Originally fiefs were granted only by sovereign princes ; but after estates of this description, by acquiring the heredi tary quality, came to be considered as property to all practical intents and pur poses, their holders proceeded, on the strength of this completeness of posses sion, themselves to assume the character and to exercise the rights of lords, by the practice of what was called subinfeuda tion, that is, the alienation of portions of their fiefs to other parties, who thereupon were placed in the same or a similar re lation to them as that in which they stood to the prince. The vassal of the prince became the lord over other vassals; in this latter capacity he was called a mesne (that is, an intermediate) lord ; he was a lord and a vassal at the same time. In the same manner the vassal of a mesne lord might become also the lord of other arrere vassals, as those vassals that held of a mesne lord were designated. This process sometimes produced curious re sults; for a lord might in this way actu ally become the vassal of his own vassal, and a vassal a lord over his own lord.
From whatever cause it may have hap pened (which is matter of dispute), in all the continental provinces of the Roman empire which were conquered and occu pied by the Germanic nations, many lands were from the first held, not as fiefs, that is, with the ownership in one party and the usufruct in another, but as allodia, that is, in full and entire ownership. [ALLODIUM.) The holder of such an es tate, having no lord, was of course free from all the exactions and burthens which were incidental to the vassalage of the holder of a fief. He was also, however, without the powerful protection which the latter enjoyed ; and so important was this protection in the turbulent state of society which existed in Europe for some ages after the dissolution of the empire of Charlemagne, that in filet most of the allodialists in course of time exchanged their originally independent condition for the security and subjection of that of the feudatory. " During the tenth and eleventh centuries," says Mr. Hallam, "it that allodial lands in France had chiefly become feudal ; that is, they had been surrendered by their proprietors, and received back again upon the feudal conditions ; or more frequently perhaps the owner had been compelled to acknow ledge himself the man or vassal of a suzerain, and thus to confess an original grant which had never existed. Changes of the same nature, though not perhaps so extensive or so distinctly to be traced, took place in Italy and Germany. Yet it would be inaccurate to assert that the prevalence of the feudal system has been unlimited ; in a great part of France allodial tenures always subsisted, and many estates in the empire were of the same description." After the conquest of England by the Normans, the domiaium clirecium, or property of all the land in the kingdom, appears to have been considered as vested in the crown. " All the lands and tene ments in England in the hands of sub jects," says Coke, " are holden mediately or immediately of the king; for in the law of England we have not properly al lodium." This universality of its appli
cation therefore may be regarded as the first respect in which the system of feud alism established in England differed from that established in France and other continental countries. There were also various other differences. The Con queror, for instance, introduced here the practice unknown on the continent of compelling the arrere vassals, as well as the immediate tenants of the crown, to take the oath of fealty to himself. In other countries a vassal only swore fealty to his immediate lord ; in England, if he held of a mesne lord, he took two oaths, one to his lord and another to his lord's lord. It may be observed, however, that in those times in which the feudal princi ple was in its greatest vigour the fealty of a vassal to his immediate lord was considered as the higher obliga tion ; when that and his fealty to the crown came into collision, the former was the oath to which he adhered. Some feudists indeed held that his allegiance to the crown was always to be understood as reserved in the fealty which a vassal swore to his lord ; and the Emperor Frederic Barbarossa decreed that in every oath of fealty taken to an inferior lord there should be an express reservation of the vassal's duty to the emperor. But the double oath exacted by the Norman conqueror did not go so far as this. It only gave him at the most a concurrent power with the mesne lord over the vas sals of the latter, who in France were nearly removed altogether from the con trol of the royal authority. A more im portant difference between the English and French feudalism consisted in the greater extension given by the former to the rights of lords generally over their vassals by what were called the incidents of wardship and marriage. The ward ship or guardianship of the tenant during minority, which implied both the custody of his person and the appropriation of the profits of the estate, appears to have been enjoyed by the lord an some parts of Germany, but no where else except in England and Normandy. " This," ob serves Mr. Hallam, " was one of the most vexatious parts of our feudal tenures, and was never perhaps more sorely felt than in their last stage under the Tudor and Stuart families." The right of mar riage (maritagium) originally implied only the power possessed by the lord of tendering a husband to his female ward while under age • if she rejected the match, she forfeited the value of the mar riage ; that is, as much as any one would give to the lord for permission to marry her. But the right was afterwards ex tended so as to include male as well as female heirs ; and it also appears that although the practice might not be sanctioned by law, some of the Anglo Norman kings were accustomed to exact penalties from their female vassals of all ages, and even from widows, for either marrying without their consent or re fusing such marriages as they proposed. The seignorial prerogative of marriage, like that of wardship, was peculiar to England and Normandy, and to some parts of Germany.