Under the first princes of the Carlovingian line, the lands of France were of two kinds, ALLODIAL, and BENEFICIARY. The allodial, were estates of inheritance; the persons possessing them, were called Hommes libres. The beneficiary, were held by grants from the crown. The persons holding immediately under the emperor, were called Leudes; the sub-tenants, Vassals.
Further, the allodial lands were alienable, as well as hereditary. The beneficiary were properly neither. They were held for life, or a term of years, at the will of the lord, and reverted to him on the expiration of the term for which they were granted.
I do not stay to explain these institutions minutely. It is of more importance to see the alterations that were afterwards made in them. And the FIRST will be thought a strange one.
The possessors of allodial lands, in France, were desirous to have them changed into tenures. They who held of the crown in capite were entitled to some distinctions and privileges, which the allodial lords wished to obtain; and therefore many of them surrendered their lands to the emperor, and received them again of him, in the way of tenure. This practice had taken place occasionally from the earliest times: but under Charles the Bald, it became almost general; and free-men not only chose to hold of the emperor, but of other lords. This last was first allowed, in consequence of a treaty between the three brothers, after the battle of Fontenay in 847.
But these free-men were not so ill-advised as to make their estates precarious, or to accept a life estate instead of an inheritance. It was requisite they should hold for a perpetuity. And this I take to have been the true origin of hereditary feuds. Most probably, in those dangerous times, little people could not be safe without a lord to protect them: and the price of this protection was the change of propriety into tenure.
The SECOND change was by a law made under the same emperor in the year 877, the last of his reign. It was then enacted, that beneficiary estates held under the crown should descend to the sons of the present possessors: yet not, as I conceive, to the eldest son; but to him whom the emperor should chuse; nor did this law affect the estates only, but offices, which had hitherto been also beneficiary; and so the sons of counts, marquises, &c. (which were all names of offices, not titles of honour) were to succeed to the authority of their fathers, and to the benefice annexed to it. The new feuds, created in allodial lands, had, I suppose, made the emperor’s tenants desirous of holding on the same terms; and the weakness of the reigning prince enabled them to succeed in this first step, which prepared the way for a revolution of still more importance. For,
The THIRD change, by which the inheritance of beneficiary lands and offices was extended to perpetuity, and the possession rendered almost independent of the crown, was not, we may be sure, effected at once, but by degrees. The family of Charlemagne lost the empire: they resisted with great difficulty the incursions of the Normans; and, in the year 911, Normandy was granted to them as an hereditary fee. The great lords made their advantage of the public calamities; they defended the king on what terms they pleased; if not complied with in their demands, they refused their assistance in the most critical conjunctures: and before the accession of Hugh Capet, had entirely shaken off their dependence on the crown. For it is, I think, a vulgar mistake to say, that this great revolution was the effect of Hugh’s policy. On the contrary, the independence of the nobles, already acquired, was, as it seems to me, the cause of his success. The prince had no authority left, but over his own demesnes; which were less considerable than the possessions of some of his nobles. Hugh had one of the largest fiefs: and for this reason, his usurpation added to the power of the crown, instead of lessening it, as is commonly imagined. But to bring back the feuds of the other nobles to their former precarious condition was a thing impossible: his authority was partly supported by superior wisdom, and partly by superior strength, his vassals being more numerous than those of any other lord.
I cannot tell if these foreigners, when they adopted the feudal plan, were immediately aware of all the consequences of it. An hereditary tenure was, doubtless, a prodigious acquisition; yet the advantage was something counter-balanced by the great number of impositions which the nature of the change brought with it. These impositions are what, in respect of the lord, are called his FRUITS of tenure; such as Wardship, Marriage, Relief, and other services: and were the necessary consequence of the king’s parting with his arbitrary disposal of these tenures. For now that the right of inheritance was in the tenant, it seemed but reasonable, and, without this provision, the feudal policy could not have obtained its end, that the prince, in these several ways, should secure to himself the honour, safety, and defence, which the very nature of the constitution implied and intended. Hence hereditary feuds were very reasonably clogged with the obligations. I have mentioned; which, though trifling in comparison with the disadvantages of a precarious tenure, were yet at least some check on the independency acquired. However, these services, which were due to the king under the new model, were also due to the tenant in chief from those who held of him by the like tenure. And so the barons, or great proprietaries of land, considering more perhaps the subjection of their own vassals, than that by which themselves were bound to their sovereign, reckoned these burdens as nothing, with respect to what they had gained by an hereditary succession.
The example of these French feudataries, we may suppose, would be catching. We accordingly find it followed, in due time, in Germany; where Conrad II.[121] granted the like privilege of successive tenures, and at the pressing instance of his tenants.
I thought it material to remind you of these things; because they prove the feudal institution on the continent to have been favourable to the cause of liberty; and because it will abate our wonder to find it so readily accepted and submitted to here in England.