We are not to imagine, that all the conquered lands were seized by the northern conquerors, or that the whole of the land thus seized was subjected to those military services. This supposition is confuted by the history of all the nations on the continent. Even the idea given us of the German manners by the Roman historian, may convince us, that that bold people would never have been content with so precarious a subsistence, or have fought to procure establishments which were only to continue during the good pleasure of their sovereign. Though the northern chieftains accepted of lands which, being considered as a kind of military pay, might be resumed at the will of the king or general, they also took possession of estates which, being hereditary and independent, enabled them to maintain their native liberty, and support, without court favor, the honor of their rank and family.
But there is a great difference, in the consequences, between the distribution of a pecuniary subsistence, and the assignment of lands burdened with the condition of military service. The delivery of the former, at the weekly, monthly, or annual terms of payment, still recalls the idea of a voluntary gratuity from the prince, and reminds the soldier of the precarious tenure by which he holds his commission. But the attachment, naturally formed with a fixed portion of land, gradually begets the idea of something like property, and makes the possessor forget his dependent situation, and the condition which was at first annexed to the grant. It seemed equitable, that one who had cultivated and sowed a field, should reap the harvest: hence fiefs, which were at first entirely precarious were soon made annual. A man who had employed his money in building, planting, or other improvements, expected to reap the fruits of his labor or expense: hence they were next granted during a term of years. It would be thought hard to expel a man from his possessions who had always done his duty, and performed the conditions on which he originally received them: hence the chieftains, in a subsequent period, thought themselves entitled to demand the enjoyment of their feudal lands during life. It was found, that a man would more willingly expose himself in battle, if assured that his family should inherit his possessions, and should not be left by his death in want and poverty; hence fiefs were made hereditary in families, and descended, during one age to the son, then to the grandson, next to the brothers, and afterwards to more distant relations.[*] The idea of property stole in gradually upon that of military pay; and each century made some sensible addition to the stability of fiefs and tenures.
[* Lib. Feud. lib. i. tit. i.]
In all these successive acquisitions, the chief was supported by his vassals; who, having originally a strong connection with him, augmented by the constant intercourse of good offices, and by the friendship arising from vicinity and dependence, were inclined to follow their leader against all his enemies, and voluntarily, in his private quarrels, paid him the same obedience to which, by their tenure, they were bound in foreign wars. While he daily advanced new pretensions to secure the possession of his superior fief, they expected to find the same advantage in acquiring stability to their subordinate ones; and they zealously opposed the intrusion of a new lord, who would be inclined, as he was fully entitled, to bestow the possession of their lands on his own favorites and retainers. Thus the authority of the sovereign gradually decayed; and each noble, fortified in his own territory by the attachment of his vassals, became too powerful to be expelled by an order from the throne; and he secured by law what he had at first acquired by usurpation.
During this precarious state of the supreme power, a difference would immediately be experienced between those portions of territory which were subjected to the feudal tenures, and those which were possessed by an allodial or free title. Though the latter possessions had at first been esteemed much preferable, they were soon found, by the progressive changes introduced into public and private law, to be of an inferior condition to the former. The possessors of a feudal territory, united by a regular subordination under one chief, and by the mutual attachments of the vassals, had the same advantages over the proprietors of the other, that a disciplined army enjoys over a dispersed multitude; and were enabled to commit with impunity all injuries on their defenceless neighbors Every one, therefore, hastened to seek that protection which he found so necessary; and each allodial proprietor, resigning his possessions into the hands of the king, or of some nobleman respected for power or valor, received them back with the condition of feudal services,[*] which, though a burden somewhat grievous, brought, him ample compensation, by connecting him with the neighboring proprietors, and placing him under the guardianship of a potent chieftain. The decay of the political government thus necessarily occasioned the extension of the feudal: the kingdoms of Europe were universally divided into baronies, and these into inferior fiefs; and the attachment of vassals to their chief, which was at first an essential part of the German manners, was still supported by the same causes from which it at first arose; the necessity of mutual protection, and the continued intercourse, between the head and the members, of benefits and services.
[* Marculf. Form. 47, apud lindenbr. p. 1238,]
But there was another circumstance, which corroborated these feudal dependencies, and tended to connect the vassals with their superior lord by an indissoluble bond of union. The northern conquerors, as well as the more early Greeks and Romans, embraced a policy, which is unavoidable to all nations that have made slender advances in refinement: they every where united the civil jurisdiction with the military power. Law, in its commencement, was not an intricate science, and was more governed by maxims of equity, which seem obvious to common sense, than by numerous and subtile principles, applied to a variety of cases by profound reasonings from analogy. An officer, though he had passed his life in the field, was able to determine all legal controversies which could occur within the district committed to his charge; and his decisions were the most likely to meet with a prompt and ready obedience, from men who respected his person, and were accustomed to act under his command. The profit arising from punishments, Which were then chiefly pecuniary, was another reason for his desiring to retain the judicial power; and when his fief became hereditary, this authority, which was essential to it, was also transmitted to his posterity. The counts and other magistrates, whose power was merely official, were tempted, in imitation of the feudal lords, whom they resembled in so many particulars, to render their dignity perpetual and hereditary; and in the decline of the regal power, they found no difficulty in making good their pretentions. After this manner the vast fabric of feudal subordination became quite solid and comprehensive; it formed every where an essential part of the political constitution; and the Norman and other barons, who followed the fortunes of William, were so accustomed to it, that they could scarcely form an idea of any other species of civil government.[*]
The Saxons who conquered England, as they exterminated the ancient inhabitants, and thought themselves secured by the sea against new invaders, found it less requisite to maintain themselves in a military posture: the quantity of land which they annexed to offices seems to have been of small value; and for that reason continued the longer in its original situation, and was always possessed during pleasure by those who were intrusted with the command. These conditions were too precarious to satisfy the Norman barons, who enjoyed more independent possessions and jurisdictions in their own country; and William was obliged, in the new distribution of land, to copy the tenures which were now become universal on the continent. England of a sudden became a feudal kingdom,[**] and received all the advantages, and was exposed to all the inconveniences, incident to that species of civil polity.
According to the principles of the feudal law, the king wa the supreme lord of the landed property: all possessors, who enjoyed the fruits or revenue of any part of it, held those privileges, either mediately or immediately, of him; and their property was conceived to be, in some degree, conditional.[***] The land was still apprehended to be a species of benefice, which was the original conception of a feudal property; and the vassal owed, in return for it, stated services to his baron, as the baron himself did for his land to the crown. The vassal was obliged to defend his baron in war; and the baron, at the head of his vassal, was bound to fight in defence of the king and kingdom. But besides these military services, which were casual, there were others imposed of a civil nature, which were more constant and durable.
[* The ideas of the feudal government were so
rooted, that even lawyers in those ages could not form a
notion of any either constitution. Regnum (says Braeton,
lib. ii. cap. 34) quod ex comitatibus et baronibus dicitur
esse constitutum.]
[** Coke, Comm. on Lit. p. 1, 2, ad sect. 1.]
[*** Somner of Gavelk. p. 109, Smith de Rep. lib.
iii. cap. 10.]