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• Introduction
• A Note On the Text
• Acknowledgments
• To John Young, Esquire,1professor of Greek In the University of Glasgow.
• Account of the Life and Writings of John Millar, Esq.
• The Origin of the Distinction of Ranks.
• Introduction
• Chapter I: Of the Rank and Condition of Women In Different Ages
• Section I: The Effects of Poverty and Barbarism, With Respect to the Condition of Women.
• Section II: The Influence Acquired By the Mother of a Family, Before Marriage Is Completely Established.
• Section III: The Refinement of the Passions of Sex, In the Pastoral Ages.
• Section IV: The Consequences of the Introduction of Agriculture, With Respect to the Intercourse of the Sexes.
• Section V: Changes In the Condition of Women, Arising From the Improvement of Useful Arts and Manufactures.
• Section VI: The Effects of Great Opulence, and the Culture of the Elegant Arts, Upon the Relative Condition of the Sexes.
• Chapter II: Of the Jurisdiction and Authority of a Father Over His Children
• Section I: The Power of a Father In Early Ages.
• Section II: The Influence of the Improvement of Arts Upon the Jurisdiction of the Father.
• Chapter III: The Authority of a Chief Over the Members of a Tribe Or Village
• Section I: The Origin of a Chief, and the Degrees of Influence Which He Is Enabled to Acquire.
• Section II: The Powers With Which the Chief of a Rude Tribe Is Commonly Invested.
• Chapter IV: The Authority of a Sovereign, and of Subordinate Officers, Over a Society Composed of Different Tribes Or Villages
• Section I: The Constitution of Government Arising From the Union of Different Tribes Or Villages.
• Section II: The Natural Progress of Government In a Rude Kingdom.
• Chapter V: The Changes Produced In the Government of a People, By Their Progress In Arts, and In Polished Manners
• Section I: Circumstances, In a Polished Nation, Which Tend to Increase the Power of the Sovereign.
• Section II: Other Circumstances, Which Contribute to Advance the Privileges of the People.
• Section III: Result of the Opposition Between These Different Principles.
• Chapter VI: The Authority of a Master Over His Servants
• Section I: The Condition of Servants In the Primitive Ages of the World.
• Section II: The Usual Effects of Opulence and Civilized Manners, With Regard to the Treatment of Servants.
• Section III: Causes of the Freedom Acquired By the Labouring People In the Modern Nations of Europe.
• Section IV: Political Consequences of Slavery.
• Appendix 1: Note On the Editions
• Appendix 2: Millar’s Preface to the First Edition
• Appendix 3: Millar’s “lectures On Government”
• Bibliography

SECTION II

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>

CHAPTER V

The Changes Produced in the Government of a People, by Their Progress in Arts, and in Polished Manners

[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).

See also L’Esprit de Loix, liv. 31. chap 8. Montesquieu discussed Formula I.13 as part of his general comparison of Frankish constitutions and laws. Millar’s general point derives from Montesquieu, namely that Franks and Romans eagerly sought to become vassals as a means of protecting themselves from the chaos of the times.]]

[* ]“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.

Sir Henry Spelman having said in his Glossary, v. feodum, that fiefs were brought into England by William the Conqueror; and the judges of Ireland, in their argument in the case of defective titles, having pointed out that opinion as erroneous, this industrious antiquary was thence excited to write a treatise upon the subject, in which he explains his meaning to be nothing more but that, in England, fiefs were not rendered hereditary before the Norman conquest. Thus, after having stated the question, in the beginning of his treatise, he goes on as follows: “A feud is said to be usufructus quidam rei immobilis sub conditione fidei [[literally, “a type of usufruct of an immovable thing under the condition of trust”. But this definition is of too large extent for such kind of feuds as our question must consist upon: for it includeth two members or species greatly differing the one from the other; the one temporary and revocable (as those at will or for years, life or lives); the other hereditary and perpetual. As for temporary feuds, which (like wild fig-trees) could yield none of the feudal fruits of wardship, marriage, relief, &c. unto their lords, they belong nothing unto our argument.”—And a little after he adds, “But this kind of feud (we speak of) and no other, is that only whereof our law taketh notice, though time hath somewhat varied it from the first institution, by drawing the property of the soil from the lord unto the tenant. And I both conceive and affirm under correction, That this our kind of feuds being perpetual and hereditary, and subject to wardship, marriage, and relief, and other feudal services were not in use among our Saxons, nor our law of tenures (whereon they depend) once known unto them.” (Spelman’s treat. on feuds and tenures by knight-service, chap. 1.) In Gibson, ed., English Works, I:2. Spellman’s Glossarium Archaiologium (1664) was one of the main sources for volume I of Millar’s Historical View. The same author, in another part of his treatise, proceeds to shew that, in England among the Saxons, the estates of the nobility were denominated Boc-land, and were held in full property, but that Folc-land, or the land of the lower people, was held under condition of customary services, at the will of their lord the Thane. Ibid., chap. 5.

It is hoped the above remark will appear not improper; because the authority of Spelman, upon this point, has been considered as of much weight; and also because some writers appear to have mistaken his opinion by consulting the passage in his glossary, without attending to the subsequent treatise i.e., “The Original, Growth, Propagation and Condition of Feuds and Tenures by Knight-Service, in England”, published among his posthumous works by Dr. Gibson.]]

[* ]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.]]