LECTURES
on the
CONSTITUTION and LAWS
of
ENGLAND:
With a COMMENTARY on
MAGNA CHARTA,
AND ILLUSTRATIONS OF MANY
OF THE
ENGLISH STATUTES.

BY THE LATE
FRANCIS STOUGHTON SULLIVAN, LL. D.
Royal Professor of Common Law in the University of Dublin.

The SECOND EDITION.

To which Authorities are added, and a Discourse
is prefixed, concerning the Laws and Government
of England.

By GILBERT STUART, LL. D.

LONDON:
Printed for Edward and Charles Dilly in the Poultry; and
Joseph Johnson in St. Paul’s Church-yard.
M,DCC,LXXVI.

To the RIGHT HONOURABLE
FREDERICK LORD NORTH,
KNIGHT of the most Noble Order of the GARTER,
First LORD of the TREASURY,
CHANCELLOR of the EXCHEQUER,
and
CHANCELLOR of the UNIVERSITY of Oxford,

My Lord,

I am ambitious of giving dignity to this Work by inscribing it to your Lordship; and I conceive that it has a natural claim to your protection. It regards those laws and that constitution which, at a most critical period, you were called to defend; and of which the important purposes are the security and the happiness of a free people.

In this illustrious rank which divides your cares between prerogative and liberty, and in which you support the lustre of the Crown, while you guard the independence of the subject; the greatest occasions are afforded to distinguish the generosity of public virtue, and to employ a capacity enlarged alike by reflection and experience.

But it does not become me to say with what honour to yourself, and with what advantages to the nation, you sustain the arduous charge of government. To posterity, which will not be suspected of flattery, it must be left to celebrate the merits of an Administration, too vigorous to yield under difficulties, and of which the glory has increased with danger.

I am, with the greatest respect,

My Lord,

Your Lordship’s

Most obedient,

And most humble servant,

GILBERT STUART.

ADVERTISEMENT.

The following Lectures were delivered in the University of Dublin, and procured a very high Reputation to their Author. The Researches they contain into the Nature and History of the Feudal Laws, were esteemed extensive and ingenious; and the Description they exhibit of the English Constitution, will be allowed to be particularly interesting. These Advantages have occasioned their Publication. It was thought, that Papers, which had done so much Honour to Dr. Sullivan, when alive, ought to illustrate his Memory; and that they might prove of Use to the present Age, and to Posterity.

The Authorities assigned for Dr. Sullivan’s Opinions and Reasonings are furnished by the Editor. They are not, perhaps, in every Instance those to which he himself would have appealed. This could not have been expelled. They are such, notwithstanding, as will assist the Student; and the Preliminary Discourse, it is hoped, will not be thought an useless or improper Addition to his Lectures. It will be a Pleasure to the Editor to reflect that he has endeavoured to pay a Tribute of Respect to the Writings of a virtuous Man and an ingenious Lawyer, whom an immature Death had ravished from his Friends and from Society.

CONTENTS.

A
DISCOURSE
concerning the
LAWS and GOVERNMENT
of
ENGLAND.

The last conquest attempted under the Roman Republic was that of Britain. Julius Cæsar, on the pretence that its states had given assistance to the Gauls, but chiefly from a motive of glory, carried the Roman Eagles into a country from which he was to retreat with disgrace. It required a length of time, and a succession of able Proconsuls to reduce to subjection Communities of fierce and independent warriours; and policy effected what could not be operated by arms. The Britains were debauched into a resemblance with a most corrupted people. They renounced the fatigues of war for the blandishments of peace. They forsook their huts for palaces; affected a costliness of living, and gave way to a seducing voluptuousness. They sunk into an abject debasement, without having run that career of greatness, which, in general, precedes the decline of nations; and, when they were trained to an oppressive yoke, the Romans found it necessary to abandon them. The impression which the barbarous tribes had made upon the Empire required the presence of the distant legions[1].

The liberty which the Romans, on their departure, presented to the Britains, could not be enjoyed by them. Timid and dastardly, they fled before the Picts and Scots, and allowed their country to be ravaged by a cruel and undisciplined enemy. Amidst the suggestions of their fear, they forgot every principle of policy and of prudence; they called to their defence a foreign valour. The Saxons were invited to fight their battles; but they acted not long as protectors. They were allured by the prospect of compleating a settlement in this island; and the total ruin of its inhabitants was projected. Despair gave a temporary vigour and union to the Britains. They were unable, however, to resist a people, accustomed to victory, and directed by experienced commanders. The valiant and magnanimous fell by the sword; the ignoble submitted to an ignominious servitude: Wales afforded a retreat to some; and others found shelter in Armorica[2].

But, if the Saxon conquest was ruinous to the Britains, it was yet attended with consequences which were lasting and important. The sun of liberty revisited the island, and displayed itself with uncommon lustre. The Saxons, independent in their original seats, submitted not to tyrants in their new situation. They laid the foundation of a political fabric, the most valuable that has, at any time, appeared among men; and which, though shaken by violent revolutions, a train of fortunate circumstances has continued down to the present times. Fluctuations have taken place between prerogative and liberty; but, accident and wisdom have still conspired to preserve us from the fate of the other kingdoms of Europe.

During the existence, however, of the Heptarchy, the Saxons seem to have departed little from their original condition of Society. The ferocious picture which Tacitus has drawn of the Germans, is, with a few exceptions, characteristic of them. If we admire their heroism, we are shocked with their cruelty; and if we are in love with their democratical maxims, we must sometimes regret their contempt of justice and of order. The most important innovation introduced into their manners during this æra was their conversion to christianity. But their acquaintance with this mode of faith failed to be productive of beneficial consequences. As they received it from the corrupted source of the Church of Rome, it involved them in endless and idle disputes. It detracted from the vigour of their understanding, by turning their attention from civil precautions, and the arts of policy, to the relics of saints, and the severities of religious discipline. The power derived from it intoxicated ecclesiastics: They presumed to interfere in affairs of state; and, a foundation seemed already to be laid for subjecting the island to the dominion of the Roman Pontiff[3].

When the Saxon kingdoms were consolidated into one state under Egbert, improvements were made in civility and knowledge. The incursions of the Danes, and the disorders resulting from them, called forth the ability and the wisdom of the Anglo-Saxon Princes. Alfred, notwithstanding the other important transactions of his reign, found leisure to frame into a code the laws of his predecessors, and those Germanic customs which had retained their influence. King Edgar has likeways come down to us with the character of an able legislator. The establishment of the Danes in England gave occasion to new usages and new laws; but these were neither many, nor considerable[4]. The ability of Canute did not allow him to make distinctions between his Danish and his English subjects; and the sceptre was not long in returning to a prince of the Saxon line. No Monarch was ever more acceptable to a State than Edward the Confessor; and, though he had rather the qualities of a saint than those of a king, his laws have been highly extolled. They were strenuously contended for during the administration of the earlier Norman princes; they kept their ground in opposition to the clergy and the imperial institutions; and they furnished the foundation of what is termed the Common Law of England[5].

In no portion of the Anglo-Saxon period does the power of the Sovereign appear to have been exorbitant or formidable. The enaction of Laws, and the supreme sway in all matters, whether civil or ecclesiastical, were vested in the Wittenagemot, or great National Assembly[6]. This council consisted of King, Lords, and Commons, and exhibited a species of government, of which political liberty was the necessary consequence; as its component parts were mutually a check to one another. The free condition of the northern nations, and the peculiarity of their situation when they had made conquests, gave rise to this valuable scheme of administration, and taught the politicians of Europe what was unknown to antiquity, a distinction between despotism and monarchy.

The executive power remained with the crown; but it was the united assent of the three estates which constituted the legislature. The Lords were spiritual as well as temporal; for notwithstanding that the Ecclesiastics preached humility, and the contempt of private interest, they had been seized with ambition and the love of superiority[7]. The people exercised an authority that was important and ample. The counties appeared by their knights, and the cities and boroughs by their citizens and burgesses; the Commons, as at this day constituted, being included under the appellation of the wites or sapientes, who are always mentioned as a part of the Anglo-Saxon parliament[8]. The assertors of prerogative, indeed, have affirmed that these were judges or men skilled in the law; but this opinion they support by very exceptionable evidence[9]: And it has been conjectured, with no measure of propriety, by some compromising writers, that all the more considerable proprietors of land had a title, without any election, to give their votes in the Wittenagemot[10].

In inferior assemblies, and in the forms of judicial proceedings, the marks are also to be traced of the power of the people, and of a limited administration. The hundred and county courts were admirably calculated for the protection of the subject. They were composed of freeholders, who were bound, under a penalty, to assemble at stated times; and who, with the hundreder, earl and bishop, gave decision in all matters of civil, criminal, or ecclesiastical import. A very powerful obstruction was thus created to the oppressions of the great. And, in the institution of a jury, our ancestors possessed a bulwark, the most efficacious and noble that human wisdom has ever devised for the security of the persons and possessions of men[11].

Nor was the condition of those times so entirely destitute of grandeur as some historians have been fond to assert. Even in the age of Tacitus, London was a port not unknown to navigators and traders[12]; and we have the authority of Bede, that England abounded at an early period with cities which were wealthy and populous[13]. Alfred was particularly attentive to encourage industry, trade and manufactures; and even imported the luxuries of life from the most distant countries[14]. It was a law of Athelstane, that the merchant, who had performed at his own expence three long and hazardous voyages, should be invested with nobility[15]. Civility and knowledge, commerce and wealth increased under Edgar, whose ability and affable manners allured many foreigners to his court; and affairs did not degenerate, nor was England less respectable under the peaceful and fortunate administration of Edward the Confessor.

But the beautiful pre-eminence on the side of the people, enjoyed during the Saxon times, was soon to be violated. The invasion of the duke of Normandy was about to introduce sanguinary and oppressive times. We must not, however, with a multitude of authors, be deceived into the opinion, that this warriour and statesman atchieved a conquest over the constitution and the people of England. He made effectual by arms his right of succession to Edward; but he received the crown with all its inherent properties. He took the oath which had been prescribed to the Saxon princes; he acknowledged himself to be equally under restraint and limitation; and he engaged to preserve the immunities of the church, and to act according to the laws. The victory he obtained at Hastings was over the person of Harold, and not over the rights of the nation[16].

His accession, at the same time, it will be allowed, was a source of inquietude and confusion. Dominion is ever consequent on property; and the forfeited estates of the nobility and the landed proprietors who had assisted Harold, or who had afterwards joined in insurrections, having been bestowed by him on his officers; and the high rank of many of these requiring very ample retributions, a great proportion of territory was necessarily vested in the hands of a few. Nor was it favourable to the spirit of democracy, that the donations of William were governed by the more extended notions of the feudal law.

This polity, which was common to the northern tribes, had not been unknown to our Saxon ancestors; but, though they were familiar with grants, which were precarious, or which endured for a term of years, or during the life of the feudatory, they had seen few examples of the perpetuity of the fief. They had not been accustomed to the last step of the feudal progress; but a tendency to its establishment was observable among them; and, if the invasion of William had never taken place, the institutions of this law had yet arrived at their highest point. He only hastened what the course of time was about to produce by slow degrees: It was a result of his administration, that, before the end of the reign of Henry II. fiefs, in their more enlarged condition, had spread themselves over England[17].

This plan of political law, which had been propitious to liberty and conquest in its rise, was prejudicial to both in its decline; and the same institutions, which in one situation, conducted to greatness, led the way in another to confusion and anarchy[18]. The advantages which distinguished their earlier state, were unknown when they had attained the ultimate step of their progress. When fiefs had become hereditary, the association of the chief and the retainer, or the lord and his vassal, had no longer for its support, any other tie than that of land[19]; and, if the possessor of a fief was less attached to his followers, he was less dependent on, and less connected with his prince. The system had lost the circumstances, which formerly had fitted it so admirably for war; and the few regulations it included with regard to peace and domestic policy, were rather calculated for the narrow circle of a nascent community, than for the complicated fabric of an extensive empire.

The exorbitant grants, which it was necessary that duke William should make, the full establishment of the perpetuity of the fief, and the consequent investment of offices of rank and of dignity in particular families, introduced all the disorders of aristocracy. The most princely dominion was in general claimed and exercised by the great[20]. They assumed the right of declaring war against each other of their private authority; they coined money; and they affected to exert without appeal every species of jurisdiction. But while they disputed in the field the prize of military glory, or vied in displays of magnificence and grandeur, their tenants and vassals were oppressed to supply their necessities; and, amidst the unbounded rapine and licentiousness which arose, no legal protection was afforded to individuals[21]. There was no safety for the helpless but in associations with the powerful; and to these they paid attention and service. The tribunals of justice became corrupted; and decisions were publickly bought from the judges. New sources of oppression were thought of; and none were infamous enough to be rejected. The feudal casualties were exacted with the most rigorous severity; and, while the kingdom appeared to be divided into a thousand principalities, the people were nearly debased into a state of servility.

On a superficial view, one would be apt to imagine, that, in regard to competition, the nobles of those times were considerably an overmatch for the prince. But Barons, whose chief recommendations were the military virtues, who were haughty and independent, and often inflamed against each other with the fiercest animosity, could not always act in a body, or by fixed and determined maxims. It was not so with the sovereign: The master of operations, which depended on himself, he could speculate in silence, and watch the opportunities of action. The advantages he derived from his situation were powerful. Not to mention his prerogatives and his revenue; the returns of feudal service reminded the nobility of their subjection to him; and the inferior orders of men, regarding these as their immediate oppressors, looked up to him as to their guardian.

Amidst the lawless confusion introduced by the struggles between regal and aristocratical dominion, the constitutional rights of the Commons seem to have received a temporary interruption, and to have been insulted with a temporary disregard. Their assembling in parliament grew to be less frequent and less effectual; and for a season, perhaps, was altogether suspended. But notwithstanding the disorder occasioned by these struggles, they were in time productive of effects which were beneficial to the people. For if the charter, confirming their ancient liberties, which was granted by Henry I. renewed by Stephen, and continued by Henry II. had remained without a due and proper force; the confederacy of the barons produced under king John and Henry III. the revival and the exercise of the most important privileges. The magna charta brought back, in some measure, the golden times of the Confessor. It appeared to the barons, that they could not expect the assistance of the people, if, in treating with John, they should only act for their own emolument; they were therefore careful that stipulations should be made in favour of general liberty. The people were considered as parties to transactions which most intimately concerned them. The feudal rigours were abated; and the privileges, claimed by the more dignified possessors of fiefs, were communicated to inferior vassals. The cities and boroughs received a confirmation of their ancient immunities and customs[22]. Provisions were made for a proper execution of justice; and in the restraints affixed to the power of the king and the nobility, the people found protection and security.

The sovereign, no less than the nobles, was an enemy to public liberty; and yet both contributed to establish it. Stephen gave the example of a practice, which as it served to enfeeble the aristocracy, was not forgotten by his successors. In the event of the reversion to the crown of a great barony, he gave it away in different divisions; and the tenants in capite produced in this manner, threw naturally their influence into the scale of the commons. The partitions, also, which the extravagance of the nobility, and the failure of male-heirs, introduced into great estates, contributed to restore the democracy. It was a result, likeways, of the madness of the Crusades, that many adventurers to the east returned with more cultivated manners, and more improved notions of order and liberty; and the romantic glory of acquiring a renown there, had induced many potent barons to dispose of their possessions. The boroughs hastened to recover the shock, which they had received during the violent administrations of William and of Rufus[23]; and, if charters of corporation and community were granted seldom during the reigns of Henry I. and of Stephen, they were frequent under Henry II. Richard I. king John, and Henry III. During the sovereignty, accordingly, of the last, and during that of Edward I. the acquisitions secured by the Commons appeared so considerable, that their assembling in parliament became a matter of greater regularity, and they rose to their ancient importance from the disorder into which they had been thrown during agitated and turbulent times.

The 49th year of Henry III. and the 23d year of Edward I. which so many writers consider as the dates of the establishment of the Commons, were, of consequence, nothing more than memorable epochs in their history[24].

Under Edward I. the constitution received a stability to which it was no less indebted to his military than his civil capacity. The wars and expeditions in which he engaged, involved him in immense expence; and calling for supplies, rendered him particularly attentive to the people. The feudal force of the kingdom could not be employed by him with efficacy. In the decline of the gothic system, the nobles were not sufficiently in subjection to the prince; and their service was limited to a narrow period. In the reign, indeed, of Henry II. a pecuniary payment had been substituted in the place of the personal attendance of the military vassal; and the custom had prevailed of hiring soldiers of fortune. But, amidst the prevalence of private and mercenary views, the generous principles which had given solidity to the feudal fabric[25], having totally decayed, and the holding by a military tenure having ceased to be considered as an honour; vassals thought of eluding the duties to which they were bound by their possessions, and granting them away in fictitious conveyances, received them back under the burden of elusory or civil donations. It even grew to be usual among tenants to refuse the pecuniary payments, or the scutages to which they were liable: They denied the number of their fees; they alledged that the charge demanded of them was not justified by their charters; and, while the prince was ready to march against an enemy, it was not convenient to look into records and registers. The sovereign deprived of his service, and defrauded of his revenue, and under the necessity of levying a military force, had no resource so secure or abundant as the generosity of the people[26].

The admirable improvements with which Edward enriched the laws, and facilitated the preservation of domestic peace and order, contributed also with the greatest efficacy to advance and secure the liberties of England. He established the limits of the different courts; he gave a check to the insolence and encroachments of the clergy; he abrogated all inconvenient and dangerous usages; and the great charter, and the charter of the forest, received from him the most ample settlement[27]. The sagacity of his precautions and policy procured to him most deservedly the name of the English Justinian; and it may be mentioned as a convincing proof, both of his genius, and of his having studied the welfare of his people, that, to the form into which he modelled the common law, as to the administration of common justice, the wisdom of succeeding times has not been able to add any considerable improvements[28].

The crown of Edward I. but not his talents, descended to Edward II. The indolence, however, and the incapacity of the last prince, joined to his absurd passion for favourites, though they rendered his reign tumultuous and unhappy, were no less favourable to the dignity of parliament, and the power of the people, than the excellent administration of Edward III. and the necessities to which he was subjected by his ambition and his prowess. A weak prince may lose the prerogatives transmitted to him; but will never be the founder of a despotism. A high-spirited monarch, dependent for resources on his people, may carry destruction and ruin into the country of an enemy, but will not easily be induced to attack the liberty and the prosperity of his own kingdom.

The sons of Edward III. had contributed, while he lived, to his grandeur, and that of the nation; but no sooner was he laid in his grave, than they excited commotions. The ambition of their posterity was still more pestilent and fatal. The wars between the Houses of York and Lancaster deluged England with blood. The passions of men were driven into rage and phrenzy; and in the massacres, rather than the battles that ensued, conquest or death seemed the only alternative. But while we turn with sorrow from this bloody period of our story, our sympathy is softened by the recollection, that the contending princes brought accessions to liberty, by adding to the weight of the Commons. The favour and countenance of the people were anxiously solicited by both factions; and their influence failed not to grow, while the means of extending it were offered, and while they were courted to seize them[29].

The nation, when satiated with the calamities of civil war, thought of uniting the claims of the two hostile families. Henry VII. the heir of the House of Lancaster, was married to Elizabeth, the heiress of the House of York. This prince affected to be profound, and he has obtained that character. But the condition of Europe at the time in which he lived, and the situation in which he found himself, pointed out to him his strain of conduct. He was more mysterious than wise; more prudent than enterprizing; and more a slave to avarice than ambition. Without having intended it, he placed the grandeur of the Commons on the most solid foundation. In the liberty which he granted to the nobility of breaking their entails, he saw only the degradation of that order. The civil wars had involved them in great expence; and the growing commerce and refinement of the times, exposed them to still greater. Their princely possessions flowed from them to give dignity to the people[30].

Henry VIII. had no certain character, and was actuated by no fixed and determined maxims. He had not the ability to form, nor the firmness to put into execution a deliberate scheme to overturn the liberties of his country. With less capacity than his ancestor, his reign was more splendid; and, with a more imperious temper, he had the art or the felicity to preserve the affection of his subjects. The father removed the pillar which supported the power of the nobles: The son gave a mortal blow to the influence of the clergy. In the humiliation of both, the Commons found a matter of triumph. The Reformation, though it interrupted the progress of literature, was yet highly conducive to civil liberty. The church in losing an authority which it had never merited, and which it had often abused, sunk into a dependence on government. The supremacy returned to the sovereign to whom it originally belonged, and with whom it ought constantly to have remained. The visitation of the monasteries discovered more than the inventions of a pious fraud; vices and abuses which cannot be described, without conveying to the mind the impression of whatever is most wicked and most dishonourable: Their suppression gave encouragement to industry and to the arts; and their wealth diffused in a thousand channels, circulated through the kingdom.

The Reformation advanced under Edward VI. but it was destined that this prince should only make his appearance on the stage of public life, and give the hope of an able administration. The sway of Mary was a paroxysm of religious madness. She knew not, that when the individuals of a kingdom have agreed to adopt a new religion, it is the duty of the sovereign to give a sanction to it. The reformed were about to experience whatever cruelty the extremity of a mistaken zeal can inflict. But the fires lighted by Gardiner, Bonner, and such abominable men, brought no converts to popery. The dread of endangering the succession of Elizabeth prevented the parliament from giving a check to the obstinate malignity and the sanguinary rage of this unworthy queen; or, perhaps, the nation had scarcely recovered the astonishment into which it was thrown by the atrocity of her deeds, when, in the sixth year of her reign, superstition, peevishness, and the most selfish and unhappy passions, put an end to her life.

Elizabeth, who had learned wisdom from misfortune, attained the summit of political glory. The perilous condition of affairs, on her commencing to reign, required singular moderation and ability, and she exerted them. A sagacity, almost incapable of mistake, directed all her operations[31]. England grew in commerce and advantages, while the rest of Europe was agitated with contentions, and debated with the tyranny of power. Her jealousy of prerogative was corrected by her attachment to the felicity of her people; and the popularity with which she reigned is the fullest proof that she preserved inviolated all the barriers of liberty[32]. The reformation which the folly of her predecessor had interrupted, was compleated by her prudence.

This accomplished princess was succeeded by James VI. of Scotland. He substituted, in the place of ability, the affectation of it. The English nation received him with marks of respect which they were not to continue long. With high notions of kingly dignity, all his actions tended to degrade it; and, while his littleness rendered him contemptible at home, he became an object of ridicule abroad, from his ignorance of foreign politics. Careless in the choice of his ministers, and supremely conceited of his own wisdom, his reign brought no glory to the crown.

The great improvement, which, about this period, displayed itself in the national manners, diffused among all ranks of men very enlarged ideas concerning the nature and principles of civil government. The arts had been cultivated with uncommon success. Discoveries had been made in the most distant regions of the globe. Commerce had brought great accessions of wealth. The balance of property had turned with no equivocal direction to the side of the people.

It was not an age for fastidious and tyrannical maxims. The Commons knew all their strength, and were determined to employ it. The prince endeavoured in vain to impress them with his exorbitant notions of regal authority. Every complaint and grievance of the subject were inquired into; every suspicious and inclement act of prerogative was opposed. The doctrines of the divine right of kings, and of passive obedience, were now first heard of, and alarmed and astonished the nation. Pretensions to power, destructive of the natural and inherent privileges of humanity, and inconsistent with every principle of common sense, were asserted from the pulpit, were claimed by the sovereign. The extravagance of James awakened the thunder which was to burst on the head of his successor.

Charles I. had imbibed the same lofty conceptions of kingly power; and his character was marked by the same incapacity for real business. His situation required insinuation and address; but he affected the utmost stateliness of demeanor. He disgusted the Commons; he insulted the people. To the exercise of his authority, he fancied there was no limitation. Inflamed with opposition, he presumed to attack whatever was most sacred, and most valuable among men. The imprudence of Buckingham had not softened his obstinacy: His Queen was indiscreet, and he confided in her. The violent councils of Strafford precipitated his own and the ruin of his master. The religious foppery of Laud completed what the incapacity of James had begun: It was the cement of union between the friends of liberty and the sect of the Puritans. The people beheld with a fixed and a general indignation the insult and the violence which were offered to the majesty of their laws, and to their constitution. The flames of civil discord were kindled. England was torn during six years with political and religious fury. The unfortunate Charles atoned at length by his death the disorders he had occasioned. The delegates of the people pronounced him guilty of misgovernment and breach of trust. “The pomp, says an eloquent historian, the dignity, the ceremony of this transaction, corresponded to the greatest conception that is suggested in the whole annals of human kind[33].”

Cromwel, the immediate cause of the death of Charles, and of those circumstances of censure which accompanied it, astonished at the height, to which, in the course of the civil wars, his ambition had carried him, was induced to aspire still higher. His genius was great, his fortune greater. On the abolition of monarchy, he introduced into England a military despotism, under the appellation of a common-wealth[34]. From an inferior rank, he had risen gradually to direct the affairs of a powerful nation. Though irregular in his politics, the vigour of his conduct brought signal glory to his councils and his arms. But the fabric he had built was ill-contrived and ill-cemented; its parts were disproportioned; and it rested on no solid foundation. It began to totter during his own life. His son Richard had none of the talents of an usurper. The minds of the people united in an anxious wish for the re-establishment of the ancient constitution; and general Monke acquired the honour of the peerage, and the fame of uncommon political sagacity, for forwarding an event, which it was impossible to prevent.

Charles II. never forgave the people of England for the misfortunes he himself had suffered, nor for those of his House. This monarch had quickness of parts, but possessed not that discernment which sees into the future. He entered without reflection into schemes and projects, and renounced them with the same precipitation. Though an enemy to the constitution of his country, and though in the interest of France, he was not able to produce any lasting disadvantage to the kingdom. His reign, though tumultuous, was not unfavourable to liberty. The total abolition of the military tenures and their appendages, which had place during his sovereignty, was a most important acquisition to the people: It relieved their estates from every source of legal oppression. The habeas corpus act, which was some years posterior to it, offered the firmest security to their persons. It produces in a court of justice the body of every prisoner; it makes known the cause of every commitment; and, if an individual has suffered confinement in opposition to the law, though at the command of the king in council, he is restored to his liberty, and has a claim of compensation for the loss and the indignity his affairs and his honour have sustained.

The clamour against popery was loud and violent during the long administration of Charles II. and yet the crown was permitted to pass to the Duke of York. This confidence, so honourable to the people, was abused by the sovereign. James II. had the zeal of a monk, not the virtue and the talents of a great king. His bigotry and his lust of power made him perpetrate the most atrocious and the most insolent acts. Violating equally civil and religious liberty, his subjects deprived him of a throne of which he was unworthy.

In settling the crown on the prince and princess of Orange, the wisest precautions were taken, that the religion, the laws, and the liberties of England should never more be in danger of being subverted. The limits of the prerogative were defined; the extent of the freedom of the people was ascertained; and the doctrine of resisting the prince, when he should presume to encroach on the rights of the subject, was explained and illustrated[35].

From the Saxon conquest, during a long succession of ages, this fortunate island has never degenerated from liberty. In the most inclement periods of its history, it despaired not of independence. It has constantly fostered that indignant spirit which disdains all subjection to an arbitrary sway. The constitution, prospering under the shocks it received, fixed itself at the highest point of liberty that is compatible with government. May it continue its purity and vigour! and give felicity and greatness to the most distant times!

March 1775.

LECTURES ON THE LAWS of ENGLAND.

LECTURE I.

The intention and purposes of political society—Customs and manners govern men before the enactment of positive Laws—Arts and property the sources of legislation—Peculiarities attending the institutions of Lycurgus and those of Moses—In the infancy of a state, laws are few and plain—In times of civility and refinement, they are numerous and complicated—The liberty of the people, a great cause of the multiplicity of laws—The difficulty of the study of the English law—The methods which have been followed in the study of it.

Since every political society was originally framed for the general benefit of the several individuals of which it was composed, in order that, supported by the united strength of the whole community, each person might have that security in his life, his liberty, his property, which, unassisted in a state of nature, he could not of himself attain unto; and that, instructed by the joint counsels and wisdom of the whole body, he might so direct his actions, as to promote the public welfare, with which his own safety and interest are necessarily connected; it follows, that, in such a state, every man must, even for his own sake, in many things, sacrifice his private judgment, and his natural liberty of action, to the will of that community to which he belongs; which will, acting uniformly for the same purposes, cannot fail of producing a number of fixed rules and regulations, to serve as directions to the subjects, in such cases as are common, and frequently occur.

Accordingly, we find, there never was a state or nation, even but one degree removed from barbarity, that subsisted without some general customs, at least, which supplied the place of positive laws, by which the conduct of the several members of the society was to be governed, and for the breach of which they were liable to punishment; and in such a submission the very essence of political freedom consists. For, as M. Montesquieu very justly observes, the liberty of man in a social state, different from that in a state of nature, consisteth not in a power of acting, in all things, according to his own judgment, but in acting according thereto, in subservience to the will of the public, in being free to do all things the law prohibits not, and to omit all things the law doth not enjoin[36].

Hence, in all such infant states, the greatest respect is paid, and the highest influence allowed to those, who, either by their age and experience, or, by their application and labour, have arrived at a proficiency in the knowledge of the customs and practices prevailing in their own and neighbouring nations: Qui mores hominum multorum vidit et urbes, is the great eulogium of the most accomplished hero of the heroic ages.

It must be allowed, indeed, that, in societies so small that their members are, in general, contented with little more than the bare necessaries of nature, a few rules will be sufficient; and every man of a tolerable capacity will, with a reasonable degree of observation, be, in some measure, qualified to be his own lawyer. But when it shall happen that arts are not only introduced, but become common among any people, when the comforts and conveniencies of life are, in the public opinion, esteemed necessaries; when the industry of some, and the negligence of others, have produced a remarkable inequality in the goods of fortune; when riches hath brought forth her offspring, insolence and oppression, and when envy and avarice inflame the breasts of the indigent, it will be absolutely necessary to lay a continual restraint on such violent passions, ready at every instant to destroy the peace of society, and to tear it into pieces, and, for that purpose, to form a great number of regulations, to curb those who have created to themselves imaginary wants, and who no longer regulate their conduct by the plain dictates of rude and simple nature. And as the condition of such a nation must be perpetually changing, as new arts and gratifications will be continually invented, as the increase of commerce will every day open a prospect of more various acquisitions, and insensibly introduce a general change of manners in the people; and, above all, as the wits of men, checked in their darling pursuits, will ever be at work to discover methods of eluding those laws which they dare not openly infringe, there must ensue a constant alteration and variation of the rules already in being, and a continual addition of new ones to answer new and unforeseen emergencies. The laws, therefore, of a nation so circumstanced, must increase to such a number, and consist of so great a variety of particulars, as to render it impossible for the generality of the subjects to be masters of them, and will oblige them to resort to those whose easy circumstances and leisure have enabled them thoroughly to comprehend and understand them; and among such a people there must be lawyers, although, perhaps, not formed into a distinct and separate profession, or known by that appellation.

Great, undoubtedly, are the inconveniencies which attend a multiplicity of laws, and very hard it seems, that all men should be obliged to obey a rule, which it is confessed the majority are incapable of perfectly knowing; but such is the natural and necessary course of things. If men will not be contented to live in a state next to absolute barbarity, if they will enjoy the conveniencies as well as the necessaries of life, if they will be secured against the oppression and fraud of their fellow subjects, as well as against the violence of strangers, they must submit to and abide by the consequences. And so sensible of this necessity was the great Spartan legislator, that when he resolved his state should admit of no addition to, or alteration of his regulations, he wisely stopped up the sources from which new laws spring. Commerce, and its instrument, money, were prohibited; all arts, except those absolutely necessary, were interdicted, and the people, by constantly living and eating in public, were not only accustomed, but necessitated to content themselves with what simple nature requires. By these means (and by these only, or by others similar to these, could it be accomplished) Lycurgus gave a firmness and stability to his republic, which continued for several hundred years, until conquest introduced wealth, and its necessary attendants, which soon eat out the vitals of that singular constitution[37].

The law of Moses, likewise, was invariable, and admitted of no additions or alterations; and as, from the peculiar circumstances of the country, and its situation, there was no danger of an accumulation of wealth from foreign commerce, so were the domestic regulations inimitably calculated to prevent a great inequality of circumstances, and to oblige the nation in general to a plain and simple life. All usury among the Israelites was prohibited, the lands were alienable no longer than to the year of jubilee, at which time they returned free to the original proprietor or his heirs; and, by the invariable rules of descent, and the continual dividing of estates among all the males in equal degree, every man was proprietor of some small patrimony, and consequently obliged to live in a frugal and laborious manner[38]. Athens, on the contrary, the most commercial and the richest city of Greece, abounded, above all others, in a multiplicity of laws, and those, for the causes already mentioned, perpetually varying and changing. Rome, while it continued a mere military state, was contented with a few, and those such as were short and plain; but when, by the conquest of Carthage, of Greece, and of Asia, floods of wealth were poured into Italy, the necessary consequences soon followed. New laws were continually made, which, being as continually eluded, of course gave birth to others. Every new conquest brought an accession of riches, and became a source of farther regulations: until, at length, they swelled to such a magnitude, as to become, in the time of Justinian, an intolerable burthen: For, to say nothing of the laws themselves, the senatus consulta, the plebiscita, the edictum perpetuum, and the constitutions of the emperors, which were very voluminous, the bare commentaries of the lawyers of authority amounted to three thousand volumes.

If we look around the nations that now inhabit Europe, we shall find that the same causes have constantly, every where, produced the same effect. How few, how short, how plain, and simple, were the antient laws of the Saxons, the Franks, the Burgundians, the Goths, and the Lombards, while each of them continued a plain and simple people[39]. As they increased in arts and wealth, as their kingdoms grew more powerful, either from internal peace and commerce, or by the melting of different sovereignties into one, we might see the laws gradually increase in number and in length; this arose from the necessity their legislators were under, from the different circumstances of the times and people, to enter into details of which their ruder ancestors had no conception: and this augmentation hath ever been in proportion to the wealth and power of the people that was obliged to admit it; as might easily appear by fixing on any one period, and by comparing the laws of those nations where arts and trade were fully established, with those of others where they had not yet got so firm a footing.

Within these last two hundred and fifty years, the inhabitants of Europe in general, particularly those that have any considerable share in universal commerce, seem to have been seized with an epidemical madness of making new laws; insomuch that there is scarce a state whose laws, since the year 1500, are not equal, if not superior, in number and bulk, to those made in many preceding ages: an effect owing, partly to the decay of the old military system, and to the necessity every government was under, to have recourse to new methods for its support, when that failed; but principally to the discoveries of America, and of the passage to the East Indies; which, by the peaceful arts of industry and trade, have poured into modern Europe an accession of treasure, equal to what was amassed in Italy by conquest and rapine under the Roman empire. As Britain, during this interval, shared more largely than any other country in this vast increase of wealth, it is not surprising that her later laws have been numerous and voluminous in proportion.

But there is another cause peculiar to these nations, which hath not a little contributed to the same end, namely, that happy constitution, and that liberty in which we so justly glory. A constitution which lodges the supreme, the legislative power in three different hands, each of which (if considered apart) hath an interest separate and distinct from the other two, must require a variety of wise regulations, so to ascertain their respective rights and privileges, and so to poise and balance them, as to put it out of the power of any one to overtop the others. A constitution that admits the people, by representation, to so considerable a share of power, must have many laws to determine the manner of elections, and the qualifications both of electors and elected. A constitution that makes the preservation of political freedom its great object, and that aims to defend the life, liberty, and property of the meanest individual, not only against others of their own rank, but even against the executive power of the society itself, must have many extraordinary fences, and barriers, to protect the weak from the mighty. Such a constitution must, more particularly than others, restrain its judges, the dispensers of justice, who are, at the appointment of the crown, to follow the strict letter of the positive laws; lest, under the pretence of explaining and extending them, the most valuable privileges of the people might be betrayed, or rendered illusory. And this very restraint, so necessary in such a form of government, will eternally (as new cases arise, which, not being in the contemplation of the legislature at the time, were not comprehended in the words of the old provisions) occasion the framing of new ones.

The state and condition of these kingdoms are such, therefore, as necessarily require a great number of laws; and heavy as the burden of them may seem, it should be borne with chearfulness, by all who esteem the conveniencies of life, and the perfection of arts, more than a rude and simple state of nature; who think wealth more eligible than poverty, and power than weakness; or lastly, who prefer our excellent form of government, and its mild administration, to the despotic tyrannies of Asia, or the more moderately absolute monarchies of Europe.

From what hath been already observed, the difficulties attending this study in these kingdoms will readily appear; but these, instead of discouraging, should animate every gentleman, and inspire him with resolution to surmount them; when he considers them as inseparable from the happy situation in which we are placed, and that the character of an upright and skilful lawyer is one of the most glorious, because one of the most useful to mankind; that he is a support and defence of the weak, the protector of the injured, the guardian of the lives and properties of his fellow citizens, the vindicator of public wrongs, the common servant both of prince and people, and, in these countries, the faithful guardian of those liberties in which we pride ourselves, and which the bounteous Creator bestowed originally on all the sons of Adam, and would have continued to them, had they continued worthy of the blessing.

From hence, likewise, abundantly appears the necessity of proper methods being pointed out for the study of the laws, and of proper assistance being given to the youth intended for this profession. This was always allowed, and for this purpose were the inns of court originally founded; and it must be owned, that in ancient times, they, in a great measure, answered the end. Their exercises, in those days, were not mere matters of form, but real tests of the student’s proficiency. Their readers laid down, in their lectures, the principles of particular parts of the law, explained the difficulties, and reconciled the seeming contradictions, though, at the same time, it must be owned, too many of them exerted themselves in displaying their own skill and depth of knowledge in the profession, rather than in removing the obstructions, and smoothing the ruggedness which are so apt to discourage beginners, and which all beginners must meet in this untrodden path, without a guide. But, since the time that these aids have been there laid aside, and that, in the midst of so great and so rich a city, any degree of restraint or academical discipline, to keep the students constantly attentive to the business they are engaged in, hath been found impracticable, it has been the wish of every considering person, that the elements of this science should be taught in some more eligible place, where the students may at once have the benefit of a proper method of instruction, and by proper regulations be obliged to improve themselves in a study so important both to them and the public.

That the universities, the seats of all other branches of learning, are the places most fit for this purpose, hath been so fully proved by Mr Blackstone, in his preliminary lecture, not long since reprinted in this kingdom, that it will be much more proper and decent for me to refer gentlemen to that excellent performance, than to weaken his arguments, by repeating, in other words, what he has demonstrated, with such force of reason, and elegance of expression. I shall only add to what he hath observed, that every other nation of Europe hath admitted the profession of their municipal laws into their universities, and that the same hath been the opinion and practice of almost every age and country, as far back as the lights of history extend. Were not the laws of Egypt, as well as their religion, physick, history, and sciences, taught in the colleges of their priests? It is allowed by all, that the principal employment in the schools of the prophets was the study of the law of Moses; and, to come to more modern times, the very first universities that were ever founded by royal authority, were the works of Roman emperors, and erected merely for this profession. The famous academies of Rome for the west, and of Berytus for the east, furnished that extensive empire with a constant succession of excellent lawyers, whose names, and the fragments of whose works were held in the highest honour, until the inundation of barbarians from the north of Europe, and the prevailing arms of the Saracens in the east extinguished the Roman government in those parts. But that of Constantinople, founded soon after the translation of the seat of empire thither, had a more happy destiny, flourished with distinguished reputation to these later ages, and perished not, but with the empire itself, when that city was taken by the Turks. Nay, so sensible were the Arabs themselves, who destroyed the Roman academy of Berytus, of the utility of such institutions, that, for their own law, they erected others of the same nature in Bagdad[40].

Another powerful reason for laying the foundation of this branch of learning in these seats of literature, arises from the great utility, or rather, indeed, necessity, that all gentlemen bred in them are under, of gaining a general idea, at least, of the principles and practice of the law of their country. How advantageous this would be to every rank of gentlemen, whether legislators, magistrates, divines, or jurymen; and to all, in short, who have any property, to preserve, or transmit, or who have wishes or desires to acquire any, may be seen at large, illustrated by Mr Blackstone in the same performance. And indeed, if, before the attempt, there could be any doubts of the propriety of beginning this study in an university, the extraordinary success of his lectures in Oxford, and the high reputation he hath so justly acquired thereby, leave no room for entertaining such at present. For though much of both must be attributed to the singular abilities of that gentleman, yet it must be allowed that the most skilful gardener cannot make a tree flourish in a soil unnatural to its growth. With the deepest gratitude, therefore, should the members of this university acknowledge the munificence, and the wisdom of our present most gracious Sovereign, who established the present foundation for the benefit of the youth of this kingdom.

But if the importance of this institution to the public be considered, together with the difficulties attending the just execution of it, when these difficulties are enhanced by the novelty of the attempt, when the public attention is engaged by that very novelty, and when the future success of the foundation, may, perhaps, in some measure, depend on the opinion conceived of it at the beginning; he must, indeed, be possessed of a very overweaning opinion of his own abilities, who can undertake so arduous a task, without feeling strong apprehensions at the first setting out. All the return the person thought worthy by this learned body to fill this chair can make them for so high an honour, and so important a trust, is to assure them, that the utmost care, and the greatest exertion of what knowledge and abilities he possesseth, shall be employed to answer the ends proposed, and to justify, as far as in him lies, the choice they have made. And if the young gentlemen for whose benefit these lectures are designed, possessed with a just notion of the great utility to themselves, and their country, of the study they are engaged in, will exert that industry, for the honour of their mother university, which hath made her so long famous for other branches of learning; he doubteth not but his weak endeavours at the first essay, will not only merit indulgence, but in the end be crowned with considerable success. On their assiduity, as well as upon his skill, must the success of the undertaking depend.

In the next lecture the grounds and reasons of the plan proposed, as most proper for the commencing this study in this university, shall be laid open, in hopes that the students will proceed with the more alacrity, if they can be once convinced they are set in the right track, and that, by the professor’s laying before the public the inducements he had to prefer this before any other, he may acquire information from the skilful of its errors and imperfections, and, consequently, alter it, so as most effectually to answer the useful ends of the institution.

LECTURE II.

The plan of the present undertaking—The particulars in which it differs from that adopted by Mr Blackstone—The different situations of the Universities of Oxford and Dublin—The chief obstructions which occur to the student of the English laws—The methods which may be employed to remove them—The law of things more proper to introduce a system of jurisprudence than the law of persons—The law of things, or of real property in England, has its source in the feudal customs—The necessity of a general acquaintance with the principles of the feudal polity—The method in which it is proposed to treat of it.

Having, in the preceding lecture, shewn the necessity of a proper method being pointed out for the study of the laws of these kingdoms, from the utility, as well as multiplicity of them; and having explained from whence that multiplicity arises, and that it is inseparable from the happy situation we are placed in; and having acknowledged the great advantage the students of Oxford have received from Mr. Blackstone’s lectures, it will doubtless be thought necessary, that something should be said by way of illustration of the plan proposed to be followed here, and in justification of its departure from the excellent one which that gentleman has given us in his analysis. The method of instruction intended to be pursued in this place is not proposed as more perfect, or absolutely better in itself, but as one that appears more adapted to the circumstances of our students; and as it will be allowed, that his course of lectures, in the manner they proceed, hath some great advantages as to the finishing a lawyer, which cannot be attained, and therefore should not be attempted here, it will be particularly the duty of your professor to compensate for those, by guarding against some inconveniencies, which the extensiveness of his plan must of necessity subject young beginners to. I shall, therefore, proceed briefly to compare the situation of the two universities, in hopes, by that consideration, in some measure to vindicate the several particulars wherein I have chosen to vary from his scheme. The attendance on the courts of Westminster-Hall, when once a gentleman hath read and digested enough to listen with understanding to what he there hears, hath, for a succession of ages, been allowed to be, and it must be owned is, the most effectual means of accomplishing a lawyer, and fitting him for practice. In this respect Oxford, in her proximity to Westminster, hath certainly an advantage, as to her law students of above two years standing, who may at that time be supposed capable of improvement by the arguments in the courts of law; as she is thereby rendered capable of conjoining those two excellent methods of instruction. Mr. Blackstone was fully sensible of this happy circumstance, and, accordingly, his scheme is adapted to it. All the lectures there are appointed at times that fall in the law vacations, and the course is general and diffusive, not calculated merely for attendants of the first and second years, but adapted also to those of a more advanced standing, and consequently, in a manner equally copious, or very nearly so, illustrates every one of the several branches of the English law. But this method, however excellent in itself, and most eligible where gentlemen can have an opportunity of attending the professor for several successive years, must, on the other hand, be allowed to labour under some inconveniencies, especially as to those who are yet novices, which, as it should be the particular care of the professor here to obviate, it cannot be improper briefly to point out.

As the lectures of the English professor are all read in the law vacations, and in all of them, except the long one, when few young gentlemen of fortune stay in the universities, the shortness of these vacations necessarily occasions these lectures to follow each other in a very quick succession; and, accordingly, we find that five are delivered in every week. It is impossible, therefore, that the students at first should keep any manner of pace with their professor in their private reading, without which the ablest performances in the way of prelections will be of little utility. Many things in the succeeding ones must be rendered very difficult, if not absolutely unintelligible, for want of a due time for mastering and digesting those that preceded; and another unhappy consequence of this quick succession is, that the most useful and effectual method of instruction to beginners, at their entrance upon any science, namely, a continued examination of the progress they have made, is hereby entirely precluded, and rendered impracticable. The great advantage of that method need not be enlarged upon in this place, as every gentleman who hears me must be already fully satisfied of it from his own experience.

But this university is circumstanced in a very different manner. The necessity our students are under of repairing to Westminster, to finish their studies, before they are called to the bar, and their incapacity to reap any benefit from the courts of law while they reside here, render it impossible, as well as unnecessary, to conjoin those two methods of instruction before-mentioned, as is done at Oxford; and, by confining the professor to pupils of two years standing or little more, make it highly improper for him to enter minutely into those parts of the law his audience have not yet had time to apply to. His great object, therefore, should be so to frame his lectures, as to be most useful to youth at the beginning, to be particular and copious in the elementary parts, in order to lay a sure foundation, and to smooth and make plain the difficulties which at first will every where occur. And as, for these reasons, a general and equally diffusive course is a method improper for him to pursue, it should be his especial care to avoid, or remedy the inconveniencies with which such an one is necessarily attended.

It is a well known truth, that the entrance on any study, however easy and agreeable such study might be after some progress made in it, is at the beginning very irksome, and attended with many perplexities; principally arising from the use of new terms, whose significations are yet unknown. But the laws of all nations, and those of England above all others, abound in such novel words, and old ones used in an uncommon sense, more than any other science, and therefore must be attended with difficulties in proportion. And although many of its terms occur frequently in common conversation, and may, consequently, be supposed already understood, this is rather a disadvantage than otherwise; for in common discourse they are used in so vague and undetermined a meaning, and so far from strict precision and propriety, that it is no wonder so many persons exclaim at the absurdity of its maxims; which, though frequently in their mouths, they do not really understand. Young gentlemen, then, have not only many new words to acquire the signification of, but they must likewise unlearn the import of many others they are already acquainted with, and affix to those familiar terms new and precise ideas, a task, as Mr. Locke observes, of no small difficulty, and that requires not only the strictest attention, but constant care and frequent repetition. Another great difficulty the study of the law of England labours under, peculiar to itself, is that want of method, so obvious to be observed, and so often complained of in its writers of authority, insomuch, that almost all of them, and lord Coke particularly, are too apt to puzzle and bewilder young beginners; whereas other laws, the civil, the canon, the feudal, have books of approved authority, (and none other but such should be put into the students hands,) calculated purposely for the instruction of novices; wherein the general outlines of the whole law are laid down, the several parts of it properly distributed, its terms explained, and the most common of its rules and maxims, with the reasons of them, delivered and inculcated. It is not to be admired then that Sir Henry Spelman so pathetically describes his distress at his first entrance upon this study. Emisit me mater Londinum, juris nostri capessendi gratia, cujus cum vestibulum salutassem, reperissemque linguam peregrinam, dialectum barbaram, methodum inconcinnam, molem non ingentem solum, sed perpetuis humeris sustinendam, excidit mihi fateor animus[41].

These then are the obstructions to be removed, and the difficulties to be obviated, by a professor who considers it his business to lead by the hand young gentlemen, yet strangers to the study; and for this purpose he should exert his utmost care and attention, not to overburthen the memories, or to distract the attention of his audience with too great variety at first, but to feed them with knowledge as he finds them capable, and to give them time, by reading and meditation, to become masters of what they have already acquired, and by frequent examinations to satisfy himself they thoroughly comprehend and retain the substance of his past lectures. The utility of this last method, by which the students will be laid under a necessity of reading in private, as to them, will be readily allowed; but taken in another view will be of no less assistance to the professor himself, in framing the prelections he is to read. He will not only be encouraged to proceed with more alacrity, when he daily observes the success of his endeavours, but also, by the trial, be convinced of any defects or errors in his plan that before escaped his observation, and will be warned thereby to amend them; and he will by this means be particularly and perpetually cautioned against the great and too common mistake of tutors, namely, their imagining that such explications as are easy and familiar to them, will be equally obvious to unexperienced youth. But an examination will demonstrably shew him where his illustrations have been defective or obscure, and will oblige him to accommodate his lectures to the capacity and progress of his hearers. The next variation in the present plan from that of Mr Blackstone, to be taken notice of, is the proposal of beginning with the law of things, not with the law of persons, as he hath done. It must be allowed impossible thoroughly to understand the law of things, without some previous knowledge of that of persons; but it is equally impossible to be master of the law of persons, without an acquaintance with that of things. Since, therefore, we must begin with one of them, perhaps it will be sufficient to observe, that such knowledge of the names and relations of persons, as is generally acquired by observation, before a person arrives at an age fit for engaging in this study, will enable him tolerably to understand the law of things; and that whatever more is necessary, and hath not been attained by this means, may be easily supplied as the student goes on. And, that I may not be thought to lean too much on my own opinion in this particular, I shall quote the famous Sir Matthew Hale to the same purpose; who, in his Analysis, introduces the law of things in the following manner: “Having done with the rights of persons, I now come to the rights of things; and, though, according to the usual method of civilians, and of our ancient common law tractates, this comes in the second place, and after the jura personarum, and therefore I have herein pursued the same course; yet that must not be the method of a young student of the common law, but he must begin his study here, at the jura rerum; for the former part contains matter proper for the study of one that is well acquainted with those jura rerum[42].” And, agreeably hereto, the wisdom of ages hath declared Littleton’s Tenures, which contains the common law of England, as far as it concerns real property, that is, lands or interests derived out of and flowing from them, to be the book most proper for students to begin with, in their study of the law of these nations.

Taking it then for granted at present, that the law of real property is the fittest introduction, it will be necessary, as it is confessed to be the most important, the most extensive, and, in consequence, the most difficult part, to lay the foundation deep and sure, and to derive its rules from what is now universally allowed to be its source, the feudal customs. This, indeed, hath been denied by Lord Coke, and others of his age; who thought it would depreciate the excellence of the laws of their country, to admit they were derived from any other nation. But if those gentlemen had read over but once the two books of the feudal law with tolerable attention, they must have received conviction, that one of the laws was certainly derived from the other; and which of them was so would easily appear, by comparing the law of England after the conquest, with that which prevailed in the Saxon times, and was not strictly feudal, exclusive of the testimony of the old historians.

But, perhaps, for this purpose, it may be thought sufficient to explain and deduce these rules from the feudal ones, as they occur occasionally in the books of the common law; which is the method, that, in conformity to the rest of his plan, the Oxford professor has adopted, and that the reading through a course of that law, even the shortest, will be attended with an unprofitable delay, and detain the students too long from their principal object. The answer to this objection is short, and, if well founded, perfectly satisfactory. It is, that the real reason of proposing a system of the feudal law to be gone through, was to save time. The method is so much better, and clearer, and, by necessary consequence, so much easier to be comprehended, and retained, that the delay will be abundantly compensated, and one third at least of Littleton will be understood, and known by the students, before they open his book. For the maxims of the common law, as they lie dispersed in our books, often without reasons, and often with false or frivolous ones, appear disjointed and unconnected, and as so many separate and independent axioms; and in this light very many of them must appear unaccountable, at least, if not absurd; whereas, in truth, they are almost every one of them deducible, by a train of necessary consequences, from a few plain and simple rules, that were absolutely necessary to the being and preservation of such kind of constitutions as the feudal kingdoms were. The knowledge of which few, timely obtained, will obviate the necessity of frequent and laboured illustrations, as often as these maxims occur in our law, will reconcile many seeming contradictions, and will shew that many distinctions, which at first view appear to be without a difference, are founded in just and evident reason: to say nothing of the improvement the mind will attain by exercise, in following such a train of deductions, and the great help to the memory, by acquiring a perfect knowledge of the true grounds of those various rules, and of their mutual connection with and dependence on each other. Ignoratis causis rerum, ut res ipsas ignoretis, necesse est, is a maxim frequently in our lawyers mouths; and Littleton and Coke continually exhort the student to explore the grounds and reasons of the law, as the only safe foundations to build on, and deny that any man, without being perfectly acquainted with them, can merit the honourable appellation of a lawyer.

But there is another, and, for gentlemen of rank and fortune particularly, a more important consideration, that renders a general acquaintance with the principles of the feudal law very proper at all times, but at present eminently so; namely, the necessity of knowing these, for the understanding the nature of those Gothic forms of government, which, until these last three hundred years, prevailed universally through Europe, and whence the present constitution, with several corrections and improvements indeed, in which these islands are now so happy, is undoubtedly derived. From hence only shall we be able to determine whether the monarchy of England, as is pretended, was originally and rightfully an absolute royalty, controuled and checked by the virtue of the prince alone, and whether the privileges of the subjects, which we are so proud of, were usurpations on the royal authority, the fruits of prosperous rebellion, or at best the concessions of gracious princes to a dutiful people, and revocable by them or their successors, whenever, in their opinion, their vassals should become undeserving; principles that were industriously, and, to the misfortune of a deluded royal family, too successfully propagated during the last century, and that, of late, have been revived and defended, with no less zeal, than seeming plausibility. Every man, indeed, of candour and humanity, will look with tenderness on the errors of princes, unhappily educated in mistaken notions, and make due allowances for the weight which arguments urged with great apparent force of reason, concurring with the lust of power, so natural to the human breast, will certainly have on such minds; but, surely, this indulgence may be carried too far, and will be allowed so to be, if, for their justification, it shall appear, upon examination, that the history of past ages has been partially delivered down, and perverted; and that to the vain and unprofitable grandeur of the prince, the happiness of millions, and their posterity, hath been attempted to be offered up in sacrifice. The question is of a matter of fact; for on the decision of the fact, how the constitution of England antiently stood, the question of the right solely depends. And surely it is the duty of every gentleman to inform himself, on the best grounds, whether those great men, who, for a succession of ages, exposed their lives in the field, or exerted their eloquence and wisdom in the senate, for the purpose of preserving, and perpetuating these privileges, deserved the honourable name of patriots, or the detestable appellation of rebels; whether the grievances our glorious deliverer came to redress were real or imaginary; or, if real, were such as our fathers were in conscience bound to submit to; and whether we can with justice give to the family that now fills our throne with such lustre and dignity, that title which they have always esteemed as their highest honour, of being the lords of freemen, and the assertors of the liberties of mankind.

As the book[43] which it is intended the young gentlemen shall read for the purpose of acquiring a general idea of the feudal law, is composed in a systematical method, it is proposed that these lectures shall proceed in an historical one, in order to shew the original reasons of those customs, and to point out from what small beginnings, and by what particular steps and gradations the mighty fabrick rose. By this means the additions to, and the alterations of the law will be seen in a clearer light, when we are acquainted with the nature of the regulations already in being; and by knowing the circumstances of the times, can at once perceive the wisdom and necessity of such additions and alterations. And it is hard to imagine a study more improving, more agreeable, or better adapted to a liberal mind, than to learn how, from a mere military system, formed and created by the necessities of a barbarous people, for the preservation of their conquests, a more extensive and generous model of government, better adapted to the natural liberties of mankind, took place; how, by degrees, as the danger from the vanquished subsided, the feudal policy opened her arms, and gradually received the most eminent of the conquered nation to make one people with their conquerors; how arts and commerce, at first contemptible to a fierce and savage people, in time gained credit to their professors, and an admittance for them into the privileges of the society; and how, at length, with respect to the lowest class of people, which still continued in servitude, its rigour insensibly abated; until, in the end, the chains of vassalage fell off of themselves, and left the meanest individual, in point of security, on an equal footing with the greatest.

Thus much has been thought necessary to observe, in order to shew the reasons of proposing a course of the feudal laws, as an introduction to the English; to which may be added, that this method hath received the approbation of many good judges, and hath, in experience, been found not only useful for the end proposed, as it is the constant practice in Scotland, whose laws, except in the manner of administering justice, differ little from ours, and hath been also used in England with good success; but, at the same time entertaining, and improving in other respects.

As we are to begin, therefore, with this law, the observations on the remaining parts of the plan may be, for the present, deferred; I shall, in my next lecture, begin to deduce the origin of this law, and of its rules, from the customs of the German nations, before they invaded the Roman empire.

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.

The pretensions of the Romans having been considered, and set aside, it follows, that this law must have taken its rise among the barbarous nations; but from which of them particularly, remains to be inquired. Some, solicitous for the honour of the antient Gauls, quote Cæsar’s account of their manners; eos qui opibus valebant multos habuisse devotos, quos secum ducerent in bella, soldurios sua lingua nuncupatos; quorum hæc est conditio, ut omnibus in vita commodis una cum his fruantur quorum se amicitiæ dediderint; si quid iis per vim accidat, aut eundem casum una ferant aut sibi mortem consciscant[47]; in these words they imagine they have plainly the mutual connection between lords and vassals. The Spaniards too put in their claim for the antient Celtiberians, of whom Plutarch, in his life of Sertorius and Valerius Maximus, gives the same account that Cæsar doth of the antient Gauls; and Sir Edward Coke, in his zeal for the common law of England, which, although he did not know it, is certainly feudal, relying on fabulous historians, carries its antiquity so far back as to the British kings of Geoffrey of Monmouth. But one short and plain observation will fully dissipate such vain conceits, namely, that, whatever were the original customs of the barbarous nations, inhabiting Gaul, Spain, or Britain, they were, many ages before the rise of this law, entirely annihilated and forgotten. Gaul, Spain, and Britain, were, for centuries, Roman provinces, governed entirely by Roman magistrates, according to the imperial laws. For the Romans were particularly studious of introducing their dress, their language, their laws and customs, among the conquered nations, as the surest, and most effectual means of keeping them in subjection.

Hence, it appears, we must find the true original of this law among those nations, that destroyed the Western Empire of the Romans; where we first perceive the traces of it, that is, among the Franks, Burgundians, Goths, and Lombards[48]. Of these the first and last have the greatest number of advocates; and, whether out of jealousy to the French monarchy, or not, I cannot determine, the majority declares for the Lombards. These different opinions, however, may be easily adjusted, by distinguishing between the beneficiary law, as I shall call it, while the grants were at will, or for years, or at the utmost for life, and that which is more properly and strictly called feudal, when they became transmissible to heirs, and were settled as inheritances. As to the beneficiary law, no one of these nations can lay a better claim to it than another, or with reason pretend that the rest formed their plan upon its model; each of them independent of the other, having established the same rules, or rules nearly the same; which were, in truth, no more than the ancient customs of each nation, while they lived beyond the Rhine, and were such as were common to all the different people of Germany. But, as to the law and practice of feuds, when they became inheritances, there can be little doubt but it was owing to the Franks. For the books of the feudal law, written in Lombardy, acknowledge, that the Emperor Conrad, who lived about the year 1024, was the first that allowed fiefs to be descendible in Germany and Italy[49]; whereas the kingdom of the Lombards was destroyed by Charlemagne above two hundred years before; and he it was who first established among his own Franks the succession of fiefs, limiting it, indeed, only to one descent. His successors continued the same practice, and, by slow degrees, this right of succession was extended so, that by the time of Conrad, all the fiefs in France, great and small, went in course of descent, by the concession of Hugh Capet, who made use of that device, in order to sweeten his usurpation, and render it less disagreeable[50]. By this concession he, indeed, established his family on the throne, but so much weakened the power of that crown, that it cost much trouble, and the labour of several centuries, to regain the ground then lost.

The opinion of the feudal law’s being derived from the Lombards seems owing to this, that, in their country, those customs were first reduced into writing, and compiled in two books, about the year 1150, and have been received as authority in France, Germany and Spain, and constantly quoted as such. But then it should be considered, that the written law in these books is, in each of those nations, especially in France, controuled by their unwritten customs; which shews plainly, that they are received only as evidence of their own old legal practices. For had they been taken in as a new law, they would have been entirely received, and adopted in the whole.

But if, in this point, I should be mistaken, and the Lombards were really the first framers of the feudal law, yet I believe it will be allowed more proper for the person who fills this chair to deduce the progress of it through the Franks, from whom we certainly borrowed it, than to distract the attention of his audience, by displaying the several minute variations of this law, that happened as it was used in different nations. To the nation of the Franks, therefore, I shall principally confine myself, and endeavour to shew by what steps this system of customs was formed among them, and how their constitution, the model of our own just after the conquest, arose; and at the same time I shall be particularly attentive to those parts of it only that prevailed in England, or may some way contribute to illustrate our domestic institutions.

In order, then, to illustrate the original of the French constitution, and of their beneficiary, and its successor the feudal law, it will be necessary to enter into some details as to the manners of this people, while they continued in Germany, and which they preserved for a considerable time after they passed the Rhine; as also to mention some few particulars of their history when settled in France, in order to shew the reasons of their original customs, and the ends their policy aimed at, and how, by change of circumstances, the preservation of that system required new regulations; how the feudal law arose, and grew to that perfection, in which, for so many ages, it flourished throughout Europe. As skilful naturalists discover in the seed the rudiments of a future tree, so, in a few passages of Cæsar and Tacitus, concerning the customs of the Germans, may be seen the old feudal law, and all its original parts, in embryo; which, in process of time, by gradually dilating and unfolding themselves, grew into a perfect and compleat body. It will be highly proper, therefore, for the clearer comprehension of what is to follow, to dwell somewhat particularly upon, and to make ourselves acquainted with, the manners and institutions of those people; and for this purpose, perhaps, it will be sufficient to consider them under the several following heads, viz. their general disposition and manners, the several ranks and orders of persons among them, their form of government, and the nature of their policy; their regulations touching property, their methods of administering justice, and the nature of the punishments they inflicted on criminals.

First, as to their manners and general disposition: Germany was at that time a wild uncultivated country, divided into a great number of small cantons, separated from each other by thick forests, or impassable morasses, and inhabited by a rude and simple people, who lived either by the chace or pasturage, and were always either in a state of open war, or a suspicious peace with their neighbours: A circumstance that obliged every one of these little states to esteem military virtue in the first place, and to train up all their people, fit for that purpose, in the constant use of arms, and to keep them perpetually in a state ready always for either offence, or defence[51].

But since, in every number of men, however assembled, some there will be, from the natural strength of their bodies, and courage of their minds, more fit for soldiers, and others, from the contrary causes, better adapted to the arts of peace; these nations were necessarily distributed into two ranks; those in whom the strength of the society consisted, the freemen or soldiers, who were, properly speaking, the only members of the community, and whose sole employment was war, or (in the intervals of hostilities, what Xenophon considers as its image) hunting; and an inferior order of people, who were servants to them, and, in return for protection, supplied the warriors with the necessaries of life, occupied the lands for them, and paid stipulated rates of cattle, clothes, and sometimes corn, namely, where they had learned the use of agriculture from the neighbouring Romans. I follow Craig in calling them servants rather than slaves, as an expression much more suitable to their condition; for they were not condemned to laborious works, in the houses of the freemen, as the slaves of other nations were. Among these simple people, the wives and children even of the greatest among them, and the old men, unfit for the toils of war, were their only domestics. The servants of the Germans lived apart, in houses of their own, and when they had rendered to their lords the services due by agreement, they were secured in the rest, as their own property; so that a servant among these people, though meanly considered by the superior rank, was, in truth, more a freeman than the generality of the Romans under their Emperors[52]. It has been an antient observation, that servitude among the northern nations hath always been more gentle and mild than among those that lay more southerly: A difference, to be ascribed to the different manners of the people, resulting partly from their climate, and partly from their way of life. A plain and simple people, unacquainted with delicacies, were contented with the plainest fair; which was easily supplied, without afflicting their servants with heavy labour, and gave no room for envy and discontent in the breasts of inferiors. And a nation that had always the sword in their hands were too conscious of their own strength, to entertain any apprehensions from those, who, from their unfitness for that profession, were destined to other employments. All motives, therefore, to fear on the one side, and to envy and discontent on the other, being removed, we need not be surprized at the general humanity with which the servants were treated in these northern regions. The putting them in chains was a thing exceedingly rare, and the killing them, except in a sudden gust of passion (an accident which frequently happened among the freemen themselves) was almost unheard of. The only difference in that case was, that the death of a servant was not looked upon as a public crime, he being no member of the political society, and therefore was not punished. Such then was the mutual affection and confidence of these two ranks in each other, that whenever there was occasion, they made no scruple of arming such of their servants as were capable, and, by making them soldiers, admitted them into the number of freemen; and the hopes of such advancement, we may be assured, was a strong inducement to those of the lower rank to behave in their station with fidelity and integrity. Another cause of this great lenity to their servants arose from a custom peculiar to the Germans, which ordained, that insolvent debtors should be reduced to servitude, until, either by his labour, the creditor was satisfied, or, as it frequently happened, the debt was paid by the insolvent’s relations. It was, indeed, reputed dishonourable for the creditor himself to retain his debtor in servitude; but then he either sold him to the prince, or some other person.

Among so plain a people, perhaps it may be thought debts were rare, and that few instances occurred of freemen’s being reduced to slavery; but Tacitus assures us of the contrary[53]. These people were possessed with the rage of gaming to such a degree, that nothing was more common than to see them, when all their property was lost, set their liberty itself at stake. It was natural, therefore, to treat those with gentleness, who had been once perhaps the most valuable members of the body politic, especially for them who knew their own privileges depended on the uncertain caprices of the same goddess Fortune, and that an unlucky throw might reduce them to-morrow to the same low condition. I have been the more particular on this head, in order to shew, that, even in their infancy, the feudal maxims were more favourable to the natural liberty of mankind, than the laws and customs of the southern and more polite nations, and were of such a spirit, as when circumstances changed, would naturally expand, and extend that blessing to the whole body of the people; as we find it at present in our excellent constitution.

To return, therefore, to the freemen: We find no traces of any different orders of men among them; but as no kind of government, however rude, can subsist without some subordination, and as it was impossible for them all to continue together in one body, it was found necessary, in order to disperse them round the country, that they should be subdivided into lesser parties, and to appoint to each a chief, the most eminent and capable among them; who, when a district was assigned him, distributed that among his followers; who again, after having retained what they esteemed sufficient for their own purposes, assigned part of what they had so received to their servants. And here, indeed, we see the first rude original of lords and vassals. These lords were those, of whom Tacitus says, De minoribus rebus principes consultant[54]. One of these lords, and to him a larger territory was assigned than to the others, was the head of the whole body politic, and honoured with the title of king. He was the superior, who, at their general assemblies, made the distribution already mentioned, and appointed the other lords. And, besides his excelling the others in the enjoyment of a more extensive district, and in having a greater number of vassals and servants, he was remarkably distinguished from them in two particulars. His office was for life, and, in some degree, hereditary; for, in every nation there was one family, descended, it is to be presumed, from the first founder of the state, or some ancient hero, which was the only family noble by birth among them, and the members of which alone were capable of this high station. Not that these kings succeeded in a lineal, or any other regular course of descent; for Tacitus intimates sufficiently that they were elective, when he says, Reges ex nobilitate sumunt[55]. And indeed any one who considers attentively the circumstances of these people, always either ready to invade their neighbours, or dreading invasions from them, will allow, that any kind of a constant regular succession was inconsistent with their preservation. They were necessitated to choose among the royal family a man in the flower of youth, or, at least, in the vigour of life, who, by his valour and wisdom, might prove the proper head of a nation always in a state of war. This will appear beyond a doubt, if we examine the ancient practice of all the kingdoms founded by the Germans. Look over the lists of their kings in any one nation, and examine the degree of kindred in which they stood related to each other, and you will find them all, indeed, of one family; but you will, at the same time, see that scarce a third of them could derive their kindred, by way of title or descent, from their immediate predecessor; yet were they obeyed chearfully by their subjects, nor ever looked upon in those days as usurpers, though several modern writers, possessed with opinions of their own ages, since kingdoms are almost universally settled in a regular course of descent, have been so liberal in bestowing that title upon them.

Montesquieu allows this was the manner of succession in the second race of the Franks, but insists that those of the first inherited lineally[56]. But was this so originally, when Clovis came to the crown, he who first united all the Franks under one sovereign? We find six or seven independent kings of the Salian Franks, every one of them Clovis’s near relations, and consequently descended from a common ancestor, at no very great distance. He thought not himself, nor his posterity, secure in the possession of the throne, until he had totally extirpated every other branch, and reduced the royal family to his single person. Then, indeed, there was no danger of a competition upon his death. So far was the crown from descending to any determined person, that the kingdom was divided among all his children; and, for several descents, his bloody example was followed in one generation, and in the next a new division took place; nor, in all this time, do we hear of any other title set up, than what followed either from the will of the father, the consent of the people, or the fortune of war; which, it is apprehended, is sufficient to shew, that, in these early ages, there were no invariable rules of succession settled among the Franks. Otherwise, how came the kingdom to be divisible, and the right heir to be obliged to content himself with a small portion of his supposed legal inheritance[57]?

In the next lecture I shall give an account of the companions of the prince among the Germans, and finish what I have to observe of the constitution of their governments, and of their laws and customs, unto the time of their entering into the Roman empire.

LECTURE IV.

The companions of a German prince—The constitution of a German kingdom—The condition of property in Germany—The methods followed there of distributing justice, and the nature of the punishments inflicted on criminals.

Before we can be fully acquainted with all the several constituent parts of the German state, it will be necessary to form a just notion of those who were called the companions of the king or prince; who, being chosen out of the most robust and daring of the youth, and having attached themselves particularly to the person of their sovereign, were his chief defence in war, and the great support of his dignity in times of tranquillity. A few words of Tacitus will set this institution of theirs in a clear light. Speaking of their princes, he says, “This is their principal state, their chief strength, to be at all times surrounded with a numerous band of chosen young men, for ornament and glory in peace, for security and defence in war; nor is it among his own people only, but also from the neighbouring communities, that a prince reaps high honour, and great renown, when he surpasses in the number and magnanimity of his followers; for such are courted by embassies, and distinguished with presents, and by the terror of their fame alone often dissipate wars. In the day of battle, it is scandalous for the prince to be surpassed in feats of bravery, scandalous to the followers to fail in matching the valour of the prince. But it is infamy during life, and an indelible reproach to return alive from a battle wherein their prince was slain. To preserve him, to defend him, and to ascribe to his glory all their gallant actions, is the sum, and most sacred part of their oath. For from the liberality of their prince they demand and enjoy that war-horse of theirs, and that terrible javelin, dyed in the blood of their enemies. In place of pay, they are supplied with a daily table and repasts, though grossly prepared, yet very profuse. For maintaining such liberality and munificence, a fund is furnished by continual wars and plunder[58].”

Here, then, are to be seen most plainly the rudiments of that feudal connection, that afterwards subsisted between the king and all his military vassals, and of the oath of fealty which the latter took to him. To his person, and to aid him in all he undertook, his companions were bound, during his and their lives, by the strictest ties; but as to other freemen, who lived apart in their villages, the bonds of allegiance were much more loose. This rude people had no notion of what almost every civilized nation hath laid down as a maxim, that being born in, and protected by a society, creates a durable obligation. They served, indeed, in consideration of the lands they held, in all defensive wars; and in all offensive ones, which either were generally approved of, or in which they chose particularly to engage themselves. Nay, so great was the notion of particular independence among these people, that they thought that all of the freemen or soldiers, except the comites, who had by oath bound themselves to the person of the king for life, were at liberty to engage in expeditions, that neither the king, nor the majority of the nation consented to; and that under leaders of their own choosing. For as, at their general meetings, war was necessarily the most common subject of deliberation, if any one proposed an enterprize, all who approved the motion were at liberty to undertake it; and if the king declined commanding therein, they chose a general capable thereof; and when, under his conduct, they had succeeded, they either returned, and divided the spoil, and became subjects of their former king as before; or, if they liked the country they had subdued better, settled there, and formed a new kingdom, under their victorious leader. Duces ex virtute sumunt, saith Tacitus; a practice hard to be accounted for among nations exposed to continual danger, and which must be thereby frequently weakened, on any other supposition, than that it was first introduced to disburthen a narrow territory, overstocked with inhabitants. This effect, however, it must have had, that their kings were rendered more martial, and obliged equally by their glory and interest, to command in every expedition, that was agreeable to any considerable number of their subjects.

From this custom Montesquieu very ingeniously conjectures, that the Franks derived their right of conferring on their mairs de palais the power of war, at a time, when, by the long continued slaughters of the royal family, they were obliged to place the crown on the heads of minors, or of princes as incapable as minors; a power that enabled them, by degrees, to usurp the civil administration, and at length to transfer the title also of royalty to a new race, in the person of Pepin[59].

Such, then, was the face of a German state. A king chosen for his illustrious extraction, attended by a numerous body of chosen youth, attached to his service in war by the strictest bonds of fidelity; a number of freemen divided into villages, over each of which was an elective chief, engaged, likewise, to military duty, but in a laxer manner; and under all these were the servants, who occupied the greatest part of the land, and supplied the freemen with the necessaries of life.

It is time now to attend a little to their domestic policy, and to inform ourselves what were the rights of each of these orders in the time of peace. The king, we are assured by Tacitus, was far from being absolute[60]. He was judge, indeed, among his own peculiar vassals, who lived on his demesne, as the other chieftains were in their respective districts. He presided in their general assemblies, and was the first who proposed matters for their deliberation. His opinion had great weight, indeed, from his rank and dignity, but his power was rather that of persuasion than of command. The royal family was no otherwise distinguished from others, than as their personal merit acquired influence, or their high birth and capability of succession engaged respect. The companions of the prince were highly honoured for their faithful attachment to him, and their valourous atchievements in war; but, as to rights and privileges, were on the common footing of other freemen. The only distinction was between the chieftains, or lords of the villages, and the vassals who were under their jurisdiction. The chieftains were judges in their respective districts; but, to prevent partiality, to each of them were assigned an hundred persons, chosen among the populace, to accompany and assist him, and to help him at once with their authority and their counsel. And this institution was, in all probability, the original of the jurisdiction of the pares curiæ in the feudal law. Another, and a very great check on their chieftains, was their being elective, and consequently amoveable every year, if their conduct was displeasing either to prince or people. These elections, as well as those of their assessors, were made in their assemblies; where, indeed, every thing of any consequence was transacted, and therefore they deserve to be particularly treated of.

These conventions, then, unless they were summoned on extraordinary occasions, were regularly held once a month, on certain stated days; but such was the impatience of this people of controul, or any regularity of proceeding, that Tacitus observes, that frequently two or three days were spent before they were all assembled. For in these meetings, every freeman, that is, every soldier, had an equal voice. They appeared all in arms, and silence was proclaimed by the priests, to whom also it belonged to keep the assembly in order, and to punish all disturbers of its regularity. The king in the first place was heard, next such of the chiefs as had any thing to propose, and lastly others, according to their precedence in age, nobility, military virtue, or eloquence. If the proposition displeased, they rejected it by an inarticulate murmur. If it was pleasing, they brandished their javelins; the most honourable manner of signifying their consent being by the sound of their arms. But this approbation of the general assemblies was not of itself sufficient to establish a resolution. As the sudden determinations of large multitudes are frequently rash, and injudicious, it was found necessary to have what they had so determined re-considered by a select body, who should have a power of rejecting or confirming them. For this purpose the chieftains were formed into a separate assembly, who, in conjunction with the king, either disannulled, or ratified what had been agreed to by the people at large[61].

Such then was the constitution of a German kingdom, a constitution so nearly resembling our own at present, as at first view would tempt any one to think the latter derived immediately from thence. Yet this was not the case. With respect to the Saxon times, as far as we can judge from the few lights remaining, the form of government seems very nearly to resemble this account which Tacitus gives us; but, for two centuries, at least, after the conquest, the English constitution wore a face purely feudal. The sub-vassals had long lost the privilege of being members of the general assembly, from causes that shall be hereafter attempted to be explained; and the whole legislative power was lodged in the king and his immediate vassals, whose interests frequently clashing, and creating continual broils, it was found necessary, for the advantage both of the sovereign and nobles, that a proper balance should be formed. Accordingly, much at the same time in France, Spain, and England, namely, in or about the thirteenth century, the happy method of readmitting the third estate, by way of representation, was found out, with an addition very favourable to the natural rights of mankind, that traders and artizans, who before had been treated with the most sovereign contempt, were now permitted to make part of the general assembly, and put on an equal footing with other subjects[62].

But to return to the assembly of German chieftains, or their house of lords, as I may call it; besides a share in the legislative power, they were likewise a council, to assist the king in the execution of the resolutions of the general assembly, and determined solely by their own authority all matters of lesser moment, that did not immediately affect the whole community. De minoribus rebus principes consultant, de majoribus omnes.

Many other things were likewise transacted in these general assemblies, as particularly the admission of a new member into the political society. When a youth was judged capable of bearing arms, he was introduced by his relations into the assembly; and if they testified his capacity of wielding them, he was dignified with a lance and javelin by one of the chieftains, or by his father, or some other near relation. This was his toga virilis. Then, and not before, was he emancipated from the family he belonged to, was permitted to become a soldier, and in consequence admitted to all the privileges of a free subject. A practice that, in after ages, gave rise to the solemn and public manner of creating knights[63].

This, likewise, was the proper place of accusing criminals of public crimes, namely such as were looked upon by those people particularly to affect the whole society; neither was it unusual, likewise, to bring hither accusations of private wrongs, if the party injured was apprehensive of partiality in his own canton.

But the business of greatest moment, next to legislation, was, that, once in a year, in these assemblies, each village, with the approbation of the king, chose their chiefs, and their hundred assistants[64]. Here it was they either received a testimony of their good behaviour, by being continued in office another year, or saw themselves reduced to the rank of private subjects, if their conduct had not been acceptable. At the same time were the lands distributed to the several chieftains, which leads me to say something on the next head, their regulations with respect to property; as to which their institutions were very singular, and totally different from those of all ancient, as well as modern nations.

All property being then naturally divisible into two kinds, moveable and immoveable, of the first these people had but a scanty share, their whole wealth consisting in their arms, a few mean utensils, and perhaps some cattle. The use of gold and silver, in the way of commerce, was utterly unknown to them, except to a few of their nations, namely such as lived near the Rhine, and had acquired some by dealing with the neighbouring Gauls. Consequently, there was no such thing as an accumulation of wealth among them, or any great disparity in the distribution of this kind of property, over which each had uncontrouled dominion during his life. But as testaments, or last wills, were unknown amongst them, upon death, the right went according to the plain dictates of nature. Tacitus saith, “To every man his own children were heirs and successors. For want of them, his nearest of kin, his own brothers, next his father’s brothers, or his mother’s.” Whatever there was, was divided among the males next in degree; save that to each of the females, a few arms were assigned, the only dowry in use among those people; a dowry which, as Tacitus saith, signified that they were to share with their husbands in all fortunes of life and death. Accordingly, they constantly attended them to the field, were witnesses of their valour, took care of the wounded[65]; and often, if their party had the worst, they ran into the ranks, and by their presence and danger, animated the men to renew the charge.

But with respect to real or landed property, the case was very different. Here a man had only the use, or enjoyment of the profits; and that, too, but a temporary one. The real property, or dominium verum, was lodged in the community at large; and was, at the end of every year, cantoned out, and distributed to the several tribes of the people; and the portion assigned to each was after that subdivided to the respective individuals; who by these means were perpetually removed from one part of the territory to another; nor could any man tell in what place his lot was to fall the next year[66]. And this custom, absurd as it seems to us, they were so fond of, as to continue for some time after they settled in the Roman territories; until, growing by degrees acquainted with the conveniencies of life, a change of manners was introduced, and they wished for more settled habitations. Then came into use grants for terms of years, after for life, and lastly, estates descendible to heirs, which are those we, properly speaking, called fiefs. This continual removal of habitation, so intolerable to a people any way accustomed to comfortable dwellings, was no manner of inconvenience to them. Their little substance was easily removed, and two or three days were sufficient to erect a sorry hovel, which contented the wishes of the greatest among them[67]. But their passion for this constant change of place seems derived from that condition which I have already observed they were in, namely, a middle state between hunters and shepherds; and that they still retained that practice, was an evidence that they had not been long reclaimed from a savage life. Tacitus indeed says, that, in the intervals of war, they were not much employed in hunting, but lived a lazy and inactive life. This, however, I apprehend, must be understood only of a few nations, nearest to the Romans, where game was not so plentiful, and not of all the Germans in general: for it is certain the Franks had a strong passion that way, after they were settled in Gaul; and from them the plan of the forest laws, so justly complained of in England, after the conquest, was derived. And true it is, that whole nations, as well as individuals, were possessed with this rambling inclination; and that, not always with a view of settling in a better country. If the Germans changed their barren wilds for the warm sun and fertile climate of Gaul, we are assured by the same authority, that many tribes of the Gauls, on the other hand, removed to the forests of Germany. If Jornandes tells us, that the Goths quitted the bleak and barren mountains of Scandinavia for the pleasant banks of the Danube, he likewise informs us, that, afterwards, they returned back into their native country.

As to their methods of administering justice, I have already observed, that their chieftains, in the several districts, assisted by their assessors, were their judges. Before them all causes were brought, which were not discussed in their general assemblies; but as to the manner of investigating the truth, all the German nations did not agree. Nay the Salian Franks differed considerably from their brethren, the Ripuarian Franks. If the judge, or his assessors, or any of them, had knowledge of the fact in dispute, which often happened, as these people lived much in public, and in the open air, they gave sentence on such their knowledge. This was common to them all; but if there was no such knowledge in any of the pares curiæ, as I may call them, and the fact in question was denied, the Salians proceeded thus: The accuser or plaintiff produced his witnesses, the accused did the like; and on comparing the evidence on both sides, the judges gave sentence. If the plaintiff had no witnesses, the defendant, on his denial, was dismissed of course. If the witnesses for the plaintiff failed in fully proving the point, and yet their testimony was such, as induced a presumption which the other party was not able to remove, the trial was referred to the ordeal[68]. That of boiling water was the most usual among them. The manner was thus: The person suspected plunged his hand into the boiling water, which was afterwards carefully closed up, and inspected at the end of three days: If no sign of the scalding then appeared, he was acquitted; if otherwise, he was esteemed guilty[69].

It is strange that any people should, for ages, make use of such a method, which a very little reflection, or common experience, might easily satisfy them had no manner of connection with guilt or innocence. But, besides the gross superstition of these nations, who thought the honour of providence concerned in the detection and punishment of criminals, Montesquieu hath given us another reason for this practice, which, whether just or not, for its ingenuity, deserves to be taken notice of. He observes, that the military profession naturally inspires its votaries with magnanimity, candour, and sincerity, and with the utmost scorn for the arts of falshood and deceit. This trial, then, he imagines calculated to discover plainly to the eye, whether the person accused had spent his whole life in the arts of war, and in the handling of arms. For if he had, his hands would thereby have acquired such a callousness, as would prevent any impression from the boiling water, discernible at that distance of time. He therefore was acquitted, because it was presumed he would not screen himself by a falshood. But if the marks appeared, it was plain he was an effeminate soldier, had resisted the force of education, and the general bent of his countrymen; that he was not to be moved by the spur of constant example, that he was deaf to the call of honour; and consequently such a person whose denial could have no weight to remove the presumption against him[70].

These were the methods of trial among the Salians, but the Ripuarian Franks, the Burgundians, and several other German nations acted very differently. No witnesses were produced among them on either side, but they contented themselves with what were called negative proofs; that is, the person accused swore positively to his own innocence, and produced such a number of his relations as the custom of the country required: or if he had not relations enough, the number was made up out of his intimate acquaintance: These were to swear that they believed his oath to be true, and upon this he was acquitted. But if he declined the oath, or could not produce a sufficient number of compurgators, he was found guilty; a practice that fully proves these nations were, when this method was introduced, a people of great simplicity and sincerity[71].

But as, by this means, every profligate person, with the assistance of a few others as wicked as himself, was sure to escape, the defects of this kind of trial introduced another, or rather revived an antient one, no less inconclusive. Antiently, the Germans had no judicatures for the decision of private wrongs; but each in person took his own satisfaction, and this introduced perpetual combats. When the new method of trial came in use, a party seeing his adversary ready to defeat his just demands, and screen his injustice with perjury, resorted to his antient right, refused to accept the oath, and appealed to the providence of God by the trial of battle: a method as absurd, indeed, as the former, but peculiarly adapted to the way of thinking of the Germans, who frequently, before they entered into a war, prognosticated the success of it from the event of a combat between one of their own nation, and a captive of the enemy[72]. This kind of trial gained ground among all the defendants of this ferocious people[73], and introduced itself at length among the Salians, who had it not at first, and who, by admitting positive proofs, had no need of it; and, though long fallen into disuse, hath left behind, its offspring, private duelling. It hath been long since observed, that this fashionable custom owed its origin to these northern nations, the ancestors of the present inhabitants of Europe, as no other nations, antient or modern, however martial or disposed to war, had any knowledge or practice of it; but it is undeniably evinced by this, that as a lie, above all other provocations, is the strongest, and what lays gentlemen of honour under an indispensible necessity of duelling, so were you lie the very words mutually given and received in old times, the accustomed form of joining issue by battle, after which neither party, without perpetual infamy and degradation from his rank, could recede.

I have taken the more notice of these four different methods of trial among the old Germans, as every one of them has been received into England. Concerning the first, the trial by witnesses, little need be said. As it is the fairest, and the justest, it has accordingly, pursuant to the practice of all civilized nations, prevailed over all the rest; and it is that, and that only, that we use at this day. But the ordeal also was in use among the Saxons, and continued some time after the Norman conquest; as appears, not only by the old records of the law, but from the famous story, whether true or false, of queen Emma, mother of Edward the Confessor, and the plow-shares[74]. The trial by negative proofs, though out of practice, is still in being, in what is called by us the wager of law; where, if a person is impleaded in an action of debt, on a simple contract, he may clear himself, by swearing he oweth it not, and by producing eleven others, who swear to their belief that he has deposed the truth[75]. Hence it has happened, that, for a long time past, actions of debt, in such cases, have not been brought, but another, called an action on the case, is the usual method, which admits the parties on both sides, as to the point of debt, vel non debet to an examination of witnesses. For the last, the trial by battle, our old books are full of it, in real actions; and although, to prevent the inconvenience and uncertainty of it, the grand assize was invented; yet was it in the tenant’s, that is, the defendant’s option, to choose which method of trial he pleased. The latest instance of joining issue by battle, I have met with, is in Dyer’s Reports, in the beginning of Elizabeth’s reign[76]; but by this time it was so much discouraged, that, by force of repeated adjournments, the parties were prevailed on to agree, and judgment was at length given upon the failure of one of the parties appearing on the day appointed for the combat.

When the truth, by some of the methods above-mentioned, was ascertained, judgment was to be given. Here it will be proper to observe, that, among these people, there were only two kinds of crimes, that were looked upon as public ones, and consequently capital. The first was treason, or desertion in the field, the punishment hanging; the second cowardice, or unlawful lust, for they were strict observers of the nuptial band, the punishment stifling in a morass, with an hurdle over them. It seems, at first view, surprising, that murder, which Tacitus assures us, from sudden gusts of passion, and intemperance in liquor, was very frequent, should not, as it so much weakened the strength of the nation, be considered as a criminal offence, and punished accordingly[77]. But a little reflection on their situation will reconcile us to it. The person slain was already lost to the society, and if every murder was a capital offence, the state would lose many of its members, who were its chief supporters. Besides, if the slayer had no hopes of mercy, nothing else could be expected than his desertion to their enemies, to whom he could be of infinite service, and to them of infinite detriment, from his knowledge of their strength and circumstances, and of the passes into their country, through the morasses and forests, which were their chief defence. Murder, therefore, like other lesser crimes, was atoned among those people, as it was among the ancient Greeks, who were in pretty similar circumstances, in the heroic times, as Ajax assures us in these words, in the ninth Iliad:

και μεν τις τε κασιγνητοιο φονοιο

Ποινεν, η του παιδος εδεζατο τεθνειωτος,

namely, by a satisfaction of cattle, corn, or money, to the persons injured, that is, to the next of kin to the deceased, with a fine to the king or lord, as an acknowledgment of his offence, and to engage the society to protect him against the future attempts of the party offended. These satisfactions were not regulated originally, nor fixed at any certain rate, but left to the discretion of the injured, or next of kin. However, if he appeared extraordinarily unreasonable, and refused what was judged competent, the society, upon payment of his fine to their head, took the offender into protection, and warranted his security against the attempts of the other party, or his friends. After these nations were settled in the Roman empire, these satisfactions for each offence were reduced to a certainty by their laws[78].

This is as much as I have thought necessary to observe at present, concerning the manners and customs of these people, while they remained beyond the Rhine. It will next be proper to see how far afterwards they retained them, and what alterations were introduced by their new situation.

LECTURE V.

The decline of the Roman empire—The invasions of the Northern nations—The manner in which they settled in the Roman provinces—The changes insensibly introduced among them in consequence of their new situation—The policy and condition of the Franks after they had settled in France—The rise of the feudal law—Estates beneficiary and temporary.

It is full time now to quit the wilds of Germany, to attend these nations in their passage into the Roman dominions, and to take a view of the manner wherein they settled themselves in these new countries. The Roman empire had been long on the decline; but especially, from the time of Severus, it every day grew weaker. This weakness arose, in a great measure, from an excessive luxury, which disqualified not only their great ones, but the bulk of the Roman people for soldiers; and also from the tyrannical jealousy of their emperors, who were afraid of trusting persons of virtue or ability, and had no other method of supporting their authority, than by employing numerous standing armies, that, under them, pillaged and oppressed the defenceless populace; and lastly, from the licentiousness of the soldiery, who made and unmade emperors according to their wild caprices. Hence proceeded many competitions for that dignity, and continual battles and slaughters of their men at arms; the natural consequence of which was, that whoever prevailed in these bloody contests, always found himself less able and powerful to defend the empire from foreign enemies or domestic competitors, than his predecessor was[79].

About the year 200 after Christ, the several nations who had been hitherto cooped up beyond the Rhine and the Danube, and kept in some awe by the terror of the Roman name, began to gather some courage from the weakness of the empire; and from that time few years passed without incursions into, and ravages of, some part of the southern territories, by one or other of these people; and how redoubtable they became to that decaying state, may easily be judged from the particular fondness the emperors of those days had, upon every slight advantage gained over them, for assuming the pompous titles of Gothicus, Vandalicus, Alemannicus, Francicus, &c. not for the conquest, or reducing into subjection those several people, as in antient times, but merely for having checked them, and kept them out of the Roman boundaries[80].

But these invasions of the northern nations were a long time confined to the single views of rapine and plunder; for as yet they were not fully convinced of their own strength, and the enfeebled condition of their enemies. And perhaps they might have longer continued in this ignorance, and within their former bounds, had it not been for an event that happened about the year 370, the like to which hath several times since changed the face of Asia. I mean a vast irruption of the Hunns, and other Tartarian nations into the north of Europe. These people, whether out of their natural desire of rambling, or pressed by a more potent enemy, were determined on a general change of habitation; and, finding the invasion of the Persian empire, which then was in its full grandeur, an enterprize too difficult, they crossed the Tanais, and obliged the Alans and Goths, who lived about the Borysthenes and the Danube, to seek new quarters. The former fled westward to Germany, already overloaded with inhabitants; and the latter begged an asylum from Valens in the eastern empire, which was willingly accorded them. The countries south of the Danube were before almost entirely depopulated by their frequent ravages. Here, therefore, they were permitted to settle, on the condition of embracing the Christian faith; and it was hoped they, in time, would have proved a formidable barrier against the incroaching Hunns, and, by a conformity of religion, be at length melted into one people with the Romans. For the attaining this purpose, they were employed in the armies, where, to their native fierceness and bravery, they added some knowledge of discipline, the only thing they wanted; and many of their kings and great men were in favour at court, and either supported by pensions, or raised to employments in the state[81].

But the injudiciousness of this policy too soon appeared; and indeed it was not to be expected that a people used entirely to war and rapine, and unaccustomed to any other method of subsistance, could in a short time be reduced to the arts of social life, and to the tillage of the earth; or be retained in any moderate bounds, in time of peace, when, by being admitted within the empire, they saw with their own eyes the immense plunder that lay before them, and the inability of the Romans to oppose their becoming masters of it. During the life of Theodosius they remained in perfect quiet, awed by his power and reputation; but when he left two weak minor princes under the guardianship of two interested and odious regents, it was obvious they could not be bridled much longer. Though, if we are to credit the Roman historians, their first irruption was owning to the jealousy Ruffinus, the prime minister of Arcadius, entertained of Stilicho, the guardian of Honorius. This latter, it is said, ambitious of holding the reins of both empires, pretended, that Theodosius had on his death-bed appointed him sole regent of both. For, though Arcadius was now of sufficient age to govern of himself, he was, in truth, for want of capacity, all his life a minor. Ruffinus, we are told, conscious of his rival Stilicho’s superior talents and power, resolved to sacrifice his master’s interest rather than submit to one he so much hated; and, accordingly, by his private emissaries, stirred up both Goths and Hunns, to fall at once on the eastern empire[82].

In the year 406, these nations, so long irreconcileable enemies to each other, poured their swarms in concert into the defenceless dominions of Arcadius. The Hunns passed by the Caspian sea, and with unrelenting cruelty ravaged all Asia to the gates of Antioch; and at the same time the Goths, under the so much dreaded Alarick, with no less fury, committed the like devastations in Illyricum, Macedon, Greece, and Peneloponnesus. Stilicho, thinking that his saving the eastern empire would undoubtedly accomplish for him his long wished-for desire of governing it in the name of Arcadius, as he did the western in that of Honorius, hastened into Greece with a well-appointed army. But, when he had the barbarous enemy cooped up, and, as it were, at his mercy, the weak prince, instigated by his treacherous minister Ruffinus, sent him orders to retire out of his dominions. The Goths returned unmolested to the banks of the Danube, laden with plunder; and Stilicho went bank to Italy boiling with rage and resentment, but he never had an opportunity of wreaking his vengeance on his treacherous rival.

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].

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.

LECTURE VI.

The introduction of estates for life into the feudal system—The nature and forms of investiture—The oath of fealty, and the obligations of lord and tenant.

In the preceding lecture I took notice of the different condition and situation of the Romans and barbarians in the infancy of the French monarchy; but it will be necessary to observe, that all the barbarians themselves were not subject to the same laws and regulations. When the Ripuarian Franks, after the murder of their sovereign, submitted to Clovis, it was under an express condition of preserving their own usages. The same privilege he allowed to the Allemans, whom he conquered, and to such parts of the Burgundian and Gothic kingdoms as he reduced to his obedience. The customs of all these several people, as they were Germans, were indeed of the same spirit, and did pretty much agree; but in particular points, and especially as to the administration of justice, they had many variations; and these the several nations were fond of and studious of preserving. What was peculiar to these people, above all other nations, was this, that these different laws were not local, but personal: for although the Salians, in general, dwelt in one part of the country, the Ripuarians in another, the Allemans in a third, &c. yet the laws were not confined to these districts: but a Salian, in the Ripuarian territories was still judged by his own, the Salian law; and the same was true of all the others. Another peculiarity was, that the barbarians were not confined to live in the law they were born under. The Romans, indeed, could not pass from their Roman law to that of any one of their conquerors, until they were allowed, several ages after, to acquire fiefs; but any of the barbarians, if he liked another law better than his own, could adopt it: a privilege, I presume, derived from that antient practice which they used, of removing from one state or commonwealth to another, or of going forth to form a new one.

In the French monarchy, then, there were five different nations, besides the Romans, governed by five distinct laws; but these five people, being all of the same northern original, and descended from the conquerors of Gaul, were, in the state, every one of them esteemed and regarded on an equal footing, enjoyed the same privileges, and equally received benefices from the king or other lords. I have already observed, that the bonds between the king and his companions in Germany continued during their joint lives. It had the same duration after they settled in Gaul; where they either presided with him in his court, as they had done formerly, or were settled in benefices near him, and in such situations as they might readily attend him on occasion; or else were the governors and leaders of the free Romans, under the title of counts. But all the grants of lands or offices that they enjoyed were, as yet, but temporary. So that they were fideles, or vassals, bound by an oath of fealty for life; but there were no fiefs, or feudal tenures, if we may call them by that name, that continued for so long a term[97].

The introduction of beneficiary grants for life, as is very properly conjectured, was first owing to the counts. They had, as I mentioned before, the third part of the profits of the courts in their respective districts, which made their office not only considerable and honourable, but opulent. They lived apart from the other barbarians among the Romans, whose allodial property was fixed and permanent. It was natural for them to wish the continuance of their lucrative employments, and to make them as perpetual as their obligation of fidelity was; and this they were enabled to attain by the means of the profits they made of their places, and the want of treasure, which the kings frequently laboured under to support their wars: for offensive ones they could carry on in no other manner than by ready treasure. The counts, therefore, by the dint of presents, or fines, attained, or I may rather say, purchased estates for life in their offices; but these estates had, at first, continuance only during the joint lives of the granter and grantee[98].

But the matter did not stop here. The example was quickly followed by the other barbarians, who were the immediate tenants of the crown, and who now were growing weary of the constant, or even a frequent change of habitation. And, in one respect, this allowance was of considerable advantage to the king, as it created a tie upon them, equally durable with that by which his companions were bound to him, and wore out by degrees that principle they had before retained, that by throwing up what they held from him, they were absolved from their allegiance. They, therefore, as well as the companions, took the oath of fealty; which, as far as I can find, was taken by none on the continent, whose estates were less than for life; though, in the law of England, it is a maxim, that fealty is incident to every tenure but two, namely, estates at will (for they did not think it reasonable that a person should bind himself by oath, in consideration of what might be taken from him the next day) and estates given in frank almoigne, or free alms, that is, to religious houses, in consideration of saying divine service, and praying for the donor and his heirs; and these were excused out of respect to the churchmen, who were supposed not to need the bond of an oath, to perform that duty to which they had dedicated themselves, and also because the service was not done to the lord, who gave the land, but to God.

Thus estates for life, created by particular grants, went on continually encreasing in number, till the year 600, by which time almost every military tenure, castle-guard excepted, was of this nature. And this accounts for the particular regard the feudal, and from it our law shews to the tenant of the freehold, and the preference given to him above a tenant for years. For, first, his estate was, generally, more valuable and permanent, as long terms were then unknown; and, secondly, it was more honourable, as it was a proof of a military tenure, and of the descent of its possessor from the old German freemen. For it was a long time after that socage lands, in imitation of these, came to be granted in the same manner, for life. The lords, or immediate tenants of the crown, having, by the means afore-mentioned, gotten estates of continuance, and being bound for life to the king, thought it their interest likewise to connect their tenants as strictly to them, by granting them freeholds also; but in the oath of these sub-vassals, which they took to their lords, there was an exception of the fealty due to the king, from whom the land was originally derived, or of a former lord, if such an one they had, to whom they were bound by oath before. These sub-vassals, likewise, had not in those early times, the power of creating vassalages, or estates for life, under them; for it was thought improper to remove the dependence of any military man on the king to so great a distance; and indeed it was hardly worth any man’s while, if it had been lawful, to accept such a gift as was determinable either on the death of the superior lord, or of his vassal, who had granted it, or lastly, on his own death[99].

Estates for life being now become common, and in high estimation, it was thought proper that they should be conferred with more form and solemnity, and that by means of what the feudal law calls Investiture, of which there are two kinds. The first, or proper investiture, was thus given: The lord, or one impowered by him, and he that was to be tenant, went upon the land, and then the tenant, having taken his oath of fealty, the lord, or his deputy (or attorney, as our law calls him) gave actual possession to him, by putting into his hand a part of the premises, in the name of the whole, as a turf, a twig, or a hasp of the door, in the presence of the pares curiæ, that is, of the other vassals or tenants of the lord. This is what our law calls giving livery and seizin, from the lord’s or his deputy’s delivering, and the tenant’s taking seizin, for so the possession of a freehold or estate for life is called. The presence of the pares curiæ was required equally for the advantage of the lord, of the tenant, and of themselves; of the lord, that, if the tenant was a secret enemy, or otherwise unqualified, he might be apprised thereof by the peers of his court, before he admitted him; and that they might be witnesses of the obligation the tenant had laid himself under of doing service, and of the conditions annexed to the gift, if any there were, which the law did not imply: for the benefit of the tenant, that they might testify the grant of the lord, and for what services it was given; and lastly, for their own advantage, that they might know what the land was, that it was open for the lord to give, and not the property of any of the vassals; and also that no improper person should be admitted a par, or peer of their court, and consequently be a witness, or judge, in their causes[100].

Hence it is, that in our law, if a man has right to enter into several lands in the same county, an entry into one of them, in the name of all, is sufficient to vest the seizin, that is, the possession of the freehold of all, in him; because the same pares curiæ (who were in antient times the only witnesses allowed) who know he had in their presence entered into one, know also that he entered that one in the name of all the others; but if the lands lie in different counties (which are distinct jurisdictions, and have different pares curiæ) an entry into one county, in the name of the whole, is not sufficient; because, as to seizin of lands in the other county, the pares thereof are the only competent witnesses.

As the proper investiture required the actual going upon the lands, which was often inconvenient, the improper investiture was introduced. This, which was the second kind mentioned, was also performed in the presence of the pares curiæ, thus: The intended tenant, in a most humble and lowly manner, prays the grant of such an estate from his lord; which, when the latter has agreed to, he invests him, by words signifying his grant, and what it is of, accompanied by some corporeal action, as delivering him a staff, a ring, a sword, or clothing him with a robe, which last, being the most common method amongst the great immediate tenants of the king, gave rise to the name investiture. After this, the tenant did fealty. But this improper investiture did not transfer the actual possession of the land without subsequent livery and seizin, and gave the tenant not a right to enter, but only a right of action, whereby he might sue, and oblige the lord to transfer it by an actual livery. For all these lands, being liable to services arising out of the profits for which the lord was bound to answer to the king, his possession of these profits by their rules was continued, until he had, by an act of public notoriety, namely, by giving livery and seizin on the land, put it out of him. And this maxim was, I apprehend, established also for the benefit of the co-vassals, who could better judge by their own eyes, on the spot, whether an injury was done by the grant to any of them, than by hearing the lands named and described elsewhere, as, in such case, it frequently happened that all the vassals were not present[101].

Hence, if the lord had granted lands by an improper investiture to A, and had afterwards, by livery and seizin, granted them to B, they became B’s, though he was the later invested; and the remedy A had against the lord was not for the lands themselves, for those he had already legally parted with to B, and could not recal, but for their value, in consideration of his having bound himself to fealty.

This was the form and manner of proper and improper investitures in the early times, before these barbarians had learned the use of letters, and was intended not merely for solemnity, but also to create such a notoriety of the fact, as it might easily be proved by viva voce testimony. For if it was denied, the tenant produced two or more of the pares curiæ, each of whom swore he had either been present at the investiture himself, or had constantly heard his father declare, that he was. And this, at first, was the only evidence admissible, and was abundantly sufficient, when the grants were only for one life. Such proof, however, could not be of any advantage to the church; for, though churchmen die, the church doth not, but continues to be represented in a succession of natural persons. If she, therefore, had not a more permanent evidence to produce than what I have before-mentioned, she could never, after some length of time, ascertain her rights. On this account brevia testata, or, as we call them, deeds, were made use of, which were written instruments, expressing the grant, and its nature, attested by some of the pares, and authenticated by the seal of the lord, or by his name and sign of the cross. When this kind of evidence was once introduced, as it was more fixed and certain than the frail memories of men, it became customary for the tenant, who had been invested either properly or improperly, to demand and obtain a breve testatum of that investiture, and afterwards other symbols in improper investitures went out of use, and the delivery of a deed became the ordinary sign; but this, as all other improper investitures, required a subsequent actual livery and seizin.

Having thus delivered the antient and proper method of constituting an estate for life, let us attend to the consequences, and see what were the several rights and obligations of the lord and tenant, and for that purpose examine the oath of fealty.

The general oath of fealty on the continent was thus: Ego N. vassallus, super hæc sancta Dei evangelia, juro, quod ab hac horâ in antea usque ad ultimum vitæ meæ diem, tibi M. domino meo, fidelis ero, contra omnem hominem, excepta summo pontifice, vel imperatore, vel rege, vel priore domino meo, as the case was. In England, Littleton gives this account of it. When a freeholder doth fealty to his lord, he shall hold his right hand on a book, and shall say thus: Know ye this, my lord, that I shall be faithful and true unto you, and faith to you shall bear, for the lands which I claim to hold of you; and that I shall lawfully do to you the customs and services which I ought to do, at the terms assigned; so help me God, and his saints; and he shall kiss the book[102].

The only differences are, that the words ab hac hora in antea usque ad ultimum vitæ meæ diem are omitted: for abroad none but tenants for life swore fealty. In England termers for years did; and that contra omnem hominem, excepto, &c. though implied, is likewise omitted; which exceptions, however, in the English law, were inserted in the doing of homage which the tenant in fee did to his lord.

Such was the general oath of fealty; but to shew what being faithful and true, and bearing faith comprehends, it will be proper to insert, from the seventh title of the second book of the feudal law, the larger oath, which persons, rude and ignorant of what the word fealty implied, were to take. It runs in these words: Ego juro, quod nunquam scienter ero in consilio, vel in facto quod tu amittas vitam, vel membrum aliquod, vel quod tu recipias in personâ aliquam læsionem, vel injuriam, vel contumeliam, vel quod tu amittas aliquem honorem quem nunc habes, vel in antea habebis; & si scivero, vel audivero, de aliquo, qui velit aliquod istorum contra te facere, pro posse meo, ut non fiat impedimentum præstabo. Et si impedimentum præstare nequivero, quam cito potero, tibi nunciabo; & contra eum, prout potero, auxilium meum tibi præstabo; & si contigerit, te rem aliquam quam habes vel habebis injuste vel fortuito casu amittere, eam recuperare juvabo, & recuperatam omni tempore retinere. Et si scivero te velle juste aliquem offendere, & inde generaliter vel specialiter fuero requisitus, meum tibi, sicut potero, præstabo auxilium. Et si aliquid mihi de secreto manifestaveris, illud, sine tua licentia, nemini pandam, vel per quod pandatur faciam; & si consilium mihi super aliquo facto postulaveris, illud tibi dabo consilium, quod mihi videtur magis expedire tibi; & nunquam ex persona mea aliquid faciam scienter, quod pertineat ad tuam vel tuorum injuriam vel contumeliam.

Besides the negative obligations, of doing nothing to the prejudice of the lord or his family, the positive ones the vassals lay under may be reduced to the two heads of counsel and aid; which, with us, are still the principal duties that the parliament, who are, or represent the vassals of the king, owe to the sovereign. Under counsel, not only giving faithful advice, but keeping his secrets was included. Aid may be either in supporting his reputation and dignity, or defending his person or property. Under the first, the vassal was not only to shew him the highest reverence, but was forbid to accuse or inform against him, except in the case of treason, where the supreme lord was concerned. He could not in a suit between them tender to his lord the oath of calumny, whereby he should be obliged to swear he thought his cause was just, and that he did not carry it on with an intent to harrass and distress; for this was throwing an aspersion on his lord’s character. He could not, for the same reason, bring any action against him, whereby he might be defamed, and particularly the interdictum unde-vi, which was a charge against the person sued, of an unjust and violent dispossession of property. Neither could he, in any cause that was not strictly feudal (for in such as were for the general preservation of that polity, he was permitted) bear witness against him. And, lastly, he was obliged to support his dignity, to attend his courts, and do suit and service, as a witness and a juror.

By aid to his person, he was not only obliged to defend his lord, if attacked personally, but to assist him in his wars, and that at his own expence, out of the profits of his tenancy; and if, in the field of battle, he deserted his lord, before his lord was mortally wounded, it was an absolute forfeiture. But this aid he was not obliged to give until required; for perhaps the lord did not need the aid of all his tenants; and the vassal, without notice, was supposed ignorant that there was any occasion for his assistance, unless it could be proved the vassal knew his lord’s danger, when the lord himself did not; or that he knew it was so imminent as not to give the lord time to summon him; in which two cases, he was obliged to serve without requisition[103].

But here some distinctions must be taken notice of as to the nature of these wars. I have often repeated that the king’s companions were bound to assist him in all his undertakings, offensive or defensive; and that the other freemen were obliged only to serve in defensive wars. But now, by this new introduction of grants for life to the freemen, the case was altered. In all defensive wars, they were obliged to aid their lord, though he had been the unjust aggressor, and this for the preservation of the society to which they belonged; but in offensive ones, it was to be considered whether the cause was just, or doubtful, or notoriously unjust. In the two first cases, he was obliged to furnish his aid; for if his lord’s quarrel was doubtful, the respect and reverence he owed him, and his regard to his lord’s character and dignity, laid him under a necessity of presuming in his superior’s favour. But if the war was notoriously unjust, he was at liberty to serve, or not, as he pleased. And the aid he was bound to give, where he was bound, was against all persons, contra omnem hominem, even his parents, brothers, children, and friends, with the following exceptions. First, not against the king, who was the supreme lord of the whole, and in whose preservation and dignity every individual was concerned. Secondly, not against himself, for self-preservation is the first law of nature. Thirdly, not against his original country, though he had received a grant from a foreign lord, and afterwards war broke out between them: for by this time, the opinion of a durable obligation to the state he was born in, began to prevail among them. Lastly, not against his antienter lord, when he had grants from two; for the second obligation could not annul the first. It may here be naturally asked, how such a vassal, who had two lords, was to act in case of a war between them? If his first lord’s cause was just or doubtful, he was undoubtedly bound to him against the subsequent one, even in attacking him; and this was no forfeiture, for the second lord had sufficient notice of his prior obligation, by the exception in the oath of fealty. Indeed, if he, having a lord before, had omitted the exception, he justly lost his fief, for the deceit put on his latter lord. But if his first lord’s cause was notoriously unjust, he was not at liberty to assist him against the second; but by the two bonds was obliged to remain neuter[104].

This military duty was to be done in the vassal’s proper person, if he was capable of it; unless the lord was pleased to accept of a deputy. But if he was incapable himself, as often must have happened, after estates for life came in, he was allowed to serve by a substitute, such as the lord approved. Suppose, then, a man had two lords, who were at the same time at war with others, and each required his personal assistance, it was plain he was obliged to serve both, the elder lord in person, because his right was prior, and the last by deputy[105].

The aids due to the lord, in respect of his property, were, first, to aid and support him, if reduced to actual indigence, and to procure his liberty, by paying his ransom, if taken in war. It was a doubt among the feudal lawyers, whether, if the lord was imprisoned for debts, his tenants were obliged to release him; and the better opinion was, that they were, if the debts did not tend to their very great impoverishment[106].

These were all the aids necessarily required by the law in these antient times. For those for making his eldest son a knight, and marrying his elder daughter, came in afterwards. All other contributions and assistances were merely voluntary, though very frequent, and were originally, as they are still here, and are still called abroad, though imposed really and truly, free gifts.

We are now to speak of the duty of the lord to his vassals; and on this head there is no need of enlarging much: for it was a maxim in the feudal law, that though the vassal only took the oath to the lord, and the lord, on account of his dignity, and the respect due to him from the tenant, took none; yet was he equally obliged as if he had taken it, to do every thing, and forbear every thing, with respect to his tenant, that the vassal was with respect to the lord; so that the bond was in most respects strictly mutual; but not in all, for the lord was not obliged to support his indigent tenant, or to give aids to him; but, on the other hand, he was obliged to warrant and defend the lands he had given to his tenant by arms, if attacked in open war, and in courts of justice, by appearing upon his voucher, that is, the tenant’s calling him in to defend his right, and if the lord failed, he was bound to give lands of equal value, or, if he had not such to bestow, to pay to the tenant (in consideration of the bond for life, he had bound himself to his lord in) an equivalent in money.

As, in case of the vassal’s failure in his duty, the lands returned to the lord, so, in case of the lord’s failure on his side, the lands were vested in the vassal, free from all services to his immediate superior. But to the king, or lord paramount, he still owed service, in proportion to his fief; and by this means he might become, instead of a subvassal, an immediate vassal of the king[107].

Having mentioned the obligations on each side between lord and tenant, it next follows to see what interest each had in the lands given; on which head I shall be brief, as these several rights were not so nicely distinguished as in after ages, when these tenures became hereditary. The lord was then to suffer his tenant to enjoy the issues and profits of the lands, he rendering the services due by the reservation of law, and the additional ones, if any such had been specially reserved. In case of failure, he had, in those antient times, a right of entry for the tenant’s forfeiture. For while this military system continued in its full vigour, the smallest breach the vassal committed in his engagements was an absolute forfeiture; but in after times, when the lands were often given upon other considerations than military service; and when the military was often commuted for pecuniary considerations, a milder way was found out, that is, by distress, by which the lord, instead of seizing the lands, took possession of all the goods and chattels of his tenants found upon the lands, (for the lands were still the mark where he was to take), and kept them as a deposit, till his tenant had made satisfaction, originally indeed at the lord’s pleasure, for the failure in his duty[108].

The right the tenant had in the land was, that, paying the services due, he should receive the produce thereof, and turn it to his own best advantage; and that he might, if attacked in a court of justice, vouch, or call in his lord to defend his possession by arms, or otherwise. But as his tenure was precarious, and only for life, he was prohibited from doing any thing that should either hurt his lord’s interest, or that of the king, in whom and his successors the inheritance was vested. Thus, he could not commit waste, by destroying houses, or cutting down trees, except what was necessary for immediate use, for repairs, firing, or tillage. He could not bequeath his tenancy, for he held only during life. He could not alienate without the consent of his lord, for he had his lands in consideration of his personal service; and although, in case of necessity, he was allowed a substitute, it was only such an one as was acceptable to the lord; whereas by alienation, the real tenant who was bound by oath to do the services out of the profits, was to lose them, and a stranger, perhaps an enemy, who was under no tie to the lord, was to enjoy them. Alienation, therefore, without the consent of the lord, was unlawful. If he consented indeed, and accepted the alienée, he, upon his taking the oath of fealty, became the real tenant, and the former was quit of all positive service, except honour and reverence; but still bound by his former oath from doing or suffering any thing to the prejudice of his former lord. Neither could a sub-vassal, in those early times, create a vassalage to be held of himself. The immediate vassal of the king, indeed, could, but then it was on these terms; first, that the person he granted it to was one that was of the ligeance of the king, either natural or adopted; next, that he was as capable of rendering the services as the grantor; and lastly, that the services reserved should, if not better, which was expected, be at least equally beneficial to the supreme lord as those of the original grant to the intermediate or mesne lord. To explain this, if the king granted ten thousand acres to his immediate vassal, for the service of ten knights, the vassal might give one thousand, indeed, or any lesser number of acres to one person, for the service of one knight; but if he gave more to one, as he had attempted to hurt and lessen the benefit his superior had stipulated for, his grant was void, and in those times, when forfeitures were regularly exacted, the grant of the king to him was forfeited also[109].

In my next lecture I shall say something of improper feuds, as they began to be introduced about the time I am now upon, and were very seldom, in those ages, granted for longer terms than for years or lives, and go on to shew by what means, by what steps and degrees, estates for life grew up into inheritances.

LECTURE VII.

Improper feuds or benefices—Grants to the Church—Grants in which the oath of fealty was remitted—Grants to which a condition was annexed, that enlarged or diminished the estate—Grants which reserved certain other services, beside military service—Grants implying some certain service, as rent, and not reserving military service—Grants reserving no services, but general fealty—Grand serjeanty—Petty serjeanty—Grants to women—Grants of things not corporeal—Feudum de Cavena—Feudum de Camera.

Having, in the preceeding lecture, laid down the manner of constituting a proper beneficiary estate for life, which consisted in lands granted for the defence of the state, upon the consideration of personal military service, and the rights and obligations annexed thereto; it will be proper to mention such, (and to point out the several kinds of them) as are called improper benefices, which are those that, in one or more particulars, recede from the strict, and, in antient times, the usual nature of those grants; and this is more especially necessary, as, since the abolishing the military tenures in Charles the Second’s time, all our present estates come under one or other of these heads. It was a maxim in the feudal law, that conventio modum dat donationi; and therefore, whatever terms the donor prescribed, though varying from the general course, was the rule by which the grant was to be regulated.

In the first place, then, all benefices granted to the church were improper ones, because given on other terms than that of military service, and because they ended not with the death of the grantor or grantee, but continued coeval with the life of the church, that is, for ever[110].

Secondly, Grants of lands, wherein the oath of fealty was remitted; for although fealty itself was an incident, essential to, and inseparable from, every estate of life abroad, and every estate of years also in England, the ceremony of actually taking the oath might be omitted; and if the lord had put the tenant in possession, without his having taken the oath, the tenant might enjoy without it. He was obliged, indeed, to take it whenever his lord called upon him, on pain of forfeiture; unless, in the investiture, it had been expressly remitted; in which case, he might refuse to take it, and justify his refusal by the tenor of his investiture[111].

Thirdly, All grants to which there was a condition annexed, that either enlarged or diminished the estate; as if lands were granted to two, and the survivor of them. This was an improper benefice, as it had continuance for more than one life; or if they were granted to a man for life, provided he did, or refrained from doing such an act. This was improper also, because it might have a more speedy determination.

Fourthly, All grants, in which certain services beside military were reserved, were also of this nature, as if the tenure was by military service and a certain rent, or any other certain duty, or by military service reduced to a certainty, as to attend, suppose forty days and no more, or by military service with a power in the tenant to excuse himself, by paying a certain sum. For the proper fief was for military service only, the occasions and duration of which were uncertain[112].

Fifthly, If military service was not reserved at all, but some other certain service instead thereof, as rent, the grant was an improper one, and such are our tenures, since they have been reduced to socage, which is derived from soke or soka, a plough, because their duty was originally to attend a certain number of days to plow their lord’s grounds, or else to supply him with a certain quantity of corn in lieu thereof. This manner of paying in kind, namely, by corn, cattle or other necessaries, was continued every where many ages; in England, until the time of Henry the first, when they began to be commuted into money, to the great advantage of the successors of these socage tenants, whose estates were before become hereditary. For the computation being made at the rate and proportion of value between money and the necessaries of life at that time, as money grew more plentiful every day, its value continually sunk, and the price of commodities accordingly increased; in so much that the present successor of a tenant at that time, who had before paid a fat ox, which was changed into twenty shillings, its then value, would now pay but the eight part of the original reservation, when the price of an ox is eight pounds. And this contributed not a little to the happy equality which now reigns among all ranks, as these baser, the socage tenures, were continually rising in value, and consequently in consideration, and coming every day nearer to an equality, in the estimation of the world, with the nobler, the military benefices[113].

Sixthly, If no services at all were reserved, except general fealty, which could not be remitted; for it was thought reasonable, not only to grant lands in consideration of future military service, but also to reward such as had deserved eminently, and were perhaps maimed or mutilated, and so unfit for future service, with lands free from such, or any other duty.

Seventhly, Grand serjeanty is a benefice of an improper nature, even though it be reckoned a military one, because it is reduced to a certainty. Grand serjeanty is a certain service done by the body of a man to the person of the king, and is of two kinds; military, which is to be done either in or out of the realm; and not military, which is to be done within the realm. Military, as when lands are given on condition of carrying the banner of the king, or his lance, or to lead his army, that is, to be his constable; or to number and array his army, that is, to be his marshal; but these being certain services, and due to the person of the king, they were not obliged to attend, but where he went in person; and this right they insisted on so strongly, as had almost occasioned a rebellion in the time of Edward the First; who, although in most things an excellent prince, was of an hot and haughty temper[114].

Having determined to attack France on two sides; in Flanders, where he intended to command himself, and in Guienne; he ordered the Earl of Hereford, high constable by tenure, and the Earl of Norfolk, marshal by tenure, to lead the army in Guienne, as his generals and commanders in chief. But, however honourable and pleasing in other respects the offer might be, they feared that such a precedent, quietly complied with, might be, in after times, a means of introducing new and hard services at the king’s pleasure, instead of the antient and known ones. They, therefore, flatly refused, unless he went thither himself; offering, at the same time, to serve under him in Flanders. The king, boiling with resentment against France, and provoked at this contradiction to his pleasure, however justly founded, threatened Norfolk, in a transport of passion, with hanging; to which the other replied, with equal fierceness, and total want of respect. The two Earls retired to their estates, put themselves in a state of defence, and even committed several outrages against the king’s collectors; and their cause was generally espoused by the nation, who were against the king’s exacting any new and unheard-of services. The behaviour of these lords to their sovereign, and to such a sovereign, in setting him at defiance, and that with terms of disdain, when they themselves were the aggressors, was utterly unjustifiable; but, from their cause, notwithstanding this behaviour of theirs, being universally espoused by the nation, we may clearly see the opinion and judgment of those times; that their kings were not unlimited, and that they had no right to exact from their vassals any services but those that flowed from their tenures. The king, indeed, at first gave their lands and offices to others; but when he had cooled, and found they had insisted on no more than was their right, he, in the frankest manner, repaired his error. He gave in parliament a new confirmation of Magna Charta. By another statute, he renounced all right of taking talliages, that is, levying taxes, even on his own demesnes, without consent of parliament, as contrary to that charter; and in the body of this last act, in the amplest manner, remitted all disgust and resentment against the two earls and their associates; and gave them the fullest indemnity for the offences they had so outrageously committed. Such conduct in any king, whose subjects were not disposed to esteem him, might have been as a sign of weakness, and have been attended with dismal consequences; but in Edward’s realms there was not a man that did not admire his wisdom, adore him for his valour, his honour, and his sincerity. He could encroach without incurring hatred, and he could retract without being thought mean; so that it may be a question, whether, by the noble manner of his repairing his mistake, he did not tie his subjects to him with stronger bonds of affection, than if he had never committed it[115].

The grand serjeanties that are not military are of various kinds, being offices and services done to the person of the king within the realm, in order to the support of his state and dignity; for which reason, although they are not, properly speaking, military services, yet they are looked upon in that light, and are endowed with the same privileges, and subject to the same regulations, except in a few instances, to be hereafter mentioned; so that no person under the rank of the lesser nobility, that is, of knighthood, was capable of performing them; and therefore, when, by allowing the alienation of lands, these tenures fell into the hands of persons of inferior quality, they were either knighted, or appointed a deputy of that rank. Thus, at the coronation of Richard the Second, as we find in Lord Coke, William Furnivall claimed to find a globe for the right hand of the king, and to support his hand on the day of his coronation, in virtue of the manor of Farnham, which he held by that grand serjeanty; but, though descended of a noble family, he was not permitted to perform it in person, until he had been dubbed a knight. At the same coronation, John Wiltshire, citizen of London, claimed to hold a towel while the king washed before dinner, which claim being allowed, as he was of too low rank to perform the service in person, he made Edmund Earl of Cambridge his deputy. Women likewise and minors were obliged to serve by deputy; as did, at that time, Anne Countess-dowager of Pembroke, by Sir John Blount, and her son John Earl of Pembroke, a minor, by Edmund Earl of March[116].

These grand serjeanties, which were most of them lands granted for the doing certain duties at the solemnity of the coronation, contributing to the splendour and dignity of the crown, have been still retained, though all other military tenures have been changed into free and common socage. However, all these grand serjeanties were not for the bare purpose of attending at coronations. The lord high stewardship or seneschalship of England, of which the duty is to preside at the trials of peers, was annexed to the barony of Hinckly, which, passing into the family of Leicester, and then into that of Lancaster, in the person of Henry the Fourth was united to the crown; but ever since that time, as the powers and privileges the law threw into his hands were looked upon as too extensive, and dangerous, if continued, this officer hath only been occasionally created, as for a coronation, or the trial of a peer, which ended, he breaks his staff, and the office is vacant[117]. The same is the case, and for the same reason, of the office of high-constable, ever since the attainder, in Henry the Eighth’s time, of Edward Duke of Buckingham, who enjoyed it as Earl of Hereford. Thus did the crown get rid of two considerable checks, which concurring with other more extensive and influencing causes, helped to raise the power of the house of Tudor above what the princes of the line of Plantagenet had enjoyed[118]. The office of earl marshal, indeed still continues in the noble family of Norfolk. For, notwithstanding the attainders of that family, when they were restored, it also was restored to them. The reason is, because this office is of little power; indeed, in the vacancy of the constable to whom he is properly an assistant, scarce of any at all. It being, therefore, an honourable dignity, and attended with no danger, it is no wonder it hath remained[119]. In this kingdom one grand serjeanty remained till the year 1715, in the family of Ormond, that of butlerage; but it differed from those before-mentioned in this, that it was not a service arising from a grant of lands, but of the prisage of wines, an antient profit of the crown, due by prerogative, namely, a right to take two tons of wine, one before the mast, and the other behind, out of every ship containing twenty tons or more, until Charles the Second purchased it from the Duke of Ormond by a perpetual pension of four thousand pounds a year[120].

Eighthly, Petty serjeanty was another species of improper benefices, and, in our law, was comprised under the general head of socage, because the service was certain. It is, as Littleton[121] defines it, where a man holds his land of our sovereign lord the king, to yield to him yearly a bow or a sword, or a dagger, or a knife, or a lance, or a pair of gloves of mail, or a pair of gilt spurs, or an arrow, or divers arrows; or to yield such other small things belonging to war; so this, as well as grand serjeanty, was a tenure of the king’s person, and could not be held of a subject. Such is the grant the Lord Baltimore hath in his province of Maryland; for he yields every Christmas five Indian arrows, besides a fifth of all gold and silver found within this province.

Ninthly, All grants to women were of the nature of improper ones, because they must always serve by deputy; and personal service is essential to the proper military tenures[122]. But these were not introduced so early.

The tenth kind, and the last that I shall mention, of improper benefices, are those that are of things not corporeal, and of which, consequently, there cannot be a possession manually delivered over, that is, they do not admit of livery and seizin, and therefore can be only conveyed by the improper investiture, that is, by words or writing, accompanied by a symbol. Such are rights in, or profits issuing out of land, where another hath the possession of it. As the feudal law distinguishes between corporeal things, whose possession can be actually transferred, and incorporeal, which cannot; so doth our law make what is the same distinction between things that lie in livery, and things that lie in grant. In the first, it regularly requires an actual livery and seizin, and here a deed is not absolutely necessary; but the second pass by the delivery of the deed. Here therefore a deed is absolutely necessary; for although the feudal law admits the use of other symbols in this case, ours, for the greater certainty, precisely requires this peculiar one, that there may be full evidence of what was conveyed. Of this last tenth kind as there are many and various species, I shall run over some of them in a cursory manner, to explain and shew their general nature.

The first I shall take notice of is, that which, I presume, was the most antient, as it seems to have come in the place of those repasts the king gave to his comites, or companions, and is what is called feudum de cavena. Cavena signified the repository, or repositories of the necessaries of life, while in those ancient times the services due from the demesnes, or the socage lands, to the king or lords, were paid in kind. Things therefore necessary, or useful for the support of life, distributed in specie, out of the king’s or lord’s cellar or pantry, or both, were what the feudum cavena consisted in; and that this came in place of the antient constant entertainments, and feasts, of the comites, or companions, appears from this, that it was a rule, even after other grants were allowed to be hereditary, that these determined with the life of the grantor, or grantee, which ever first happened to expire. These grants likewise were of two kinds; some granted in consideration of future services, upon the failure of which a forfeiture was incurred, others, in reward for past services, where nothing was expected for the future but general fealty. This difference runs through many other of these gifts that lie in grant. For the feudal law distinguishes them into officiosa, that is, to which a positive duty is annexed, and inofficiosa, where no subsequent service is required, but general fidelity, which is incident to every tenure[123].

The second I shall mention is feudum de camera, which, I apprehend, was originally a substitution for what I have just mentioned, the feudum de cavena; for it was instead of an allowance of necessaries out of the cellar or pantry of the king, an annual allocation of a sum of money for will, life, or years, according as it was granted out of the camera, or chamber where the king or lord kept his money; and this was, as the other I before mentioned into whose room it came, either a reward for past services, in which case no future duty was required, or on consideration of future ones. The pensions granted by the king in our kingdom (Ireland) out of his revenue, are of the nature of the former; and the salaries to judges and other officers are of the nature of the latter. What was common to both of these, the feudum de camera & de cavena, was, that, by the feudal law, they were not due at the stated time, unless there were provisions in the cavena, or money in the camera, and that free from debts; for the lord’s safety and dignity was to be first considered; but they were to wait for their arrear, till provisions or money came in.

Another thing is to be observed, that, although, at the introduction of these tenures, all others were for the life of the grantor and grantee at most, yet when the others became perpetual, these continued long after to be only for the joint lives of the grantor and grantee, namely, as long as kings and great lords were considered as tenants for life, and incapable of alienating their demesnes, or laying any permanent charge upon them. But when, by the frequency of the example of alienations, and by the occasional indigence of the kings and other lords, and the desire designing persons had to take advantage of it, alienations of the demesnes were once introduced, to the prejudice of the successor, these grants, as was very natural, as they were less hurtful than an absolute alienation, were continued for the life of the grantee, though the grantor had died before[124].

LECTURE VIII.

Feudum Soldatæ—Feudum habitationis—Feudum Guardiæ—Feudum Gastaldiæ Feudum mercedis—Incorporeal benefices in England—Advowsons—Presentative advowsons—Collative advowsons—Donatives.

In the preceding lecture I began to treat of the several kinds of improper benefices, which are transferable only by the improper investiture, or, as the English law says, lie in grant; intending only to illustrate their general nature, without descending minutely into particulars; and of these I have already mentioned the feudum de camera, and that de cavena. I call these fiefs, even at the time I am now treating of, in conformity with the practice of the feudal writers: not with strict propriety, indeed; for feudum, properly speaking, signifies a tenure of inheritance, and such were not yet introduced. But before I quit them, it will be proper to take notice of some subdivisions of them, to be met with in the feudal writers.

I have already observed they were either gratuitous or officious, that is, without future service, or with it. Of the first kind there were two species, that called feudum soldatæ, from the word solidus, which signified a piece of money, and was a gratuitous pension, granted either out of the charity or bounty of the lord, or in reward of past services; the other called feudum habitationis; which is liberty of dwelling in an house belonging to the lord, in whom the property still doth, and the possession is still supposed to remain[125]. Of the officious ones Corvinus mentions three kinds, feudum guardiæ, feudum gastaldiæ, and feudum mercedis.

The feudum guardiæ hath annexed to it the defence of a castle, for the security of the realm; and this differs from the castle guard I have before mentioned, in as much as that, where lands were given for the defence of the castle, it was a corporeal benefice, and transferred by livery and seizin; namely, by admitting the constable into the castle, and delivering him the key thereof, and was an improper one only in respect of its duration, as, in the early times, it continued only a year; but this I am now speaking of was a pension, paid out of the king’s exchequer for the same purpose; and was of the same nature with the modern salaries of governors of garrisons[126].

The feudum gastaldiæ was a pension granted to a person for transacting the lord’s business, as for being his treasurer, steward, agent, or receiver. The feudum mercedis was in consideration of being an advocate or defender of the lord. Such are grants to lawyers pro consilio impendendo; and the salaries of the king’s lawyers, and the solicitors for the crown[127].

I shall next run over briefly the several kinds of incorporeal benefices which the law of England takes notice of, and explain their general nature. And the first I shall take notice of is an advowson, which is a right a man hath of nominating a proper person to fulfil the duties, and to receive the profits of an ecclesiastical benefice. These rights arose thus. In the infancy of the christian church, when the clergy were supported by the voluntary contributions of the people, the bishop was chosen by the clergy and people at large; and this method was so firmly established, that when the emperors became christians, although they made great donations of lands to the church, yet they left the manner of election as they found it; and so it continued in Rome until the year 1000 at least. But these elections, made by the giddy multitude, were the occasions of infinite disorders. The value of these offices being encreased, and the manners of the ecclesiastics corrupted by the accession of riches; parties and factions were eternally forming, and supported by all methods; and when a vacancy happened, the contest was frequently not decided without bloodshed. It is no wonder that all the sober part of the clergy, who were scandalized at these irreligious practices, and the emperors, who were concerned in the peace of their dominions, concurred in remedying these evils; which was at length effected by excluding the laity, gradually, and by insensible degrees, and confining the election to the ecclesiastics. Many of the emperors, indeed, struggled hard to get the nomination to themselves, but the clergy proving too powerful for them, they obtained, at most, but a power of recommendation[128].

In the northern kingdoms the same causes produced the same effects, as to the exclusion of the laity, but with more advantageous circumstances to the rights of these princes. For as the lands they gave to the bishops in right of their churches were held of them, so they gave the investiture; and there was a kind of concurring right between the clergy, who elected, and the king. He insisted on his right of giving the investiture, but generally received their nominee, and granted it to him.

But after the time of Charles Martel, when the clergy were stripped of most of their lands, things took a different turn. For when new grants were made to the church by the king, he insisted, as feudal lord, on the absolute nomination, and the giving investiture, by delivering the staff or crosier, the emblem of his pastoral care, and the ring, the symbol of his spiritual marriage with the church; but these rights were opposed by the clergy, who were strongly supported by the popes then setting up for being the feudal lords of all churchmen, and who hoped to derive, as they did, great advantage from these dissentions. From the year 1000 to 1200, great confusion subsisted throughout all Europe, occasioned by these contests, until the popes in general prevailed; but for four hundred years past, and particularly since the reformation, their power hath been on the decline; and from this last period the patronage or advowson of bishoprics hath been confessedly in our king, as hath been the case in several other kingdoms; and though in England a form of election is still retained, it is no more than a mere form[129].

The advowson, or patronage of inferior benefices, came in another way. In order to understand this, let us consider how dioceses came to be subdivided into parishes. Antiently, I mean about the year 420, the bishop had the sole cure of souls throughout his whole district, and received all the profits of it; which he and the clergy distributed into four parts, not exactly equal ones; but unequal, according to the exigences of the several interests to be considered; one to the bishop, to maintain hospitality, and support the clergy residing with him, and the Christians of other places, who were often forced to fly from persecution, or travelled on their necessary concerns; one for the building and repair of churches; one for the poor, and one to support the inferior clergy, whom the bishop used to send to particular places, as his deputies, and to remove or recal at his pleasure. The clergy who lived in the city where the bishop resided, were supported by him in a collegiate way at first; until at length their particular shares were ascertained, and carved out of the general revenue of the church; and this was the origin of chapters[130].

To return to the country clergy. The manner in which they came to have settled establishments was thus: It was usual, as soon indeed as tithes were established as a law, that is, before or about the time of Charlemagne, for the bishop to allocate to his vicar or curate in any district, the whole, or a part of the tithes or other profits arising there; but when England, France, and other countries were ravaged by the Danes and Normans, the fury of these barbarous heathens fell particularly on the ecclesiastics. Their churches they burned, and themselves they slaughtered without mercy; insomuch that, when their devastations ceased, there ensued not only a great scarcity of clergymen, but such a want of means of proper support for them (the old estates of the church having been turned into military fiefs) that the feudal lords were willing, for the sake of having divine service performed in their districts, for the benefit of themselves and their vassals, to alienate part of their lands to the church, which was then in indigence, for the purpose of building houses for the parson, and providing a competent glebe for him, and also for building new churches where they were wanted. Altho’ alienation was at this time entirely disallowed by the feudal customs, yet the necessity of those times prevailed against it in those instances, especially as these superstitious people attacked, or ready to be attacked by an heathen enemy, thought the lands so given to be really given for military service, as they were given for the service of God, the Lord of Hosts, who was to speed their arms. However, the circumstances and opinions of that age would not allow any grant, without an acknowledgment of the superiority of the grantor; nor allow any lord to give any grant materially detrimental to his military fief. Hence, as an acknowledgment that the lands so granted to the church proceeded from the bounty of the Lord, he was allowed to nominate a clergyman to the bishop; who, if he was qualified, was obliged to admit him. But as the patron might present an improper person, and such an one as the bishop must be obliged in conscience to reject; and might do this repeatedly, for any considerable length of time, during which the duties of religion would be neglected, it was, in after times, settled, in all countries, that the right of the patron’s presentation should last only a limited time. In our countries it is six months; after which time lapsed from the vacancy, the bishop’s original right of nomination revives[131].

But the customs of those ages not admitting of the alienation of any part of a military tenure, but what was absolutely necessary, it followed that these glebes were far from being sufficient for the maintenance of a parson. These grants, therefore, were not made without the consent of the bishop, to allocate, in aid of the glebe, the tithes of that precinct, to the use of the parson. And now the parson began to have a permanent interest for life in his parish, and a permanent cure of souls therein; but not exclusive of the cure of souls in the bishop, who was concomitant with him in that point, though not in the profits. For when the bishop, for the good of the church, appropriated a part of the revenues of the church to a particular person and his successors, which, for the public good, he was allowed to do, he could not, however, divest himself, or his successor, of that general cure of souls through his whole district, which was the essence of his office. As the parson, therefore, though named by a layman, was his deputy, he was in truth (to speak by way of accommodation) his feudal tenant. From him he received institution, which is the improper investiture; to him he gave the oath of canonical obedience, which is equivalent to the oath of fealty; and by him, or persons appointed by him, he was inducted into his church, that is, had livery and seizin given him[132].

This was the origin and nature of presentative advowsons, in which, though a matter ecclesiastical, the lay patron was allowed to have a temporal and a valuable interest: inasmuch as it might serve for a provision of one of his children, or any other relation that was qualified for it; and consequently be an ease to him; and as, at the time that these glebes were granted, most fiefs were hereditary, at least none were suffered to be granted but by those who had such (because the lord superior might else be disinherited) this right of advowson presentative descended to the heir. The church in its distress exceedingly encouraged and fostered these rights for a time; but when her circumstances changed, and, in ages when profound ignorance prevailed both among the clergy and laity, many were the attempts to deprive the laity of their rights, and many the exclamations against the impropriety and impiety of such persons pretending to name any one to an holy office. But I do not find they ever thought of restoring to the laity the glebes, in consideration of which, for the necessities of the church, those rights were first allowed.

Thus much for presentative advowsons, which, I hope, from what hath been already observed, will be sufficiently understood for the present. I now must proceed to collative advowsons, namely, those given by the bishop, which were of two kinds; either absolutely in his own right, or by lapse, when the patron neglected to present; which was in truth but a devolution of the antient right he had parted with, to him; and therefore, as there is no substantial difference, they may well be treated of together. As the bishop in the case of lapse, collates, that is, institutes in his former right in default of the person who had the right of presentation, I observed before, that the bishop had used to grant to the country clergy a part or the whole of the tithes of the precincts they served in; but when once, by the allowance of presentative advowsons, parsons had got freeholds in them, the example became contagious, and much to the benefit of the church. Those parts of the diocese which still remained in the bishop’s hands were divided into parishes; and the tithes of them, or at least a considerable part of them, were assigned to the minister for his life. I need observe no farther of these, than to say, that they differed no otherways in their nature from the last mentioned, than that, as a patron had nothing here to do, there was no presentation, and that collation is, in the case where the bishop hath the sole right, what is called institution in the case of a clerk presented.

The third and last kind of advowsons are those called donatives, in the giving seizin of which the bishop hath nothing to do, such livings being privileged, and exempt from the jurisdiction of the bishop, and visitable by the patron only. How these exemptions arose, when, at first, every place was a part of a diocese, and of the bishop’s cure of souls, it will be worth while to inquire. The bishops of Rome, aided by their great riches, and the fall of the western empire, did, by pursuing a settled plan for many hundred years, with the greatest art and unshaken perseverance (temporizing indeed when the season was unfit, but never giving up expressly any point that had been claimed) at length, instead of being the first bishops in rank, attained to a jurisdiction over all the west, and claimed a general cure of souls, which made the bishops, indeed, but pastors under them. However, conscious of their usurpations, in order to establish them, it was necessary to depress the episcopal order.

They began first with dismembering bishoprics, in order to found new ones, on pretence of the churches being better served; and this they did principally in Italy, where their influence was most extensive; and that with a view, by having a greater number of votes, to over-rule the determination of the general councils. They did the same, but more sparingly, for the reason aforesaid, in other countries, with the sovereigns; who, in these cases, were really actuated by the motive of advancing the public good, and promoting religion. The next step was more decisive. Their authority being now established, they took occasion, on several pretences, to exempt from the jurisdiction of the bishops, several places within their dioceses, which they kept immediately under themselves, to which they appointed clerks by this way of donation, and whom they visited by their legates, as their immediate ordinary. The clergy, thus provided for, served as faithful servants and spies to the pope, in all parts of the christian world, and were, next to the monasteries, the firmest support of his power. The same practice they pursued with respect to bishoprics, by exempting several of them in divers places from the archbishop of the province. And this was the origin of donatives. But, in order to shew the plenitude of their power, the next step they took was of a higher strain. They not only founded donatives for themselves, but for others, even of the laity; shewing by this, that all ecclesiastical jurisdiction and discipline was entirely subject to their will, and that, at pleasure, they could transfer it to hands before judged incapable of it.

These two kind of donatives still subsist in England, the latter in the hands of subjects, the former of the king as supreme ordinary, since the pope’s usurped power was transferred to Henry the Eighth. I am sensible many common lawyers insist that the king of England was always supreme ordinary, and that nothing new was gained at that time, but only his old authority, which the pope had usurped, restored to him. But what shall we say to the first fruits and tenths; which are certainly papal impositions, and comparatively of a modern date. The same I apprehend to be the case of the ordinary jurisdiction. As to the supreme patronage, I allow it was, originally, the king’s. My reason is, that I do not find in the antient church any trace of a layman solely exercising ecclesiastical jurisdiction, or enacting laws for the church[133].

In the apostolic times all things were transacted by the faithful at large; in the next age, they fell into the hands of the clergy, all excepting the election of bishops, and approbation of clergymen. After the emperors became christians, they published indeed ecclesiastical laws, but that was only giving the sanction of the imperial power to the canons the church had made; whose censures, when there were such multitudes of new and counterfeit converts, were likely to have little weight. In the northern nations the case was the same. Canons were made by the clergy, and these were often enforced and turned into obligatory laws by their general assemblies, who had the legislative authority; and if there are any instances in those times of laymen exercising ecclesiastical discipline as ordinaries, I own they have escaped me. I speak merely of ecclesiastical discipline: for as to things of a temporal concern, such as wills, administrations, marriages, tithes, &c. the authority undoubtedly was from the king. But not as to matters entirely spiritual, such as concern the salutem animæ[134].

I think therefore the king’s title to be supreme ordinary, stands better settled on the parliamentary declaration, and on the reason of the thing, that all coercive power should be derived from him, whom God hath made the superintendant; than on the assertions of lawyers, that it always was so. Matters of fact are to be determined by evidence, not by considering what ought to have been; and we need not be surprized to find, that an ignorant and superstitious people allowed practices, and a division of power in themselves unreasonable.

In these donatives there was neither institution nor induction. The patron gave his clerk a title by deed, on which he entered; for the plenitude of the papal power supplied all forms. The patron was the visitor, and had the power of deprivations; but what clearly shews, in my apprehension, that these donatives were incroachments on the episcopal authority, is, that, if once a common patron (for the king was saved by his prerogative) had presented his clerk, and he got institution and induction, the donative was gone for ever. The living became presentative, and the bishop’s jurisdiction revived.

I should next proceed to tithes, another kind of incorporeal benefice; but this would carry me too great a length for the present discourse.

LECTURE IX.

Tithes—The voluntary contributions of the faithful, the original revenue of the church—The establishment of regular payments—The appropriations of the church—The history and general rules of tithes in England.

The next kind of incorporeal benefices taken notice of by the law of England, that I shall mention is tithes; the New Testament, as well as common reason, says, that they who serve by the altar, should live by the altar; but is silent as to the manner in which this support should arise. In the very first times, when their numbers were but few, and those confined to Jerusalem and its neighbourhood; the christians sold all they had, and lived out of the common stock. But this lasted a very short time. When they increased to multitudes, that method was found impracticable, so that each retained his possessions, and gave a voluntary contribution out of it at his discretion. This was the fund of the church; and in those times of fervent zeal in the laity, and simplicity of manners in the clergy, it was found abundantly sufficient, not only to support the ministers, and their own power, but also to build churches, and to do many acts of charity to some of the pagans.

The revenues of the church went on continually encreasing to the time of Constantine; and though by the Roman laws, no colleges, as they called them, that is, communities or fraternities, unless they had the sanction of the imperial authority, could accept legacies or donations, yet, such was the devotion of the times, that many such private grants were made; and the principal churches obtained great acquisitions, not only in moveable goods, but in landed estates; insomuch that some of the persecuting emperors were thought to be as much instigated to their cruelties by avarice, as by their blind attachment to their pagan superstition[135].

In the fourth century, the restraint being taken away, these largesses from the rich and superstitious, to the church became much greater; but the general voluntary contributions from all who could spare, diminished, the apparent necessity for them being lessened; and the zeal of the people, which persecution had kept warm and fervent, slackened from ease and security. The bishops, who were the distributers, prided in vying with each other in the magnificence of their churches; and, being now raised to an eminent rank in the state, were not satisfied to live in such a manner as contented the simplicity of the antient fathers of the church; so that by the year 400, the inferior clergy and the poor were, in many places, but in very scanty circumstances. This induced many of the pious to fix upon a certain rate out of their own annual gains to supply these necessities, and as the tenth was what had been assigned to the Levites in the mosaical law, that generally became the proportion. But as the payments of those tithes were purely voluntary, so did the givers appropriate them in such manner as they pleased, and as they thought they were most wanted[136].

In Egypt, where, it seems, this practice began, they were commonly given to the monks, who had devoted themselves to a religious poverty; in Illyricum generally to the poor; in other places to the inferior clergy of such a district, or, if the church itself was indigent, to the bishop, for the use of his church. The famous preachers about this time, particularly St. Ambrose and St. Augustine, inforced this practice with all their eloquence, and insisted on the levitical law of tithes as binding on christians. This had great, but not general effects. Some gave the tithe, others, of more zeal, gave more, and others less; and though these contributions began now to be aided by the spiritual arms of excommunication, yet were these only used to oblige a man, in testimony of his being a christian, to make some offering, not to pay precisely the tenth, or any other portion[137].

These payments of the tenth hitherto we see were voluntary; but there soon came in another practice, which, in particular places, made them compulsory. It was usual when a patron founded a church, in order for its support, to charge his lands with the payment of tithes to the minister who officiated therein. This created a permanent right in the church, not by the force of any general law, or canon (for all such attributed to these ages are forgeries of a later date) but from the especial gift of the grantor, and the power he had to charge his land. The earliest authority that proves a general right of tithes, through any country of Europe, is to be met with in the council of Mascon, held under king Guntram, who reigned in the south-east parts of France, in the year 586. There the right of tithes, through all his dominions, is acknowledged as an antient duty due to the church; and they are enjoined to be regularly paid. But it is observable, in the very words of this law, that the tithes so paid were not solely appropriated to the clergy, but much of them applied to other charitable uses, unde statuimus, ut decimas ecclesiasticas omnis populus inferat, quibus sacerdotes, aut in pauperum usum, aut in captivorum redemptionem erogatis, suis orationibus pacem populo & salutem impetrant. Thus the kingdom of Burgundy was the first that established the universal payment of tithes by a positive law. This payment, in the other parts of France, was long after at pleasure, or by particular foundation; but was daily gaining ground, especially after the impoverishment of the church by Charles Martel rendered them more necessary; and his grandson Charlemagne was the first that established them by a positive law, made in a general assembly of the states, through all France; and that as due by a divine right, in the year 778. And as he and his successors were masters also of Germany and Italy, the same law and opinion soon passed into those countries[138].

But as positive as his law was, in the direction of payment of them to the bishop or priest, it was for a long time not universally obeyed, and where it was obeyed, often shamefully eluded, as appears by the laws of his successors, and many ecclesiastical canons framed for the redressing those mischiefs. For as a portion of the tithes was originally distributed to the poor, under this pretence, it was customary for the superstitious laity, when they granted the tithes, instead of aligning them for the maintenance of the ministering, i. e. the secular clergy, to appropriate them to monasteries, which were societies of voluntary poor. These appropriations, or consecrations, as they were called, became very numerous, both from the unbounded veneration paid to the monks, and from the encouragement such grants received from the see of Rome, which looked upon the monastic orders as its fastest friends, and was bent upon raising them on the ruin of the secular clergy. But as the monks of those times were generally laymen, and incapable of serving the cure, it grew into a practice for them, if any of their own body was fit for the purpose, to get him ordained; or if they had none, to employ a secular priest, to perform the divine offices, under the name of their vicar or deputy, who was to account with them for the profits, and was to receive for his subsistence a stipulated proportion; and thus came in the division of parochial tithes, into rectorial and vicarial; the former remaining in the employer, the latter in the employed, who did the duty[139].

The same pretence of appropriating the tithes to the poor gave a handle likewise to many, when they found it necessary to pay tithes, to grant them to laymen in fee, under the like conditions and services as other fiefs; and many likewise were the unworthy churchmen, who turned the incomes of their church into provisions for their families, by granting them in fief. Thus, in process of time, were the ministering clergy, and the real poor, for whose support the tithes were originally granted, in a great measure stripped of them; and they were converted either into lay inheritances, for secular services, or applied to the support of monasteries; and both these abuses began under the specious pretence of charity. The latter, viz. the grants to monks, was always favoured by the heads of the church; and the former, in spite of all their censures, prevailed, until, at length, it was found necessary to apply some remedy to both. The evils were too inveterate to be finally removed; but this temper was found out in the council of Lateran, held in 1215, when it was enacted, That all tithes which from time immemorial had been given in fief might so continue, but no more be granted in that manner for the future; and the appropriations to monasteries were confined to three orders of monks who were looked upon as the most learned, and capable of furnishing men fit for the duty[140].

I shall proceed now to say something of the fate of tithes in England. That tithes had been paid in several parts of England during the heptarchy, and established by law in some of its kingdoms, is undeniable; but the first who ordained them by law, through all England, was Ethelwolf, in his parliament of the year 855; who had been himself, in his elder brother’s life, designed for the church; in this imitating Charlemagne, at whose court his father had long resided. This may well be allowed, although those authors that give us the copy of this law differ in the date, both as to the time and place where it was made. But be that as it may, his son Alfred certainly made a law for this purpose, to bind not only his own English, but also the new converted Danes, to whom he assigned seats in his kingdom, and whom he had submitted to the government of Guthrun. Such laws were renewed by almost every one of his successors down to the Norman conquest; an evident proof, that however zealous those princes were for the support of the church, their pious intentions were but ill seconded by their people. The severity of the law of Edgar was remarkable, and of itself sufficient cause of their backwardness; for it made the non-payment of the tenth a forfeiture of eight-tenths. The præpositus of the king and bishop, that is, I presume, the sheriff and arch-deacon, were to seize the fruits out of which the tithes had been with-held, and when they were divided into ten parts, one was given to the church that had been defrauded, another to the proprietor, and the remaining eight were divided between the king and the bishop[141].

During these times appropriations of tithes, to other churches than the parish one, and also to monasteries, were frequent, here as well as on the continent; but, for some time after the conquest, the largesses to the monks, with respect both to lands and tithes, encreased considerably, and were continually encouraged by the popes, the kings, the bishops, and nobility; by the popes for the reason already given; by the bishops and nobility, who were all Normans or foreigners, out of partiality to their countrymen (for such the monks generally were) and out of contempt and hatred to the secular clergy, who were universally English; by the kings, not only for this last mentioned cause, but for another peculiar to themselves. The government of the Saxon kings was remarkably moderate, and their laws and constitutions extremely favourable to the liberties of the people. The first race of Norman kings pretended, indeed, a right to the throne, and every one of them swore to observe the Saxon laws, with such emendations as had been consented to in parliament by William the First. But the conduct of every one of them shewed how little regard they had to that obligation, and how bent they were on setting themselves free from all restraint, and to destroy all traces of the old Saxon laws. For this purpose it was absolutely necessary to depress the secular clergy; who, in those times of ignorance, were the only lawyers; insomuch, that, in William the Second’s reign, it was said, nullus clericus, nisi causidicus; and, to render them unfit guardians of those privileges, the kings were resolved to trample upon them. For this end, a new language and new forms of proceeding were introduced into the courts, the secular and ecclesiastical jurisdictions, which had been united, were separated; and the clergy were banished from the temporal courts, and the greatest part of the business which formerly had been transacted in the country courts was transferred to the curia regis, under the immediate inspection of his judges[142].

Thus were the secular clergy daily reduced in circumstances and importance, while the monasteries flourished on their downfall. However, about the time of Henry the Third (for it is hard precisely to fix when it became an allowed maxim of the English law) all tithes arising in any parish were, of common right, payable to the priest of that parish, unless they had been previously appropriated to some other priest, or monastery, either by a positive appropriation appearing, or by prescription where that was lost, and that no layman could prescribe against the payment of them. I say no layman, for with respect to ecclesiastics, the case was otherwise. It had, indeed, been a controversy in France several centuries before, whether the lands of a church or monastery should pay tithes to the parish minister where they lay; but it was determined by the better opinion that they should. However the bishops of Rome, in complaisance to their friends the Monks, granted to many monasteries an exemption from tithes for their lands. And these are the lands, which we see at this day in the hands of laymen discharged of tithes, by virtue of a statute in the reign of Henry the eighth; before I proceed to which, it will be proper to take notice of what a modus is, as they were introduced in those early times.

A modus, then, is a composition for tithes in kind, within a certain district; whereby the layman is discharged from rendering his tithes, on his paying to the parson, in lieu thereof, what the local custom of that place directs. These compositions were originally for the mutual benefit of the clergy and laity; that one might have a settled certainty what to receive, and the other what to pay; and was, while the equivalent continued to bear any reasonable proportion to the value, an excellent means to prevent yearly disputes between the minister and his flock; but as most of them are fixed at certain rates of money, the change of its value hath, in all these cases, greatly impoverished the parochial clergy, especially as many of them grew up into a prescription, by the negligence of the clergy, without an original composition. These moduses have, likewise, not a little hurt the spiritual jurisdiction; for as their courts paid little or no regard to them, as being against the canon law, if the original composition did not appear to have the bishop’s authority, by being found in his registry, the temporal courts, wherever one is pleaded, send a prohibition to the ecclesiastical one, and reserve the tryal to themselves, by a jury of twelve men, as the legal judges of the custom[143].

When Henry the eighth threw off the pope’s supremacy, great was his danger both from abroad, and at home, particularly from the monasteries. A resolution therefore was taken for suppressing them, and applying their revenues to more useful purposes. The intention of Cranmer, at least, was to restore the tithes to the parochial clergy, and out of some part of the lands to found new bishopricks, and for other religious and charitable purposes; the remainder to be united to the royal demesnes to enable him to defend his realm without burthening his subjects with subsidies. But little of this kind was done. Five or six bishopricks, with very poor revenues, were erected, and the rest, both of lands and tithes, were distributed to the laity in whose hands they still remain, partly out of present political views, but principally from the extravagance of that king and the indigence of his successors, concurring with the avarice of their courtiers. As to the lands the abbots held discharged of tithes, the parish ministers right to them would, by the common law of England, have revived as soon as they got into lay-hands; as it would have done before, if the abbot had aliened with the consent of the convent, and this was the case of the lands of the lesser monasteries. But when the greater ones were dissolved by the act of 31st of Henry the eighth, it was expressly provided, that the king and his grantees should enjoy those lands, discharged from tithes, in as ample a manner, as the abbots held them before that time. Thus became a great part of the tithes of the kingdom, which by the common law of England were the legal maintenance of the parochial clergy, lay fees, and inheritances, as they continue at this day[144].

Tithes are of three kinds, prædial, personal or mixed. Prædial, are the fruits arising immediately from the ground, as all sorts of grain, hay, underwoods, fruits of trees, hops, saffron, hemp, flax, and such like. Mixed, which arise from cattle nourished by the ground as their young, colts, calves, lambs, pigs, or their productions, as milk, cheese, butter, &c. Thirdly, personal, which arise from the labour and industry of men using any merchandize, or manual occupation, and is the tenth part of their clear gain.

The two first had their foundation in the law of Moses, the last was introduced and strongly inforced by the canon law; nay so shameless were some of the canonists, as to insist that harlots were obliged to pay the tenth of their infamous gains; but this latter kind has had little effect in England, except by the local customs of some particular places[145].

As to what things are tithable or not by our law, it may not be amiss to lay down some general maxims concerning them.

First then, as to prædial tithes: Regularly, they are due only out of things that encrease annually, simul & semel, and therefore except by special custom, mines, minerals, chalks, stones, slates, turfs, being part of the soil, and not increasing annually, are not tithable; but this rule admits of some exceptions, of which I shall just mention two. Saffron, which encreases from three years to three years, is yet tithable; and so is underwood, that is, all trees cut under twenty years growth. The tithes of trees occasioned many contests between the clergy and laity in England, the one exacting it by their canons, and the commons in parliament constantly remonstrating against it. At length it was settled by parliament, that none should be exempted but timber above twenty years growth, as being fit for building. But this statute is so constructed, that if the trees be not of the nature of timber, they are tithable, though above that age, as bush, birch, and the like; but these, if for the scarcity of other timber, they are used in building, as beech is in Buckinghamshire, they are there exempted.

As to mixed tithes, the rule is, that things feræ naturæ are not tithable. Therefore fish, pheasants, partridges, rabbits, deer, bees, and such like are not; but several of these, if reclaimed, have been adjudged to be so, as bees in a hive, and the same reason holds as to pigeons in a dove house; though the opinion of common lawyers is, that they are not tithable, if spent in the house, and not used for sale.

But what shall we say for barren cattle, from whom no yearly profit arises? Shall the parson receive no benefit whatever from them, and shall it lie in the power of the occupier, by employing all his land in feeding nothing but barren cattle, to leave his minister without support? Certain it is, whatever the modern practice and opinion may be, that by the best authorities of the antient lawyers, agistment was due to the clergy which was the tenth part of the value of the lands, or the twentieth, which by custom, in most places, was generally paid, if the proprietor depastured the whole year, or less, according to the time and quantity of the cattle, saddle horses, or cattle for the plough, only excepted[146].

Thus much may suffice for the history and general rules of tithes, the second species of incorporeal rights, to which I may add, as much of the same nature, and founded on the same reason, what is called ministers money out of houses, in cities and towns, where there are no tithes, which the act of parliament, of the 17th and 18th of Charles the second, hath restrained to the twentieth part of the value of houses, as valued by a commission from the Lord Lieutenant and six of the council.

LECTURE X.

The right of Seignory and its consequences—The right of Reversion—Rent seck—Rent charge—The nature of distress, as the remedy for recovering feudal duties. Observations on distresses in general.

Having spoken of tithes and advowsons, two kinds of incorporeal benefices that arose in those antient times, I come now to treat of seignories and their consequences. A seignory is an incorporeal right and interest still remaining in the lord, when he parts with his lands, in benefice to a tenant. Now the rights of a lord, in respect of his seignory, may be considered in two ways, either as the services were due to the lord from the person of the tenant, or from the lands. He hath therefore, in virtue of his seignory, a right to all those personal duties which flow impliedly from the oath of fealty; such as to receive warning from his tenants of any injury done, or impending danger to his person, his dignity, or seignory, to receive faithful advice from them when called upon, and to have his secrets faithfully kept by them; to be the judge of their controversies, and the leader in war of such of them as hold by military service. For these barbarous people had no idea of dividing power, but always entrusted the civil and military sword in the same hands; whereby they avoided the dangers and disorders that more polished and richer nations have ever been exposed to, namely, of having the civil and legal authority subverted by the military power. And so strict was the bond between lord and tenant, that the latter could in no wise, in point of judgment, decline his lord’s jurisdiction, by refusing him as judge on account of partiality. Such a charge was a breach of fealty on the vassal’s part, and no such presumption could be admitted by that law, which looked upon the lord as equally bound by the oath of fealty, though not taken by him, as the tenant was[147].

By the Roman law, a suspected judge might be refused by the suitors for almost all the same causes, and grounded mostly upon the same reasons, for which jurors, who in our law are judges of the fact, may be challenged at this day. But the feudal customs admitted no such suspicions as to the lord, and therefore in the English law, no judge, however clearly interested in the cause, can be challenged. This maxim once established, it was necessary, however, for the sake of justice, that it should admit of some qualification. The assessors in Germany, who assisted the lord in judgment, from whom came, in after time, the pares curiæ, were this qualification. But as these were not judges in all feudal causes, but in some the lord alone continued sole judge; some remedy was here to be applied, and on the continent and in England, they proceeded differently. On the continent, the king, or superior lord, appointed a cojudge, or assessor. In England the suitor, by applying to the king’s courts was empowered to remove the cause thither; which hath been one great occasion of these inferior courts of the lords dwindling to nothing[148].

As to the right the lord had in the land by virtue of his seignory, the principal, and upon which his other rights out of the land depended, was his reversion. A reversion is that right of propriety remaining in the lord, during the continuance of the particular estate of possession of the tenant; whereby he is entitled to the service during the duration of the term, and to the possession itself, when it is either expired, or forfeited. Hence it appears that the fealty and services of the tenant are incident to the lord’s reversion. Out of these reversions may be carved another incorporeal estate, called a remainder, which is a particular estate dependant upon, and consequent to a prior particular estate; as if lands be granted to A. for five years, and afterwards to B. for life. In this case A. hath a lease for years, B. a remainder for life, and the reversion remains in the grantor. In our law, remainders, and the particular precedent estate on which they depend are considered as making but one estate; and so, in truth, they are with respect to the reversioner, though not to each other. Therefore they must both pass out of the grantor at the same time, though it is not absolutely necessary that the remainder should vest in the grantee at the creation of the precedent particular estate; for a remainder may be good which depends on a contingency, as if a remainder, after a lease for life or years to A, is limited to the eldest son of J. S. This is a good remainder, but a contingent one, depending on the birth of J. S.’s son during the continuance of the term of A; for the remainder being but one estate with the precedent particular one, and only a continuation of it, must commence instantly when it determines. Or, if after a lease to A, a remainder is limited to the heirs of J. S. this is a good contingent remainder, depending on the event of J. S. dying during the particular estate. For it is a maxim of the English law, Nemo est hæres viventis.

To return to reversions, I mentioned fealty and services as incidents of a reversion; but we must distinguish that fealty is an inseparable one, which the services are not; for the tenure being from the reversioner, and fealty necessarily incident to every tenure, it is impossible they should be separated. A grant, therefore, of fealty, without the reversion, is void; and the grant of the reversion carries the fealty with it. But the case is otherwise as to the services; for the services may be granted without the reversion, and although the reversion be granted, the services, by special words, may be excepted[149].

It will be now proper to speak of the remedy the reversioner hath for the recovery of his services, if they are not paid. In the antient times the tenant was, at all the due times, at his peril obliged to perform his service; for as each the smallest failure was a breach of his fealty, his tenancy was thereby absolutely forfeited, and this long continued to be the case in military tenures. But as the defence of the realm was not concerned in the socage holdings, but only the immediate interest of the lord, it was thought too hard, that every, perhaps involuntary omission, should induce an absolute forfeiture; when the lord, where his dues were certain, might receive an adequate recompence. Custom, then, introduced the method of distress, in imitation of the Roman law, as the proper method to recover an equivalent for the damages he sustained by the non-performance of the duties. And afterwards, when the personal service of the military tenants came to be commuted into a sum of money called escuage, distress came to be the regular method of recovering that and the other fruits of the military tenure; the damage the lord sustained being now capable of a reduction to a certainty[150].

The introduction of distress on socage tenants was thus: When the absolute forfeiture was thought too severe, the first step was, that the lord should enter, and hold the lands till his tenant had satisfied him as to his damages; but as this seizure frequently disabled the tenant from making that satisfaction, especially if he had no other lands, this, after some time, was thought still too rigorous, and in its stead was substituted the seizure of the cattle, and other moveables found on the land, and the detention of them as a pledge, until the damages were answered; which is what we call distraining. This was a sufficient security to the lord, as it rarely happened but that there was sufficient found to answer his demand for one failure; and the tenant was not (as not being deprived of his possession) reduced to an incapacity of paying his rent of services, and thereby recovering his pledges. Hence all feudal rents, or, as our law calls them, rent services, (being the service the tenant pays to the lord, in consideration of the land he holds from him) are distrainable[151].

But there was another species of rents in our law not distrainable; which, therefore was called redditus siccus, or rent seck. This was not a feudal service, not being paid from a tenant to his lord, and was thus: When a man, keeping still his land in himself, grants a rent thereout to a stranger, the grantor is justly bound by his grantee; but the grantee, not being his lord, cannot have this remedy. For the remedy of distress being substituted in the place of the lord’s right of entry, could not be extended to a stranger, who never had that right. And this was originally the only kind of rent seck; but the statute called quia emptores terrarum, introduced another species of rents not distrainable, by converting rent services into rents seck. The liberty of alienation without the consent of the lords having been allowed before that statute, it became customary for a tenant who sold his land, and parted with his whole estate in it, to reserve the tenure of the vendee, not to his superior lord and his heirs, but to himself and his heirs; whereby he retained many advantages to himself, by continuing the vendee’s lord, such as the right of escheat, if the tenant died without heirs, and the benefit of the wardship and marriage, if it was held by knight’s service. Now a rent reserved upon such a sale to the vender, was, as he continued the vendee’s lord, a rent service, and consequently distrainable[152].