Read Ebook: 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

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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.

Montesquieu allows this was the manner of succession in the second race of the Franks, but insists that those of the first inherited lineally. 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?

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.

Before we can be fully acquainted with all the several constituent parts of the German state, it will be necessary to form a just notion of those who were called the companions of the king or prince; who, being chosen out of the most robust and daring of the youth, and having attached themselves particularly to the person of their sovereign, were his chief defence in war, and the great support of his dignity in times of tranquillity. A few words of Tacitus will set this institution of theirs in a clear light. Speaking of their princes, he says, "This is their principal state, their chief strength, to be at all times surrounded with a numerous band of chosen young men, for ornament and glory in peace, for security and defence in war; nor is it among his own people only, but also from the neighbouring communities, that a prince reaps high honour, and great renown, when he surpasses in the number and magnanimity of his followers; for such are courted by embassies, and distinguished with presents, and by the terror of their fame alone often dissipate wars. In the day of battle, it is scandalous for the prince to be surpassed in feats of bravery, scandalous to the followers to fail in matching the valour of the prince. But it is infamy during life, and an indelible reproach to return alive from a battle wherein their prince was slain. To preserve him, to defend him, and to ascribe to his glory all their gallant actions, is the sum, and most sacred part of their oath. For from the liberality of their prince they demand and enjoy that war-horse of theirs, and that terrible javelin, dyed in the blood of their enemies. In place of pay, they are supplied with a daily table and repasts, though grossly prepared, yet very profuse. For maintaining such liberality and munificence, a fund is furnished by continual wars and plunder."

Such, then, was the face of a German state. A king chosen for his illustrious extraction, attended by a numerous body of chosen youth, attached to his service in war by the strictest bonds of fidelity; a number of freemen divided into villages, over each of which was an elective chief, engaged, likewise, to military duty, but in a laxer manner; and under all these were the servants, who occupied the greatest part of the land, and supplied the freemen with the necessaries of life.

These conventions, then, unless they were summoned on extraordinary occasions, were regularly held once a month, on certain stated days; but such was the impatience of this people of controul, or any regularity of proceeding, that Tacitus observes, that frequently two or three days were spent before they were all assembled. For in these meetings, every freeman, that is, every soldier, had an equal voice. They appeared all in arms, and silence was proclaimed by the priests, to whom also it belonged to keep the assembly in order, and to punish all disturbers of its regularity. The king in the first place was heard, next such of the chiefs as had any thing to propose, and lastly others, according to their precedence in age, nobility, military virtue, or eloquence. If the proposition displeased, they rejected it by an inarticulate murmur. If it was pleasing, they brandished their javelins; the most honourable manner of signifying their consent being by the sound of their arms. But this approbation of the general assemblies was not of itself sufficient to establish a resolution. As the sudden determinations of large multitudes are frequently rash, and injudicious, it was found necessary to have what they had so determined re-considered by a select body, who should have a power of rejecting or confirming them. For this purpose the chieftains were formed into a separate assembly, who, in conjunction with the king, either disannulled, or ratified what had been agreed to by the people at large.

Such then was the constitution of a German kingdom, a constitution so nearly resembling our own at present, as at first view would tempt any one to think the latter derived immediately from thence. Yet this was not the case. With respect to the Saxon times, as far as we can judge from the few lights remaining, the form of government seems very nearly to resemble this account which Tacitus gives us; but, for two centuries, at least, after the conquest, the English constitution wore a face purely feudal. The sub-vassals had long lost the privilege of being members of the general assembly, from causes that shall be hereafter attempted to be explained; and the whole legislative power was lodged in the king and his immediate vassals, whose interests frequently clashing, and creating continual broils, it was found necessary, for the advantage both of the sovereign and nobles, that a proper balance should be formed. Accordingly, much at the same time in France, Spain, and England, namely, in or about the thirteenth century, the happy method of readmitting the third estate, by way of representation, was found out, with an addition very favourable to the natural rights of mankind, that traders and artizans, who before had been treated with the most sovereign contempt, were now permitted to make part of the general assembly, and put on an equal footing with other subjects.

This, likewise, was the proper place of accusing criminals of public crimes, namely such as were looked upon by those people particularly to affect the whole society; neither was it unusual, likewise, to bring hither accusations of private wrongs, if the party injured was apprehensive of partiality in his own canton.

But the business of greatest moment, next to legislation, was, that, once in a year, in these assemblies, each village, with the approbation of the king, chose their chiefs, and their hundred assistants. Here it was they either received a testimony of their good behaviour, by being continued in office another year, or saw themselves reduced to the rank of private subjects, if their conduct had not been acceptable. At the same time were the lands distributed to the several chieftains, which leads me to say something on the next head, their regulations with respect to property; as to which their institutions were very singular, and totally different from those of all ancient, as well as modern nations.

All property being then naturally divisible into two kinds, moveable and immoveable, of the first these people had but a scanty share, their whole wealth consisting in their arms, a few mean utensils, and perhaps some cattle. The use of gold and silver, in the way of commerce, was utterly unknown to them, except to a few of their nations, namely such as lived near the Rhine, and had acquired some by dealing with the neighbouring Gauls. Consequently, there was no such thing as an accumulation of wealth among them, or any great disparity in the distribution of this kind of property, over which each had uncontrouled dominion during his life. But as testaments, or last wills, were unknown amongst them, upon death, the right went according to the plain dictates of nature. Tacitus saith, "To every man his own children were heirs and successors. For want of them, his nearest of kin, his own brothers, next his father's brothers, or his mother's." Whatever there was, was divided among the males next in degree; save that to each of the females, a few arms were assigned, the only dowry in use among those people; a dowry which, as Tacitus saith, signified that they were to share with their husbands in all fortunes of life and death. Accordingly, they constantly attended them to the field, were witnesses of their valour, took care of the wounded; and often, if their party had the worst, they ran into the ranks, and by their presence and danger, animated the men to renew the charge.

It is strange that any people should, for ages, make use of such a method, which a very little reflection, or common experience, might easily satisfy them had no manner of connection with guilt or innocence. But, besides the gross superstition of these nations, who thought the honour of providence concerned in the detection and punishment of criminals, Montesquieu hath given us another reason for this practice, which, whether just or not, for its ingenuity, deserves to be taken notice of. He observes, that the military profession naturally inspires its votaries with magnanimity, candour, and sincerity, and with the utmost scorn for the arts of falshood and deceit. This trial, then, he imagines calculated to discover plainly to the eye, whether the person accused had spent his whole life in the arts of war, and in the handling of arms. For if he had, his hands would thereby have acquired such a callousness, as would prevent any impression from the boiling water, discernible at that distance of time. He therefore was acquitted, because it was presumed he would not screen himself by a falshood. But if the marks appeared, it was plain he was an effeminate soldier, had resisted the force of education, and the general bent of his countrymen; that he was not to be moved by the spur of constant example, that he was deaf to the call of honour; and consequently such a person whose denial could have no weight to remove the presumption against him.

These were the methods of trial among the Salians, but the Ripuarian Franks, the Burgundians, and several other German nations acted very differently. No witnesses were produced among them on either side, but they contented themselves with what were called negative proofs; that is, the person accused swore positively to his own innocence, and produced such a number of his relations as the custom of the country required: or if he had not relations enough, the number was made up out of his intimate acquaintance: These were to swear that they believed his oath to be true, and upon this he was acquitted. But if he declined the oath, or could not produce a sufficient number of compurgators, he was found guilty; a practice that fully proves these nations were, when this method was introduced, a people of great simplicity and sincerity.

When the truth, by some of the methods above-mentioned, was ascertained, judgment was to be given. Here it will be proper to observe, that, among these people, there were only two kinds of crimes, that were looked upon as public ones, and consequently capital. The first was treason, or desertion in the field, the punishment hanging; the second cowardice, or unlawful lust, for they were strict observers of the nuptial band, the punishment stifling in a morass, with an hurdle over them. It seems, at first view, surprising, that murder, which Tacitus assures us, from sudden gusts of passion, and intemperance in liquor, was very frequent, should not, as it so much weakened the strength of the nation, be considered as a criminal offence, and punished accordingly. But a little reflection on their situation will reconcile us to it. The person slain was already lost to the society, and if every murder was a capital offence, the state would lose many of its members, who were its chief supporters. Besides, if the slayer had no hopes of mercy, nothing else could be expected than his desertion to their enemies, to whom he could be of infinite service, and to them of infinite detriment, from his knowledge of their strength and circumstances, and of the passes into their country, through the morasses and forests, which were their chief defence. Murder, therefore, like other lesser crimes, was atoned among those people, as it was among the ancient Greeks, who were in pretty similar circumstances, in the heroic times, as Ajax assures us in these words, in the ninth Iliad:

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namely, by a satisfaction of cattle, corn, or money, to the persons injured, that is, to the next of kin to the deceased, with a fine to the king or lord, as an acknowledgment of his offence, and to engage the society to protect him against the future attempts of the party offended. These satisfactions were not regulated originally, nor fixed at any certain rate, but left to the discretion of the injured, or next of kin. However, if he appeared extraordinarily unreasonable, and refused what was judged competent, the society, upon payment of his fine to their head, took the offender into protection, and warranted his security against the attempts of the other party, or his friends. After these nations were settled in the Roman empire, these satisfactions for each offence were reduced to a certainty by their laws.

This is as much as I have thought necessary to observe at present, concerning the manners and customs of these people, while they remained beyond the Rhine. It will next be proper to see how far afterwards they retained them, and what alterations were introduced by their new situation.

It is full time now to quit the wilds of Germany, to attend these nations in their passage into the Roman dominions, and to take a view of the manner wherein they settled themselves in these new countries. The Roman empire had been long on the decline; but especially, from the time of Severus, it every day grew weaker. This weakness arose, in a great measure, from an excessive luxury, which disqualified not only their great ones, but the bulk of the Roman people for soldiers; and also from the tyrannical jealousy of their emperors, who were afraid of trusting persons of virtue or ability, and had no other method of supporting their authority, than by employing numerous standing armies, that, under them, pillaged and oppressed the defenceless populace; and lastly, from the licentiousness of the soldiery, who made and unmade emperors according to their wild caprices. Hence proceeded many competitions for that dignity, and continual battles and slaughters of their men at arms; the natural consequence of which was, that whoever prevailed in these bloody contests, always found himself less able and powerful to defend the empire from foreign enemies or domestic competitors, than his predecessor was.

About the year 200 after Christ, the several nations who had been hitherto cooped up beyond the Rhine and the Danube, and kept in some awe by the terror of the Roman name, began to gather some courage from the weakness of the empire; and from that time few years passed without incursions into, and ravages of, some part of the southern territories, by one or other of these people; and how redoubtable they became to that decaying state, may easily be judged from the particular fondness the emperors of those days had, upon every slight advantage gained over them, for assuming the pompous titles of Gothicus, Vandalicus, Alemannicus, Francicus, &c. not for the conquest, or reducing into subjection those several people, as in antient times, but merely for having checked them, and kept them out of the Roman boundaries.

But these invasions of the northern nations were a long time confined to the single views of rapine and plunder; for as yet they were not fully convinced of their own strength, and the enfeebled condition of their enemies. And perhaps they might have longer continued in this ignorance, and within their former bounds, had it not been for an event that happened about the year 370, the like to which hath several times since changed the face of Asia. I mean a vast irruption of the Hunns, and other Tartarian nations into the north of Europe. These people, whether out of their natural desire of rambling, or pressed by a more potent enemy, were determined on a general change of habitation; and, finding the invasion of the Persian empire, which then was in its full grandeur, an enterprize too difficult, they crossed the Tanais, and obliged the Alans and Goths, who lived about the Borysthenes and the Danube, to seek new quarters. The former fled westward to Germany, already overloaded with inhabitants; and the latter begged an asylum from Valens in the eastern empire, which was willingly accorded them. The countries south of the Danube were before almost entirely depopulated by their frequent ravages. Here, therefore, they were permitted to settle, on the condition of embracing the Christian faith; and it was hoped they, in time, would have proved a formidable barrier against the incroaching Hunns, and, by a conformity of religion, be at length melted into one people with the Romans. For the attaining this purpose, they were employed in the armies, where, to their native fierceness and bravery, they added some knowledge of discipline, the only thing they wanted; and many of their kings and great men were in favour at court, and either supported by pensions, or raised to employments in the state.

But the injudiciousness of this policy too soon appeared; and indeed it was not to be expected that a people used entirely to war and rapine, and unaccustomed to any other method of subsistance, could in a short time be reduced to the arts of social life, and to the tillage of the earth; or be retained in any moderate bounds, in time of peace, when, by being admitted within the empire, they saw with their own eyes the immense plunder that lay before them, and the inability of the Romans to oppose their becoming masters of it. During the life of Theodosius they remained in perfect quiet, awed by his power and reputation; but when he left two weak minor princes under the guardianship of two interested and odious regents, it was obvious they could not be bridled much longer. Though, if we are to credit the Roman historians, their first irruption was owning to the jealousy Ruffinus, the prime minister of Arcadius, entertained of Stilicho, the guardian of Honorius. This latter, it is said, ambitious of holding the reins of both empires, pretended, that Theodosius had on his death-bed appointed him sole regent of both. For, though Arcadius was now of sufficient age to govern of himself, he was, in truth, for want of capacity, all his life a minor. Ruffinus, we are told, conscious of his rival Stilicho's superior talents and power, resolved to sacrifice his master's interest rather than submit to one he so much hated; and, accordingly, by his private emissaries, stirred up both Goths and Hunns, to fall at once on the eastern empire.

In the year 406, these nations, so long irreconcileable enemies to each other, poured their swarms in concert into the defenceless dominions of Arcadius. The Hunns passed by the Caspian sea, and with unrelenting cruelty ravaged all Asia to the gates of Antioch; and at the same time the Goths, under the so much dreaded Alarick, with no less fury, committed the like devastations in Illyricum, Macedon, Greece, and Peneloponnesus. Stilicho, thinking that his saving the eastern empire would undoubtedly accomplish for him his long wished-for desire of governing it in the name of Arcadius, as he did the western in that of Honorius, hastened into Greece with a well-appointed army. But, when he had the barbarous enemy cooped up, and, as it were, at his mercy, the weak prince, instigated by his treacherous minister Ruffinus, sent him orders to retire out of his dominions. The Goths returned unmolested to the banks of the Danube, laden with plunder; and Stilicho went bank to Italy boiling with rage and resentment, but he never had an opportunity of wreaking his vengeance on his treacherous rival.

In the next year, Germany, surcharged with her own inhabitants, and the nations who fled from the Hunns, and, perhaps, instigated by Ruffinus, to find work for Stilicho at home, sent forth her multitudes across the Rhine; and, for three successive years, the Suevians, Alans, Vandals, and Burgundians, laid all the open country of Gaul waste; and, about the same time, Constantine, a Roman Briton, assumed the imperial purple, and was acknowledged by all the Romans of that island and Gaul.

The western empire was now utterly disqualified for defence: Stilicho, the only man whose abilities and influence were capable of saving the falling state, had been suspected of treason in aspiring to the diadem, and was put to death; and Alarick, having before effectually plundered Greece, was now acting the same part in Italy, while Honorius, shut up in Ravenna, made but feeble efforts of resistance. Twice was Rome besieged, once redeemed by an immense ransom, and the second time taken, plundered and burnt. At length these calamities a little subsided; Constantine, the British usurper of the empire, died; and all the western Romans again acknowledged Honorius; but the western empire, though she lingered some time, had received her mortal wound, and utterly perished in less than fifty years. The distressed emperor Honorius granted to the Burgundians, who were the most civilized of these barbarians, and had embraced the Christian religion, the country they had possessed themselves of, namely, Alsace and Burgundy. The Goths, who were already Christians, but of the Arian persuasion, having by this time exhausted Italy, were easily prevailed on, under Ataulphus, Alarick's successor, to settle in the south-west of Gaul, under a like grant; which country had been quitted in the year 410 by the Sueves, Alans, and Vandals, who had over-run all Spain, and divided it into three kingdoms. And thus were two kingdoms formed in the south of Gaul, the new inhabitants of which coming by compact, and under the title of the Roman emperor, behaved afterwards to the subjected Romans and Gauls not in the light of brutal conquerors. Though they themselves retained their own customs, they indulged these in the use of the Roman laws, suffered them to enjoy a considerable portion of the lands, and made no very afflicting distinctions between themselves and their subjects.

The Burgundians, particularly, we are informed, took two thirds of the lands, the pasturage and forests, with one third of the slaves to look after their flocks, and left the remainder to the Romans, who were skilled in agriculture. They also quartered themselves in the houses of the Romans, which naturally produced an acquaintance and amity between the two nations. But one great reason, as I apprehend, of the lenity of these people to the vanished was their neighbourhood to the Roman empire, which still continued in name in the west, and which they might well be afraid of seeing revived, under a prince of ability, if their harsh treatment alienated the conquered people's affections from them.

But different was the treatment the conquered met with from the Franks, who about this same time settled themselves at a greater distance from Italy, namely, in Belgic Gaul. The Franks, above most of the other German nations, had been for a considerable time attached to the Romans, insomuch that if they did not receive their kings from them, as Claudian tells us they did from Honorius, at least the kings received their confirmation from the emperors; and they continued in this fidelity till the year 407, when they fought a bloody battle with the Sueves, Vandals, and Alans, to prevent their passing the Rhine, to invade the Roman territories. But when they found the western empire already dismembered, they thought it not convenient to lie still, and suffer other nations to share the prey entirely amongst themselves. The Salians, therefore, took possession of the present Netherlands, and the Ripuarians to their original country of Mentz and Hesse, added Treves, Cologne, and Lorrain. Some have thought these people had grants from the Roman emperor, in the same manner as I have mentioned before concerning the Burgundians and Visigoths; but I should, with others, apprehend this to be a mistake; for AEtius the Roman general left the Goths and Burgundians in quiet possession of their seats, but defeated, and obliged the Franks to repass the Rhine, which made them, after the danger was over, return with double fury; and for a long time after they treated the conquered Romans in the stile of masters, and with many afflictive distinctions, unknown to their neighbours the Goths and Burgundians.

The soldiers, who were really what composed the nation, continued for a longer time pretty much in the same state as in Germany; for a whole people do not part with their accustomed usages and practices on a sudden. They changed their habitations as before, their manner of judicature and administering justice continued the same, they met in general assemblies as usual, but, as they were now dispersed over a more extensive country, not so frequently as formerly. When they were converted to Christianity, which happened under Clovis, who, by uniting all the Franks, subduing the Alemans, and conquering considerable tracts of country from both the Visigoths and Burgundians, first formed a considerable kingdom, it was found exceedingly inconvenient to assemble every month. Thrice in the year, namely on the three festivals, was found sufficient, except on extraordinary occasions; and this method was continued many ages in France and in England. For hundreds of years after the conquest, these were the most usual and regular times of assembling parliaments.

But though things, in general, wore the same face as when these people remained at home, it will be necessary to observe, that a change was insensibly introducing, the king and the chieftains were daily increasing their privileges, at the expence of the common soldiers, an event partly to be ascribed to the general assemblies being less frequent, and consequently fewer opportunities occurring for the people at large to exert their power; but principally to the many years they had spent successively in camp, before they thought themselves secure enough to disperse through the country. The strictness of military discipline, and that prompt and unlimited obedience its laws require, habituated them to a more implicit submission to their leaders, who, from the necessities of war, were generally continued in command. And it is no wonder that while the authority of the inferior lords was thus every day gaining strength, that of the king should encrease more considerably. For, probably, because he, as general, was the fittest person to distribute the conquered lands to each according to his merits, he about this time assumed to himself, and was quietly allowed the entire power of the partition of lands. They were still, and for some considerable time longer, assigned in the general assemblies, but according to his sole will and pleasure, to the several lords, who afterwards subdivided them to their followers in the same manner at their discretion; whence it came, that these grants were called benefices, and are constantly described by the old writers, as flowing from the pure bounty and benevolence of the lord.

A power so extraordinary in a king would tempt any one, at first view; to think that he who had so unlimited a dominion over the landed property, must be a most absolute monarch, and subject to no manner of controul whatsoever. It will therefore be proper to make an observation or two, to shew why, in fact, it was otherwise. First, then, the ascendant the lords had gained over their followers, made it extremely dangerous for the king to oppress the lords, lest it might occasion, if not a rebellion, at least a desertion of them and their people. For the bonds of allegiance, except among the companions of the king, as I observed before, were not yet fully tied. On the other hand, the interest of the lords obliged them to protect their inferiors from the regal power. Secondly, this power of the king, and of his lords under him, was not unlimited in those times, as it may appear to be at first sight, and as it became afterwards. For, though he could assign what land he pleased to any of the Franks, he could not assign any part to any other but a Frank, nor leave any one of the Franks unprovided of a sufficient portion, unless his behaviour had notoriously disqualified him.

About this period, as I gather from the reason and circumstances of the times, was introduced the tenure of castleguard, which was the assignment of a castle, with a tract of country adjacent, on condition of defending it from enemies and rebels. This tenure continued longer in its original state than any other; for by the feudal law it could be granted for no more than one year certain.

But we cannot have a compleat idea of the constitution of this nation, without taking notice of the clergy, who now made a considerable figure among them. Churchmen had, ever since the conversion of Constantine, been of great consequence in the empire; but the influence they obtained among the northern barbarians was much more extensive than what they had in the Roman empire. The conversion of Clovis to the Christian religion was owing to the earnest persuasions of his wife Clotildis, a zealous Christian, and to a vow he made when pressed in battle, of embracing the faith of Jesus Christ, if he obtained the victory. He and his people in general accordingly turned Christians; and the respect and superstitious regard they had in former times paid to their pagan priests, were now transferred to their new instructors. The principal, therefore, of them were admitted members of their general assemblies; where their advice and votes had the greatest weight, as well as in the court of the prince; as learning, or even an ability to read, was a matter of astonishment to such an illiterate people, and it was natural in such a state they should take those in a great measure as guides in their temporal affairs, whom they looked on as their conductors to eternal happiness. As they were the only Romans that were admissible into honours, the most considerable of their countrymen were fond of entering into this profession, and added a new weight to it. But if the sacredness of their function gave them great influence, their wealth and riches added not a little to it. Before the irruptions of the barbarians, they had received large possessions from the bounty of the Roman emperors, and the piety of particulars. These they were sure to possess: but their subsequent acquisitions were much greater. Though these kings and their people had imbibed the faith of Christ, they were little disposed to follow its moral precepts. Montesquieu observes the Franks bore with their kings of the first race, who were a set of brutal murderers, because these Franks were murderers themselves. They were not ignorant of the deformity of their crimes, but, instead of amending their lives, they chose rather to make atonement for their offences, by largesses to their clergy. Hence the more wicked the people, the more that order encreased in wealth and power.

But, to do justice to the clergy of that age, there was another cause of their aggrandizement, that was more to their honour. As these barbarians were constantly at war, and reduced their unhappy captives to a state of slavery, and often had many more than they knew what to do with, it was usual for the churchmen to redeem them. These, then, became their servants, and tenants, where they met not only with a more easy servitude, but were, from the sacredness of the church, both for themselves and their posterity, secured from any future dangers of the same kind. It was usual also for the unhappy Romans, who were possessed of allodial estates, and saw themselves in danger, by these perpetual wars, of not only losing them, but their liberty also, to make over their estates to the church, and become its socage-tenants, on stipulated terms, in order to enjoy the immunities thereof.

In my next lecture I shall consider the introduction of estates for life into the feudal system, and take notice of the consequences that followed from thence.

In the preceding lecture I took notice of the different condition and situation of the Romans and barbarians in the infancy of the French monarchy; but it will be necessary to observe, that all the barbarians themselves were not subject to the same laws and regulations. When the Ripuarian Franks, after the murder of their sovereign, submitted to Clovis, it was under an express condition of preserving their own usages. The same privilege he allowed to the Allemans, whom he conquered, and to such parts of the Burgundian and Gothic kingdoms as he reduced to his obedience. The customs of all these several people, as they were Germans, were indeed of the same spirit, and did pretty much agree; but in particular points, and especially as to the administration of justice, they had many variations; and these the several nations were fond of and studious of preserving. What was peculiar to these people, above all other nations, was this, that these different laws were not local, but personal: for although the Salians, in general, dwelt in one part of the country, the Ripuarians in another, the Allemans in a third, &c. yet the laws were not confined to these districts: but a Salian, in the Ripuarian territories was still judged by his own, the Salian law; and the same was true of all the others. Another peculiarity was, that the barbarians were not confined to live in the law they were born under. The Romans, indeed, could not pass from their Roman law to that of any one of their conquerors, until they were allowed, several ages after, to acquire fiefs; but any of the barbarians, if he liked another law better than his own, could adopt it: a privilege, I presume, derived from that antient practice which they used, of removing from one state or commonwealth to another, or of going forth to form a new one.

The introduction of beneficiary grants for life, as is very properly conjectured, was first owing to the counts. They had, as I mentioned before, the third part of the profits of the courts in their respective districts, which made their office not only considerable and honourable, but opulent. They lived apart from the other barbarians among the Romans, whose allodial property was fixed and permanent. It was natural for them to wish the continuance of their lucrative employments, and to make them as perpetual as their obligation of fidelity was; and this they were enabled to attain by the means of the profits they made of their places, and the want of treasure, which the kings frequently laboured under to support their wars: for offensive ones they could carry on in no other manner than by ready treasure. The counts, therefore, by the dint of presents, or fines, attained, or I may rather say, purchased estates for life in their offices; but these estates had, at first, continuance only during the joint lives of the granter and grantee.

But the matter did not stop here. The example was quickly followed by the other barbarians, who were the immediate tenants of the crown, and who now were growing weary of the constant, or even a frequent change of habitation. And, in one respect, this allowance was of considerable advantage to the king, as it created a tie upon them, equally durable with that by which his companions were bound to him, and wore out by degrees that principle they had before retained, that by throwing up what they held from him, they were absolved from their allegiance. They, therefore, as well as the companions, took the oath of fealty; which, as far as I can find, was taken by none on the continent, whose estates were less than for life; though, in the law of England, it is a maxim, that fealty is incident to every tenure but two, namely, estates at will and estates given in frank almoigne, or free alms, that is, to religious houses, in consideration of saying divine service, and praying for the donor and his heirs; and these were excused out of respect to the churchmen, who were supposed not to need the bond of an oath, to perform that duty to which they had dedicated themselves, and also because the service was not done to the lord, who gave the land, but to God.

Thus estates for life, created by particular grants, went on continually encreasing in number, till the year 600, by which time almost every military tenure, castle-guard excepted, was of this nature. And this accounts for the particular regard the feudal, and from it our law shews to the tenant of the freehold, and the preference given to him above a tenant for years. For, first, his estate was, generally, more valuable and permanent, as long terms were then unknown; and, secondly, it was more honourable, as it was a proof of a military tenure, and of the descent of its possessor from the old German freemen. For it was a long time after that socage lands, in imitation of these, came to be granted in the same manner, for life. The lords, or immediate tenants of the crown, having, by the means afore-mentioned, gotten estates of continuance, and being bound for life to the king, thought it their interest likewise to connect their tenants as strictly to them, by granting them freeholds also; but in the oath of these sub-vassals, which they took to their lords, there was an exception of the fealty due to the king, from whom the land was originally derived, or of a former lord, if such an one they had, to whom they were bound by oath before. These sub-vassals, likewise, had not in those early times, the power of creating vassalages, or estates for life, under them; for it was thought improper to remove the dependence of any military man on the king to so great a distance; and indeed it was hardly worth any man's while, if it had been lawful, to accept such a gift as was determinable either on the death of the superior lord, or of his vassal, who had granted it, or lastly, on his own death.

Hence, if the lord had granted lands by an improper investiture to A, and had afterwards, by livery and seizin, granted them to B, they became B's, though he was the later invested; and the remedy A had against the lord was not for the lands themselves, for those he had already legally parted with to B, and could not recal, but for their value, in consideration of his having bound himself to fealty.

Having thus delivered the antient and proper method of constituting an estate for life, let us attend to the consequences, and see what were the several rights and obligations of the lord and tenant, and for that purpose examine the oath of fealty.

This military duty was to be done in the vassal's proper person, if he was capable of it; unless the lord was pleased to accept of a deputy. But if he was incapable himself, as often must have happened, after estates for life came in, he was allowed to serve by a substitute, such as the lord approved. Suppose, then, a man had two lords, who were at the same time at war with others, and each required his personal assistance, it was plain he was obliged to serve both, the elder lord in person, because his right was prior, and the last by deputy.

The aids due to the lord, in respect of his property, were, first, to aid and support him, if reduced to actual indigence, and to procure his liberty, by paying his ransom, if taken in war. It was a doubt among the feudal lawyers, whether, if the lord was imprisoned for debts, his tenants were obliged to release him; and the better opinion was, that they were, if the debts did not tend to their very great impoverishment.

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