Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

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.

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.