LECTURE III.

An enumeration and confutation of several opinions concerning the foundation of the feudal customs—The origin and rules of the feudal law to be deduced from the institution of the German nations before they invaded the Roman empire—The English indebted for this law to the Franks—A general description of this people, with an account of the several orders of men into which they were divided while they continued in Germany.

The feudal customs succeeded the Roman imperial law in almost every country in Europe, and became a kind of a jus gentium; but having sprung up in rude illiterate ages, and grown by slow degrees to a state of maturity, it is no wonder that very different have been the opinions concerning their origin, and that many nations have contended for the honour of giving them birth, and of having communicated them to others. Several eminent civilians, smit with the beauty of the Roman law, and filled with magnificent ideas of the greatness of that empire, have imagined that nothing noble, beautiful, or wise, in the science of legislation, could flow from any other source; and, accordingly, have fixed on Rome as the parent of the feudal constitutions. But as the paths of error are many, and disagreeing, so have their endeavours to make out, and defend this opinion, been various in proportion; a short mention of them, and a very few observations, will be sufficient to convince us, that they have been all mistaken.

First, then, some civil lawyers have discovered a likeness between the Roman patrons and clients, an institution as early as Romulus himself, and the feudal lords and vassals[44]. The clients, we are told, paid the highest deference and respect to their patrons, assisted them with their votes and interest; and, if reduced to indigence, supplied their necessities by contributions among themselves, and portioned off their daughters. On the other hand, the patrons were standing advocates for their clients, and obliged to defend, in the courts of law, their lives and fortunes. The like respect was paid by vassals to their lords, and similar assistance was given to their wants. The fortune of the first daughter, at least, was always paid by them, and if they were impleaded, they called in their lords to warrant and defend their lands and other property. Thus far, we must confess, there is a strong resemblance; but the differences are no less material, and shew plainly that the one could not proceed from the other. The connection between the patron and the client was merely civil; whereas the relation between the lord and the proper vassal was entirely military; and his fealty to his superior was confirmed by the sanction of an oath, whereas there was no such tie between patron and client. The aids which the tenant gave to his lord’s necessities, except in three instances, established by custom, to redeem his lord’s body taken in war, to make his eldest son a knight, and for the first marriage of his eldest daughter, were purely voluntary. But the great point which distinguishes them was, that whereas the Roman client’s estate was his absolute property, and in his own disposal, the feudal vassal had but a qualified interest. He could not bequeath, he could not alien, without his lord’s consent. The dominium verum remained with the lord to whom the land originally had belonged, and from whom it moved to the tenant. Upon the failure therefore of the tenant’s life, if it was not granted transmissible to heirs, or if it was, on the failure of heirs to the lands, it reverted to the original proprietor. Neither was the lord, on all occasions, and in every cause, bound to be his vassal’s advocate, or, as they express it, bound to warranty, and obliged to come in and defend his tenant’s right and property. For the fealty on one side, and the protection on the other, extended no farther than the feudal contract; and therefore the one was not bound to warrant any of the tenant’s lands, but such as were holden of him, nor the other to give aid, or do service in regard of his whole property, but in proportion to that only which he derived from his superior. Add to this, that the lord, in consideration of the lands having been originally his, retained a jurisdiction over all his tenants dwelling thereon, and in his court sat in judgment, and determined their controversies. These striking diversities (and many more there are) it is apprehended, will be sufficient to demonstrate the impossibility of deriving the feudal customs from the old institution of patron and client among the Romans.

Secondly, Others, sensible that military service was the first spring, and the grand consideration of all feudal donations, have surmised, that the grants of forfeited lands by the dictators Sylla and Cæsar, and afterwards by the triumvirs Octavius, Anthony and Lepidus, to their veterans, gave the first rise to them[45]. In answer to this, I observe, that those lands, when once given, were of the nature of all other Roman estates, and as different from fiefs, as the estates of clients, which we have already spoken of, were. Besides, these were given as a reward for past services, to soldiers worn out with toil, and unfit for farther warfare; whereas fiefs were given at first gratuitously, and to vigorous warriors, to enable them to do future military service.

Others have looked upon the emperor Alexander Severus[46] as the first introducer of these tenures, because he had distributed lands on the borders of the empire, which he had recovered from the Barbarians, among his soldiers, on the condition of their defending them from the incursions of the enemy; and had granted, likewise, that they might pass to their children, provided they continued the same defence. This opinion, indeed, is more plausible than any of the rest that derive their origin from the Romans, as these lands were given in consideration of future military service; yet, when we consider, on the one hand, that in no other instance did these estates agree with fiefs, but had all the marks of Roman property; and that, on the other hand, feudal grants were not, for many ages, descendible to heirs, but ended, at farthest, with the life of the grantee, we shall be obliged to allow this notion to be as untenable as any of the foregoing.

The surmise of some others, that the feudal tenancies were derived from the Roman agents, bailiffs, usufructuaries, or farmers, is scarce worth confuting; as these resembled only, and that very little, the lowest and most improper feuds; and them not in their original state, when they were precarious, but when, in imitation of the proper military fief, which certainly was the original, they were become more permanent.

Lastly, Some resort as far as Constantinople for the rise of fiefs, and tell us that Constantine Porphyrogenetus was their founder; but he lived in the tenth century, at a time that this law was already in France, Germany, Italy, and Spain, where it had arrived very near its full perfection, and was therefore undoubtedly his model: So that, tho’ we must acknowledge him the first who introduced these tenures into the Roman empire, to find their original, we must look back into earlier ages, and among another people.

The pretensions of the Romans having been considered, and set aside, it follows, that this law must have taken its rise among the barbarous nations; but from which of them particularly, remains to be inquired. Some, solicitous for the honour of the antient Gauls, quote Cæsar’s account of their manners; eos qui opibus valebant multos habuisse devotos, quos secum ducerent in bella, soldurios sua lingua nuncupatos; quorum hæc est conditio, ut omnibus in vita commodis una cum his fruantur quorum se amicitiæ dediderint; si quid iis per vim accidat, aut eundem casum una ferant aut sibi mortem consciscant [47]; in these words they imagine they have plainly the mutual connection between lords and vassals. The Spaniards too put in their claim for the antient Celtiberians, of whom Plutarch, in his life of Sertorius and Valerius Maximus, gives the same account that Cæsar doth of the antient Gauls; and Sir Edward Coke, in his zeal for the common law of England, which, although he did not know it, is certainly feudal, relying on fabulous historians, carries its antiquity so far back as to the British kings of Geoffrey of Monmouth. But one short and plain observation will fully dissipate such vain conceits, namely, that, whatever were the original customs of the barbarous nations, inhabiting Gaul, Spain, or Britain, they were, many ages before the rise of this law, entirely annihilated and forgotten. Gaul, Spain, and Britain, were, for centuries, Roman provinces, governed entirely by Roman magistrates, according to the imperial laws. For the Romans were particularly studious of introducing their dress, their language, their laws and customs, among the conquered nations, as the surest, and most effectual means of keeping them in subjection.

Hence, it appears, we must find the true original of this law among those nations, that destroyed the Western Empire of the Romans; where we first perceive the traces of it, that is, among the Franks, Burgundians, Goths, and Lombards[48]. Of these the first and last have the greatest number of advocates; and, whether out of jealousy to the French monarchy, or not, I cannot determine, the majority declares for the Lombards. These different opinions, however, may be easily adjusted, by distinguishing between the beneficiary law, as I shall call it, while the grants were at will, or for years, or at the utmost for life, and that which is more properly and strictly called feudal, when they became transmissible to heirs, and were settled as inheritances. As to the beneficiary law, no one of these nations can lay a better claim to it than another, or with reason pretend that the rest formed their plan upon its model; each of them independent of the other, having established the same rules, or rules nearly the same; which were, in truth, no more than the ancient customs of each nation, while they lived beyond the Rhine, and were such as were common to all the different people of Germany. But, as to the law and practice of feuds, when they became inheritances, there can be little doubt but it was owing to the Franks. For the books of the feudal law, written in Lombardy, acknowledge, that the Emperor Conrad, who lived about the year 1024, was the first that allowed fiefs to be descendible in Germany and Italy[49]; whereas the kingdom of the Lombards was destroyed by Charlemagne above two hundred years before; and he it was who first established among his own Franks the succession of fiefs, limiting it, indeed, only to one descent. His successors continued the same practice, and, by slow degrees, this right of succession was extended so, that by the time of Conrad, all the fiefs in France, great and small, went in course of descent, by the concession of Hugh Capet, who made use of that device, in order to sweeten his usurpation, and render it less disagreeable[50]. By this concession he, indeed, established his family on the throne, but so much weakened the power of that crown, that it cost much trouble, and the labour of several centuries, to regain the ground then lost.

The opinion of the feudal law’s being derived from the Lombards seems owing to this, that, in their country, those customs were first reduced into writing, and compiled in two books, about the year 1150, and have been received as authority in France, Germany and Spain, and constantly quoted as such. But then it should be considered, that the written law in these books is, in each of those nations, especially in France, controuled by their unwritten customs; which shews plainly, that they are received only as evidence of their own old legal practices. For had they been taken in as a new law, they would have been entirely received, and adopted in the whole.

But if, in this point, I should be mistaken, and the Lombards were really the first framers of the feudal law, yet I believe it will be allowed more proper for the person who fills this chair to deduce the progress of it through the Franks, from whom we certainly borrowed it, than to distract the attention of his audience, by displaying the several minute variations of this law, that happened as it was used in different nations. To the nation of the Franks, therefore, I shall principally confine myself, and endeavour to shew by what steps this system of customs was formed among them, and how their constitution, the model of our own just after the conquest, arose; and at the same time I shall be particularly attentive to those parts of it only that prevailed in England, or may some way contribute to illustrate our domestic institutions.

In order, then, to illustrate the original of the French constitution, and of their beneficiary, and its successor the feudal law, it will be necessary to enter into some details as to the manners of this people, while they continued in Germany, and which they preserved for a considerable time after they passed the Rhine; as also to mention some few particulars of their history when settled in France, in order to shew the reasons of their original customs, and the ends their policy aimed at, and how, by change of circumstances, the preservation of that system required new regulations; how the feudal law arose, and grew to that perfection, in which, for so many ages, it flourished throughout Europe. As skilful naturalists discover in the seed the rudiments of a future tree, so, in a few passages of Cæsar and Tacitus, concerning the customs of the Germans, may be seen the old feudal law, and all its original parts, in embryo; which, in process of time, by gradually dilating and unfolding themselves, grew into a perfect and compleat body. It will be highly proper, therefore, for the clearer comprehension of what is to follow, to dwell somewhat particularly upon, and to make ourselves acquainted with, the manners and institutions of those people; and for this purpose, perhaps, it will be sufficient to consider them under the several following heads, viz. their general disposition and manners, the several ranks and orders of persons among them, their form of government, and the nature of their policy; their regulations touching property, their methods of administering justice, and the nature of the punishments they inflicted on criminals.

First, as to their manners and general disposition: Germany was at that time a wild uncultivated country, divided into a great number of small cantons, separated from each other by thick forests, or impassable morasses, and inhabited by a rude and simple people, who lived either by the chace or pasturage, and were always either in a state of open war, or a suspicious peace with their neighbours: A circumstance that obliged every one of these little states to esteem military virtue in the first place, and to train up all their people, fit for that purpose, in the constant use of arms, and to keep them perpetually in a state ready always for either offence, or defence[51].

But since, in every number of men, however assembled, some there will be, from the natural strength of their bodies, and courage of their minds, more fit for soldiers, and others, from the contrary causes, better adapted to the arts of peace; these nations were necessarily distributed into two ranks; those in whom the strength of the society consisted, the freemen or soldiers, who were, properly speaking, the only members of the community, and whose sole employment was war, or (in the intervals of hostilities, what Xenophon considers as its image) hunting; and an inferior order of people, who were servants to them, and, in return for protection, supplied the warriors with the necessaries of life, occupied the lands for them, and paid stipulated rates of cattle, clothes, and sometimes corn, namely, where they had learned the use of agriculture from the neighbouring Romans. I follow Craig in calling them servants rather than slaves, as an expression much more suitable to their condition; for they were not condemned to laborious works, in the houses of the freemen, as the slaves of other nations were. Among these simple people, the wives and children even of the greatest among them, and the old men, unfit for the toils of war, were their only domestics. The servants of the Germans lived apart, in houses of their own, and when they had rendered to their lords the services due by agreement, they were secured in the rest, as their own property; so that a servant among these people, though meanly considered by the superior rank, was, in truth, more a freeman than the generality of the Romans under their Emperors[52]. It has been an antient observation, that servitude among the northern nations hath always been more gentle and mild than among those that lay more southerly: A difference, to be ascribed to the different manners of the people, resulting partly from their climate, and partly from their way of life. A plain and simple people, unacquainted with delicacies, were contented with the plainest fair; which was easily supplied, without afflicting their servants with heavy labour, and gave no room for envy and discontent in the breasts of inferiors. And a nation that had always the sword in their hands were too conscious of their own strength, to entertain any apprehensions from those, who, from their unfitness for that profession, were destined to other employments. All motives, therefore, to fear on the one side, and to envy and discontent on the other, being removed, we need not be surprized at the general humanity with which the servants were treated in these northern regions. The putting them in chains was a thing exceedingly rare, and the killing them, except in a sudden gust of passion (an accident which frequently happened among the freemen themselves) was almost unheard of. The only difference in that case was, that the death of a servant was not looked upon as a public crime, he being no member of the political society, and therefore was not punished. Such then was the mutual affection and confidence of these two ranks in each other, that whenever there was occasion, they made no scruple of arming such of their servants as were capable, and, by making them soldiers, admitted them into the number of freemen; and the hopes of such advancement, we may be assured, was a strong inducement to those of the lower rank to behave in their station with fidelity and integrity. Another cause of this great lenity to their servants arose from a custom peculiar to the Germans, which ordained, that insolvent debtors should be reduced to servitude, until, either by his labour, the creditor was satisfied, or, as it frequently happened, the debt was paid by the insolvent’s relations. It was, indeed, reputed dishonourable for the creditor himself to retain his debtor in servitude; but then he either sold him to the prince, or some other person.

Among so plain a people, perhaps it may be thought debts were rare, and that few instances occurred of freemen’s being reduced to slavery; but Tacitus assures us of the contrary[53]. These people were possessed with the rage of gaming to such a degree, that nothing was more common than to see them, when all their property was lost, set their liberty itself at stake. It was natural, therefore, to treat those with gentleness, who had been once perhaps the most valuable members of the body politic, especially for them who knew their own privileges depended on the uncertain caprices of the same goddess Fortune, and that an unlucky throw might reduce them to-morrow to the same low condition. I have been the more particular on this head, in order to shew, that, even in their infancy, the feudal maxims were more favourable to the natural liberty of mankind, than the laws and customs of the southern and more polite nations, and were of such a spirit, as when circumstances changed, would naturally expand, and extend that blessing to the whole body of the people; as we find it at present in our excellent constitution.

To return, therefore, to the freemen: We find no traces of any different orders of men among them; but as no kind of government, however rude, can subsist without some subordination, and as it was impossible for them all to continue together in one body, it was found necessary, in order to disperse them round the country, that they should be subdivided into lesser parties, and to appoint to each a chief, the most eminent and capable among them; who, when a district was assigned him, distributed that among his followers; who again, after having retained what they esteemed sufficient for their own purposes, assigned part of what they had so received to their servants. And here, indeed, we see the first rude original of lords and vassals. These lords were those, of whom Tacitus says, De minoribus rebus principes consultant [54]. One of these lords, and to him a larger territory was assigned than to the others, was the head of the whole body politic, and honoured with the title of king. He was the superior, who, at their general assemblies, made the distribution already mentioned, and appointed the other lords. And, besides his excelling the others in the enjoyment of a more extensive district, and in having a greater number of vassals and servants, he was remarkably distinguished from them in two particulars. His office was for life, and, in some degree, hereditary; for, in every nation there was one family, descended, it is to be presumed, from the first founder of the state, or some ancient hero, which was the only family noble by birth among them, and the members of which alone were capable of this high station. Not that these kings succeeded in a lineal, or any other regular course of descent; for Tacitus intimates sufficiently that they were elective, when he says, Reges ex nobilitate sumunt [55]. And indeed any one who considers attentively the circumstances of these people, always either ready to invade their neighbours, or dreading invasions from them, will allow, that any kind of a constant regular succession was inconsistent with their preservation. They were necessitated to choose among the royal family a man in the flower of youth, or, at least, in the vigour of life, who, by his valour and wisdom, might prove the proper head of a nation always in a state of war. This will appear beyond a doubt, if we examine the ancient practice of all the kingdoms founded by the Germans. Look over the lists of their kings in any one nation, and examine the degree of kindred in which they stood related to each other, and you will find them all, indeed, of one family; but you will, at the same time, see that scarce a third of them could derive their kindred, by way of title or descent, from their immediate predecessor; yet were they obeyed chearfully by their subjects, nor ever looked upon in those days as usurpers, though several modern writers, possessed with opinions of their own ages, since kingdoms are almost universally settled in a regular course of descent, have been so liberal in bestowing that title upon them.

Montesquieu allows this was the manner of succession in the second race of the Franks, but insists that those of the first inherited lineally[56]. But was this so originally, when Clovis came to the crown, he who first united all the Franks under one sovereign? We find six or seven independent kings of the Salian Franks, every one of them Clovis’s near relations, and consequently descended from a common ancestor, at no very great distance. He thought not himself, nor his posterity, secure in the possession of the throne, until he had totally extirpated every other branch, and reduced the royal family to his single person. Then, indeed, there was no danger of a competition upon his death. So far was the crown from descending to any determined person, that the kingdom was divided among all his children; and, for several descents, his bloody example was followed in one generation, and in the next a new division took place; nor, in all this time, do we hear of any other title set up, than what followed either from the will of the father, the consent of the people, or the fortune of war; which, it is apprehended, is sufficient to shew, that, in these early ages, there were no invariable rules of succession settled among the Franks. Otherwise, how came the kingdom to be divisible, and the right heir to be obliged to content himself with a small portion of his supposed legal inheritance[57]?

In the next lecture I shall give an account of the companions of the prince among the Germans, and finish what I have to observe of the constitution of their governments, and of their laws and customs, unto the time of their entering into the Roman empire.