(This Appendix is taken from the Appendix to Thomas' Edition of Coke's Institutes, Edition of 1836.)

It remains to say something of the revolutions of the feud in the jurisprudence of our own nation.

1. AS TO THE TIME WHEN IT WAS INTRODUCED. Whether feuds prevailed in England, before the Norman conquest, has been the subject of much dispute. In 1607, an event happened, which occasioned the question to be discussed, with a profusion of learning. Several estates within the counties of Roscommon, Sligo, Mayo, and Galway, being unsettled as to their titles, king James the 1st, by commission, under the great seal, authorized certain commissioners, of whom Sir Henry Spelman was one, to make grants of these estates. In exercise of this authority, the commissioners made a grant of lands in Mayo to Lord Dillon. King Charles the 1st issued a commission, to inquire into defective titles: and orders were given, that all persons, who had any of the estates in question by letters patent from the crown, should produce the letters, or an enrollment of them, before the lord deputy and council. In pursuance of these orders, the letters patent to Lord Dillon were produced. It was found, that the letters were granted to them "to the Lord Dillon and his heirs, to hold by knight service, as of his majesty's castle of Dublin." It was admitted, that the commissioners had exceeded their commission, in reserving a mean tenure, to the prejudice of the crown, when they ought to have reserved, either an express tenure, by knight service, in capite, or not to have mentioned any tenure; in which case, the law would have implied a tenure in capite. The question, therefore, was, whether the deficiency of the tenure so far affected the grant, as wholly to destroy the legal effect of it; or, whether the letters patent might not be good, as to the land, and void only as to the tenure. The case was argued, several days, by counsel, on both sides, and was afterwards referred to the judges. They were required by the lord deputy and council, to consider of it, and to return their resolution. The judges disagreeing in opinion, it was thought necessary, for public satisfaction, to have it argued solemnly by them all. This was done, accordingly. Those who contended for the validity of the letters patent, urged, among other arguments, that tenures in capite were brought into England by the conquest, but, that grants were by the common law; and, being more ancient than tenures, must, of necessity, be distinct from the thing granted. From this, they inferred, that though the reservation were void, the grant itself might be good. In the course of their arguments, on this point, they observed that Sir Henry Spelman was mistaken, when, in his Glossary, under the word Feudum, he referred the original of fueds to the Norman conquest. This drew from him a reply. He published it under the title "Of the Original Tenure by Knight Service in England." In his work, he argues, with great learning and strength of argument, that tenures, such as they were granted, in the letters patent, by himself and the other commissioners, in Ireland, were not in use before the conquest. He distinguishes between what he calls the tervitia militaria and the servitutes militares. He contends, that the grievances and servitudes of fiefs, as wardships, marriages, etc, which to that day, he says, were never known to other nations, governed by the feudal law, were introduced by the conqueror. But he seems to concede, that, in a general sense, military service and feuds, were known to the Saxons. In this middle opinion, he appears to be followed by two very great authorities, Lord Hale and Sir William Blackstone.

Almost all writers, however, are agreed, that, in the reign of the conqueror, the feudal law was completely established. Upon the whole, the most probable conjecture appears to be, that evident traces of something similar to the feud, may be traced in the Saxon polity; that it was established, with its concomitant appendages of fruits and services, by the Noman barons, in the possessions, which were parcelled out among them, by the conqueror; and that, about the middle of his reign, it was formally and universally established by law. This universality of tenure, is, perhaps, peculiar to England. In other kingdoms, those parts of the lands, which were permitted to remain in the hands of the natives, and a considerable part of those, which the conquerors parcelled out among themselves, were not originally subject to tenure. In the earliest age, however, of the feudal law, some advantages attended tenure, and frequently occasioned the conversion of allodial into feudal property. But in the anarchy, which followed the removal of the Carlovingian dynasty, there was an end of all political government: so that almost all persons found it advantageous to enter into the feud. To effect this, they delivered up their lands sometimes to the sovereign, sometimes to some powerful lord, and sometimes to the church, on condition to'receive it back in feudality. Lands .thus delivered and returned, received the appellation of feuda data et oblata. Some portion of lands, however, still remained free. Of this the proportion differs in the countries on the continent. In some, the courts presume it to be feudal, till it is to be proved allodial. In others, the presumption is in favour of its allodiality. See before 63, a. note 1. But with us, in the eye of the law, tenure is universal; that is, dominium directum of all the lands in the kingdom is in the crown; the dominium utile of them is in the tenant.

VI. AS TO THE FRUITS AND INCIDENTS OF THE FEUDAL TENURE. These, in the original simplicity of the feud, were reducible to two: on the part of the lord, to the obligation of warranty, that is, to defend the title of his tenant against all others, and, when subinfeudation, was introduced to the further obligation of acquittal, that is, to keep the tenant free from molestation, in respect of the services due to the lords paramount: on the part of the tenant, to an obligation, of giving his lord his aid, that is, his military assistance, and services in defence of the feud. But this primitive simplicity of reciprocal obligation was soon destroyed. Different sorts of tenures were established, and the fruits and incidents of them were multiplied. A detail of these does not seem to be required in this place; especially as a full and masterly account of them has been already given by Mr. Justice Blackstone. VI. 3. The branches of feudal jurisprudence, which principally concern the tenures of Littleton and Sir Edward Coke's commentary, and which, therefore, may be thought such as at once call for and limit the present investigation, are those which relate to the inheritance and alienation of the feud.- With respect to the INHERITANCE OF THE FEUD, it may be observed, that, at the same time, that succession itself prevails in every civilized country, the principle, by which it is governed, and the order in which it proceeds, are, every where, different. The principle and order of the feudal succession, are peculiar to that system of polity. Nothing, perhaps, will show this in so" strong a light, as bringing them into contrast with the doctrines of inheritance in the civil law. It has been already observed, that, in the Roman law, the distinction between real and personal property, except in the term of prescription, is seldom discoverable; but that in the feudal law, the legal incidents and qualities of the two kinds of property are entirely dissimilar. This is no where more striking, than in the article of inheritance. The Roman law of inheritance embraces both kinds of property, equally; the feudal law of inheritance, is, most strictly, confined to real property, and, (it was almost said,) turns with disdain, from all property of the personal kind. By the Roman law, the heir was a person instituted by the party himself, or in default of such institution, appointed by the law, to succeed both to his real and personal property, and to all his rights and obligations.