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.
LECTURE IV.
_The_ companions _of a German prince—The constitution of a
German kingdom—The condition of property in Germany—The methods
followed there of distributing justice, and the nature of the
punishments inflicted on criminals._
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[58].”
Here, then, are to be seen most plainly the rudiments of that feudal
connection, that afterwards subsisted between the king and all his
military vassals, and of the oath of fealty which the latter took to
him. To his person, and to aid him in all he undertook, his companions
were bound, during his and their lives, by the strictest ties; but as to
other freemen, who lived apart in their villages, the bonds of allegiance
were much more loose. This rude people had no notion of what almost
every civilized nation hath laid down as a maxim, that being born in,
and protected by a society, creates a durable obligation. They served,
indeed, in consideration of the lands they held, in all defensive wars;
and in all offensive ones, which either were generally approved of, or
in which they chose particularly to engage themselves. Nay, so great
was the notion of particular independence among these people, that they
thought that all of the freemen or soldiers, except the _comites_, who
had by oath bound themselves to the person of the king for life, were
at liberty to engage in expeditions, that neither the king, nor the
majority of the nation consented to; and that under leaders of their own
choosing. For as, at their general meetings, war was necessarily the most
common subject of deliberation, if any one proposed an enterprize, all
who approved the motion were at liberty to undertake it; and if the king
declined commanding therein, they chose a general capable thereof; and
when, under his conduct, they had succeeded, they either returned, and
divided the spoil, and became subjects of their former king as before;
or, if they liked the country they had subdued better, settled there,
and formed a new kingdom, under their victorious leader. _Duces ex
virtute sumunt_, saith Tacitus; a practice hard to be accounted for among
nations exposed to continual danger, and which must be thereby frequently
weakened, on any other supposition, than that it was first introduced
to disburthen a narrow territory, overstocked with inhabitants. This
effect, however, it must have had, that their kings were rendered more
martial, and obliged equally by their glory and interest, to command in
every expedition, that was agreeable to any considerable number of their
subjects.
From this custom Montesquieu very ingeniously conjectures, that the
Franks derived their right of conferring on their _mairs de palais_
the power of war, at a time, when, by the long continued slaughters of
the royal family, they were obliged to place the crown on the heads of
minors, or of princes as incapable as minors; a power that enabled them,
by degrees, to usurp the civil administration, and at length to transfer
the title also of royalty to a new race, in the person of Pepin[59].
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.