Front Page Titles (by Subject) CHAPTER IV: The Authority of a Sovereign, and of Subordinate Officers, over a Society Composed of Different Tribes or Villages - The Origin of the Distinction of Ranks
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CHAPTER IV: The Authority of a Sovereign, and of Subordinate Officers, over a Society Composed of Different Tribes or Villages - John Millar, The Origin of the Distinction of Ranks 
The Origin of the Distinction of Ranks; or, An Inquiry into the Circumstances which give rise to Influence and Authority in the Different Members of Society, edited and with an Introduction by Aaron Garrett (Indianapolis: Liberty Fund, 2006).
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The Authority of a Sovereign, and of Subordinate Officers, over a Society Composed of Different Tribes or Villages
The constitution of government arising from the union of different tribes or villages.
The improvement of agriculture, as it increases the quantity of provisions, and renders particular tribes more numerous and flourishing, so it obliges them at length to send out colonies to a distance, who occupy new seats wherever they can find a convenient situation, and are formed into separate villages, after the model of those with which they are acquainted. Thus, in proportion as a country is better cultivated, it comes to be inhabited by a greater number of distinct societies, whether derived from the same or from a different original, agreeing in their manners, and resembling each other in their institutions and customs.
These different communities being frequently at war, and being exposed to continual invasions from their neighbours, are in many cases determined, by the consideration of their mutual interest, to unite against their common enemies, and to form a va-<177>riety of combinations, which, from the influence of particular circumstances, are more or less permanent. Having found the advantage of joining their forces in one expedition, they are naturally disposed to continue the like association in another, and by degrees are encouraged to enter into a general alliance. The intercourse which people, in such a situation, have maintained in war will not be entirely dissolved even in time of peace; and though the different villages should be originally strangers to each other, yet, having many opportunities of assembling in their military enterprises, they cannot fail to contract an acquaintance, which will become an inducement to their future correspondence. They have frequent opportunities of meeting in their common sports and diversions: the leading men entertain one another with rustic hospitality and magnificence: intermarriages begin to take place between their respective families; and the various connexions of society are gradually multiplied and extended.
An alliance for mutual defence and security is a measure suggested by such obvious views of expediency, that it must frequently take place, not only among tribes of husbandmen, but also among those of shepherds, and even of mere savages. Many instances of it are, accordingly, to be found in Tartary, upon the coast of Guinea, in the history of the ancient Germans, and among the Indians of America. But such alliances are not<178> likely to produce a permanent union, until the populousness of a country has been increased by agriculture, and the inhabitants, in consequence of that employment, have taken up a fixed residence in the same neighbourhood.
From a confederacy of this kind, a very simple form of government is commonly established. As every village, or separate community, is subjected to its own leader, their joint measures fall naturally under the direction of all those distinguished personages; whose frequent meeting and deliberation gives rise, in a short time, to a regular council, or senate, invested with a degree of power and authority corresponding to what each of its members has acquired over his own particular domestics and retainers.
The same considerations, however, which determine the individuals of a single tribe to be guided by a particular person in their smaller expeditions, must recommend a similar expedient in conducting a numerous army, composed of different clans, often disagreeing in their views, and little connected with each other. While every chief has the conduct of his own dependents, it is found convenient that some one leader should be intrusted with the supreme command of their united forces; and as that dignity is commonly bestowed upon the person who, by his opulence, is most capable of supporting it, he is frequently enabled to maintain it during life, and even in many cases to render it<179> hereditary. In this manner a great chief, or king, is placed at the head of a nation, and is permitted to assume the inspection and superintendence of what relates to its defence and security.
But, notwithstanding the rank and pre-eminence enjoyed by this primitive sovereign, it may easily be conceived that his authority will not be very considerable. His advancement can hardly fail to excite the jealousy of chiefs unaccustomed to subordination, who will be disposed to take every opportunity of curbing his pretensions, and to allow him no higher prerogatives than are sufficient to answer the purposes for which he was created. His interpositions, in matters of public concern, will depend very much upon times and circumstances, and being directed by no previous rules, will be frequently made in an irregular and desultory manner. In a day of battle, when placed at the head of his army, he may venture, perhaps, to rule with a high hand, and it may be dangerous for any of his followers to disobey his orders; but upon other occasions his power is usually confined within a narrower compass, and frequently extends no further than to the members of his own clan. After the conclusion of a military enterprise, when the other tribes have retired to their separate places of abode, they are in a great measure withdrawn from his influence, and are placed under the immediate jurisdiction and authority of the respective chiefs by whom they are protected. As it is neces-<180>sary that these leading men should give their consent to every public measure of importance, they are usually convened for that purpose by the king; who at the same time is accustomed to preside in all their deliberations.
Such, as far as can be collected from the scattered hints delivered by travellers, is the state of government in many rude kingdoms, both upon the coast of Africa, or in those parts of Asia, where a number of distinct tribes or villages have been recently and imperfectly united.*
In the Odyssey, Alcinous, king of the Pheacians, says expressly, “There are twelve chiefs who share dominion in the kingdom, and I am the thir-teenth.”* He is accordingly obliged to call a council of his nobles, before he can venture to furnish Ulysses with a single ship, in order to transport him to his native country.
In the island of Ithaca, the power of the chiefs, who usually deliberated in council upon the affairs of the nation, is equally conspicuous.<181>
From the early history of all the Greek states, we have reason to believe that their government was of a similar nature. The country of Attica, in particular, is said to have been peopled by colonies which were brought, under different leaders, from Egypt and some of the neighbouring countries, and which formed a number of distinct tribes or villages, independent of one another.‡ The first association among these little societies happened in the time of Cecrops,1 the founder of Athens, who became their general, and who made a considerable reformation in their police and manners. They were afterwards more intimately united in the reign of Theseus, when the nobility, or principal inhabitants of the several towns or villages,<182> were persuaded to settle at Athens, and composed a senate, or national council, which exercised an authority over the whole country, and obtained the chief direction of religious matters, together with the privilege of electing magistrates, and of teaching and dispensing the laws.*
The resemblance between this and the ancient Roman constitution is sufficiently obvious. The foundation of that mighty empire was laid by a few tribes of barbarians, originally distinct from one another, who at first inhabited different quarters of the city, and who appear to have lived under the jurisdiction of their respective chiefs.† This was, in all probability, the origin of that connexion between the poor and the rich, which remained in after ages, and which has been commonly ascribed to the policy of Romulus. People of the lower class at Rome were all attached to some particular patron of rank and distinction; and every patrician had a number of clients, who, besides owing him respect and submission, were bound to portion his daughters, to pay his debts, and to ransom his per-<183>son from captivity; as, on the other hand, they were entitled to his advice and protection.‡ Of these leading men, who had an extensive influence over the populace, was formed the primitive senate, or council of the sovereign; which appears to have had the absolute determination of peace and war; and which, in the first instance, had not only the privilege of deliberating upon all public regulations, but also, upon the death of a king, that of naming a successor to the royal dignity.§
It must not be overlooked, however, that in the Roman, as well as in many of the Greek governments, there was originally a considerable mixture of democracy, arising from the peculiar circumstances of the people. The different tribes, or families, united in the formation of Rome, or of the independent cities which arose in Peloponnesus and some of the neighbouring countries, had very little property, either in moveables or in land; and their poverty must have prevented the growth of authority in their respective leaders. The influence of a chief, in each of those petty states, depended, in all probability, upon the personal attachment of his followers, and their admiration of his abilities, more than upon his superiority in wealth; and the power which that influence enabled him to assume<184> was, therefore, far, from being absolute. For this reason, under the kingly government of Rome, the authority of the senate, composed of all the chiefs, was not alone sufficient for making general laws, or transacting business where dissension might be apprehended, but its decrees, in such cases, were usually confirmed by an assembly consisting of the whole people. The same practice obtained in Athens and Sparta, and probably in most of the other states of Greece.
The particulars related by Caesar concerning the inhabitants of ancient Gaul may be considered as affording the most authentic evidence of the state of government in any rude country. We learn from this author that the whole of that country was divided into a number of separate states, independent of each other, and differing considerably in the degrees of their power, as well as in the extent of their territories. In the several towns, villages, or families, belonging to each nation, there were certain leading persons, possessed of great influence and authority, by whom their respective followers were governed and protected. The affairs of a whole nation were conducted by a king, or chief magistrate, assisted by a national council; and when different nations were engaged in a common enterprise, they made choice of a general to command their united forces.* <185>
The German nations who, about the fifth century, over-ran and subdued the provinces of the Western empire, were in a different situation from any other people with whose history we are acquainted. While they remained in their own country, those nations had made considerable advances in the pastoral state, and had thereby acquired a good deal of wealth in herds and flocks. By their settlement in the Roman provinces, they had an opportunity, as has been already observed, of acquiring large estates in land, which tended to augment the authority of different leaders in proportion to their riches.
The inhabitants of a large tract of country were, at the same time, associated for their mutual defence, and in their common expeditions, were conducted by a great chief, or king, whose rank and dignity, like that of every subordinate leader, was supported by his own private estate. There were two circumstances which rendered the associations<186> made upon this occasion much more extensive than they commonly are among nations equally barbarous.
As each of the nations who settled in the Western empire, though seldom large, was, by the rapid progress of its arms, and by a sudden improvement in agriculture, enabled to occupy a prodigious quantity of land, the different proprietors, among whom that land was divided, were placed at a great distance from one another, and spread over a wide country. But many of these proprietors consisting of kindred or acquaintance, and all of them having been accustomed to act under one commander, they were still inclined, how remote soever their situation, to maintain a correspondence, and to unite in their military enterprises.
The state of the Roman provinces was another circumstance which promoted an extensive association among the conquerors. Each province of the Roman empire constituted, in some measure, a separate government, the several parts of which had all a dependence upon one another. The inhabitants, not to mention their ancient national attachment, had usually a set of laws and customs peculiar to themselves, and were governed by the same officers civil and military. They were accustomed on public occasions to act in concert, and to consider themselves as having a common interest. The capital, which was the seat of the governor, became the centre of government, to which<187> the gentry of the province resorted in expectation of preferment, or with a view of sharing in the pleasures of a court; and from thence, to the most distant parts of the country, innumerable channels of communication were opened, through the principal towns, where trade was carried on, where taxes were levied, or where justice was administered.
The connexions, which had thus subsisted for ages between the several districts of large territory, were not entirely destroyed when it came under the dominion of the barbarians. As the ancient inhabitants were no where extirpated, but either by submitting to servitude, or by entering into various treaties of alliance, were incorporated and blended with the conquerors, the habits of intercourse, and the system of political union which remained with the former, was, in some degree, communicated to the latter. When different tribes, therefore, though strangers to each other, had settled in the same province, they were easily reduced under one sovereign; and the boundaries of a modern kingdom, came frequently, in the western part of Europe, to be nearly of the same extent with the dominions which had been formerly subject to a Roman governor.
In proportion to the number of tribes, or separate families, united in one kingdom, and to the wideness of the country over which they were scattered, the union between them was loose and feeble.<188> Every proprietor of land maintained a sort of independence, and notwithstanding the confederacy of which he was a member, assumed the privilege of engaging in private wars at pleasure. From the violent disposition to theft and rapine which prevailed in that age, neighbouring proprietors, when not occupied in a joint expedition, were tempted to commit depredations upon each other; and mutual injuries between the same individuals being often repeated, became the source of family quarrels, which were prosecuted with implacable animosity and rancour. There was no sufficient authority in the public for repressing these disorders. If, upon great provocation, the king had been excited to humble and punish an opulent baron, he found in many cases that the whole force of the crown was requisite for that purpose, and by the hazard and difficulty of the attempt, was commonly taught to be cautious, for the future, of involving himself in such disputes.
As individuals, therefore, in those times of violence and confusion, were continually exposed to injustice and oppression, and received little or no protection from government, they found it necessary to be constantly attentive to their own safety. It behoved every baron, not only to support his own personal dignity, and to maintain his own rights against the attacks of all his neighbours, but also to protect his retainers and dependents; and he was<189> led, upon that account, to regulate the state of his barony in such a manner, as to preserve the union of all its members, to secure their fidelity and service, and to keep them always in a posture of defence. With this view, when his relations, who had hitherto lived about his house, were gradually permitted to have families of their own, he did not bestow upon them separate estates, which would have rendered them independent; but he assigned them such portions of land as were thought sufficient for their maintenance, to be held upon condition, that whenever they were called upon, they should be ready to serve him in war, and that, in all their controversies, they should submit to his jurisdiction. These grants were made for no limited time, but might be resumed at pleasure; so that, though the master was not likely, without some extraordinary offence, to deprive his kinsmen of their possessions, yet his power in this respect being indisputable, it could hardly fail to keep them in awe, and to produce an implicit obedience to his commands.
The military tenants, supported in this manner, were denominated vassals; and the land held by any person upon such terms has been called a fief; though many writers, in order to distinguish it from what afterwards went under the same name, have termed it a benefice.
When the estate of a baron became extensive,<190> the slaves, by whom it was cultivated, were likewise sent to a distance from the house of their master, and were placed in separate families, each of which obtained the management of a particular farm; but that they might, in those disorderly times, be more easily protected by the owner, and might be in a condition to defend and assist one another, a number of them were usually collected together, and composed a little village. Hence they received the appellation of villani, or villains.
The whole of a kingdom was thus divided into a number of baronies, of greater or smaller extent, and regulated nearly in the same manner. The king was at the head of a barony similar in every respect to those of his subjects, though commonly larger, and therefore capable of maintaining a greater number of vassals and dependents. But the land which belonged to the barons, was held in the same independent manner with that which belonged to the king. As each of those warlike chiefs had purchased his demesnes by his own activity and valour, he claimed the absolute enjoyment and disposal of them, together with the privilege of transmitting them to his posterity; and as he had not been indebted to the crown for his original possession, neither was he obliged to secure the continuance of it, by serving the king in war, or by submitting to his jurisdiction. Their property, therefore, was such as has been called allodial, in contradistinc-<191>tion to that feudal tenure enjoyed by their respective military tenants.* <192>
These peculiarities, in the state of the kingdoms which were formed upon the ruins of the Roman empire, had a visible effect upon their constitution of government. According to the authority possessed by the barons, each over his own barony, and their independence with respect to each other, and with respect to the king, was their joint power<193> and influence over that great community of which they were members. The supreme powers of government in every kingdom were, therefore, exercised by an assembly composed of all those proprietors, and commonly summoned by the king on every great emergency.
Two meetings of this great council appear to have been regularly held in a year, for the ordinary dispatch of business; the first, after the seed-time, to determine their military operations during the summer; the second, before the harvest, in order to divide the booty. In those meetings it was customary also to rectify abuses by introducing new regulations, and to decide those law-suits which had arisen between independent proprietors of land. Such was the business of the early parliaments in France, of the Cortes in Spain, of the Wittenagemote in England; and in each of the feudal kingdoms, we discover evident marks of a national council, constituted in the same manner, and invested with similar priveleges.* <194>
These observations may serve to show the general aspect and complexion of that political constitution which results from the first union of rude tribes, or small independent societies. The government resulting from that union is apt to be of a mixed nature, in which there is a nobility distinguished from the people, and a king exalted above the nobles. But though, according to that system, the peculiar situation of different nations may have produced some variety in the powers belonging to these different orders, yet, unless in very poor states, the influence acquired by the nobles has commonly been such as to occasion a remarkable prevalence of aristocracy.<195>
The natural progress of government in a rude kingdom.
The continued union of rude tribes, or small societies, has a tendency to produce a great alteration in the political system of a people. The same circumstances, by which, in a single tribe, a chief is gradually advanced over the different heads of families, contribute, in a kingdom, to exalt the sovereign above the chiefs, and to extend his authority throughout the whole of his dominions.
As the king is placed at the head of the nation, and acts the most conspicuous part in all their public measures, his high rank and station reflect upon him a degree of splendour, which is apt to obscure the lustre of every inferior chief; and the longer he has remained in a situation where he excites the admiration and respect of the people, it is to be supposed that their habits of submission to him will be the more confirmed.
From the opulence, too, of the sovereign, which is generally much greater than that of any other member of the community, as well as from the nature of his office, he has more power to reward and protect his friends, and to punish or depress those who have become the objects of his resent-<196>ment or displeasure. The consideration of this must operate powerfully upon individuals, as a motive to court his favour, and, of consequence, to support his interest. It is therefore to be concluded that, from the natural course of things, the immediate followers and dependents of the king will be constantly increasing, and those of every inferior leader will be diminishing in the same proportion.
In a government so constituted as to introduce a continual jealousy between the crown and the nobles, it must frequently happen that the latter, instead of prosecuting a uniform plan for aggrandizing their own order, should be occupied with private quarrels and dissensions among them-selves; so that the king, who is ready to improve every conjuncture for extending his power, may often employ and assist the great lords in destroying each other, or take advantage of those occasions when they have been weakened by their continued struggles, and are in no condition to oppose his demands.
According as the real influence and authority of the crown are extended, its prerogatives are gradually augmented. When the king finds that the original chiefs have become in a great measure dependent upon him, he is not solicitous about consulting them in the management of public affairs; and the meetings of the national council, being seldom called, or being attended only by such<197> members as are entirely devoted to the crown, dwindle away from time to time, and are at last laid aside altogether. The judicial power of the heads of different tribes is gradually subjected to similar encroachments; and that jurisdiction, which they at first held in virtue of their own authority, is rendered subordinate to the tribunal of the monarch, who, after having established the right of appeal from their courts to his own court, is led to appoint the judges in each particular district. The power of making laws, as well as that of determining peace and war, and of summoning all his subjects to the field, may come in like manner to be exercised at the discretion of the prince.
This progress of government, towards monarchy, though it seems to hold universally, is likely to be accompanied with some diversity of appearances in different countries; and, in particular, is commonly more rapid in a small state than in a large one; in which point of view the ancient Greeks and Romans are most remarkably distinguished from the greater part of the feudal kingdoms in Europe.
The Roman and Greek states were originally of small extent, and the people belonging to each of them being, for the most part, collected in one city, were led in a short time to cultivate an acquaintance. The police, which was easily established in such a limited territory, put a stop to the divisions so prevalent among neighbouring tribes of barbarians. Those who belonged to different<198> families were soon restrained from injuring one another, and lived in security under the protection of the government. By conversing together almost every day, their ancient prejudices were eradicated; and their animosities, being no longer cherished by reciprocal acts of hostility, were allowed to subside, and left no traces behind. The whole people, being early engaged in violent struggles with the petty states around them, were obliged to hold an intimate correspondence, and acquired an high sense of public interest. In proportion as they were thus incorporated in a larger community, they lost all inferior distinctions. The members of each particular tribe had no reason to maintain their peculiar connexions, or to preserve their primitive attachment to their respective chiefs. The power of the nobility, therefore, which depended upon those circumstances, was quickly destroyed; and the monarch, who remained at the head of the nation without a rival to counterbalance his influence, had no difficulty in extending his influence over the whole of his dominions.
For this reason, the ancient jurisdiction and authority of the chiefs is not very distinctly marked in the early history of those nations, among whom it was in a great measure destroyed before they were possessed of historical records. At Rome, so early as the reign of Servius Tullius, the practice of convening the people according to their tribes, or curiae, was almost entirely laid aside;<199> and the public assemblies were held in such a manner, that every individual was classed according to his wealth.2
The great extent, on the other hand, of those modern kingdoms which, upon the downfall of the Roman empire, were erected in the western part of Europe, was formerly mentioned; and the political consequences, which appear to have been immediately derived from that circumstance, were likewise taken notice of. The numerous tribes, or separate families, that were associated under a sovereign, far from being collected in a single town, were spread over a large territory, and living at a distance from each other, were for a long time prevented from having much intercourse, or from acquiring the habits of polished society. Strangers to regular government, and little restrained by the authority of the public magistrate, they were devoted to their several chiefs, by whom they were encouraged to rob and plunder their neighbours, and protected from the punishment due to their offences. Mutual depredations became the source of perpetual animosity and discord among neighbouring barons, who, from jealousy, from an interference of interest, or from resentment of injuries, were, for the most part, either engaged in actual hostilities, or lying in wait for a favourable opportunity to oppress and destroy one another. Thus every kingdom was composed of a great variety of parts, loosely combined together, and for several centuries may be regarded as a collection of small in-<200>dependent societies, rather than as one great political community. The slow advances which were afterwards made by the people towards a more complete union, appear to have been productive of that feudal subordination which has been the subject of so much investigation and controversy.
In those times of license and disorder, the proprietors of small estates were necessarily exposed to many hardships and calamities. Surrounded by wealthier and more powerful neighbours, by whom they were invaded from every quarter, and held in constant terror, they could seldom indulge the hope of maintaining their possessions, or of transmitting them to their posterity. Conscious, therefore, of their weakness, they endeavoured to provide for their future safety, by soliciting the aid of some opulent chief, who appeared most capable of defending them; and, in order to obtain that protection which he afforded to his ancient retainers or vassals, they were obliged to render themselves equally subservient to his interest; to relinquish their pretensions to independence, to acknowledge him as their leader, and to yield him that homage and fealty which belonged to a feudal superior.
The nature of these important transactions, the solemnities with which they were accompanied, and the views and motives from which they were usually concluded, are sufficiently explained from the copies or forms of those deeds which have been collected and handed down to us. The vas-<201>sal promised, in a solemn manner, to submit to the jurisdiction of the superior, to reside within his domain, and to serve him in war, whether he should be engaged in prosecuting his own quarrels, or in the common cause of the nation. The superior, on the other hand, engaged to exert all his power and influence, in protecting the vassal, in defending his possessions, or in avenging his death, in case he should be assassinated. In consequence of these mutual engagements, the vassal, by certain symbols expressive of the agreement, resigned his property, of which he again received the investiture from the hands of the superior.*
It is probable, however, that the extension of particular baronies, by the voluntary submission of allodial proprietors, contributed to ascertain the right of the vassal, and to limit that property with which the superior was originally invested. The ancient<202> military tenants, who were the kindred and relations of the superior, and who had received their lands as a pure gratuity, never thought of demanding to be secured in the future possession; and while they continued to support the interest of the family, which they looked upon as inseparable from their own interest, they had no apprehension that they should ever be deprived of their estates. Thus, according to the more accurate ideas of later times, they were merely tenants at will; though from the affection of their master, and from their inviolable fidelity to him, they were commonly permitted to enjoy their lands during life; and in ordinary cases the same indulgence was even shown to their posterity.
But it was not to be expected that those who submitted to a foreign superior, and who gave up their allodial property as an equivalent for the protection which was promised them, would repose so much confidence in a person with whom they had no natural connexion, or be willing to hold their lands by the same precarious tenure. They endeavoured, by express stipulations, to prevent the arbitrary conduct of the master; and, according as they found themselves in a condition to insist for more favourable terms, they obtained a grant of their estates, for a certain limited time, for life, or to their heirs. By these grants the right of property, instead of being totally vested in the superior, came to be, in some measure, divided between him and his vassals.<203>
When a superior had entered into such transactions with his new retainers, he could not well refuse a similar security to such of his ancient vassals as, from any casual suspicion, thought proper to demand it; so that from the influence of example, joined to uninterrupted possession in a series of heirs, the same privileges were, either by an express bargain, or by a sort of tacit agreement, communicated, at length, to all his military tenants.
This alteration gave rise to what were called the incidents of the feudal tenures. The ancient military tenants, who were the kindred of the superior, might be removed by him at pleasure, or subjected to what burdens he thought proper to impose upon them; and there was no occasion to specify the services that might be required of them, or the grounds upon which they might forfeit their possessions. But when the vassal had obtained a permanent right to his estate, it became necessary to ascertain the extent of the obligations which he came under, and the penalty to which he was subjected upon his neglecting to fulfil them; so that, from the nature of the feudal connexion, he in some cases incurred a forfeiture, or total loss of the fief, and in others was liable for the payment of certain duties, which produced an occasional profit to the superior.
1. Thus when the vassal died without heirs; when he violated his duty by the commission of a crime, or by neglecting to perform the usual ser-<204>vice; in either of these cases his lands returned to the superior. The emolument arising from this forfeiture, or termination of the fief, was called an escheat.
2. When a person was admitted to hold a fief, he engaged by an oath to fulfil the duties of homage and fealty to the superior. Even after fiefs became hereditary, this ceremony was repeated upon every transmission of the feudal right by succession; so that while the heir of a vassal neglected to renew the engagement, he was not entitled to obtain possession, and the superior, in the mean time, drew the rent of the lands. Hence the incident of non-entry.
3. Though the heir of a vassal might claim a renewal of the feudal investiture, this was understood to be granted in consideration of his performing military service. When by his nonage, therefore, the heir was incapable of fulfilling that condition, the superior himself retained the possession of the lands; at the same time that he was accustomed, in that case, to protect and maintain his future vassal. This produced the incident of wardship.
4. Upon the death of a vassal, it was usual for the representative of his family to make a present to the superior, in order to obtain a ready admittance into the possession of the lands. When fiefs became hereditary, it was still found expedient to procure by means of a bribe, what could<205> not easily be extorted by force; and the original arbitrary payment was converted into a regular duty, under the name of relief.
5. From the original nature of the feudal grants, the vassal could have no title to sell, or give away to any other person, the lands which he held merely as a tenant, in consideration of the service which he was bound to perform. But when fiefs had been granted to heirs, and when of consequence the right of the vassal approached somewhat nearer to that of property, it became customary to compound with the superior for the privilege of alienating the estate, upon payment of a sum of money. This gave rise to a perquisite, called the fine of alienation.
6. From the disorders which prevailed in the feudal times, when different families were so frequently at war, it was of great consequence that the vassals should not contract an alliance with the enemy of their Liege Lord; which might have a tendency to corrupt their fidelity. When fiefs therefore came to be granted for life, or to heirs, it was still held a sufficient ground of forfeiture that the vassal married without the superior’s consent. This forfeiture was afterwards converted into a pecuniary penalty, called the incident of marriage.
7. According to the usual policy of the feudal nations, the superior levied no taxes from his retainers, but was maintained from the rent of his<206> own estate. In particular cases, however, when his ordinary revenue was insufficient, his vassals were accustomed to supply him by a voluntary contribution. When fiefs were precarious, what was given on those occasions depended upon the will of the superior, who might even seize upon the whole estate of his tenants. But when the vassal had obtained a more permanent right, it became necessary to settle the cases when those contributions were to be made, as well as the quantity that might be demanded; and in this manner, aid or benevolence came to be enumerated among the duties payable to a superior.
The conversion of allodial into feudal property, by a voluntary resignation, as it proceeded from the general manners and situation of the people, continued to be a frequent practice, while those manners and that situation remained. The smaller barons were thus, at different times, subjected to their opulent neighbours; the number of independent proprietors was gradually diminished; their estates were united and blended together in one barony; and large districts were brought under the dominion of a few great lords, who daily extended their influence and authority, by increasing the number of their vassals.
These changes, by exalting a small part of the nobility over the great body of the people, had, for some time, a tendency to abridge, instead of enlarging the power of the crown, and to render<207> the government more aristocratical. Whenever an independent proprietor had resigned his allodial property, and agreed to hold his land by a feudal tenure, he was no longer entitled to a voice in the national assembly, but was bound to follow the direction of the person to whom he had become liable in homage and fealty. This appears to be the reason of what is observed in France, that the national assembly was originally much more numerous than it came to be afterwards, when its constituent members were all persons of high rank and great opulence.* It would seem also that in England, under the later princes of the Saxon line, the great affairs of the nation were transacted in a meeting composed of a few great barons; and we discover no marks of those numerous assemblies which are taken notice of in a former period.†
But the same circumstances, by which the estates of different small proprietors were united in one barony, contributed afterwards to incorporate these larger districts, and to unite all the inhabitants of a kingdom in the same feudal dependency. As the<208> barons were diminished in number, and increased in power and opulence, they became more immediate rivals to each other. In their different quarrels, which were prosecuted with various success, the weaker party was often obliged to have recourse to the king, who alone was able to screen him from the fury of his enemy; and, in order to procure that succour and protection which his situation required, he became willing to surrender his property, and to hold his estate upon condition of his yielding that obedience, and performing that service, which a superior was accustomed to demand from his vassals. From the various disputes which arose, and the accidental combinations that were formed among the great families, the nobles were all, in their turns, reduced to difficulties from which they were forced to extricate themselves by the like compliances; and the sovereign, who laid hold of every opportunity to extend his influence, established his superiority over the barons by the same means which they themselves had formerly employed for subjecting the proprietors of smaller estates.
Thus, by degrees, the feudal system was completed in most of the countries of Europe. The whole of a kingdom came to be united in one great fief, of which the king was the superior, or lord paramount, having in some measure the property of all the land within his dominions. The great barons became his immediate vassals, and, accord-<209>ing to the tenure by which they held their estates, were subject to his jurisdiction, and liable to him in services of the same nature with those which they exacted from their own retainers or inferior military tenants.
The precise period when this revolution was finally accomplished, as in most other gradual changes which happen in a country, is involved in doubt and uncertainty. From a comparison of the opinions of different authors who have written upon this subject, and of the facts which they bring in support of their several conjectures, it appears most reasonable to conclude, that in France the great barons continued their allodial possessions during the kings of the first and second race, and about the beginning of the Capetian line were, for the most part, reduced into a state of feudal subjection to the monarch.* <210>
In England it would seem that, in like manner, the nobles maintained their independence during the time of the Saxon princes, and were reduced to be the vassals of the crown in the reign of William the Conqueror.* <211>
This opinion is confirmed by observing the changes which, from those two periods, began to take place in the government of these kingdoms. From the reign of Hugh Capet, the dominions of France appear more firmly united; they were no longer split upon the death of the sovereign, and shared among his children; the monarch was from this period capable of acting with more vigour, and continued to extend his prerogative till the<212> reign of Lewis XI. who exercised the power of imposing taxes, as well as of making laws independent of the convention of estates.* The same progress, though with some accidental interruptions, may be traced in England, from the Norman conquest to the accession of the Tudor family, under which the powers and prerogatives of the crown were exalted to a height that seemed equally incompatible with the rights of the nobility and the freedom of the people.
The authors, who have written upon the feudal law, seem to have generally considered that system as peculiar to the modern nations of Europe; and from what has been observed above, it appears evident that the circumstances of the Gothic nations, who settled in the western provinces of Rome, rendered such a set of regulations more especially useful for the defence and security of the people. It is highly probable that, from those<213> parts of Europe where the feudal law was first established, it was in some degree communicated, by the intercourse of the inhabitants and the force of example, to some of the neighbouring countries. But it merits particular attention that the same sort of policy, though not brought to the same perfection as in Europe, is to be found in many distant parts of the world, where it never could be derived from imitation; and perhaps there is reason to think that similar institutions, by which small bodies of men are incorporated in larger societies under a single leader, and afterwards linked together in one great community, have been suggested in every extensive kingdom, founded upon the original association of many rude tribes or families.
The kingdom of Congo, upon the southern coast of Africa, is divided into many large districts or provinces, the inhabitants of which appear to have made some progress in agriculture. Each of these districts comprehends a multitude of small lordships, which are said to have been formerly independent, but which are now united together, and reduced under a single chief or governor, who exercises absolute authority over them. The great lords, or governors of provinces, are in like manner dependent upon the king, and owe him the payment of certain annual duties. This monarch is understood to have an unlimited power over the goods of all his subjects; he is the proprietor of all the lands in the kingdom, which return to<214> the crown upon the death of the possessors; and, according to the arbitrary will of the prince, are either continued in the same, or bestowed upon a different family. All the inhabitants are bound to appear in the field whenever they are required by the sovereign, who is able in a short time to raise a prodigious army upon any sudden emergency. Every governor has a judicial power in his own district, and from his sentences there lies an appeal to the king, who is the supreme judge of the nation. Similar accounts are given of the constitution in the neighbouring kingdoms of Angola, Loango, and Benin.*
The same form of government may be discovered in several part of the East Indies, where many great lords, who have acquired extensive dominions, are often reduced into a sort of feudal dependence upon a single person.
Among the natives of Indostan, there are a great number of families who have been immemorially trained up to arms, and who enjoy a superior rank to most of the other inhabitants. They form a militia capable of enduring much hardship, and wanting nothing to make good soldiers but order and discipline. These hereditary warriors are subject to the authority of chiefs, or Rajahs, from whom they receive lands, upon condition of their per-<215>forming military service. It would seem that those different families were originally independent of each other. By degrees, however, many of the poorer sort have become subordinate to their opulent neighbours, and are obliged to serve them in war in order to obtain a livelihood. In like manner, the leaders of more wealthy families have been gradually subdued by a certain Rajah, who mounted the throne, and whose influence became more and more extensive. This, in all probability, gave rise to the political constitution at present established in that country. The Rajahs, or nobility, are now for the most part retained by the Great Mogul in a situation resembling that of the crown vassals in Europe. At the same time there are some of those chiefs who still maintain an independency even in the heart of the empire. In the reign of Aureng-zebe, there were about an hundred, dispersed over the whole country, several of whom were capable of bringing into the field 25,000 horse, better troops than those of the monarch.*
In the kingdom of Pegu, which was formerly an independent monarchy, the king is said to have been the sole heir of all the landed estates of his subjects. The nobility, or chiefs, had lands and towns assigned them, which they held of the crown, upon condition of their maintaining a cer-<216>tain number of troops in time of peace, and bringing them into the field in case of a war. Besides these military services, they were also bound to the performance of several kinds of work, which the sovereign rigorously exacted from them, in token of their subjection. This country is now annexed to the kingdom of Ava, in which, as well as in that of Laos and of Siam, the same regulations appear to be established.†
“Travellers who make observations on the Malays,” says the judicious M. Le Poivre, “are astonished to find, in the centre of Asia, under the scorching climate of the line, the laws, the manners, the customs, and the prejudices of the ancient inhabitants of the north of Europe. The Malays are governed by feudal laws, that capricious system, conceived for the defence of the liberty of a few against the tyranny of one, while the multitude is subjected to slavery and oppression.
“A chief, who has the title of king, or sultan, issues his commands to his great vassals, who obey when they think proper. These have inferior vassals, who often act in the same manner with regard to them. A small part of the nation live independent, under the title of Oramcay, or noble, and sell their services to those who pay<217> them best; while the body of the nation is composed of slaves, and lives in perpetual servitude.
“With these laws, the Malays are restless, fond of navigation, war, plunder, emigrations, colonies, desperate enterprises, adventures, and gallantry. They talk incessantly of their honour, and their bravery, while they are universally regarded, by those with whom they have intercourse, as the most treacherous, ferocious people on the face of the globe; and yet, what appeared to me extremely singular, they speak the softest language of Asia. What the Count de Forbin has said, in his Memoirs, is exactly true, and is the reigning characteristic of all the Malay nations. More attached to the absurd laws of their pretended honour, than to those of justice or humanity, you always observe, that among them, the strong oppress the weak: their treaties of peace and friendship never subsisting beyond that self-interest by which they were induced to make them. They are almost always armed, and either at war among themselves, or employed in pillaging their neighbours.”*
The remains of this feudal policy are also to be found in Turkey. The Zaims and Timariots, in the Turkish Empire, are a species of vassals, who possess landed estates upon condition of their upholding a certain number of soldiers for the service<218> of the grand seignior. The Zaims have lands of greater value than the Timariots, and are obliged to maintain a greater number of soldiers. The estates of both, are, in some cases, held during pleasure, and in others hereditary. It was computed, in the last century, that the whole militia maintained in this manner, throughout the Turkish empire, amounted to an hundred thousand men.†
In the history of the ancient Persians, during the wars which they carried on with the Roman emperors, we may also discover some traces of a similar constitution of government; for it is observed that this nation had no mercenary troops, but that the whole people might be called out to war by the king, and upon the conclusion of every expedition, were accustomed to return, with their booty, to their several places of residence.‡
When a great and polished nation begins to relapse into its primitive rudeness and barbarism, the dominions which belonged to it are in danger of falling asunder; and the same institutions may become necessary for preventing the different parts of the kingdom from being separated, which had been formerly employed in order to unite the several members of an extensive society. This was the case among the Romans in the later periods of the empire. When the provinces became in a great measure independent, and the government was no<219> longer able to protect them from the repeated invasions of the barbarians, the inhabitants were obliged to shelter themselves under the dominion of particular great men in their neighbourhood, whom the emperor put in possession of large estates, upon condition of their maintaining a proper armed force to defend the country. Thus, in different provinces, there arose a number of chiefs, or leaders, who enjoyed estates in land, as a consideration for the military service which they performed to the sovereign. The Abbé Du Bos has thence been led to imagine that the feudal policy of the German nations was copied from those regulations already established in the countries which they subdued.* But it ought to be considered, that the growth and decay of society have, in some respects, a resemblance to each other; which, independent of imitation, is naturally productive of similar manners and customs.<220>
[* ]Histoire generale des voyages, 4to. tom. 3. liv. 8. chap. 3. § 4.—Ibid. tom. 4. liv. 9. chap. 7. § 8.—liv. 10. chap. 2. 6.—See also Calendar’s collection of voyages, vol. 1. p. 67, 68.
[† ]Pope’s Odyss. book 2. l. 19.
[‡ ]See Thucydides’ history of the Peloponnesian war, book 1. 2.
[1. ]Cecrops, traditionally the first king of Attica, was a mythic figure who interacted with the gods and was portrayed as having the body of a man above the waist and that of a snake below. He was associated with the institution of marital, funerary, and property customs.
[* ]Vid. Sigon. de repub. Atheniens. lib. 1. cap. 2.———Thucyd. hist. lib. 2 [[15.— Plutarch. in vit. Thesei 24.]]
[† ]See the account which is given of the forum originis, by the author of the historical law-tracts; whose acute and original genius has been employed in uniting law with philosophy, and in extending the views of a gainful profession to the liberal pursuits of rational entertainment. [[Lord Kames, Historical Law-tracts, chap. of courts I:363–67.]]
[‡ ]Dion. Halicarn. antiq. Rom. lib. 2. § 10.
[§ ]Dion. Halicarn. antiq. Rom. lib. 2. [[§ 3.—Polyb. hist. lib. 6. 13–17.—Hein. antiq. Rom. Hein I.II.46.]]
[* ]“In Gallia non solum in omnibus civitatibus, atque pagis, partibusque, sed pene etiam in singulis domibus, factiones sunt: earumque factionum sunt principes, qui summam auctoritatem eorum judicio habere existimantur: quorum ad arbitrium, judiciumque, summa omnium rerum consiliorumque redeat. Idque ejus rei causa antiquitus institutum videtur, ne quis ex plebe contra potentiorem auxilii egeret. Suos enim opprimi quisque, et circumveniri non patitur; neque, aliter si faciat, ullam inter suos habeat auctoritatem. Haec eadem ratio est in summa totius Galliae. Namque omnes civitates in duas partes divisae sunt.” [[“In Gaul there are factions not only in each state, canton, and district, but indeed in nearly every house, and the leaders of these factions are those who are esteemed by the judgments of their compatriots to have the greatest authority; they are those individuals to whose judgment and will the most important matters and counsels are referred. And this seems to have arisen from ancient institutions, that no one of the people should be lacking in strength against someone more powerful. For no one wants those close to him to be cheated and oppressed, for if he allows this he will have no authority among them. This holds for all of Gaul as well. For all the states are divided into two parts.” Caes. de bell. Gall. lib. 6. 11. See Treasurie of auncient and moderne Times. Pub. 1619. “Chapter 6: Of the Ancient Gaules,” in Mexia et al., Archaio-ploutos, 17.]]
[* ]Different authors have entertained very different opinions concerning the primitive state of landed property, and the origin of feudal tenures, in the modern nations of Europe. The antiquaries who first turned their attention to researches on this subject, those of France in particular, living under an absolute monarchy, appear to have been strongly prepossessed by the form of government established in their own times, and their conjectures, with regard to the early state of the feudal institutions, were for a long time almost implicitly followed by later writers. They suppose that, when any of the German nations settled in a Roman province, the king seized upon all the conquered lands: that, retaining in his own possession what was sufficient to maintain the dignity of the crown, he distributed the remainder among the principal officers of his army, to be held precariously upon condition of their attending him in war: and that these officers afterwards bestowed part of their estates upon their dependents or followers, under similar conditions of military service.
[* ]In France, under the Merovingian kings, all deeds of any importance, issuing from the crown, usually contained some such expression as these: Una cum nostris optimatibus pertractavimus. De consensu fidelium nostrorum. In nostra et procerum nostrorum praesentia. [[“Together with our best we have consulted. Of our trustworthy agreement. In us and our trustworthy chiefs present.” Obser. par M. de Mably. I:238.. And there is good reason to believe that what is called the Salique Law was laid before the national assembly, and received their approbation. “Dictaverunt Salicam legem Proceres ipsius gentis, qui tunc temporis apud eam erant rectores.” Praef. leg. Sal. “Prologus” 1 § 2: “The Chiefs have spoken the Salic law of the clan, who then at that time were governed by it.” The early-sixth-century Lex Salica was the legal code of the Salian Franks. It is the only extant Germanic, pre-Christian legal code still in relatively pristine form. It is particularly important in French history as it was used to legitimate claims of royal succession, for example from the Capetians to the House of Valois. See lettres historiques sur les fonctions essentielles du parlement. Boulainvilliers let. sur le parl. de France. I:39, 126. There were references to both Hume’s and Robertson’s histories in this note in earlier editions of the Ranks.]]
[2. ]This was known as the Servian Constitution. The divisions based on wealth were traditionally attributed to the semimythical Servius, sixth king of Rome.
[* ]Fidelis Deo propitio ille, ad nostram veniens praesentiam suggessit nobis, eo quod propter simplicitatem suam, causas suas minimè possit prosequi, vel admallare, clementiae regni nostri petiit, ut inlustris vir ille omnes causas suas in vice ipsius, tam in pago, quam in palatio nostro admallandum prosequendumque recipere deberet, quod in praesenti per fistucam eas eidem visus est commendasse. Propterea jubemus, ut dum taliter utriusque decrevit voluntas, memoratus ille vir omnes causas lui, ubicumque prosequi vel admallare deberet, ut unicuique pro ipso, vel hominibus suis; reputatis conditionibus, et directum faciat, et ab aliis similiter in veritate recipiat. Sic tamen quamdiu amborum decrevit voluntas. Formul. Marculsi. 21.—Vid. Ibid. Formul. 13. [[“Trusting in gracious God, he, coming to our presence, has supplicated us, (for this reason) because on account of his simplicity he is little able to attend to his affairs or to represent himself legally, [and] he sought the clemency of our royal authority that this illustrious man in the place of the petitioner, both in the small town and in our palace, ought to undertake to represent legally and to attend to all his affairs because at the present time the petitioner seems to entrust his affairs to this same man because he has sworn per fistucam (i.e., taken a solemn, formal oath while grasping a stick [see Lex Salica, CXII]). On account of this, we order, because, as the will of each and both have decreed, the illustrious man having been reminded that all his affairs be discharged whenever he ought to attend to or legally represent him, that for each personally or for those represented he both do so directly and receive likewise from others. Once the conditions have been taken into consideration, however, this decree is valid for as long as both consent to it.” Marculfus’s Formulae Marculfi Libri Duo was a seventh-century formulary, i.e., a set of formulaic legal contracts that could be used in a variety of circumstances. See Karl Zeumer, ed., Monumenta Germaniae historica. Legum section V. Formulae (Hannover, 1886).
[* ]“Tous les Francs indistinctement continuerent d’y avoir entrée; mais dans la suite leur nombre s’étant accru, la distinction entre les Gaulois et les Francs s’étant insensiblement effacé, chaque canton s’assembloit en particulier; et l’on n’admit plus guéres aux assemblées generales, que ceux qui tenoient un rang dans l’etat.” Let. hist. sur les parl. [[“All the Franks without distinction continued to accede to it; but subsequently, as they grew in number, and the distinction between Gauls and Franks had blurred, each canton gathered in its own assembly; thus no one was any longer admitted to the general assemblies who did not occupy a high rank in the State” (“Lettre III,” II:70).]]
[† ]In early times the Wittenagemote is called “infinita fidelium multitudo.” [[Literally, “unlimited throng of trustworthy men.”]]
[* ]Many of the French antiquaries and historians have believed that the feudal system was completed under their kings of the first race. (See Mezeray, hist. de France [[84, 36–37, 114, 277, 280.—Loyseau, traité des seigneuries I.1.15, 17–18; I.3.51.—Salvaing de l’usage des fiefs I:2.14.—) Others have supposed that military tenures were unknown during this early period, and were introduced, either about the time of Charlemagne, or towards the end of the second race of kings, or about the time of Hugh Capet. (See Boulainvilliers, lettres sur les parlemens de France. I:98–99, 108–9, 112, 118.—Chantereau de Fevre, traité des fiefs. I:6.—Henault, abr. de l’hist. de France. I:103.—Bouquet, droit public de France, &c. 1:2–3.) These various opinions appear to have arisen from a different view of the facts relating to the subject; and here, as in most other disputes, the truth probably lies in a middle between the opposite extremes. To those authors who observed that, soon after the settlement of the Franks in Gaul, the king and the great lords had a considerable number of vassals dependent upon them for protection, and liable in military service, it seemed a natural inference, that the whole land in the country was held by military tenure. Those on the contrary who discovered that, under the kings of the first and second race, the great lords were in possession of allodial estates, and who observed, that, after the reign of Hugh Capet, many of the perquisites incident to the feudal tenures were established, thought they had reason from thence to conclude that the feudal system was not introduced before this period. Hugh Capet (938–96) was the founder of the Capetian line, the kings who ruled France until the death of Charles IV in 1328.]]
[* ]From similar circumstances it has been a subject of controversy, whether the feudal system took place in England under the government of the Saxon monarchs, or whether it was not first introduced in the reign of William the Conqueror. See Wright’s Introduction to the law of tenures, chap. 2. and the authorities quoted by him upon both sides of the question.
[* ]See Boulainvilliers, lettres sur les parl. de France. [[Lettre III, II:98.]]
[* ]Histoire generale des voyages, 4to. tom. 4. 5. [[6 liv. 13. chap. 2, 3, 4.—Ibid. tom. 4. liv. 11. chap. 1. 6. § 2.—Modern Universal History 3, vol. 16. p. 81.]]
[* ]Modern Universal History, vol. 6. p. 254.
[† ]Modern Universal History, vol. 7. p. 54, 62, 64, 127, 188, 190, 225, 263, 273.
[* ]Les voyages d’une Philosophe. [[Pierre Poivre, The Travels of a Philosopher, 63.]]
[† ]See Ricault’s State of the Ottoman Empire. [[Rycault, The Present State, III. 3. 342.]]
[‡ ]Herodian. hist. lib. 6. [[5.3–4.]]
[* ]Histoire critique de l’etablissement de la monarchie Françoise dans les Gaules. [[II:381–83, 464, 466.]]