The History of England - Vols. 1 to 6 (77 page)

We are not to imagine, that all the conquered lands were seized by the northern conquerors; or that the whole of the land thus seized was subjected to those military services. This supposition is confuted by the history of all the nations on the continent. Even the idea, given us of the German manners by the Roman historian, may convince us, that that bold people would never have been content with so precarious a subsistence, or have fought to procure establishments, which were only to continue during the good pleasure of their sovereign. Though the northern chieftains accepted of lands, which, being considered as a kind of military pay, might be resumed at the will of the king or general; they also took possession of estates, which, being hereditary and independant, enabled them to maintain their native liberty, and support, without court-favour, the honour of their rank and family.

But there is a great difference, in the consequences, between the Progress of the feudal distribution of a pecuniary subsistence, and the assignment of law.

lands burthened with the condition of military service. The

delivery of the former, at the weekly, monthly, or annual terms of payment, still recalls the idea of a voluntary gratuity from the prince, and reminds the soldier of the precarious tenure by which he holds his commission. But the attachment, naturally formed with a fixed portion of land, gradually begets the idea of something like property, and makes the possessor forget his dependant situation, and the condition which was at first annexed to the grant. It seemed equitable, that one who had cultivated and sowed a field, should reap the harvest: Hence fiefs, which were at first entirely precarious, were soon made annual. A man, who had employed his money in building, planting, or other improvements, expected to reap the fruits of his labour or expence: Hence they were next granted during a term of years. It would be thought PLL v6.0 (generated September, 2011)

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hard to expel a man from his possessions, who had always done his duty, and performed the conditions on which he originally received them: Hence the chieftains, in a subsequent period, thought themselves entitled to demand the enjoyment of their feudal lands during life. It was found, that a man would more willingly expose himself in battle, if assured, that his family should inherit his possessions, and should not be left by his death in want and poverty: Hence fiefs were made hereditary in families, and descended, during one age, to the son, then to the grandson, next to the brothers, and afterwards to more distant relations.
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The idea of property stole in gradually upon that of military pay; and each century made some sensible addition to the stability of fiefs and tenures.

In all these successive acquisitions, the chief was supported by his vassals; who, having originally a strong connexion with him, augmented by the constant intercourse of good offices, and by the friendship arising from vicinity and dependance, were inclined to follow their leader against all his enemies, and voluntarily, in his private quarrels, paid him the same obedience, to which by their tenure they were bound in foreign wars. While he daily advanced new pretensions to secure the possession of his superior fief, they expected to find the same advantage, in acquiring stability to their subordinate ones; and they zealously opposed the intrusion of a new lord, who would be inclined, as he was fully intitled, to bestow the possession of their lands on his own favourites and retainers. Thus the authority of the sovereign gradually decayed; and each noble, fortified in his own territory by the attachment of his vassals, became too powerful to be expelled by an order from the throne; and he secured by law what he had at first acquired by usurpation.

During this precarious state of the supreme power, a difference would immediately be experienced between those portions of territory which were subjected to the feudal tenures, and those which were possessed by an allodial or free title. Though the latter possessions had at first been esteemed much preferable, they were soon found, by the progressive changes introduced into public and private law, to be of an inferior condition to the former. The possessors of a feudal territory, united by a regular subordination under one chief, and by the mutual attachments of the vassals, had the same advantages over the proprietors of the other, that a disciplined army enjoys over a dispersed multitude; and were enabled to commit with impunity all injuries on their defenceless neighbours. Every one, therefore, hastened to seek that protection which he found so necessary; and each allodial proprietor, resigning his possessions into the hands of the king, or of some nobleman respected for power or valour, received them back with the condition of feudal services;
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which, though a burden somewhat grievous, brought him ample compensation, by connecting him with the neighbouring proprietors, and placing him under the guardianship of a potent chieftain. The decay of the political government thus necessarily occasioned the extension of the feudal: The kingdoms of Europe were universally divided into baronies, and these into inferior fiefs: And the attachment of vassals to their chief, which was at first an essential part of the German manners, was still supported by the same causes from which it at first arose; the necessity of mutual protection, and the continued intercourse, between the head and the members, of benefits and services.

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But there was another circumstance, which corroborated these feudal dependancies, and tended to connect the vassals with their superior lord by an indissoluble bond of union. The northern conquerors, as well as the more early Greeks and Romans, embraced a policy, which is unavoidable to all nations that have made slender advances in refinement: They every where united the civil jurisdiction with the military power. Law, in its commencement, was not an intricate science, and was more governed by maxims of equity, which seem obvious to common sense, than by numerous and subtile principles, applied to a variety of cases by profound reasonings from analogy. An officer, though he had passed his life in the field, was able to determine all legal controversies which could occur within the district committed to his charge; and his decisions were the most likely to meet with a prompt and ready obedience, from men who respected his person, and were accustomed to act under his command. The profit, arising from punishments, which were then chiefly pecuniary, was another reason for his desiring to retain the judicial power; and when his fief became hereditary, this authority, which was essential to it, was also transmitted to his posterity. The counts and other magistrates, whose power was merely official, were tempted, in imitation of the feudal lords, whom they resembled in so many particulars, to render their dignity perpetual and hereditary; and in the decline of the regal power, they found no difficulty in making good their pretensions. After this manner the vast fabric of feudal subordination became quite solid and comprehensive; it formed every where an essential part of the political constitution; and the Norman and other barons, who followed the fortunes of William, were so accustomed to it, that they could scarcely form an idea of any other species of civil government.
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The Saxons, who conquered England, as they exterminated the ancient inhabitants, and thought themselves secured by the sea against new invaders, found it less requisite to maintain themselves in a military posture: The quantity of land, which they annexed to offices, seems to have been of small value; and for that reason continued the longer in its original situation, and was always possessed during pleasure by those who were intrusted with the command. These conditions were too precarious to satisfy the Norman barons, who enjoyed more independant possessions and jurisdictions in their own country; and William was obliged, in the new distribution of land, to copy the tenures, which were now become universal on the

continent. England of a sudden became a feudal kingdom;s
and received all the advantages, and was exposed to all the inconveniencies, incident to that species of civil polity.

According to the principles of the feudal law, the king was the The feudal

supreme lord of the landed property: All possessors, who

government of

enjoyed the fruits or revenue of any part of it, held those

England.

privileges, either mediately or immediately, of him; and their

property was conceived to be, in some degree, conditional.t
The land was still apprehended to be a species of
benefice,
which was the original conception of a feudal property; and the vassal owed, in return for it, stated services to his baron, as the baron himself did for his land to the crown. The vassal was obliged to defend his baron in war; and the baron, at the head of his vassals, was bound to fight in defence of the king and kingdom. But besides these military services, which were casual, there were others imposed of a civil nature, which were more constant and durable.

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The northern nations had no idea, that any man, trained up to honour, and enured to arms, was ever to be governed, without his own consent, by the absolute will of another; or that the administration of justice was ever to be exercised by the private opinion of any one magistrate, without the concurrence of some other persons, whose interest might induce them to check his arbitrary and iniquitous decisions. The king, therefore, when he found it necessary to demand any service of his barons or chief tenants, beyond what was due by their tenures, was obliged to assemble them, in order to obtain their
consent:
And when it was necessary to determine any controversy, which might arise among the barons themselves, the question must be discussed in their presence, and be decided according to their opinion or
advice.
In these two circumstances of consent and advice, consisted chiefly the civil services of the ancient barons; and these implied all the considerable incidents of government. In one view, the barons regarded this attendance as their principal
privilege;
in another, as a grievous
burden.
That no momentous affairs could be transacted without their consent and advice, was in
general
esteemed the great security of their possessions and dignities: But as they reaped no immediate profit from their attendance at court, and were exposed to great inconvenience and charge by an absence from their own estates, every one was glad to exempt himself from each
particular
exertion of this power; and was pleased both that the call for that duty should seldom return upon him, and that others should undergo the burden in his stead. The king, on the other hand, was usually anxious, for several reasons, that the assembly of the barons should be full at every stated or casual meeting: This attendance was the chief badge of their subordination to his crown, and drew them from that independance which they were apt to affect in their own castles and manors; and where the meeting was thin or ill attended, its determinations had less authority, and commanded not so ready an obedience from the whole community.

The case was the same with the barons in their courts as with the king in the supreme council of the nation. It was requisite to assemble the vassals, in order to determine by their vote any question which regarded the barony; and they sat along with the chief in all trials, whether civil or criminal, which occurred within the limits of their jurisdiction. They were bound to pay suit and service at the court of their baron; and as their tenure was military, and consequently honourable, they were admitted into his society, and partook of his friendship. Thus, a kingdom was considered only as a great barony, and a barony as a small kingdom. The barons were peers to each other in the national council, and, in some degree, companions to the king: The vassals were peers to each other in the court of barony, and companions to their baron.
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But though this resemblance so far took place, the vassals, by the natural course of things, universally, in the feudal constitutions, fell into a greater subordination under the baron, than the baron himself under his sovereign; and these governments had a necessary and infallible tendency to augment the power of the nobles. The great chief, residing in his country-seat, which he was commonly allowed to fortify, lost, in a great measure, his connexion or acquaintance with the prince; and added every day new force to his authority over the vassals of the barony. They received from him education in all military exercises: His hospitality invited them to live and enjoy society in his hall: Their leisure, which was great, made them perpetual retainers on his person, and partakers of his country sports and amusements: They had no means PLL v6.0 (generated September, 2011)

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of gratifying their ambition but by making a figure in his train: His favour and countenance was their greatest honour: His displeasure exposed them to contempt and ignominy: And they felt every moment the necessity of his protection, both in the controversies which occurred with other vassals, and what was more material, in the daily inroads and injuries which were committed by the neighbouring barons. During the time of general war, the sovereign, who marched at the head of his armies, and was the great protector of the state, always acquired some accession to his authority, which he lost during the intervals of peace and tranquillity: But the loose police, incident to the feudal constitutions, maintained a perpetual, though secret hostility, between the several members of the state; and the vassals found no means of securing themselves against the injuries, to which they were continually exposed, but by closely adhering to their chief, and falling into a submissive dependance upon him.