as in the case of a fellowship. The college livings are conferred upon the fellows, who in general have the option of taking them in order of seniority.

FELO-DE-SE (a felon of himself) is a person who, being of sound mind and of the age of discretion, deliberately causes his own death; and also in some cases, where one maliciously attempts to kill another, and in pursuance of such attempt unwillingly kills himself, he is adjudged a felo-de-se. (1 Hawkins, P. C. c. 27, § 4.) When the deceased is found by the coroner and jury a felo-de-se, all his chattels, real and personal, are forfeited to the crown, though they are, we believe, usually restored upon payment of moderate fees. It follows from this rule as to forfeiture, that a will made by a felode-se is void as to his personal estate, though not as to his real estate, nor is his wife barred of her dower. Formerly he was buried in the highway with a stake driven through his body. These laws, so highly repugnant to the feelings of humanity, being a punishment to the surviving relatives of the deceased, caused juries in general to find that the deceased was not of sound mind; and by 4 Geo. IV. c. 52. the legislature so far yielded to the popular and herein the better opinion, as to abolish the former ignominious mode of burial, and to provide that a felo-de-se shall be privately interred at night in the burial-ground in which his remains might by law have been interred if the verdict of felo-de-se had not been found against him.

FELONY, in the general acceptation of the English law, comprises every species of crime which occasioned at common law the forfeiture of lands or goods, or both, and to which a capital or other punishment might be superadded, according to the degree of guilt. Various derivations of the word have been suggested. Sir Henry Spelman supposes that it may have come from the Teutonic or German fee (fief or feud) and lon (price or value), or from the Saxon feelen to fall or offend. Capital punishment by no means enters into the true definition of felony; but the common notion of felony has been so generally connected with that of capital punishment, that law-writers |

have found it difficult to separate them: indeed, this notion acquired such force, that if a statute made any new offence felony, the legal implication was that it should be punished with death. The number of offences, however, to which this punishment is affixed by the law of England is now very small; and several statutes have been lately passed (1 Vict. c. 84, 85, 86, &c.) founded upon the principle that the punishment of death should only be inflicted for crimes accompanied with violence. Thus c. 84 substitutes the punishment of transportation for that of death in those cases where death might still be inflicted for forgery; c. 85 materially lessens the severity of the punishment of offences against the person; c. 86 enacts that burglary unaccompanied with violence shall no longer be punished capitally, and provides that, so far as the offence of burglary is concerned, the night shall be considered to commence at nine in the evening and to conclude at six in the morning; c. 87 mitigates the punishment attending the crimes of robbery and stealing from the person; c. 88 renders piracy punishable with death only when murder is attempted; c. 89 regulates the punishment for the crime of arson; c. 90 mitigates the punishment of transportation for life in certain cases; and c. 91 abolishes the punishment of death in the cases there specified. Great numbers of offences were formally liable to this severe punishment. The word felony is now used very vaguely, and it has long been employed to signify the degree of crime rather than the penal consequences. It is sufficient here to state generally, that murder, manslaughter, felo-de-se, robbery, arson, burglary, offences against the coin, &c., are considered and classed as felonies. [LAW, CRIMINAL.]

Besides the special punishment affixed to his crime by the law, a felon upon conviction forfeited the rents and profits of his lands of inheritance during his life to the king (which are now usually compounded for), and also all his goods and chattels absolutely; and as attainder of felony caused corruption of blood, his lands, except of gavelkind tenure, escheated to the lord of the fee. This last consequence, however, was taken away

by stat. 54 Geo. III. c. 145, which enacted, that, except for treason or murder, corruption of blood should not follow attainder; and as difficulties might sometimes occur in tracing descent through an ancestor who had been attainted, it was, by the 3 & 4 Will. IV. c. 108, § 10, enacted that descent may be traced through any person who shall have been attainted before such descent shall have taken place. [ATTAINDER; DESCENT; EsCHEAT; FORFEITURE.]

The distinction formerly made between felony with and without benefit of clergy is explained in BENEFIT OF CLERGY. FÉME COVERT. [WIFE.] FEME SOLE. [WIFE.] FEOD. [FEUDAL SYSTEM.] FEOFFEE. FEOFFMENT.] FEOFFMENT is that mode of conveying the property in lands or corporeal hereditaments in possession where the land passes by livery in deed, i. e. actual delivery of a portion of the land, as a twig or a turf; or where, the parties being on the land, the feoffor expressly gives it to the feoffee. Livery in law or within view, is when, the parties being within sight of the land, the feoffor refers to it and gives it to the feoffee. A feoffment was the earliest mode of conveying real hereditaments in possession known to the common law. A grant, which was an instrument in writing, was the mode used when lands subject to an existing estate of freehold, and when rents or other incorporeal hereditaments incapable from their nature of being the subjects of livery, were transferred. The term feoffment is evidently of feudal origin, its Latinised form being feoffamentum, from feudare or infeudare, to infeoff, to give a feud; he who confers the feud or fief is the feoffor, and he who receives it the feoffee. This mode of conveyance is common to all nations in rude ages. (Gilbert, Ten. 386.) It prevailed amongst the Anglo-Saxons, who gave possession by the delivery of a twig or a turf, a mode stiil common, particularly in the admission of tenants of copyhold lands. The form of an ancient feoffment was very concise. There is a copy of one in the Appendix to the 2nd vol. of Blackstone's Commentaries, No. 1.

The essential part of this mode of conveyance is the delivery of possession, or, as it is technically called, livery of seisin. In former times land was frequently conveyed without any deed or writing, by simple delivery. Subsequently it became the custom to have a written instrument called the charter or deed of feoffment, which declared the intention of the parties to the conveyance. But now, since the Statute of Frauds (29 Car. II. § 3), a written instrument is necessary. Still however the land passes by the livery, for if a deed of feoffment is made without livery, an estate at will only passes; though if livery is made, and the deed does not express that the land is conveyed to the feoffee and his heirs, an estate for the life of the feoffee only will pass. No less estate than an estate of freehold can pass by a feoffment with livery, the livery being in fact the investiture with the freehold.

Livery of seisin, of both the kinds previously mentioned, was at first performed in the presence of the freeholders of the neighbourhood, vassals of the feudal lord; because any dispute relating to the freehold was decided before them as pares curiæ, "equals of the court," of the lord of the fee. But afterwards, upon the decay of the feudal system, the livery was made in the presence of any witnesses; and where a deed was used, the livery was attested by those who were present at it.

Livery in deed may be made by the feoffor or his attorney to the feoffee or his attorney. When lands lie in several counties, as many liveries are necessary; and where lands are out on lease, there must be as many liveries as there are tenants, for no livery can be made without the consent of the tenant in possession, and the consent of one will not bind the rest. But livery in law or within view can only be given or taken by the parties themselves, though lands in several counties may pass if they all be within view. Livery of this nature requires to be perfected by subsequent entry in the lifetime of the feoffor. Formerly, if the feoffee durst not enter for fear of his life or bodily harm, his claim, made yearly in the form prescribed by law, and called continual claim, would preserve his right.

The security of property consequent upon the progress of civilization having rendered this exception unnecessary, it was abolished by the recent Statute of Limitations, 3 & 4 Will. IV. c. 27, § 11.

Since the Statute of Uses [USES] has introduced a more convenient mode of conveyance, feoffments have been rarely used. Corporations usually convey their own estates by feoffment, in consequence of the supposition that a corporate body cannot stand seised to a use, though it seems that this doctrine only applies to the case of lands being conveyed to a corporation to the use of others. (Gilbert On Uses, Sugd. ed 7 note.) Where the object to be attained was the destruction of contingent remainders or the discontinuance of an estate tail, or the acquirement of a fee for the purpose of levying a fine or suffering a recovery, a feoffment was usually employed. Such indeed was the efficacy attributed to this mode of conveyance by the early law writers, that where the feoffor was in possession, however unfounded his title might be, yet his feoffment passed a fee; voidable, it is true, by the rightful owner, but which by the lapse of time might become good even as against him. Being thus supposed to operate as a disseisin to the rightful owner, it was thought till recently that a person entitled to a term of years might by making a feoffment to a stranger pass a fee to him, and then by levying a fine acquire a title by non-claim. This doctrine led to very considerable discussion, and though strictly accordant to the principle of the old law, it has been overruled. The whole state of the question may be found in Mr. Knowler's celebrated argument in Taylor dem. Atkins v. Horde; 1 Burr. 60, Doe dem. Maddock v. Lynes, 3 B. & C. 382; Jerritt v. Wrace, 3 Price, 575; 1 Sanders, Uses, 40 (4th ed.); 1 Preston, Conv. 32 (2nd ed.); and 4 Bythewood, Conv. (Jarman's edit.) 117.

The owner of lands of gavelkind tenure may convey them by feoffment at the age of fifteen; and therefore in such cases, which are rare, a feoffment is still resorted to.

FEOFFOR. [EOFFMENT.]

FERRY, an exclusive privilege by prescription or the king's grant for the carriage of horses and men across a river or arm of the sea for reasonable toll. The owner of a ferry cannot suppress it and put up a bridge in its stead without a licence; but he is bound to keep it always in repair and readiness, with expert men, and reasonable toll, for neglect of which he is liable to be punished by indictment. If a ferry is erected so near to an ancient ferry as to draw away its custom, it is a nuisance to the owner of the old one, for which the law will give him remedy by action. The ferry is in respect of the landing-place, and not of the water, and in every ferry the land on both sides ought originally to have belonged to the same person, otherwise he could not have granted the ferry. (13 Vin. Abr. 208.) But as all existing ferries are of great antiquity, and generally connect roads abutting on each side of the water, the original unity of possession is mere matter of curiosity. A ferry is considered as a common highway. (3 Blackstone, Com. ; 13 Viner, Abr. 208.)

FEUD. [FEUDAL SYSTEM.]

FEUDAL SYSTEM. In treating of this subject we shall endeavour to present a concise and clear view of the principles of what is called the feudal system, to indicate the great stages of its history, especially in our own country, and to state briefly the leading considerations to be taken into account in forming an estimate of its influence on the civilization of modern Europe.

The essential constituent and distinguishing characteristic of the species of estate called a feud or fief was from the first, and always continued to be, that it was not an estate of absolute and independent ownership. The property, or dominium directum, as it was called, remained in the grantor of the estate. The person to whom it was granted did not become its owner, but only its tenant or holder. There is no direct proof that fiefs were originally resumable at pleasure, and Mr. Hallam, in his 'State of Europe during the Middle Ages,' has expressed his doubts if this were ever the case; but the position, as he admits. is laid down in almost every writer on the

feudal system, and, if not to be made out by any decisive instances, it is at least strongly supported not only by general considerations of probability, but also by some indicative facts. This however is not material. It is not denied that the fief was at one time revocable, at least on the death of the grantee. In receiving it, therefore, he had received not an absolute gift, but only a loan, or at most an estate for his own life.

This being established as the true character of a primitive feud or fief, may perhaps throw some light upon the much disputed etymology and true meaning of the word. Feudum has been derived by some from a Latin, by others from a Teutonic root. The principal Latin origins proposed are fœdus (a treaty) and fides (faith). The supposition of the transformation of either of these into feudum seems unsupported by any proof. These derivations, in fact, are hardly better than another resolution of the puzzle that has been gravely offered, namely, that feudum is a word made up of the initial letters of the words "fidelis ero nhique domino vero meo.' The chief Teutonic etymologies proposed have been from the old German faida, the Danish feide, or the modern German vehd, all meaning battle-feud, or dissension; and from fe or fee, which it is said signifies wages or pay for service, combined with od or odh, to which the signification of possession or property is assigned. But, as Sir Francis Palgrave has well remarked, "upon all the Teutonic etymologies it is sufficient to observe, that the theories are contradicted by the practice of the Teutonic tongues-a Fevd, or fief, is not called by such a name, or by any name approaching thereto, in any Teutonic or Gothic language whatever." (Proofs and Illustrations to Rise and Progress of Eng. Com., p. ccvii.) Lehn or some cognate form is the only corresponding Teutonic term; Laen in AngloSaxon, Len in Danish, Leen in Swedish,

&c.

All these words properly signify the same thing that is expressed by our modern English form of the same element, Loan; a loan is the only name for a feud or fief in all the Teutonic tongues. What then is feud or fief? Palgrave

VOL II.

doubts if the word Feudum ever existed. The true word seems to be Fevdum (not distinguishable from Feudum in old writing), or feftum. Fiev or Fief (Latinized into Fevodium, which some contracted into Fevdum, and others, by omitting the v, into Feodum) he conceives to be Fitef, or Phitef, and that again to be a colloquial abbreviation of Emphyteusis, pronounced Emphytefsis, a well known term of the Roman imperial law for an estate granted to be held not absolutely, but with the ownership still in the grantor and the usufruct only in the hands of the grantee. It is certain that emphyteusis was used in the middle ages as synonymous with Precaria (an estate held on a precarious or uncertain tenure); that precariæ, and also præstitæ, or præstariæ (literally loans), were the same with Beneficia; and that Beneficia under the emperors were the same or near the same as fiefs. [BENEFICIUM.] (See these positions also established in Palgrave, ut supra, cciv.-cevi.) It may be added that the word Feu is still in familiar use in Scotland for an estate held only for a term of years. The possessor of such an estate is called a Feuar. Many of these feus are held for 99 years, some for 999 years. A rent, or feu-duty, as it is called, is always paid, as in the case of a lease in England; but, although never, we believe, merely nominal, it is often extremely trifling in proportion to the value of the property. In Erskine's

Principles of the Law of Scotland,' in the section "On the several kinds of Holding" (book ii. tit. 4), we find the following passage respecting feu-holding, which may be taken as curiously illus trating the derivation of fief that has just been quoted from another writer:-" It has a strong resemblance to the Roman Emphyteusis, in the nature of the right, the yearly duty payable by the vassal, the penalty in the case of not punctual payment, and the restraint frequently laid upon vassals not to alien without the superior's consent." As for the English term Fee, which is generally, if not universally assumed to be the same word with fief and feud (and of which it may be the abbreviated form, as we may infer from the words "feoffor," "infeoff,” and

"feoffment"), it would be easy enough to show how, supposing that notion to be orrect, it may have acquired the meaning which it has in the expressions fee-simple, fee-tail, &c.

The origin of the system of feuds has been a fertile subject of speculation and dispute. If we merely seek for the existence of a kind of landed tenure resembling that of the fief in its essential principle, it is probable that such may be discovered in various ages and parts of the world. But feuds alone are not the feudal system. They are only one of the elements out of which that system grew. in its entireness, it is certain that the feudal system never subsisted anywhere before it arose in the middle ages in those parts of Europe in which the Germanic nations settled themselves after the subversion of the Roman empire.

Supposing feud to be the same word with the Roman emphyteusis, it does not follow that the Germanic nations borrowed the notion of this species of tenure from the Romans. It is perhaps more probable that it was the common form of tenure among them before their settlement in the Roman provinces. It is to be observed that the emphyteusis, the precaria, the beneficium, only subsisted under the Roman scheme of polity in particular instances, but they present themselves as the very genius of the Germanic scheme. What was only occasional under the one became general under the other. In other words, if the Romans had feuds, it was their Germanic conquerors who first established a system of feuds. They probably established such a system upon their first settlement in the conquered provinces. The word feudum indeed is not found in any writing of earlier date than the beginning of the eleventh century, although, as Mr. Hallam has remarked, the words feum and ferum, which are evidently the same with feudum, occur in several charters of the preceding century. But, as we have shown, feudum or feud. in all probability, was not the Teutonic term. Can it be doubted," asks Mr. Hallam, "that some word of barbarous original must have answered, in the vernacular languages, to the Latin beneficium ?" There is rea

son to believe, as we have seen, that_this vernacular word must have been Lehn, or some cognate form, and that feud was merely a corrupted term of the Roman law which was latterly applied to denote the same thing.

We know so little with certainty respecting the original institutions of the Germanic nations, that it is impossible to say how much they may have brought with them from their northern forests, or how much they may have borrowed from the imperial polity, of the other chief element which enters into the system of feudalism, the connection subsisting between the grantor and the grantee of the fief, the person having the property and the person having the usufruct, or, as they were respectively designated, the suzerain or lord, and the tenant or vassal. Tenant may be considered as the name given to the latter in reference to the particular nature of his right over the land; vassal, that denoting the particular nature of his personal connection with his lord. The former has been already explained; the consideration of the latter introduces a new view. By some writers the feudal vassals have been derived from the comites, or officers of the Roman imperial household [COUNT]: by other from the comites, or companions, mentioned by Tacitus (German. 13, &c.) as attending upon each of the German chiefs in war. The latter opinion is ingeniously maintained by Montesquieu (xxx. 3). One fact appears to be certain, and is of some importance, namely, that the original vassali or vassi were merely noblemen who attached themselves to the court and to attendance upon the prince, without necessarily holding any landed estate or beneficium by royal grant. In this sense the words occur in the early part of the ninth century. Vassal has been derived from the Celtic gwas, and from the German gesell, which are probably the same word, and of both of which the original signification seems to be a helper, or subordinate associate, in labour of any kind.

If the vassal was at first merely the associate of or attendant upon his lord, nothing could be more natural than that, when the lord came to have land to give