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Published online by Cambridge University Press: 17 January 2013
The fall of the feudal system was accomplished, in the principal states of Europe, at a period when the revival of learning had diffused in society a spirit of reflection, and communicated, to the better sort, some knowledge of the history of the Greek and Roman republics. As it was, in general, the kings who conducted the attack on the privileges of the feudal nobility, the principal part of the spoils had fallen naturally to their share. But the people were warlike, the nobles were still; animated with the pride of rank, of family, and of their ancient consequence, and men, in general, had begun to speculate on their rights, and were unaccustomed to perceive, with satisfaction, the whole powers of government centred in the crown.
page 6 note * Even so late as the period since which the Swedish laws have been preserved, there are traces of the same migratory state of society having prevailed. “Coluerunt discreti. “et diverfi,” says Shernhook, “ædificiis tranfitoriis, et in annum, aut mensem positis:” Wherefore he adds, the leges vetustissimæ directed the farmer to have a house for himself, and trinas for the slaves, cattle and corn, he might carry about with him in his journeyings, to be put up when he sojourned in one place, ‘perinde ut sepes excepta tantum ‘ea quae villam includeret,” p. 295.
page 10 note * This last part is not published in the present volume.
page 12 note * Dr Stuart, and some other authors, have laid it down as certain, that these chiefs held their offices only for a year. I cannot, however, discover any good authority for this opinion, though favoured by Montesquieu, contrary to the spirit of his system. It is opposed by the universal practice of rude nations. The appellation of kings, applied universally to the chiefs of rude tribes, is inconsistent with it. And as the kings of modern Europe were always understood to hold their offices for life; and as, in general, the great provincial magistrates, in the ages after the conquest of the empire, did so likewise, unless deprived, there seems every reason to believe, that the office of a German chief was equally permanent.
page 14 note * Homer speaks of decuriæ as known;
Πολλαι ϰεν δεϰαδεϛ δενοια⌉ο οινοΧοιο. Il. lib. ii. v. 128.
And he attributes to Nestor the institution of the Greeks fighting by tribes and curiæ;
Κριν’ ανδϱας ϰαІα φυλα ϰαІα φϱηІϱας Αγαμεμνον
‘Ως φϱηІϱη φϱηІρηφιν αρηγη φυλα δε φυλοις’ II. lib. ii. v. 362.
page 14 note † It is remarkable, that the nature, universality and antiquity of this institution should have escaped President Montesquieu's observation. He attributes it to the Merovingian princes, Clotaire and Chilperic, and says, it was introduced into both France and England, in order that each district should answer for any robberies committed in it. Esprit des Loix, lib. 30. c. 17. Dr Stuart has entertained more just notions of it. Dissertation on the English constitution. Note, p. 231.
page 14 note ‡ De Bello Gall. lib. 4. cap. 1.
page 15 note * Thwrocs, or rather perhaps an anonymous author of a chronicle, as old as 1358; when mentioning the Settlement of the Hungarians in Panonia, under their seven leaders, may also be urged in support of this opinion. “Et unicuique exercitui, capitaneum specialem ‘præficientes, centurionesque ac decanos, more solito constituerunt. Et unusquisque exercitus 30,857 continebat. Nam in secundo eorundem de Scythia egressu de centum et octo tribubus ducenta et sedecim millia, de unaquaque, sciz. tribu, duo millia armatorum, excepto familiæ numero eduxisse perhibeatur.” Scriptores rerum Hungaricarum, 4to, v. i. p. 100.
page 15 note † Pen's letter to the Pennsylvanian traders. See also Kolben of the Hottentots. Hist. Gen. des voyages, t. 6. p. 500, Also Colden's history of the six nations, &c. &c.
page 16 note * Homer thus relates the assembling of the Greeks in diet when besieging Troy :
—————ἐστιΧοων⌉ο
Ἰλαδον ϵιϛ αγοςην Il. lib. ii. v. 92.
page 16 note † The assembly of the Franks in the campus martius of the cities of Gaul, described by Gregory of Tours, is manifestly a military review. “Tranfacto vero anno, jussit “(sciz. Clovis) omnem cum armorum apparatu advenire phalangem, ostensuram in cam “po martio suorum armorum nitorem;” and he is mentioned as going through the ranks and examining their condition, lib. ii. c. 27. And when, under the second race, the Franks were called forth to assemble in military array, their magistrates were named capitanei, and the meeting a placitum. Capit. A. D. 807. This military appellation is common to all the great magistrates in both the Gothic and Sclavonic nations. Vayvode, bannus, heretoge, are often translated capitanei, duces, &c.
page 17 note * And again, when government becomes feeble, there are examples of national assemblies reappearing. In the fall of the western empire, the government, finding itself unable to animate the torpid and disjointed mass of the Gaulic nations, attempted to rouse its powers by the aid of national assemblies. Sirmond not. ad Sidon. apolin. p. 245. See also Dubo's Hist. Cret. t. i. p. 241,—255. And to a similar cause is chiefly to be attributed the entsy of the plebeians into the European legislatures.
page 18 note * And war, rather than a prosecution at law, the usual consequence of an injury. See the Rules, introduced by the Anglo-saxon laws, for restraining these private wars within, certain limits. W. L. L. Sax. Passin.
page 19 note * In the east, where the priesthood has stripped the people of the judicial power, no part of the fines for delinquencies are paid to the judges.
page 20 note † I Quote the following statute as evidence, not only of the distinction being observed in Scotland, but of the anxiety of our ancestors to separate the judicial and ministerial function: “Statuit dominus rex quod nullus justitiarius vicecomes vel ballivus, sedeat ad judicium faciendum super appellatione et responsione coram eis facta. Sed cum ad judicium venerint; exeant de curia; et libere tenentes de curia judicium faciant; et re “vocato justiciario, vicecomite vel ballivo, in curiam, judicium penes eos factum coram “ipso judice reddatur.” Quon. attach, cap. 66. There is a similar regulation in the establishments of St Lewis, from which, no doubt, the law of the Scottish barons was borrowed.
page 20 note * Enlightened, but, I apprehend, by no means bound by this interpretation.
page 20 note † This origin of juries has been controverted by very learned writers; but, I think, it is capable of being established. And the only plausible arguments against it seem to me to have arisen from not making sufficient allowance for those varieties which ought to be expected among institutions of the same kind in different countries, especially when the comparison is made at different stages of their progress.
page 21 note * “Neque quisquam agri modum certum aut fines proprios habet, sed magistratus ac “princeps in annos singulos gentibus cognationibusque hominum qui una coierunt quan “tum eis et quo loco visum est attribuunt agri, atque anno post alio transire cogunt.” Bell. Gall. c. 21. “Agri pro numero cultorum, ab universis per vicos occupantur; “quos mox inter se secundum dignationem partiuntur.” Mor. Germ. 26.
page 23 note * These probably corresponded to the scabini and red boran, or lawmen of the Franks and Saxons;
page 24 note * This is precisely the arrangement of Denmark.
page 25 note * What we know of the rude governments of the Welsh, Irish, Danes, and Caledonians, corresponds with the idea of that of the Germans, given in the text. Everywhere the clans chose their chiefs from particular races, and consederated clans chose their reguli and subreguli in the same manner. L. L. Walliæ, 164. and 184. Tractat. varii de Reg. Dan. Ware's antiquities of Ireland. Leslie, Buchanan, passim. The tanist was chosen in the lifetime of the chief, and succeeded him at his death. Even at this day the Scots clans conceive they are entitled to change their chief, if he act gracefully.
page 26 note * Beaumanoir coutume de Clermont, cap. 59.
page 26 note † Ordenamiento de Alcala, tit. 29. Hurberts Statuta Poloniæ, voce Guerra, p. 190. L L. Alfred. § 28. L L. Jnæ, § 9. L L. Edin. § 1. Bouquet Droit public, p. 312. and 447. L L S. Steph. 1. Reg. Hungar. cap. 33. Codes of the Barbarians, passim, where family wars are supposed. L. L. Roberti i. c. 20. Establishments de St Louis, et Ordinances des Roxs de France, passim. But, especially, Beaumanoir, lac cit. where he enters into a full detail about it.
page 26 note ‡ In Cook's last voyage, the following custom among the islanders of the Pacific ocean is mentioned: “If a person kill another in a quarrel, the friends of the deceased assemble and engage the survivor and his adherents. If they conquer, they take possession of the house, lands and goods of the other party; but, if conquered, the reverse takes place.” Vol. ii. p. 173.
page 27 note * Cap. 13.
page 27 note † Kolben of the Hottentots.
page 28 note * I Will not, however, presume to determine, that, even so early as Tacitus, the principes vicorum may not, in general, have been retainers of the kings. It would, no doubt, be a natural object of policy for the kings to extend their influence, by establishing a domeslic relation between them and the sons of the chiefs of tribes; and these, when promoted to be chiefs, might, though absent, preserve their claim to this relation, while younger men, or persons of less consequence, would attend in the royal household.
page 28 note † Nec rubor inter comites aspici. Gradus quinetiam et ipse comitatus habet, judicio ejus, quern sectantur : Magnaque et comitum emulatio, quibus primus apud principem suum locus; et principum, cui plurimi et acerrimi comites. Hæc dignitas, hæ vires, magno semper electorum juvenum globo circumdari, in pace decus, in bello præsidium. Nec solum in sua gente cuique, fed apud finitimas quoque civitates id nomen, ea gloria est, si numero ac virtute comitatus emineat : Expetuntur enim legationibus, et muneribus ornantur, et ipsa plerumque fama bella profligant. Cum ventum in aciem, turpe principi virtute vinci; turpe comitatui, virtutem principis non adæquare. Jam vero infame in omnem vitam ac probrofum, superstitem principi suo ex acie recessisse. Ilium defendere, tueri, sua quoque fortia facta gloriae ejus adsignare, præcipuum sacramentum est. Magnumque comitatum non nifi vi belloque tuere : Exigunt enim principis sui liberalitate illum bellatorem equum illam cruentam victricemque frameam. Nam epulae, et quamquam incompti, largi tamen apparatus pro stipendio cedunt. Materia munificentiæ per bella et raptus. Nec arare terram, aut expectare annum, tarn facile persuaseris, quam vocare hostes et vulnera mereri: Pigrum quinimmo et iners videtur sudore adquirrere, quod possis sanguine parare. De Mor, Germ. c. 13.14.
page 28 note ‡ Somewhat probably like those of David's mighty men.
page 30 note * I Ought likewise, perhaps, to take notice of the absolute sovereignty which has been attributed to the German kings, and of a representation, like that of the commons, supposed to have been known to the German tribes. But, I believe, these notions have never obtained much credit with the learned world, nor have been thought by it to rest on any thing more solid than the delusion of system.
page 30 note † Dissertation on the English constitution, View of society in Europe, and other works.
page 31 note * Cæsar relates, lib. 6. c. 11. de Bell. Gall. That the Sequani and Ædui were the heads of factions in Gaul. The Sequani, by the aid of the Germans, so got the better of the Ædui, “ut magnam partem clientium ab Æduis ad se transducerent obsidesque, ab “iis principum filios acciperint, et publice jurare cogerent, Nihil se contra Sequancs “concilii moturos, et partem finitime agri per vim occupatam possiderunt.” Things changed, after Cæsar's arrival. The Ædui recovered their old clients, and they, and Cæsar's other friends, the Remi, obtained many new ones.
page 31 note † Origin of Ranks, p. 194. and 260.
page 32 note * In the quarto edition, Mr Millar stated this doctrine more strongly. He there lays it down, that the chief, in consequence of his ancient prerogative of presiding over the joint labours of the community, will, at the separation of farms, impose such conditions and limitations on the shares of individuals, as render them dependent on him for the continuance of their possession : And that, in this way, and by the extent of his peculiar domains, his authority becomes almost unlimited. It is evident, that, if this opinion were well founded, the government of all small and rude communities of husbandmen would be despotic, which is certainly not the case. And, accordingly, the argument on which it rests, though ingenious, admits of being obviated. The chief arranges the annual farms of rude tribes, and possibly, too, may preside over the labour of the tribe, if employed on a common farm; but, as may be reasonably conjectured from the independent spirit of uncultivated men, and, as is proved by the sales of lands by the American tribes, the chief is not, on that account, reckoned the proprietor of their territory. That, like the spontaneous produce of it, is accounted the common right of the whole freemen. And afterwards, when the annual farm becomes perpetual, or portions of land are seized upon by individuals, land is still in such vail abundance, that the spots, thus occupied, are naturally considered as the right of the possessor, as absolutely as the crop which he formerly reaped from his annual farm, or the prey which he feized in the sports of the field. Accordingly, we do not find, that, in any of the original monarchies of Greece, Italy and Gaul, the kings were ever confidered as the proprietors of their dominions.
page 32 note * In Sweden, the king is veiled with the districts which were formerly the common domains of communities. But no single community would bestow such a gift on its chief; whereas, where there is a number united under a king, every one may be prevailed upon to give up its own, in order to get government supported, by means of similar concessions from the rest.
page 32 note † Even confiscation for capital crimes seems to have been unknown to the Romans before the Lex Cornel, de proscrip. Cicero pro domo. Breach of fidelity was capital in both patron and client, but surely was not attended with forfeiture of estates.
page 34 note * I am besides apt, in the present case, to believe, that the historical facts resorted to have been misunderstood. Histoire générale des voyages, t. 6. p. 28. Ibid, p. 255. 263. 265. 264. 321. 318. The governments on the Gold Coast are obviously the production of conquest and superstition, and the nobles appear to be very independent, and to be proprietors of their estates.
page 35 note * The ranks among the Israelites, before the captivity, illustrate this opinion. The whole freemen of every tribe held that they were descended of the same blood; but each considerable branch of a tribe had a head, and each tribe a prince or chief; and these elders, as they were called, being usually chosen from particular families, formed numbers of distinguished races in the nation.
It may also be observed, that, in rude times, men are determined, in their marriages, more by the personal attractions of women than by those of wealth, rank, and interest, which dictate so powerfully in cultivated ages. Hence, as in early times, women of the highest personal endowments will usually fall to the lot of men who have attained distinction; the families of chiefs will naturally, in the course of a few generations, acquire that marked superiority in character and figure, which travellers have often observed and mistaken for an indication of an original diversity in the race, and for the remains of ancient conquests and intermixtures of nations.
page 36 note * Bouquet Droit publique, p. 105.
page 36 note † On the contrary, it is remarkable, that the signification of the term seems to have been enlarged on the continent till it lost its peculiar import, and became at last co-extensive with that of fidelis. Thus we read, “Cumque Lingonas civitatem venisset Dagobertus, tantam “in universis Leudibus suis, tam sublimibus quam pauperibus justitiam,” &c. Fredeg. Chron. § 58. See alfo § 87. In this way, it probably produced the term lieges homines; and it was no doubt natural enough for a king to call his gens d'arms companions.
page 36 note ‡ Bouquet Droit publique, p. 103.
page 37 note * Montesquieu quotes the term optimates, in the Burgundian laws, as evidence of a hereditary nobility. But it might express magistrates, or antrustions, or men of wealth. Nothing can be more loose than the manner in which terms of this kind were employed. Gregory of Tours often applies the term valde ingenuus to persons; and he seems to have no word for characterising the descendents of the priores regni, or seniores civitatum. Again, he says of one of his predecessors, “Civis Turonicus de inferioribus populi ingenuus ta “men.” In a charter of Carloman,it is said, “Et congruum obsequium sicut homines in “genui exhibeant, ne eorum ingenuitas, vel nobilitas vilescat.” See also Heinec. Antiq. Germ. v. ii. p. 52. et seq. Abrégé de Henault, ad ann. 1270. The terms potentes, potentiores, boni generis, nobilioris generis, de nobilioribus, are the only means even the laws have for describing persons of more consequence than others. Baluz. p. 278. 334. &c. L L. Visig. lib. 6. t. 1. c. 2. Mention is often made of the ingenuitas regni assembling. Hoody, p. 188. Francs hommes was, even in feudal times, a term synonimous with gentlemen or noblesse. Thaumassiere Notes on Assises de Jeruf. p. 270.
page 37 note † Cromer, bishop of Warne, says, “Est pari dignatione Polonica nobilitas, nec est “ulla in ea patritiorum comitumve discrimen” And Prochniekego says, in his description scription of Poland, “Sunt in regno titulo Ducali insigniti, fed qui cum reliquis nobili “bus jure utuntur communi—unde tanta omnium et par libertas.”
page 38 note * Werbeucs, p. 10.
page 38 note † “Which almost every monument of the names in question may be quoted in evidence of.
page 39 note * Pagus is used in the ancient codes and early writers as synonimous with civitas and comitatus. Civitas sometimes is employed for urbs, but generally in the sense of muncipium, or of a subordinate state, comprehending a town and territory. Greg. Tur. lib. 7. § 6. 12. 13. 33. &c. Cæsar, &C. uses pagus in this way, septem Helvetiorum pagi, &c. The French pais, and German termination gaw, are supposed to be derived from it.
page 39 note † Lib. 9. tit. 2. 1. 9.
page 40 note * We find the same orders specified in the following passage of an ancient author: “Vetus consuetudo prolege apud Francos et Suevos inolevit, ut si quis nobilis, ministeri “alis, vel colonus, coram suo judice pro hujusmodi excessibus reus inventus fuerit, an “tequam mortis sententia puniatur, ad confusionis fuæ ignominiam, nobilis canem, mini “sterialis sellam, rusticus aratri rotam, de comitatu in proximum comitatum gestare co “gatur.” Lib. 2. de Gest. Federic. c. 18. See also L L. Alleman. tit. 90.
page 41 note * Montesquieu attributes the election of military leaders, on account of merit only, to the national adherence to the royal blood in the appointment of kings, and supposes the power of the mayors of the palace proceeded from the old custom, that duces ex virtute sumunt. But the monarchs who founded the European states were themselves duces, and owed their authority to that character, and not to their more hereditary one of being chiefs of petty tribes. Clovis, Alaric, Genseric, were the Brennuses and Arminiuses of their times. Hence the thrones of Europe were long, de jure, purely elective. The ancient form of creating a king was exactly that which Tacitus describes in the election of a dux; and the forms of the modern coronations are still that of an election. The major palatii was originally no more than the principal domestic of the king. We find majores domus nostræ mentioned in the plural number, and one quitting the office for a bistioprick. It was the great extent and growth of the household which rendered the mayors so powerful.
page 41 note † Spelman, in his letters to Rosecrantz, says, He had not observed a cognomen gentile attributed to a Lombard, Frank, Saxon, or Dane, in the first ages after the conquest. Dr Hickes thinks, that the practice of using two names came to prevail in England in the Norman times; and that, during the crusades, the cognomen became a nomen gentile. Dissert. p. 29.
page 42 note * The Bavarian laws enact, that, in case of blows given in a tumult or meeting, the offender should pay a fine, “unicuique secundum suam genealogiam.” And, in case of a sedition, while the principal persons engaged in it (called, however, (simply homines) incurred a fine of 200 solidi, the populi minores and liberi paid only 40 solidi. Tit. 2. c. 3. and 4. And, in c 20. five genealogies are mentioned which are entitled to a double fine; and the Agilolfingi, from among whom the duke was chosen, had right to a quadruple fine. In A. D. 797, the nobiliores paid, for disobeying a fummons, four solidi, while the ingenui paid two, and the liti one. Baluz. p. 278. By L L. Vifig. lib. 6. tit. 1. nobiles potentioresque personæ, ut primates palatii, eorumque filii, were not to be exposed to torment, on account of an accusation of theft, &c.; and a persona inferior was forbid to accuse nobiliorem se vel potentiorem.