: Lectures on the constitution and laws of England With a commentary on Magna Charta and illustrations of many of the English statutes by Sullivan Francis Stoughton Stuart Gilbert Commentator - Magna Carta Early works to 1800; Constitutional history England

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nt, better adapted to the natural liberties of mankind, took place; how, by degrees, as the danger from the vanquished subsided, the feudal policy opened her arms, and gradually received the most eminent of the conquered nation to make one people with their conquerors; how arts and commerce, at first contemptible to a fierce and savage people, in time gained credit to their professors, and an admittance for them into the privileges of the society; and how, at length, with respect to the lowest class of people, which still continued in servitude, its rigour insensibly abated; until, in the end, the chains of vassalage fell off of themselves, and left the meanest individual, in point of security, on an equal footing with the greatest.

Thus much has been thought necessary to observe, in order to shew the reasons of proposing a course of the feudal laws, as an introduction to the English; to which may be added, that this method hath received the approbation of many good judges, and hath, in experience, been found not only useful for the end proposed, as it is the constant practice in Scotland, whose laws, except in the manner of administering justice, differ little from ours, and hath been also used in England with good success; but, at the same time entertaining, and improving in other respects.

As we are to begin, therefore, with this law, the observations on the remaining parts of the plan may be, for the present, deferred; I shall, in my next lecture, begin to deduce the origin of this law, and of its rules, from the customs of the German nations, before they invaded the Roman empire.

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 Caesar, and afterwards by the triumvirs Octavius, Anthony and Lepidus, to their veterans, gave the first rise to them. 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 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 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.

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.

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 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. 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 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. 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.

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