CHAP. XX. HENRY VI. Government during the minority-State of France-Mi- PAGE 443 THE HISTORY OF ENGLAND. APPENDIX II. THE FEUDAL AND ANGLO-NORMAN GOVERNMENT AND Origin of the feudal law-Its progress-Feudal government of England-The feudal parliament-The commons-Judicial power-Revenue of the crown-Commerce- -The church-Civil laws-Manners. II. THE feudal law is the chief foundation, both of Appendix "the political government and of the jurisprudence established by the Normans in England. Our subject therefore requires that we should form a just idea of this law, in order to explain the state as well of that kingdom as of all other kingdoms of Europe, which during those ages were governed by similar institutions. And though I am sen sible that I must here repeat many observations and reflections which have been communicated by others; yet, as every book, agreeably to the observation of a great historian," should be as complete as possible within itself, and should never refer for any thing material to other books, it will be necessary in this place to deliver a short plan of that prodigious fabric which for several centuries preserved such a mixture of liberty and oppression, order and anarchy, stability and revolution, as was never experienced in any other age, or in any other part of the world. AFTER the northern nations had subdued the provin- Origin of ces of the Roman empire, they were obliged to establish the feudat g L'Esprit de Loix, Dr. Robertson's History of Scotland. h Padre Paolo Hist. Conc. Trid. law. Appendix a system of government which might secure their conquests, as well against the revolt of their numerous subjects who remained in the provinces, as from the inroads of other tribes, who might be tempted to ravish from them their new acquisitions. The great change of circumstances made them here depart from those institutions which prevailed among them while they remained in the forests of Germany; yet it was still natural for them to retain, in their present settlement, as much of their ancient customs as was compatible with their new situation. THE German governments, being more a confederacy of independent warriors than a civil subjection, derived their principal force from many inferior and voluntary associations, which individuals formed under a particular head or chieftain, and which it became the highest point of honour to maintain with inviolable fidelity. The glory of the chief consisted in the number, the bravery, and the zealous attachment of his retainers: The duty of the retainers required that they should accompany their chief in all wars and dangers, that they should fight and perish by his side, and that they should esteem his renown or his favour a sufficient recompense for all their services. The prince himself was nothing but a great chieftain, who was chosen from among the rest on account of his superior valour or nobility; and who derived his power from the voluntary association or attachment of the other chieftains. i WHEN a tribe, governed by these ideas, and actuated by these principles, subdued a large territory, they found, that though it was necessary to keep themselves in a military posture, they could neither remain united in a body, nor take up their quarters in several garrisons, and that their manners and institutions debarred them from using these expedients; the obvious ones, which in a like situation would have been employed by a more civilized nation. Their ignorance in the art of finances, and perhaps the devastations inseparable from such violent conquests, rendered it impracticable for them to levy taxes sufficient for the pay of numerous armies; and their repugnance to subordination, with their attachment to rural i Taeit. de Mör. Germ II. pleasures, made the life of the camp or garrison, if per- Appendix petuated during peaceful times, extremely odious and disgustful to them. They seized, therefore, such a portion of the conquered lands as appeared necessary; they assigned a share for supporting the dignity of their prince and government; they distributed other parts, under the title of fiefs, to the chiefs; these made a new partition among their retainers; the express condition of all these grants was, that they might be resumed at pleasure, and that the possessor, so long as he enjoyed them, should still remain in readiness to take the field for the defence of the nation. And though the conquerors immediately separated, in order to enjoy their new acquisitions, their martial disposition made them readily fulfil the terms of their engagement: They assembled on the first alarm; their habitual attachment to the chieftain made them willingly submit to his command; and thus a regular military force, though concealed, was always ready to defend, on any emergence, the interest and honour of the community. WE are not to imagine that all the conquered lands were seized by the northern conquerors: or that the whole of the land thus seized was subjected to those military services. This supposition is confuted by the history of all the nations on the continent. Even the idea given us of the German manners by the Roman historian, may convince us that that bold people would never have been content with so precarious a subsistence, or have fought to procure establishments which were only to continue during the good pleasure of their sovereign. Though the northern chieftains accepted of lands which, being considered as a kind of military pay, might be resumed at the will of the king or general; they also took possession of estates which, being hereditary and independent, enabled them to maintain their native liberty, and support, without court favour, the honour of their rank and family. the feudal law. BUT there is a great difference, in the consequences, between the distribution of a pecuniary subsistence, and Progress of the assignment of lands burdened with the condition of military service, The delivery of the former at the weekly, monthly, or annual terms of payment, still recals the idea of a voluntary gratuity from the prince, and re II. Appendix minds the soldier of the precarious tenure by which he holds his commission. But the attachment, naturally formed with a fixed portion of land, gradually begets the idea of something like property, and makes the possessor forget his dependent situation, and the condition which was at first annexed to the grant. It seemed equitable, that one who had cultivated and sowed a field should reap the harvest: Hence fiefs, which were at first entirely precarious, were soon made annual. A man who had employed his money in building, planting, or other improvements, expected to reap the fruits of his labour or expense: Hence they were next granted during a term of years. It would be thought hard to expel a man from his possessions who had always done his duty, and performed the conditions on which he originally received them: Hence the chieftains, in a subsequent period, thought themselves entitled to demand the enjoyment of their feudal lands during life. It was found, that a man would more wil lingly expose himself in battle, if assured that his family should inherit his possessions, and should not be left by his death in want and poverty: Hence fiefs were made hereditary in families, and descended, during one age, to the son, then to the grandson, next to the brothers, and afterwards to more distant relations." The idea of property stole in gradually upon that of military pay; and each century made some sensible addition to the stability of fiefs and tenures. In all these successive acquisitions, the chief was supported by his vassals; who, having originally a strong connexion with him, augmented by the constant intercourse of good offices, and by the friendship arising from vicinity and dependence, were inclined to follow their leader against all his enemies, and voluntarily, in his private quarrels, paid him the same obedience to which, by their tenure, they were bound in foreign wars. While he daily advanced new pretensions to secure the possession of his superior fief, they expected to find the same advantage, in acquiring stability to their subordinate ones; and they zealously opposed the intrusion of a new lord, who k Lib. Feud. lib. 1. tit. 1. |