel de Coulanges in the volume of his Institutions entitled L'A/leu et ie DomaineRural. See the same conclusions briefly stated,Brunner, A'echtsgechichte, 1. 212. VOL. VII.-2.

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and of Europe the servile tenuresexisted withunchangedfunctions disappeared or resultscenturiesafterthe feudal proper had entirely had lost all theiroriginalmeaning.' Beyond any doubt the great class of dependent tenureswhich were servile in character must be regarded institutionally as nonfeudal. It is impossible to reason fromtheirgrowth,theirforms, to the feudal. They do not growout or theircharacteristic incidents nor does feudalism of feudalism grow out of them. The twosystems affected one another,indeed, only as two great systemsprevailing in the same societywould be likelyto do, only as feudalism affected the ecclesiasticalorganization. The whole manoi-ialsystemwould if the feudal had never have prevailedwithout essential difference the manorial, arisen,anidthefeudalderivedno necessarysupportfrom it no support which could not equally well have derived fromardifferent in kind. rangements Between the feudaltenures proper and the servile,lay another class of tenuresabout which it is necessaryto speak withmore reserve. Certain facts about them are clear. They were described by one of the termsoften used of the feudal tenures; they were freeholds. Their holders like the vassals proper were free men. A part of the services by which they held their lands were like a perhaps,by part of those by which the vassal held his, or better, which he might hold some portion of his lanid. These tenures shade offby imperceptible gradations into those above and below so that it is often difficult for them,especiallyinto the feudal proper, findthat the records us to distinguishbetween the two. Oftenwve ofjurisdictions which,in the wide sense at least, we may call feudal seem to draw no line betweenthem,and graduallythe state, develin character wereanti-feudal and whose whiclh oping new institutions widened was the tended of action by monarchy, ranige continually distinction from the another side.2 to confuse
1 Says Esmein, p. 684, in beginning his description of the legal condition of lands 1' Parmi les tenures feodales [in the wide seiise], il en est qui se in modern France: maintinrent i peu pres telles que nous les avons decrites aux XIIIe et XIVe siecles; ce sont les tenures roturiereset serviles. Les premieres avaient acquis alors la pleine patrimonialit6, les secondes ne devaient jamais l'acquerir. Mais le fiefsubit de nombreuses et importantesmodifications." See also Schroeder, Lehi-buch, pp. 779-787, and the references to the literaturethere given. 2 It seems more than probable that the personal freedom of the holder, not the clharacter of the holding, is what accounts originally for the features common to these tenures and the feudal proper. The man is personally free and a part of the same local political organization with the holder of the manor. His small farm has been drawn ilnto the manorial organization by his economic dependence, or by his need of protection in turbulent times, or he has himself taken a holdiiig formed in the manor, but in either case fromthose who hold servile tenures in the manor. He thus stands on a footingdifferent fromthe start in a double relationship. The causes which have created his holding draw

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wvas On the other hand it is equally evident that a distinction these two in feudal times between understood clearly made and classes of tenuresas classes. There might be question as to individual men or individual holdings in the border land betweenthe two, but there was none as to the broad distiniction. It might be in England thani on laid on this difference that less emphasis wvas there because it had much less practical importance the conitinent, of the general government and because the growiniginlstitutionls opposed to it,but it was not the less recogniized. were mor-e directly The test applied forpractical purposes here was the same as in the The feudal was firstcase, the characterof the service r-enldered. honorable service, knight service, militaryservice. The villain's was neither was servile service. That of the common freeholder and in part of quite the one nor the other,but partook imperfectly both characters. It approached on1onie side the higher ranges of the lower ranges of honorable service,or more servile,on the otlher wvhich the comaccuratelyin the lattercase, certainpublic functionis personally allied hiim was still called on to perform mon freeholder withthe feudal class, and led to some appearance of common charand in some cases actually to common characteristics of teniure, of scutage and the character of acteristics. Legally the paymenit were distinguishing marks. wardslhip of origin and purBeyond any real doubt, the same differeences tenuresand the feudal betweenthesefreelhold pose existedoriginally
him into the manorial organization, and bring him into a relationship far closer to the class below him than-to the class above. As an individual, however, in relation to public affairs,he is classed and acts, so far as he acts at all, with the higher class, though he stands certainly in the background, and is apparently always a second choice. As these public relations become feudalized, the judicial for example, he belongs on one side to the feudal system. As the feudal interpretationbecomes the prevailing one, the temptation is especially strong to apply it to the customaryfreehold, which is certainlynot servile and whose holder acts in many capacities with the knight. It becomes easy to attach feudal incidents like homage to such holdings. The confusion in this border land is greater in Erigland than on the continent partly because the local political organization and partly because retains there through all the feudal age so much more importatnce, when the national judicial system arises, royal and anti-feudal, it finds no reason for recognizing a distinction between these classes which the local system had not recognized and every reason for not doing so. It is an important fact, however, that while the thirteenthcenturytends to carry over into the class of common freeholds some holdin4s that would earlier have been called feudal, it does not show the least tendency to obliterate the essential legal distinctions between the two classes of tenures. Littleton shows that this driftout of the strictlyfeudal class went afterwards somewhat further, but the distinction is still perfectlyclear, and remains so as long as feudal tenures proper It should be remembered of the thirteenthcentury in English history exist in England. that the feudal system was then in rapid decline. The causes which had created it had There ceased to exist; they had in fact never existed to any great extent in England. were no longer any valid reasons back of its distinctions to maintain them. It is impossible to reason fromanything which is coming into existence in the thirteenthcentury to feudalism proper, unless it be by way of contrast.

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proper,as between the servileand the latter,though,at least with to origin,the evidenceforthisis. less clear. It is difficult reference to trace the originof the common freehold tenuresof the thirteenth century. They originated in different undoubtedly ways, and three ways are probable. i. Original small free estates, held in full but attractedby need of personal and economic protecownership, tion into the manorialorganizatioln. 2. Servile raised in process of timeinto free. 3. Small feudaltenuresin a similarway depressed.' Theoreticallya fourth might be added of portionsof a manor held by freemen on paymentof a rentlike moderni tenant farmers, but this practice probablyalmost or quite disappeared as feudalism was forming,2 to reappear as settled political conditions arose, certainly veryearly in England. It is probable that the first class the origin of most of thesefreeholdsanid that a quality represents of full ownershipalways attachesto them as distinguishing them from both the otherclasses of tenures,as seen forexample in the matterof wardshipin England, but this cannot be confidently asserted. As to the controllingpurpose of these tenures,however,there can be no doubt. They are economic,not political in prevailinig and determining character. This seems to be fullythe case so far as the land is concerned. Certainincidents of this tenureseem to approach the feudal because of the personal positionof the holders, because certainpublic duties which once restedupon them as free citizensof the state,still rest upoIn them,no longer in the old way, but as survivalsdrawn under the prevailinlg feudal theorywhich tends to explain them as incidents of tenure. That is, the apparof these tenuresdid not originateas in entlyfeudalcharacteristics the feudal proper as the result of an original contract, but as a feudal interpretation of pre-existingfacts. This determining economic charactercannotbe betterstated than in the words of Bruinner,in which he formulates the difference of betweenthose teniures Merovingian times,whichdevelopedintothe feudal,and otherssimilar in some pointswhichdid not. Calling attentionl in a note to the factthat he is not speaking here of lands payinga money rentheld because they did not rest upoIn a contract, by serfs, he says: " Die der frinkishen Zeit angehorigen LeiheverhIltnisse haben sich in zwei Hauptformen allmiahlich geschieden, naimlich in die des Zinsgutes und in die des Lehens. Man darfjenes als ein Leiheverhailtnis niederer, dieses als ein Leiheverhiltnis hohererOrdnungbezeichnen.
I In Normandy customfinally fixedon the eighthas the smallestsubdivision of a knight'sfee whichcould be held by military tenure, smallerfractions being treatedas tenures roturihres.See Brussel,Usagedes Fiefs,I. p. 174, n. b. 2 See Fustelde Coulanges,L'Alleu, pp. 415-416.

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Anglo-Saxon Feudalism

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An Zwischenbildungenund Ubergiingen fehltes nicht und die Grenze ist namentlich in den Anfaingender Entwicklungoftkaum zu bestimmen. GesichtspunkDie Verleihungdes Zinsguteserfolgtunterwirtshaftlichen ten. Der, Zinshofsoll dem Herrenhofdienen, durch Fronden, Naturalabgaben oder Geldzinse des Besitzers die Wirtshaftdes Herrenhofes ergiinzen. Das Zinsgut stellt sich daher als eine Pertinenz des Herrendes Besitzers und die Art hofesdar. Die wirtshaftliche Abhiingigkeit charakterisieren es als ein Leiheverder Dienste, zu denen es verpflichtet, hiiltnis niederer Ordnung, welches sich schliesslichderart ausgestaltet, und Stellung des Beliehenen beeinflusst dass es die offentlich-rechtliche eine Schmiilerung der vollen Freiheit nach sich zieht. " Dagegen geschiet die Vergabung des Lehens nicht zu wirtshaftZwecken. Der Beliehene soll lichen, sondern zu offentlich-rechtlichen nicht dem Grundbesitz,sondern der Person seines Herren dienen, er soll ihm nichtwirtschaftliche insbesondere misondern offentlich-rechtliche, des Beliehenen darf litiirischeDienste leisten. Die Leistungsfahigkeit des Leihegutes absorbiertwereinerseitsnicht durch die Bewirtschaftiing den, das Gut muss seine personliche Arbeit entbehren k6nnen. Anderseits soll es ihm eine derartigeokonomische Stellung gewiihren, dass es die lehnsmiissigenKriegsdienst davon zu leisten vermag. Demgemass konnen nur wirtschaftlich selbstandig und grossere Giuter,solche auf welchen die bauerliche Arbeit in der Hauptsache von Knechten oder Hintersassen besorgt wird, den Gegelnstanddes echten Lehens bilden, abhiingigeHofe nur insofern,als dem Lehnmann ihre Rente zugewiesen wird. Eine wirtschaftliche Abhangigkeit von einem Herrenhof,eine das Lehen nicht herbei; es ist Schmilerung der vollen Freiheit fuihrt darumein Leiheverhaltnish6hererOrdnung."' This states the case exactly for these small freeholds of whatever origin, and for the Saxon as well as forthe Frankish state. It is into the manorial not the feudal organization that they are forced by the exigencies of the time. Whether in any individual case the need of personal protection or the lack of economic independence brought about the change is not important. The essential fact is that it is the manorial system which incorporates and controls them. Their relation to public life and to the growth of institutions is determined by this relationship. They represent in other words, so far as our problem here is concerned, nothing differentfrom the servile class. The changes which affect them in the formative age are not changes toward feudalism proper. The transformationof their tenures into dependent tenures brings them into the manorial not into the feudal system. These two classes of dependent tenures are those which pass on most nearly unchanged from the Saxon into the Norman state. Besides these we have in the earler period a variety of other holdings, more or less dependent, not very clearly defined in their legal characteristics,but concerning larger estates and more important persons,
1 Brunner, Rechtsgeschichte, I. 209.

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bishops. earls, and thegns,-in theirrelationswithone the lking, another. Of these nearlyall those which do not fallinto the class to be noticedin the next paragraphseem to be cases of real dependor in an attempt in the desirefortheprotection originating ent tenure, person. It is powerful of somne favor and influence the to purchase to those out of approach thatwe findthenearest among these fornms grew. Parallels forthemall are to be foundin the which feudalism varietyof cases which lie around the line of descent of feudalism properin the Frankishstate,but this is all thatcan be said of them. theoperationof those politicaland economic causes They represent feudalism. Had these in creating whichwerethe greatmotiveforces forces had in Saxon England the same formal elementsto work upon which the Franks had inheritedfrom Rome, the precarium and the patrociniuin, we mightpossibly have had the same result cases of verbal imitation. The there,insteadof a fewunimportant factshould not be overlooked,however,that of all the provincesof the Roman Empire in whichthese elementsexisted,where the Gerwhichseem to be the same were and wherebeginnings mans settled, produced, feudalism. Britain made,Gaul alone producedinstitutional nothingreallylike it,noteven the beginning among all these forms, of it. One otherformof tenureexistedin Saxon timeswhich needs to of full be noticed. That is the class of grantsof limitedownership, but his heirs, even is or concerned, as grantee so far the ownership " he to others; of conveyance withno rightor a verylimitedright, common cannot go withthe land wherehe pleases." These grants, to various Teutonic peoples, whose existence was long maintained by Brunnerin one of his by Waitz but has been fullydemonstrated studies,' had much more frequentuse and a longer most masterly lifein the Saxon than in the Frankish state,but they were not in any respectthe ancestorsof feudalgrants. The practiceof making them made it naturaland easy forthe Franks to take up the Roman whichthe feudaldid grow,as thesehad been developed tenuresfrom and in many cases doubtless to bringgrantsof the church, the by the but they influenced old limited sort under the new principle, feudal of the feudalsystemin no other way. Had the formation tenuresgrown up in Saxon England as in the Frankishstate their to the purposes sought would greater usefulnessand adaptability and clumsyTeutonic formsout of have driventhese more primitive the Conquest. common use long before
I Die Landschenkungen in theSitzunzgsberidhze undder AziZoZflnger der Merowinger in Forwithsomeadditions Reprinted der BerlinerAkademie,1885, pp. II73-I202. I894. Rechtes, und FranzUsischen des Deutschen zur Geschichie schungen

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II. The subject of jurisdiction is one of the most difficult connectedwiththefeudalregime. The variety whicheverywhere reigns in feudalism is especiallycharacteristic of thisside of it and makes it by no means easy to distinguish the ideas whichcontrolit. The briefest attemptto give any discriminating account of what was inin the wide sense would farexceed cluded underfeudaljurisdiction the limitsof any REVIEw article. Happily it is not necessaryfor our purpose to make the attempt. No one has ever suggested,so faras I am aware,that feudalismwas created by the growth of private jurisdictions, nor is anyone ever likelyto do so. Any possible developmentof these practices would leave so much that is essential to feudalismunexplained that the relation of cause and effect does not suggest itself. Private jurisdictionwas, like the manorialorganization, one of the side productsof those conditions which,along another line, produced feudalism; a product which feudalism, once created,absorbed into itselfand made its own as it did the manorialsystem. Still,some consideration of the subject is necessaryhere,because in the firstplace this featureis so truly of feudalismin the wide sense, and in the second, characteristic because it is this developmentwhich leads to the absorptionby feudalism of one department of public law, and to the translation into privateobligationof one line of public duty. In the discussionit is necessary to distinguishclearly,fortheoreticalpurposesat least,threedistinct linesofjurisdiction whichwere probablyin practicemore mingled togetherin England than elsewhere in the feudal world,though this mingling existed to some and was indeed inevitable. These are first, extent everywhere, manorialjurisdiction proper; second, public jurisdictionin private hands; third, feudal jurisdiction proper.' However confusedthey these three are clearlydistinctin theoryand mightbe in practice, in historical they were distinct origin. Jurisdiction over the unfreepopulationon large estates which were managed as a whole-over theirdisputesand offenses among over questionswhichconcerned theestateand its poputhemselves, lationalone-apparently began in Roman days; 2 it certainly began long before institutional feudalism arose. This was the beginning of manorial and thisremainedits character when jurisdiction proper,
1 See the discussion of this subject in Flach, Origines de L' AncientneFrance, Vol. I., Bk. II., especially Chaps. VIII. and IX. I-le emphasizes: La distinctionentre la cour des pairs siegeant comme vassaux et la cour des pairs si6geant comme fideles [subjects]distinction qu'il ne faut jamais perdre de vue, sous peine de ne rien comprendre au fonctionneinentde la justice pendant les Xe et XIe siecles ni a son sortult6rieur. 2 Flach, Origines, pp. 73-78; et la Justice SeiBeaudouin, La Recomzmiiendation Fustel de Coulanges, L'A//eu et le Domaine Rural, pp. 450gneuriale, pp. I08-I22;
452.

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consideredby itselfalone. It was a jurisdiction over manorialdisputes and offensesonly. It had, strictly speaking,nothingto do or in character.' That it attracted with feudalism, either in origini into itself, that is into the manorial proper,in the end many free tenantswas due mainlyand probablv originallyto their economic dependenceon the manor; lateritwas also due in part to the transferof public jurisdictionto privatehands and in part to the influence of the feudal theory. It was this jurisdiction also, freedfrom and except in very minormatters the feudalproper, fromthe public, which in England survivedthe age of feudalism.2 ILaterwe have the beginningof a new jurisdiction of a public characteradded to the manorial in a certainnumberof cases; the germ out of which would grow in the end a greatlyenlarged private jurisdiction, covering questions and persons niot belonging primarily to the manor, as well as in these matters the free population of the manor itself, by the formal putting of the lord in the place of the state for a given district, or possibly in some cases by the transferto him of anl entire local court. It is at this point in the development of these institutioinsthat the immunity exercised such an important influence, and it is Llpon this process in Saxon England that Mr. Maitland has thrown so much new light, but he has not made it apparent that Saxon private jurisdiction had advanced beyond this point before the Conquest. This process, well under way in the age when feudalism came into existence, was greatly aided and enlarged by the breakdown of public authority under the later Carolingians. Grants of this sort were rapidly multiplied, almost as an open confession of the weakness of the government. Usurpation took the place of an actual grant in many cases. The count transformed his public office into a private possession, and the line of connection between the state as public authority and its officerswas weakened or broken from many causes. But it was during this age also that feudalism proper was fixing itself in the Frankish state and becoming the controlling element in what general organization survived. It was natural and inevitable
1 La justice domaniale, qu'on appellera bient6t justice seigneuriale, est encore un peu vague et indecise au huitieme siecle. Avec le temps, elle se precisera et prendra des regles fix6es. Nous avons seulement constate ses origines; elles sont dans la nature du droit de propriete et dans l'organisme constitutionneldu domaine; elles n'onit rien encore de f6odal. Fustel de Coulanges, L'A//ezi, p. 46I. Seignobos, Le lgiYme Kodal ell Boiug{o,bne,pp. 236-243, is an argumeintto show that nmanorialjurisdiction is not of feudal origin, but is derived fromthe right of property. 2 See the character of this jurisdiction in Maitland and Baildon, TuteCourt Baron, Se/den Society, Vol. IV. The manorial court records of Maryland, printed by J. Johnson in Vol. I. of the Johnzs hlopkins University SLiuLicsin iIisory, give interesting examples of this jurisdiction as transferred to America in coloniial times.

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that thissystemof privatejurisdictions, though of independent origin, should be absorbed by it and worked over accordingto its own theories. The lord of the manor was by this time,not in every case, but generally,a link in the feudalchain, at least every feudal senior was lord of a manor. His view of his relations to those above him determinedhis interpretation of the relation to himself of those below. Tenure became the one explanationof everything whichwas capable of explanationby it. Jurisdiction followedfrom it. The duty to be subject to the lord's court and to assist in its operationsresultedfromit and privatejurisdiction took on that feudal characterproperwhich it had lacked in thegreat age of the imand which it neverpossessed in Saxon England, that is it munities, became one of the elementsof a contract. ofpublicjustice,the thirdkind Compared withthis feudalization ofjurisdiction, the feudalproper,was alwvays, in England at least, insignificant. What thiswas may be statedin the wordsof Brussel: " C'etoit une maxime universellement pratiqueeen France, que tout suzerain avoit cour pleniere sur ses vassaux, au regard de leurs fiefs "; or of Houiard: " On a prouve', articleFief,que toutseigneur avoit cour pleniere sur ses vassaux, en ce que touchoit les fonds qu'il leur avoit inf6odes."` It was a jurisdiction over those holding fiefsonly, irnmatterswhich concerned their fiefsonly, or in offenses which concerned themselvesonly, mainlyin this last case offenses which concerned lord and man. This is the jurisdiction which is meant by the judgmentof peers in C. 39 of Magna Carta. In partsof Europe thisjurisdiction on its civil side resultedin someand permanent, thingimportant but in England though there are evidences of its existenceas a separatejurisdiction, and though the barons at one time seem disposed to insist upon it so far as the king's court is concerned,apparently as a means of checking royal encroachments it never amounted to upon theirown jurisdictions, even in the age of the highest development anything of feudalism in the kingdom,the firstthree quarters of the twelfthcentury.2
1 Brussel, ATouvelExanmeni de/' UIaTgeGhnzb-l des A;zefs, I. p. 260. Houard, Dictionnaire de la Coutninede A'ormanzdie, III. p. 394, Art. " Pair." There is a great lit-

bothFrench and German, eratureof feudalism, of theseventeenth and eighteenth centuries,especially of the latter,but it can be used for historicalpurposes, as evidence regarding theinstitutions or ideas of the greatage of feudalism, onlywith the greatest caution. But the aim of Brusselwas distinctly historicaland he had thespirit of the truehistorian, though underunfavorable conditions. This can be said of fHoiiard only in a less degree. 2The evidenceshows,I think, thata court of this sort-of vassals actingas peers, and considering onlyfeudalcases in the strict sense-met onlyon the special summons of the lord,whiich of a vassal, and the might be for his own purposes or on thedemanid vassal's case was liable to be triedby the lord's ordinary courtunless he demandedtrial

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This factwas characteristic also of Normandy, though to a rather less extent,anidforthe same reason,the great power of the sovereign and the great centralization of government as comparedwith the most of the feudal world. There are other reasons for this stateof thingsin England whichit is not necessaryto go intohere. By the end of the thirteenth century thisjurisdiction had lost what littlesignificance ithad everhad. The attempt to save it,made in the interest of the overlords in the Magna Carta,was practically abandoned before the close of the reign of Henry III. A littlelater the Statuteof Quliaemptores made an end of any possibility of the growth of it, at a timewhen the Quo warranto proceedingswere checkingtheenlargement and even curtailing theextentof the public jurisdiction in privatehands. But at thatdate the feudalsystem had come to an enidin England in everyrespect, except as the basis of a nobility and as mere land law, because of the generaltransformationof conditions. The influence of this feuidal jurisdiction properupon the general institutions of England is to be foundalmost alone in the evolution of the modernjudicial systemout of the king's court,and in the workingof the principle of trialby one's peers.' More important from our present pointof viewis theabsorption of the independently originating privatecontrolof public jurisdiction into feudalism, and the workingof it over in harmonywiththe prevailing idea of contract. The essential factis, thatit became a part of the serviceby whichthe vassal held his land to help to form the lord's courtwhen called upon to do so, and thateven the court duty of the common
by his peers. We may go so far, I think, as to say that no court meeting at fixed intervals was a strictlyfeudal court. It was a court of mixed jurisdiction though often deciding feudal questions. Most of the early law books of modern Europe-those writtenbefore the close of the thirteenthcentury-are books of the mixed law enforced in these courts, though feudal law proper fills the larger part of each book. If feudal law and criminal law be taken out hardly anything, indeed, is left. The Lombard feudal code, the Libri Feudcoruwni, is a pure feudal code except forsome provisions in the two LandGeseize which it incorporated. Glanvill's book is, fromone point of view, the friedensmostinterestingof all these early law books. Writtenat a date when, if it had been composed in any other country,it would have been chieflyfeudal law, when feudalism in England had only just begun its final decline, and containing indirectlya great deal of feudal law, it is neverthelesswrittenfrom a point of view not merely non-feudal but opposed to feudalism. Its most importantcontribution to general, as distinguished from legal history,is the evidence which it gives of the serious inroads upon the feudal system which a powerful executive had already been able to make. 1 It is a rather interestingfact that, while in France and not in England there was active proteston the part of the barons against the presence in the king's courtof a bureaucratic element in the trial of members of their order, it is in England and not in France that the barons secured a real right of trial by theirpeers. This right would have been lost in England as well but forthe peculiar formof the development of Parliament in that country.

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by this idea. of cases transformed was in a vast proportion freeman But this was a result of completed feudalism,not a part of the process by which it was created. to three tenures,Mr. Maitland refers III. In regardto military that the Conquest groups of factswhich appear to him to indicate or that at most it in this matter, introducedno practicaldifferences introducedonly a theorymore fully developed from similarfacts.' These groups of facts are: i. Those indicatingthat a definite service rested upon a definiteportion of land. burden of military by one of 2. Those showing that this service was oftenperformed a group of men,the others unitingto sustain him in the field. 3. Those which seem to show that the state oftenheld the great lord, a former owner,responsibleforthis service,and that he in turnexacted itfromthe presentholders to whom he had conveyedportions of his lands by some limited right of ownership. The man is responsible not to the king but to the lord. of these views, I shall only referhere to Mr. Round's criticism especially of some points connected withthe last. He appears to me to have shown clearly that these factsare capable of presentation under quite another aspect.2 What is here proposed is to acceptingMr. Maitland's account as it raise the question wlhether, feudalism or any real approach to it. we shouLld still have stands, to the similarity betweenthesearrangements Mr. Maitland refers and those whichexisted in the Frankishstate,and the comparison is interesting and forour problemdecisive. He says: " Already the Ernperor's in the days of Charles the Great the duty of fighting battleswas being bound up withthe tenureof land by the operation of a rule very similarto that of wlhich we have been,speaking. The owner of three(at a later time of four)manses was to serve; men who held but a manse apiece were to group themselves togetherto supply soldiers. Theinat a later time the feudal theory of freecontractwas brought in to explain an already existingstate of things."3 of this "rule " whiclhis here made is accurate. The statement Whatever may be one's opinionupon the disputedquestion,wlhetlher in the Frankishstate the burden of military service rested originally thereis no disputeas to the uponl the land or upon the individual, existenceof these arrangements under Charles, and they continued in use forsome time. What was the reason for their existence? They were part of a conscious attemptmade by the kings to save
1 Dozesday Book aizd Beyond, pp. 15 6-I 6 I. 2Ein,Idiskz Historical Review, Vol. XII., p. 492. 3Do;nesdav Book aizd Beyond, p. i6i.

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the old Frankish militarysystem from the collapse which was threateningy it froma variety of causes, one of whichwas the growth of feudalism. In the Saxon state they indicate undoubtedlythe same conditiotn, the difficulty of getting the old militaryservice. not in They were feudal themselves. They were,not in the line of the developmentof feudal militaryservice. Quite the contrary. They representedan earlier,contrasted, to a certain extent even a rival formof military service whichwas being drivenout of the field by feudalism, and whichfinally succumbed to it, never completely but as the maindependenceof the state. The first and last sentences quoted above convey,I believe, an entirely wrong impression. No operation of this rule bound up the duty of fighting battleswith the tenureof land. No theoryof freecontractwas ever brought in to explain this state of things. Tenure by military service anid the theory-the factof freecontractentered into possession of the field by an entirely different road; they wvere already enteringinlto it at the momentof these regulations. Mr. Maitlandcould have extended his comparisonvith Frankish institutions to the last of the three groups of facts-to the idea of the responsibility of the lord forthe military serviceof the men of his lordship. What looks very much like it is to be found alongside the Franikishpracticesdescribed above. The senior,withthe saniction of the king,summoned his men to perform theirmilitary serviceand led theminto the fieldas his own force,underhis in-dividual responsibility.' The army was composed partly of conthe old general levy under the arrangbements tingents representing described in the last paragTraph, led by the counlt, partlyof collof men led by theirlords. tingents The use which the state made of the growing feudal systemin this way exerteda decisiveinfluence upon it, not in creating it but in stimulating, and perpetuatingit. This was by no means the intentionof the state. Its purpose in this case was the same as in the otherarrangements, to obtain by means of a temporary expeservicewhichit must have and could no longrer dientthe military amounituniderthe old system. The result was, get in sufficient of the citizenarmy to hasteni the transfor-mation however, materially a new formthe sanction into a feudal army,and to continiue unider
I Les capitulaires imposerent au sen-ior, sous sa responsabilit6 personnelle, l'obligation de r6unir et de conduire ses hommes a l'armee eni cas de coinvocation." Esmein, Coucrs k /ew;nenaire,p. I27. " Die Senioren hafteten fuir die Strafe des Heerbannes, wenn ihre Leute sich dem I)ienste eiltzogen. Fiir die Gruppen der drmeren Hleerptlichtigen iibernahmen ihre und erhoben dafiirdie von den Wehrpflichtigen der Stellvertreter Seniiorendie 13eschaffuLng zu zahleinde Beisteur." Schroeder, Lc/rb:icli, p. 155.

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at its birth. It whichthe state had grantedthe feudalorganization was not,however,the merefact that the lord might be made responsibleforthe serviceof his dependentsthatbroughtabout this result. It is conceivablethat such a systemof responsibility nmight withexist of morethan one kind and in a highlydeveloped form, out involvingany feudal arrangement. What made this expedient eventfulin the history of feudalism was, thatthe state was making use of an alreadyexistingprivateobligationto take the place of a it extremely public dutywhichit was finding difficult to enforce in any otherway. The essentialfactis not thatthe state called upon of a public duty, and so' the lord to assist in the enforcement of that duty whichwe created a new system for the performance call feudalism, but thatit allowed and encouraged the substitution for this dutyof a system of private obligations which had long before been createdwithout the assistanceand originally even without the sanctionof the state,whollyin the fieldof privatelaw, and which had long beforethis date taken on a prevailingly military character. It should be remembered always that the element of military servicewas not essential to feudalism. It was one of a numberof forms of service, made especiallyprominent of the by the conditions time,but no more indispensablethan any of the others,no one of whichwas essential. The idea of honorable servicewas essential, but thatwas rarelyembodiedin a single formof service and when it was, it was not usually the military which was chosen. That is to say, when we have shown how the military elemententeredfeudalism we have not explained the originof the feudalsystemitself. Its own origin lies back of the military elementin it. When we have discoveredhow it came to absorb into itself the public duty of military service,we have done no more thanwhen we explain how thejudicial function of the state. There still remains it appropriated the task of showinghow the systemitself arose. In connection withthe subject of military tenuresMr. Maitland the introduction at the Conquest of a admits,as fullyas anywhere, elementwhichwas lackingin Saxon days,but he is not contractual disposed to see in this a matter of any importance. I shall not presumeto disputethe opinionof so able a lawyerthatas a matter of law the presenceor absence of the contractual elementis merely and not of practical importance, of theoretical that at most it is a questionmerelyof legal logic, though I may be surprisedthat it should be so considered.' But in the field of institutional history
1 See the quotations in noteI, p. 12. Statements of this kind are unexpected, at least, from one who is before all else a historian of law and institutions.'The legal his-

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certainly the case is different.There the one vital fact is that at the beginning of English constitutional history the public law of the state was brought under the controllinginfluenceof private contract,that public duties were,as I have already said, transformed into privateobligations. It was uponithis idea that feudalism took its stand forself-defence against the attack of a powerful monarchy and in ways not easily felt to be dangerous,by begun, indirectly Henry II., continuedmore openly,so that the driftof thingswas more plain but not in realitymore dangerous,by John. Forced into new prominence in this way as the principleof resistance, the idea of contract became the leading elementin a new growth,the growthof the constitution, as I endeavoredto show, too briefly, in an earliervolume of this REVIEW.1 Nor is this idea of contracta late idea, brought in as a theory to explain already existingfacts. It goes back as a characteristic fact to days even before the originl and controlling of feudalismin one at least of the earlierinstitutions out of whichthe feudal system in the other, grew,the patrociniiumii;and it is only less prominent In the precariurin. the patrocinzium, whichis the source of the personal side of feudalism,' it was inade especially emphatic. A chartorian has often beenaccusedof tracing too sharply theformal line ofconnection between an earlierinstitution and its laterdescendant, and ofinsisting too strongly upon it. The has onlyso muchtruth, criticism that sometimes an unusually clear visionof the importanceof the formal line of descenthas led to a neglectof the social and economicforces whichcontinually forms and shape results. But in the historic, modify as in thegeologic past,a later form is alwaysthe outgrowth of an earlier, and can no morebe understoodin theone case thanin theotherwithout a knowledge ofits ancestor. It is impossible to emphasize thisprinciple too strongly wherewhatwe areprimarily in is interested theconstitutional resultof a groupof legal forms. In this particular case it would be enoughto say,could it be so said as to carry withit, that theexactlegal understanding forms out ofwhichformal feudalism either grew, uponthepersonalorupontheland side, have neveryetbeen discoveredin the Anglo-Saxonstate. We maybe sure,I think, after of Maitland's,that theyneverwill be, at least as anything this study but veryexceptional cases. IVol. V., pp. 643-658. S Brunner is, I believe,the onlyscholarof authority who stillderivesvassalage directly from the comitatus. DeutscheRechtsgeschickte, II., pp. 258-274. He holds this in quite a different form opinion,however, from the originalcomitatus theory. He rests it uponvariouspoints of similarity betweenthe comitatus ana the latervassalage,but some of thesewere features of thepatrocinium as well as ofthecomitatus;some indicate the influence of the comitatus in modifying the patrocinium as it grewintovassalage proper, and somewould probably be common to anypersonalrelationship betweenlord and man. These considerations lose all force in faceof thepositive argument for thepat7 ocinium origin as developed byFustel de Coulanges, andEhrenOrigines, pp. 192-333; Commendation passim, especially pp. 131-141. See also the berg, unl Hu1digung, conclusiveanswer of Brunner'sargument by Dahn, Konige, VIII. 2, pp. I51 if, and compare Waitz, Verfassungsgeschichte, IV., pp. 249 ff. The commendation of thelandless man-the patrociniumproper-as an elementin the originof feudalism, is not discussedby Maitlandbecause DomesdayBook is notconcerned withcases of thekind,

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which is one of those often acteristicformula of commendation, its features, will make this evident: quoted to illustrate illo ego enimille. D)um et omnibus habetur Dominomagnifico percognitum, qualiter ego minimehabeo,unde me pascerevel vestire deet mihi decrevit beam, ideo petii pietativestrae, voluntas,ut me in vel commendare vestrum mundoburdum tradere deberem; quod ita et de victu feci; eo videlicet modo,ut me tanm quamet de vestimento, julxta velconsulare debeas, quod vobis servireet promereri potuero, adjuvare ordinetibi servicium vel obseet dumego in capudadvixero, ingenuili vel mundoburdo quiumimpendere debeam et de vestra potestate tempore nisi sub vestrapotestate vite mempotestatem non habeamsubtrahendi, vel defensione diebusvita mea debeampermanere. Unde convenit, ut, se emutare si unusex nobisde has convenentiis solidos tantos voluerit, firma parisuo componat, et ipsa convenentia permaneat;undeconvenit, ex hoc inter se facere ut duas epistolas uno tenore conscriptas vel adfirmare deberent; quod ita et fecerunt.1 That this is a legal contractis plain enough,both from the even exchange providedforand fromthe arrangement specified by which the agreementat will. If one partyis eitherparty may terminate whichaffects clearly in a conditionof economic inferiority tlle practical characterof the bargainwhichhe can make, it is also clear that in legal status he is on an exact equality withthe otherparty. This is proved,ifit were not plain fromthe agreementitself, by the we understandthis to mean the otherparty termpani szio, whether to a contract, which seems to be the only natural meaning in the majorityof the formule,or "' his peer" as M. Fustel takes it here,2 to the factthatthe documentputs them on an equal footreferring ing and subjects both to the satne penalty. This featureof the pa/rociniumn neverdisappears fromfeudalism, nor even declines in importanceso long as the system lasts. If later feudal lawyers mighthave hesitated to call the lord the peer of his vassal, lord and vassal always remained peers in questions of the feudal contract,which was equally enforceableby either partyin the lord's court or in that of the lord's suzerain. The reluctantlord could even be forced by his vassal to accept homage and grantinvestito the original system,and ture,an extensionof the idea foreign indeed the sign of an important change. It is not necessaryto add to this any description of this feature in the benefice, but ifthe originalRoman precariurn was not a conbutthesame thing is to be said of it as was said of the pr-ecarium above. No development of it by itselfcould have producedthe institutional feudalism of the eleventh century. I Formula Tutronenses, No. 43, Zeumer,p. 158; Roziere,I., p. 69. On the charsee Ehrenberg, acterof commendation as a contract und Huldigung,pp. Conmmendation goff. 2 Origines, p. 271.

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and if the holder had no standingin the courtsas against the tract, grantor, this is one of the featureswhich began to enter intoit as it grew towardthe beneficeand the fief. As precariun grantsfor limited timeswithsome pecuniaryreturnbecame frequent, and especiallywhen specifications began to be introduced that the holder could not be disseised because he failed to pay promptly on the fixeddate, the arrangement assumed more the characterof a contract. It becamea quasi contract, as Fustel calls it,' and thoughthe right of the doner to protect his holding was always imperfect duringthe formative period,theprecarittin was rapidlybecominga whenit was absorbed in feudalism truecontract throughits combinationwiththe personalrelationship which had grownout of the original patrocinium1. It is thiscombination whichforced the idea of contract, thoughit had been, to the extent stated,a featureof both the priorinstituas the controllingidea of the new result. The tions,to the front necessaryreason forthis union was the makingof a contract, and in such a way as to secure its fulfilment.The princewho saw himselfcompelled in as shorta tirneas possible to transform the unmountedFrankish armny originally into a mounted force,must make sure thatthe land with which he provided the seniorwould be used to pay the expenses of puttinghis men on horseback,and cases thatthe senior beto this end he began to requirein frequent come his vassal with these obligations of service. This practice united the beneficeand vassalage as the two sides of a new relationship,and by this feudalismproper was created. I cannot avoid the conclusionthatthe fundamental withthosewho difficulty in the Anglo-Saxon state is that see feudalism existingor forminig of this union in the creationof instithey overlook the importance tutional feudalism proper. But the reason of the union was to a contract, and this remained always the reason createand enforce of this union whichcontinuedto be prominent and emphasizedas had any existenceat all. long as feudalism idea is, indeed,throughall the varying forms This contract and of the feudalage the one thingwhichis permanent transformations the one constantly element. The effort and distinctive, controlling to defineclearlyits nature,incidentsand results,to protectthe interestsnow of one partyto it, now of the other,to hold these two interests each wvithin its sphereand to mediatebetween conflicting to embody this principle in them,gave us feudallaw. The effort and symbols,and to get the necessarybusinessof the visibleforms state performed throughits agency and in harmonywithit, created feudalinstitutions.
1 Origrines, p. 149.

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1Whether we say thatthe essential and distinguishing of feudalism feature proper was the contract withwhatthatimplied, or theunionof vasidea, or honorableservice makesno greatdifference.The form of theexpression will desalage and thebenefice, to emphasize. In real meaning, pendon whichaspectofthesinglefactwe are inclined in institutional significance, we have said thesame thing in each case.
VOL. VII.-3.

Ifthis contract ideawasnot a test feudalism itself conbywhich between the feudal andthe itwas sciously distinguished non-feudal, inthetestanditconstituted therealdifference.' Where involved ideaaffecting wefind whatseems to be an analogous at anytime theprinciples which tenures itis because thenon-feudal prevailed theinterpretatioll haveinfluenced so strongly inthehigher sphere in the lower, them over and worked of different arrangements we cometo the time when we by itsownanalogy. And,until orbetween lordandcommune, made between haveactual bargains or group, thearrangements lord were and rural community really as a whole into condifferent. Nor didtheyeverdevelop really in his permitted orcomtheserf tractual relations.Originally he could which andifheachadno rights pelled holding protect, ofprescription, inthe these endhediditbythe quired way byputting onthelord's not ofexaction, limitations right byenforcing anything Andthecaseofthe inthewayofan original contract. nonsmall, inprinciple. freeholder was notdifferent hisrelafeudal Probably in something casesoriginated tion to thelordhadin many much inthecaseof theserf-aconlikea contract than more anything not thepersonal tract theland, affecting however, relationship-but which theeconomic influences hadcausedtheoriginal action conto be the prevailing influences and incorporated tinued thefree inthemanorial more andmore holding closely, organization. that no other It would toassert be a mistake ideathan thatof inthepublic is tobe found at work ofthefeudal contract relations oflegalnotions wasa system andpractical age. Feudalism usages of a peculiar out ofpeculiar sort, growing and temporary condieconomic and partly tionspartly political, superimposed uponan different and very fixed older, very firmly governmental system. Thissystem itnowhere There wasalways, even destroyed. where feudalism mostcompletely and conflict triumphed, inconsistency inthepresence of eachother from theexistence ofthese tworadsetsof ideasand institutions. and inharmonious icallydifferent for There isnofeudal as a feudal state, example, regarded state, where is not a source ofcontradictions thekingship ininstitutions illogical, anid andofirreconcilable intheir difficulties law, practical operation. The feudal demanded a suzerain atthe system logically supreme Buttheking wasnot this topofthehierarchy. alone as,looked at thefeudal heshouldhave from side, been, noteven in sucha state

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as the kingdomof Jerusalem. Far the largerpart of the conception which always prevailed was derived fromthe older of his office his duties even, non-feudalsystem. His rights and prerogatives, but enough as to existenceand direction, conceived of definitely constantlyclashed veryvaguely as to application and limitations, withfeudalrights. betweenthese two systemsthatmodern It was fromthe conflict constitutions arose. Everywherebeforethe end of the middleages feudalism as a system for the organizationand governmentof societydisappeared,largelybecause the conditionswhich had crehad passed away. But ated it and fromwhich it drew its strength which took its everywhereit left its mark upon the institutions place. England, of course, formsno exceptionto this rule. What and allis that in England thisfundamental is exceptional,however, controllingprinciple of feudalism,the idea of contract,that the servicesand obligationseven of the highestsuzerainand his vassals are mutual,alike binding upon both, passed over fromthe feudal systemand besystemas it declinedinto the victoriousmonarchical came, enlargedin meaningand applicationto fitthe new conditions, in institutions and law as it had been in and determining as fruitful the previousage. This is the factwhich createdthe constitutional centurybetween England which existed in the fifteenth difference and all other European states,anidthis is the factwhich makes the of great of thisidea into English history questionof the introduction institutional significance. and the idea itself of profound importance in which it was embodied Neitherthis idea nor the institutions are to be found in Atnglo-Saxon England. We do find there a and practices,dependenttenures, varietyof pre-feudalinstitutions economicand and military partly privatejurisdictions, arrangements, makingdue partlypolitical,but these, in all theiressentialfeatures, of Frankwereparalleledin the history allowance forlocal variation, descent,they had ish institutions. In the line of strictinstitutional nothingto do with the origin of feudalism. They were, however, of societywhichproeither producedor nourishedby that condition germs of feudalism. They duced and nourished the institutional productsof thatsocietyas thoseothers wereperhapsas characteristic fromwhichfeudalismdid spring. They made in some cases contriwhich modified it in more or less imfeudalism butionsto forming of this societyand inseparable portantways, and so characteristic of the fromit were some of themthat they survivedthe completion feudalsystem and were adopted by it, becoming as characteristic of the feudalsocietyas theyhad been of the societyout of features which feudalism grew.

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I cannotclose thisarticlewithany better statement of conclusions thanis made in one of the closingparagraphs ofWaitz's accountof theearliest in the fourth stages of feudalism volumeof his Deutsclie Ve;fassungsgesc/liclte. He says (p. 360):
IIAenliche Bedingungen habenwohldamalsund sonstbei anderen Vdlkernverwandte Erscheinungen hervorgerufen wie sie hier entgegentreten. AenlicheCulturverhaltnisse erzeugen im Volkerleben iuberhaupt in einem gewissenMass iubereinstimmende Bildungen. Aber irrimer habensolchedanndoch in jedemeinzelnen Fall ihreigenthiimliches und unterscheidendes, und die tiefer hat ihrAugeneindringende Forschung merk besonderseben hieraufzu richten. Horigkeitund Schutzverhaltnisse verschiedener des Volksmit von Angeh6rigen Art,Verlbindung zu besonderem, hohergestellten oderden Herrschern einesStaats Mainner Dienst,Verleihung von Land, privatem oder dffentlichem, gegen verauchvon Hoheitsrechten schiedenartige zu Uebertragung Verpflichtung, Recht an Statthalter einem gewissen und andereeinzelne selbstandigen Personen oderan Corporationen kommen in der Geschichte derVolker wiederholt vor. Aber die eigenthuniliche FormderVassallitat und des mitdem Einfluss den sie auf die stiindischen Beneficialwesens, und die allgemein staatlichen hat sichnurim Frankischen Verhaltnisse erhielten, Reich erzeugt, auch nichtbei den verwandten Germanischen Stammen in Brittannien und Skandinavien. Und erst von den verschiedeneni Theilendes Frankenreichs aus hat spiiter eine Uebertragung auf andere L"anden Was Europasund eine Zeit lang selbstAsiensstattgefunden. sich dort entwickelte, ist deshlalb nichtblossfur die aus dem Frankenreich hervorgegangenen fUrdie Staaten,sondernim weiteren Umfang Nationen iiberhaupt einflussreich abendlandischen geworden. Darin in der Karolinischen mehr noch als in demwas dieseVerhiltnisse Zeit " selbstwarenliegtihregrosse geschichtliche Bedeutung.

Since thesewordswerewritten, new investigation, every sifting moreand morethoroughly, of whichDomesday theevidence Book is a fine to confirm their andBeyond onlyserves truth. instance,
GEORGE BURTON ADAMS.

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