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

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].