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

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].

But, to do justice to the clergy of that age, there was another cause of their aggrandizement, that was more to their honour. As these barbarians were constantly at war, and reduced their unhappy captives to a state of slavery, and often had many more than they knew what to do with, it was usual for the churchmen to redeem them. These, then, became their servants, and tenants, where they met not only with a more easy servitude, but were, from the sacredness of the church, both for themselves and their posterity, secured from any future dangers of the same kind. It was usual also for the unhappy Romans, who were possessed of allodial estates, and saw themselves in danger, by these perpetual wars, of not only losing them, but their liberty also, to make over their estates to the church, and become its socage-tenants, on stipulated terms, in order to enjoy the immunities thereof.

By all these means the landed estates of the clergy grew so great, that in time the military power of the kingdom was much enfeebled: for though they were obliged to furnish men for the wars, according as the lands they held were liable to that service, this was performed with such backwardness and insufficiency, that the state at one time was near overturned, and it became necessary to provide a remedy. Charles Martel, therefore, after having delivered the nation from the imminent danger of the Saracen invasion, found himself strong enough to attempt it. He stripped the clergy of almost all their possessions, and, turning them into strict military tenures, divided them among the companions of his victories; and the clergy, instead of lands, were henceforth supported by tithes, which before, though sometimes in use, were only voluntary donations, or the custom of particular places not established by law[96].

In my next lecture I shall consider the introduction of estates for life into the feudal system, and take notice of the consequences that followed from thence.