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[81].

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[82].

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 (and a similar one will account for the

Ostrogoths and Lombards in Italy, afterwards, following their example,

which likewise hath been taken notice of with wonder by some authors) 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[83].

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 Ætius 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[84].

Many, in the first heat of victory, they reduced to slavery, to a

servitude very different from what had been before practised in Germany,

and nearly approaching to what was used by the Romans. For whatever

property was acquired by these slaves or servants, who in after ages were

called Villains, belonged to their masters, not absolutely, as at Rome;

but the masters claimed and took possession of it, and they (I mean in

France) for the enjoyment of what was permitted them, paid a stipulated

tax called _census_, which was the only tax used there in those ancient

times. However, they did not employ them in domestic drudgery, but

suffered them to live apart, as the proper German servants had done.

Their duties were uncertain, in this agreeing with those of the men of

war, and differing from those of the middle rank, which I shall hereafter

mention, and were of the most humiliating kind, they being obliged to

attend at their lord’s summons, to carry out dung, remove nuisances,

and do other mean and servile offices. The number of these slaves and

villains for centuries perpetually increased, from the many wars both

foreign and civil, these people were engaged in, and the _jus gentium_ of

those ages, by which all that were taken in war were reduced to slavery;

insomuch that, by the year 1000, the number of these villains was

immense, whole cities and regions being reduced to that state[85].

This introduction of a new order of men, unknown to the original German

policy, and inferior to all others, was of advantage to that which had

before been the lowest, I mean the _servants_, as they were called

in Germany, or _socage tenants_, as they were called in England; for

the duties they paid their lords were fixed at a certain rate, which

being performed, they were chargeable with no other burdens, and,

though no members of the body politic, as having no share in the public

deliberations, either in person or by representation, were in reality

free men. These, with the addition of several of the captive Romans, who

were most skilful in agriculture, were the successors of the old servants

in Germany; but their numbers, from the causes before-mentioned, the

perpetual wars, continually decreased, great multitudes of them being

reduced into the state of villainage[86].

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[87].

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[88].

But the strongest reason against this absolute power in those times,

is to be drawn from the common feelings of human nature. As absolute

monarchies are only to be supported by standing armies, so is an absolute

unlimited power over that army, who have constantly the sword in their

hands, a thing in itself impossible. The Grand Seignior is, indeed, the

uncontrouled lord of the bulk of his subjects, that is, of the unarmed;

but let him touch the meanest of the janizaries, in a point of common

interest, and he will find that neither the sacredness of the blood of

Ottoman, nor the religious doctrine of passive obedience, can secure his

throne. How then could an elective prince, in these northern regions,

exercise an uncontrouled dominion over a fierce people, bred up in the

highest notions of civil liberty and equality? One of their old maxims

they long religiously adhered to, that is, that, in consideration of

their lands, they were bound to serve only in defensive wars; so that

a king who had engaged in an offensive one, had every campaign a new

army to raise by the dint of largesses; which if he had no treasure left

him by his predecessor, as he frequently had, and which every king by

all means was diligent in amassing, he supplied from the profits of his

demesns, the _census_ on his villains, or else from foreign plunder[89].

But these people had not long been settled in their new seats, before the

encrease of their wealth, and the comfortableness of their habitations,

rendered a constant removal inconvenient, and made them desirous of more

settled assurance in their residence, than that of barely one year. Hence

it came, that many were, by the tacit permission of the king, or the

lord, allowed to hold after their term was expired, and to become what

our law calls _tenants by sufferance_, amoveable at any time, at the

pleasure of the superior; and afterwards, to remedy the uncertainty of

these tenures, grants for more years than one, but generally for a very

short term, were introduced. The books of the feudal law, written many

hundred years after, indeed, say that the first grants were at will,

then for one year, then for more; but I own I cannot bring myself to

believe that these conquerors, who were accustomed in Germany to yearly

grants, could be satisfied with a tenure so precarious as under that

of a year, in their new acquisitions. These grants at will, therefore,

which are mentioned in those books, I understand to be after their term

ended. I mean this only as to the warrior-Franks, for as to the socagers

and villains, I will readily allow that many of the former, and all the

latter, were originally at pleasure[90].

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[91].

It is time now to take notice of such of the Romans as lived among

the Franks, and by them were not reduced to slavery. Clovis began his

conquests with reducing Soissons, where a Roman general had set himself

up with the title of a king; and after he had extended his conquests over

all the other states, the Franks, and some other German nations, the

Armorici, the inhabitants of Brittany, who, cut off from the body of the

empire, had for some time formed a separate state, submitted to him on

condition of retaining their estates, and the Roman laws. Their example

was soon followed by others. The Gauls who dwelt on the Loire, and the

Roman garrisons there, were taken into his service. Thus was the king of

France sovereign of two distinct nations, inhabiting the same country,

and governed by different laws. The Franks were ruled by their customs,

which Clovis and his successors reduced into writing; the Romans by the

Imperial law. The estates of the one were beneficiary and temporary;

those of the others were held _pleno jure_ and perpetual, and now, or

soon after, began to be called _allodial_. But these allodial estates

were not peculiar in after times to the Romans; for as these estates were

alienable, many of them were purchased by the Franks: So that we read,

that when Sunigisila and Callamon were deprived of the benefices they

held as Franks, they were permitted to enjoy their estates in propriety.

As the Romans were, before their submission, divided into three classes,

the nobles, the freemen, and the slaves, so they continued thus divided;

the nobles being dignified with the title of _convivæ regis_[92].

But as it was unsafe to trust the government of these new subjects in

the hands of one of their nation, the king appointed annually one of his

companions, or _comites_, for that purpose, in a certain district; and

this was the origin of counties, and counts. The business of these lords

was to take care of, and account for the profits of the king’s demesns,

to administer justice, and account for the profits of the courts;

which were very considerable, as the Roman laws about crimes being, by

degrees, superseded, and consequently capital punishment in most cases

abolished, all offences became fineable, a third of which they retained

to themselves. They also, in imitation of the lords of the Franks,

led their followers to the wars. For every free Roman, that held four

manors, was obliged to serve under his count; and those that had more

or less contributed in proportion. This military duty, together with an

obligation of furnishing the king with carriages and waggons, was all the

burden put upon them, instead of those heavy taxes and imposts they had

paid to their emperors; so that, in this instance, their situation was

much mended, though in other respects it was sufficiently mortifying[93].

The greatest among them was no member of the political body, and

incapable of the lowest office in the state; and as all offences were

now fineable, those committed against a Frank, or other Barbarian, were

estimated at double to the compensation of those committed against a

Roman or Gaul. No wonder, then, that _gentilis homo_, a term formerly of

reproach among the Romans, (for it signified a heathen and barbarian)

became now a name of honour, and a mark of nobility; and that the Romans

earnestly longed to turn their allodial estates into benefices, and to

quit their own law for the Salic. And when once they had obtained that

privilege, the Roman law insensibly disappeared, in the territories of

the Franks, the northern parts of modern France, which are still called

the _païs des coutumes_; whereas, in the southern parts, where no such

odious distinctions were made by the original conqueror, the Roman law

kept its ground, and is to this day almost entirely observed. These

countries are called by the French lawyers _païs de loi ecrite_, meaning

the Roman[94].

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 (for the churchmen were all of that nation) 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[95].

Lectures on the constitution and laws of England With a commentary on Magna Charta, and illustrations of many of the English statutes · 第 6 / 41 段