tion, that masterly as the developement they contain of a most refined and intricate branch of law undoubtedly is, and completely as they set at rest almost every controversy that can possibly grow out of it, their excellencies are still rather those of a searching analysis, than of a perfect, synthetical exposition of ascertained principles-not to mention that they have withal, a crabbed and technical air, which is not at all perceivable in the treatise before us. Mr. Humphreys is a reformer. He aims at doing in England, in relation to real estate, what has been universally accomplished in the United States, and very little more. He appends to the discussion of his theoretical principles, a specimen of the manner in which he would have them reduced to practice in a code. We shall not enter at large into the merits of his projected reformation, although we have no hesitation in saying that we entirely concur with him as to the necessity of some change in most of the particulars which he has pointed out. The law of real estate, as at present practised in England, is a reproach to an enlightened nation and to a philosophic age. But being ourselves disinclined to venture upon any innovation, unless we be very sure that we shall better ourselves by it, we are not prepared to say how far it would be expedient for a British Legislature to carry his views into execution. On the general subject of codification, we shall avail ourselves of some future opportunity to express our own opinions. The work before us is divided into two parts. The first, of which the object is to point out existing evils, is an admirable elementary exposition of the law of real estate as it now stands in England. The second, sets forth the remedies proposed. We purpose, in the present article, to develope the subject referred to in the following remarks of Mr. Humphreys : "Of the defects thus alluded to in institutions respecting real property, and of the supineness of the Legislature, and the indifference of the public in correcting them, the laws of England afford a signal example. Passing by the simple rules of ownership under the Anglo-Saxon dynasty, as they may be collected from the relics of their laws and their extant charters, the Norman conquest overwhelmed our landed property with feudal tenures and their burdensome privileges. These were introduced, not in the spirit of military conquest and partition, on the terms of rallying round the chiefs, to protect the common acquisitions, but as a system of jurisprudence already established, and even refined upon in their own country, by this proverbially litigious race. They gave us not the spirit, but the dregs of that singular system, which has so largely influenced the laws and manners of modern Europe. The extent and variety of the burdens and restrictions of tenure, (fruits as they are called) may be found in all our writers on this branch of juris prudence; forming, as they did, in their primitive vigour, rather an assemblage of unconnected institutions, than parts of a general system." * * * "The intricacies and burdens of tenure, indeed, were greatly diminished at the restoration. Much of the original system, however, still remains; together with many theories built upon it, and fictions invented, occasionally, to elude it. The whole tinctures deeply our laws of landed property; though discordant, from the sentiments and habits of modern society, and even from that leading maxim of modern law which wisely regards land as a commercial property, and discountenances all undue restriction on its alienation."-Introduct. pp. 4, 6. Again." The three great causes to which I have attributed the redundancy of these laws, are tenures, uses, and passive or merely formal trusts. The first of these rests upon a system which has long ceased to influence society; while its theory still pervades and augments every part of our laws of real property.' -p. 171. It is our purpose to trace the origin and consequences of the Law of Tenures, better known under the popular title of the Feudal System. We shall, in the first place, treat of it in a general way as one of the great social institutions of mankind, and then proceed to follow out its most important effects upon the law of real estate in England. Thanks to the good senso and the favorable situation of our ancestors, very few traces of it are now discernible in the jurisprudence of these States. Still, there are a few, and the history, especially, of our jurisprudence is unintelligible without the lights derived from this source. So deeply rooted in the character and condition of modern society, were those principles of which the remote origin is lost in the shadows of the Hercynian wood! In longum tamen ævum Manserunt hodieque manent vestigia ruris. This inquiry has another recommendation; it affords the most striking illustration that is any where to be found of the recipro cal influence of laws, government and manners, and the manner in which they act and re-act upon one another. I. It is generally asserted by writers, without any qualification "that the constitution of feuds had its original from the military policy of the Northern or Celtic [?] nations," the Goths, the Huns, the Franks, the Burgundians, the Vandals, the Lombards, who, from the beginning of the fifth century of the Christian æra, poured themselves over the Roman world and "spread beneath Gibraltar to the Lybian sands." Blackstone affirms, "that that policy was brought by them from their own country, and continued in their respective colonies as the most likely means to secure their new acquisitions, and that to that end, large districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels or allotments, to the inferior officers and most deserving soldiers, and that these allotments were called feoda, feuds, fiefs or fees," which last appellation, it seems, signifies, in the northern languages, a conditional stipend or reward.* From the unqualified manner in which this proposition is stated, it might be inferred that the feodal system was brought into the countries where it was afterwards established, ready made, so to express it, and complete in all its parts, at the very first successful irruption of the Barbarians. Indeed, to shew the universality and early use of the plan, the writer just mentioned cites a passage from Florus,t wherein the Teutones and Cimbri, who invaded Gaul and Italy in the time of Caius Marius, demand, "ut Martius populus aliquid sibi terræ daret, quasi stipendium: Cæterum, ut vellet, manibus atque armis suis uteretur." If we receive Blackstone's version of this passage, those warlike emigrants expressed themselves with all the precision of thorough-paced feudists, and what they asked for was neither more nor less than to be eufeoffed of lands to be held by military or knight-service. We apprehend, however, that in translating this very simple passage, the learned commentator has fallen into an error but too common among learned commentators, and ascribed to his author notions that did not enter into any body's head for centuries after he wrote. The same thing may be said of the turn he gives to what was done by Alexander Severus, according to the account of Lampridius in his life of that prince. In order to keep up the discipline and vigilance of the armies on the frontiers, against which the storms of barbarian violence and invasion were already beginning to thunder, he distributed the lands, conquered from the enemy, among his officers and soldiery and their heirs, on condition that those heirs should serve in the army, affirming, says the historian, that their service would be so much the more prompt, as it would be in defence of their own property. These instances do not establish what Blackstone appears to have cited them to prove; but they do shew that the idea of something like feodal service is a natural one in certain states of society, and enable us to explain, very satisfactorily, how that idea was, by degrees, extended and amplified into a regular system some centuries after the period to which he refers. Thus * 2 Black. Comm. 45, cf. Wright's Tenures, p. 6, and auth. ibicit: Butl. note Co. Litt. 191, a. + Lib. iii. c. 3. we find a scheme perfectly analogous to that of Severus, adopted in India, among the Timarriots in the Turkish Empire, and by. other nations. The seeds of the feudal system were sown, as we shall presently show, in the character and policy of the ancient Germans, but the full developement of it was owing to causes that began to operate subsequently to the first settlement of the Northern hordes in the countries which they over-ran. Those causes are to be sought for in the violence and anarchy of a dark age, when not only every kingdom, but every dutchy, every county, every district, was subject to the incursions of its enemies-when, in short, there was a war of all against all. This opinion is supported with exact learning and unanswerable force of argument by the Abbé de Mably, whose "Observations upon the History of France" have been pronounced by a competent judge,* the most precious monument, beyond all controversy, that has been raised out of the wreck of the nation's early annals. This writer maintains that what are called seigneuries, that is, the legal superiority of one estate or possession to others, coupled with a jurisdiction over its inhabitants, were altogether unknown to the Franks-that such an institution was inconsistent with their ideas of independence and equality—and that no trace whatever of tenures, properly so called, occurs in the Salique and Ripuarian codes. He thinks that they were produced by revolutions in the government which occurred after the Franks had been established in Gaul for upwards of a century. In reply to the assertion of Montesquieu, that they were not usurpations of a more recent date, but grew necessarily out of the peculiar constitution or polity of the Germanic tribes, he urges that this is quite inconceivable; for what fiefs or benefices had the German chieftains to bestow? How could the right of distributing justice, be incident to the gift of a war-horse or a battle-axe? Montesquieu founds his opinion upon a well known passage in the Treatise de Moribus Germanorum,‡ in which Tacitus draws a very lively picture of the free and warlike manners of those barbarians. Our readers will excuse us for translating this passage once more, since it is necessary to bring out, completely, some of our subsequent speculations. The historian represents these tribes as forming a sort of military democracy, and consulting in full council upon every important matter of public interest: Grimm. Corresp. Littéraire, tome 15e. p. 657. + Observations sur l'Hist. de France, lib. i. c. 3. Note. ec. 11, 12, 13, 14. "There, the king, or the chieftain, according to his age, his nobility, his renown in war, his eloquence, sways his audience more by authority to persuade than by power to command them. If what he proposes displease them, they reject it with loud murmurs-if it please them, they shake their javelins." * "They transact no business, whether public or private, unarmed. But none is allowed to bear arms, until his ability to use them be approved by the tribe. Then, in the presence of the whole people, some one of the chieftains, or his father, or a relative, equips the young warrior with shield and javelin-this is their toga virilis-this, the first honour of youth-before this, he was a member of a family, henceforth he belongs to the commonwealth-an illustrious extraction, or signal merits in their ancestors, entitle some young men to the rank of hereditary chieftain. The rest, enlist themselves under the banners of leaders already tried and distinguished in war, nor is it any disgrace to be seen among their retainers. Nay, in this companionship, there are different degrees of honour, assigned according to the judgment of the chiefs, and thus a mighty emulation is excited among the followers of each chief, to be first in his esteem and favour, and among the chiefs themselves, to have the most numerous and warlike followers. This is their dignity, this their strength, to be surrounded always by a host of noble youths-their ornament in peace, their defence in war. "When they go into battle, it is a reproach to the chieftain that any one should surpass him in prowess; it is a reproach to his followers if they do not emulate the prowess of their chieftain. Especially is it a foul disgrace to a warrior, an indelible blot upon him through life, to have quitted alive the battle-ground on which his chief had fallen. To defend him, to protect him, to ascribe to him the glory even of his own achievements, is the soldier's first and most sacred obligation. The chieftains fight for victory-the retainers, for the chieftain. If the tribe in which they are born be languishing in the inactivity of a protracted peace, most of the young nobles enter as volunteers into the service of such nations as happen to be at war. This they do not only because they are naturally impatient of repose and more easily acquire distinction amidst dangers and difficulties, but also because there is no means of supporting a numerous band of retainers but by violence and war, for it is from the liberality of the chieftain that they exact the warrior-horse, the bloody and victorious javelin, which they long to possess. Feasts and bountiful, though homely entertainments, are their pay. Their only means of munificence are war and rapine. You will not so easily persuade them to till the earth and wait the revolutions of the seasons, as to challenge their enemies and peril their own lives-nay, they think it base and cowardly to earn by sweat and toil what may be purchased with blood." We perceive in this account of the customs and character of the Germanic tribes, while they were still wandering in their forests, the germ of those institutions which they subsequently spread over the greater part of Europe. But it is plain that thing like a refined and complex system of feods was incompati any |