vacations, and in all of them, except the long one, when few young
gentlemen of fortune stay in the universities, the shortness of these
vacations necessarily occasions these lectures to follow each other in a
very quick succession; and, accordingly, we find that five are delivered
in every week. It is impossible, therefore, that the students at first
should keep any manner of pace with their professor in their private
reading, without which the ablest performances in the way of prelections
will be of little utility. Many things in the succeeding ones must be
rendered very difficult, if not absolutely unintelligible, for want of
a due time for mastering and digesting those that preceded; and another
unhappy consequence of this quick succession is, that the most useful
and effectual method of instruction to beginners, at their entrance upon
any science, namely, a continued examination of the progress they have
made, is hereby entirely precluded, and rendered impracticable. The great
advantage of that method need not be enlarged upon in this place, as
every gentleman who hears me must be already fully satisfied of it from
his own experience.
But this university is circumstanced in a very different manner. The
necessity our students are under of repairing to Westminster, to finish
their studies, before they are called to the bar, and their incapacity to
reap any benefit from the courts of law while they reside here, render
it impossible, as well as unnecessary, to conjoin those two methods of
instruction before-mentioned, as is done at Oxford; and, by confining
the professor to pupils of two years standing or little more, make
it highly improper for him to enter minutely into those parts of the
law his audience have not yet had time to apply to. His great object,
therefore, should be so to frame his lectures, as to be most useful to
youth at the beginning, to be particular and copious in the elementary
parts, in order to lay a sure foundation, and to smooth and make plain
the difficulties which at first will every where occur. And as, for these
reasons, a general and equally diffusive course is a method improper for
him to pursue, it should be his especial care to avoid, or remedy the
inconveniencies with which such an one is necessarily attended.
It is a well known truth, that the entrance on any study, however easy
and agreeable such study might be after some progress made in it, is
at the beginning very irksome, and attended with many perplexities;
principally arising from the use of new terms, whose significations are
yet unknown. But the laws of all nations, and those of England above all
others, abound in such novel words, and old ones used in an uncommon
sense, more than any other science, and therefore must be attended
with difficulties in proportion. And although many of its terms occur
frequently in common conversation, and may, consequently, be supposed
already understood, this is rather a disadvantage than otherwise;
for in common discourse they are used in so vague and undetermined a
meaning, and so far from strict precision and propriety, that it is no
wonder so many persons exclaim at the absurdity of its maxims; which,
though frequently in their mouths, they do not really understand.
Young gentlemen, then, have not only many new words to acquire the
signification of, but they must likewise unlearn the import of many
others they are already acquainted with, and affix to those familiar
terms new and precise ideas, a task, as Mr. Locke observes, of no small
difficulty, and that requires not only the strictest attention, but
constant care and frequent repetition. Another great difficulty the study
of the law of England labours under, peculiar to itself, is that want
of method, so obvious to be observed, and so often complained of in its
writers of authority, insomuch, that almost all of them, and lord Coke
particularly, are too apt to puzzle and bewilder young beginners; whereas
other laws, the civil, the canon, the feudal, have books of approved
authority, (and none other but such should be put into the students
hands,) calculated purposely for the instruction of novices; wherein the
general outlines of the whole law are laid down, the several parts of it
properly distributed, its terms explained, and the most common of its
rules and maxims, with the reasons of them, delivered and inculcated.
It is not to be admired then that Sir Henry Spelman so pathetically
describes his distress at his first entrance upon this study. _Emisit
me mater Londinum, juris nostri capessendi gratia, cujus cum vestibulum
salutassem, reperissemque linguam peregrinam, dialectum barbaram,
methodum inconcinnam, molem non ingentem solum, sed perpetuis humeris
sustinendam, excidit mihi fateor animus_[41].
These then are the obstructions to be removed, and the difficulties to
be obviated, by a professor who considers it his business to lead by the
hand young gentlemen, yet strangers to the study; and for this purpose
he should exert his utmost care and attention, not to overburthen the
memories, or to distract the attention of his audience with too great
variety at first, but to feed them with knowledge as he finds them
capable, and to give them time, by reading and meditation, to become
masters of what they have already acquired, and by frequent examinations
to satisfy himself they thoroughly comprehend and retain the substance
of his past lectures. The utility of this last method, by which the
students will be laid under a necessity of reading in private, as to
them, will be readily allowed; but taken in another view will be of no
less assistance to the professor himself, in framing the prelections he
is to read. He will not only be encouraged to proceed with more alacrity,
when he daily observes the success of his endeavours, but also, by the
trial, be convinced of any defects or errors in his plan that before
escaped his observation, and will be warned thereby to amend them; and
he will by this means be particularly and perpetually cautioned against
the great and too common mistake of tutors, namely, their imagining that
such explications as are easy and familiar to them, will be equally
obvious to unexperienced youth. But an examination will demonstrably
shew him where his illustrations have been defective or obscure, and
will oblige him to accommodate his lectures to the capacity and progress
of his hearers. The next variation in the present plan from that of Mr
Blackstone, to be taken notice of, is the proposal of beginning with the
law of _things_, not with the law of _persons_, as he hath done. It must
be allowed impossible thoroughly to understand the law of things, without
some previous knowledge of that of persons; but it is equally impossible
to be master of the law of persons, without an acquaintance with that
of things. Since, therefore, we must begin with one of them, perhaps
it will be sufficient to observe, that such knowledge of the names and
relations of persons, as is generally acquired by observation, before
a person arrives at an age fit for engaging in this study, will enable
him tolerably to understand the law of things; and that whatever more
is necessary, and hath not been attained by this means, may be easily
supplied as the student goes on. And, that I may not be thought to lean
too much on my own opinion in this particular, I shall quote the famous
Sir Matthew Hale to the same purpose; who, in his Analysis, introduces
the law of things in the following manner: “Having done with the rights
of persons, I now come to the rights of things; and, though, according to
the usual method of civilians, and of our ancient common law tractates,
this comes in the second place, and after the _jura personarum_, and
therefore I have herein pursued the same course; yet that must not be the
method of a young student of the common law, but he must begin his study
here, at the _jura rerum_; for the former part contains matter proper for
the study of one that is well acquainted with those _jura rerum_[42].”
And, agreeably hereto, the wisdom of ages hath declared _Littleton’s
Tenures_, which contains the common law of England, as far as it concerns
real property, that is, lands or interests derived out of and flowing
from them, to be the book most proper for students to begin with, in
their study of the law of these nations.
Taking it then for granted at present, that the law of real property is
the fittest introduction, it will be necessary, as it is confessed to be
the most important, the most extensive, and, in consequence, the most
difficult part, to lay the foundation deep and sure, and to derive its
rules from what is now universally allowed to be its source, the feudal
customs. This, indeed, hath been denied by Lord Coke, and others of his
age; who thought it would depreciate the excellence of the laws of their
country, to admit they were derived from any other nation. But if those
gentlemen had read over but once the two books of the feudal law with
tolerable attention, they must have received conviction, that one of the
laws was certainly derived from the other; and which of them was so would
easily appear, by comparing the law of England after the conquest, with
that which prevailed in the Saxon times, and was not strictly feudal,
exclusive of the testimony of the old historians.
But, perhaps, for this purpose, it may be thought sufficient to explain
and deduce these rules from the feudal ones, as they occur occasionally
in the books of the common law; which is the method, that, in conformity
to the rest of his plan, the Oxford professor has adopted, and that the
reading through a course of that law, even the shortest, will be attended
with an unprofitable delay, and detain the students too long from their
principal object. The answer to this objection is short, and, if well
founded, perfectly satisfactory. It is, that the real reason of proposing
a system of the feudal law to be gone through, was to save time. The
method is so much better, and clearer, and, by necessary consequence,
so much easier to be comprehended, and retained, that the delay will
be abundantly compensated, and one third at least of Littleton will
be understood, and known by the students, before they open his book.
For the maxims of the common law, as they lie dispersed in our books,
often without reasons, and often with false or frivolous ones, appear
disjointed and unconnected, and as so many separate and independent
axioms; and in this light very many of them must appear unaccountable,
at least, if not absurd; whereas, in truth, they are almost every one
of them deducible, by a train of necessary consequences, from a few
plain and simple rules, that were absolutely necessary to the being and
preservation of such kind of constitutions as the feudal kingdoms were.
The knowledge of which few, timely obtained, will obviate the necessity
of frequent and laboured illustrations, as often as these maxims occur
in our law, will reconcile many seeming contradictions, and will shew
that many distinctions, which at first view appear to be without a
difference, are founded in just and evident reason: to say nothing of the
improvement the mind will attain by exercise, in following such a train
of deductions, and the great help to the memory, by acquiring a perfect
knowledge of the true grounds of those various rules, and of their mutual
connection with and dependence on each other. _Ignoratis causis rerum, ut
res ipsas ignoretis, necesse est_, is a maxim frequently in our lawyers
mouths; and Littleton and Coke continually exhort the student to explore
the grounds and reasons of the law, as the only safe foundations to build
on, and deny that any man, without being perfectly acquainted with them,
can merit the honourable appellation of a lawyer.
But there is another, and, for gentlemen of rank and fortune
particularly, a more important consideration, that renders a general
acquaintance with the principles of the feudal law very proper at all
times, but at present eminently so; namely, the necessity of knowing
these, for the understanding the nature of those Gothic forms of
government, which, until these last three hundred years, prevailed
universally through Europe, and whence the present constitution, with
several corrections and improvements indeed, in which these islands
are now so happy, is undoubtedly derived. From hence only shall we be
able to determine whether the monarchy of England, as is pretended, was
originally and rightfully an absolute royalty, controuled and checked
by the virtue of the prince alone, and whether the privileges of the
subjects, which we are so proud of, were usurpations on the royal
authority, the fruits of prosperous rebellion, or at best the concessions
of gracious princes to a dutiful people, and revocable by them or their
successors, whenever, in their opinion, their vassals should become
undeserving; principles that were industriously, and, to the misfortune
of a deluded royal family, too successfully propagated during the last
century, and that, of late, have been revived and defended, with no
less zeal, than seeming plausibility. Every man, indeed, of candour and
humanity, will look with tenderness on the errors of princes, unhappily
educated in mistaken notions, and make due allowances for the weight
which arguments urged with great apparent force of reason, concurring
with the lust of power, so natural to the human breast, will certainly
have on such minds; but, surely, this indulgence may be carried too
far, and will be allowed so to be, if, for their justification, it
shall appear, upon examination, that the history of past ages has been
partially delivered down, and perverted; and that to the vain and
unprofitable grandeur of the prince, the happiness of millions, and
their posterity, hath been attempted to be offered up in sacrifice. The
question is of a matter of fact; for on the decision of the fact, how the
constitution of England antiently stood, the question of the right solely
depends. And surely it is the duty of every gentleman to inform himself,
on the best grounds, whether those great men, who, for a succession of
ages, exposed their lives in the field, or exerted their eloquence and
wisdom in the senate, for the purpose of preserving, and perpetuating
these privileges, deserved the honourable name of patriots, or the
detestable appellation of rebels; whether the grievances our glorious
deliverer came to redress were real or imaginary; or, if real, were such
as our fathers were in conscience bound to submit to; and whether we
can with justice give to the family that now fills our throne with such
lustre and dignity, that title which they have always esteemed as their
highest honour, of being the lords of freemen, and the assertors of the
liberties of mankind.
As the book[43] which it is intended the young gentlemen shall read for
the purpose of acquiring a general idea of the feudal law, is composed
in a systematical method, it is proposed that these lectures shall
proceed in an historical one, in order to shew the original reasons
of those customs, and to point out from what small beginnings, and by
what particular steps and gradations the mighty fabrick rose. By this
means the additions to, and the alterations of the law will be seen in a
clearer light, when we are acquainted with the nature of the regulations
already in being; and by knowing the circumstances of the times, can at
once perceive the wisdom and necessity of such additions and alterations.
And it is hard to imagine a study more improving, more agreeable, or
better adapted to a liberal mind, than to learn how, from a mere military
system, formed and created by the necessities of a barbarous people, for
the preservation of their conquests, a more extensive and generous model
of government, 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.
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.