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.
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-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 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 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-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.
- ’Twas silence all, at last Aegyptius spoke;
- Aegyptius, by his age and sorrows broke:—
- Since great Ulysses sought the Phrygian plains,
- Within these walls inglorious silence reigns.
- Say then, ye Peers! by whose commands we meet?
- Why here once more in solemn council sit?
- Ye young, ye old, the weighty cause disclose:
- Arrives some message of invading foes?
- Or say, does high necessity of state
- Inspire some patriot, and demand debate?
- The present Synod speaks its author wise;
- Assist him, Jove! thou regent of the skies!†
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, 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-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 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.*
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 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 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. 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 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, 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-tion to that feudal tenure enjoyed by their respective military tenants.*
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 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.*
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.
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-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 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 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; 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-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-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 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.
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-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 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 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 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 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-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.*
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.*
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 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 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 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-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-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 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 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 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.
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.
The advancement of a people in the arts of life, is attended with various alterations in the state of individuals, and in the whole constitution of their government.
Mankind, in a rude age, are commonly in readiness to go out to war, as often as their circumstances require it. From their extreme idleness, a military expedition is seldom inconvenient for them; while the prospect of enriching themselves with plunder, and of procuring distinction by their valour, renders it always agreeable. The members of every clan are no less eager to follow their chief, and to revenge his quarrel, than he is desirous of their assistance.They look upon it as a privilege, rather than a burden, to attend upon him, and to share in the danger, as well as in the glory and profit of all his undertakings. By the numberless acts of hostility in which they are engaged, they are trained to the use of arms, and acquire experience in the military art, so far as it is then understood. Thus, without any trouble or expence, a powerful militia is constantly maintained, which, upon the slightest notice, can always be brought into the field, and employed in the defence of the country.
When Caesar made war upon the Helvetii they were able to muster against him no less than ninety-two thousand fighting men, amounting to a fourth part of all the inhabitants.*
Hence those prodigious swarms which issued, at different times, from the ill cultivated regions of the north, and over-ran the several provinces of the Roman empire. Hence too, the poor, but superstitious princes of Europe, were enabled to muster such numerous forces under the banner of the cross, in order to attack the opulent nations of the east, and to deliver the holy sepulchre from the hands of the infidels.
The same observation will, in some measure, account for those immense armies which we read of in the early periods of history; or at least may incline us to consider the exaggerated relations of ancient authors, upon that subject, as not entirely destitute of real foundation.
These dispositions, arising from the frequent disorders incident to a rude society, are of course laid aside when good order and tranquillity begin to be established. When the government acquires so much authority as to protect individuals from oppression, and to put an end to the private wars which subsisted between different families, the people, who have no other military enterprises but those which are carried on in the public cause of the nation, become gradually less accustomed to fighting, and their martial ardour is proportionably abated.
The improvement of arts and manufactures, by introducing luxury, contributes yet more to enervate the minds of men, who, according as they enjoy more ease and pleasure at home, feel greater aversion to the hardships and dangers of a military life, and put a lower value upon that sort of reputation which it affords. The increase of industry, at the same time, creates a number of lucrative employments which require a constant attention, and gives rise to a variety of tradesmen and artificers, who cannot afford to leave their business for the transient and uncertain advantages to be derived from the pillage of their enemies.
In these circumstances, the bulk of a people become at length unable or unwilling to serve in war, and when summoned to appear in the field, according to the ancient usage, are induced to offer a sum of money instead of their personal attendance. A composition of this kind is readily accepted by the sovereign or chief magistrate, as it enables him to hire soldiers among those who have no better employment, or who have contracted a liking to that particular occupation. The forces which he has raised in this manner, receiving constant pay, and having no other means of procuring a livelihood, are entirely under the direction of their leader, and are willing to remain in his service as long as he chooses to retain them. From this alteration of circumstances, he has an opportunity of establishing a proper subordination in the army, and according as it becomes fitter for action, and, in all its motions capable of being guided and regulated with greater facility, he is encouraged to enter upon more difficult enterprises, as well as to meditate more distant schemes of ambition. His wars, which were formerly concluded in a few weeks, are now gradually protracted to a greater length of time, and occasioning a greater variety of operations, are productive of suitable improvements in the military art.
After a numerous body of troops have been levied at considerable expence, and have been prepared for war by a long course of discipline and experience, it appears highly expedient to the sovereign that, even in time of peace, some part of them, at least, should be kept in pay, to be in readiness whenever their service is required. Thus, the introduction of mercenary forces is soon followed by that of a regular standing army. The business of a soldier becomes a distinct profession, which is appropriated to a separate order of men; while the rest of the inhabitants, being devoted to their several employments, become wholly unaccustomed to arms; and the preservation of their lives and fortunes is totally devolved upon those whom they are at the charge of maintaining for that purpose.
This important revolution, with respect to the means of national defence, appears to have taken place in all the civilized and opulent nations of antiquity. In all the Greek states, even in that of Sparta, we find that the military service of the free citizens came, from a change of manners, to be regarded as burdensome, and the practice of employing mercenary troops was introduced. The Romans too, before the end of the republic, had found it necessary to maintain a regular standing army in each of their distant provinces.
In the modern nations of Europe, the disuse of the feudal militia was an immediate consequence of the progress of the people in arts and manufactures; after which the different sovereigns were forced to hire soldiers upon particular occasions, and at last to maintain a regular body of troops for the defence of their dominions. In France, during the reign of Lewis XIII. and in Germany, about the same period, the military system began to be established upon that footing, which it has since acquired in all the countries of Europe.
The tendency of a standing mercenary army to increase the power and prerogative of the crown, which has been the subject of much declamation, is sufficiently obvious. As the army is immediately under the conduct of the monarch; as the individuals of which it is composed depend entirely upon him for preferment; as, by forming a separate order of men, they are apt to become indifferent about the rights of their fellow-citizens; it may be expected that, in most cases, they will be disposed to pay an implicit obedience to his commands, and that the same force which is maintained to suppress insurrections, and to repel invasions, may often be employed to subvert and destroy the liberties of the people.
The same improvements in society, which give rise to the maintenance of standing forces, are usually attended with similar changes in the manner of distributing justice. It has been already observed that, in a large community, which has made but little progress in the arts, every chief or baron is the judge over his own tribe, and the king, with the assistance of his great council, exercises a jurisdiction over the members of different tribes or baronies. From the small number of law-suits which occur in the ages of poverty and rudeness, and from the rapidity, with which they are usually determined among a warlike and ignorant people, the office of a judge demands little attention, and occasions no great interruption to those pursuits in which a man of rank and distinction is common-ly engaged. The sovereign and the nobility, therefore, in such a situation, may continue to hold this office, though, in their several courts, they should appoint a deputy-judge to assist them in discharging the duties of it. But when the increase of opulence has given encouragement to a variety of tedious litigation, they become unwilling to bestow the necessary time in hearing causes, and are therefore induced to devolve the whole business upon inferior judges, who acquire by degrees the several branches of the judicial power, and are obliged to hold regular courts for the benefit of the inhabitants. Thus the exercise of jurisdiction becomes a separate employment, and is committed to an order of men, who require a particular education to qualify them for the duties of their office, and who, in return for their service, must therefore be enabled to earn a livelihood by their profession.
A provision for the maintenance of judges is apt, from the natural course of things, to grow out of their employment; as, in order to procure an indemnification for their attendance, they have an opportunity of exacting fees from the parties who come before them. This is analogous to what happens with respect to every sort of manufacture, in which an artificer is commonly paid by those who employ him. We find, accordingly, that this was the early practice in all the feudal courts of Europe, and that perquisites drawn by the judges, in different tribunals, yielded a considerable revenue both to the king and the nobles. It is likely that similar customs, in this respect, have been adopted in most parts of the world, by nations in the same period of their advancement. The impropriety, however, of giving a permission to these exactions, which tend to influence the decisions of a judge, to render him active in stirring up law-suits, and in multiplying the forms of his procedure, in order to increase his perquisites; these pernicious consequences with which it is inseparably connected, could not fail to attract the notice of a polished people, and at length produced the more perfect plan of providing for the maintenance of judges by the appointment of a fixed salary in place of their former precarious emoluments.
It cannot be doubted that these establishments, of such mighty importance, and of so extensive a nature, must be the source of great expence to the public. In those early periods, when the inhabitants of a country are in a condition to defend themselves, and when their internal disputes are decided by judges who claim no reward for their interpositions, or at least no reward from government, few regulations are necessary with respect to the public revenue. The king is enabled to maintain his family, and to support his dignity, by the rents of his own estate; and, in ordinary cases, he has no farther demand. But when the disuse of the ancient militia has been succeeded by the practice of hiring troops, these original funds are no longer sufficient; and other resources must be provided in order to supply the deficiency. By the happy disposition of human events, the very circumstance that occasions this difficulty appears also to suggest the means of removing it. When the bulk of a people become unwilling to serve in war, they are naturally disposed to offer a composition in order to be excused from that ancient personal service which, from long custom, it is thought they are bound to perform. Compositions of this nature are levied at first, in consequence of an agreement with each individual: to avoid the trouble arising from a multiplicity of separate transactions, they are afterwards paid in common by the inhabitants of particular districts, and at length give rise to a general assessment, the first considerable taxation that is commonly introduced into a country.
If this tax could always be laid upon the people in proportion to their circumstances, it might easily be augmented in such a manner as to defray all the expences of government. But the difficulty of ascertaining the wealth of individuals makes it impossible to push the assessment to a great height, without being guilty of oppression, and renders it proper that other methods of raising money should be employed to answer the increasing demands of the society. In return for the protection which is given to merchants in carrying their goods from one country to another, it is apprehended that some recompence is due to the government, and that certain duties may be levied upon the exportation and importation of commodities. The security enjoyed by tradesmen and manufacturers, from the care and vigilance of the magistrate, is held also to lay a foundation for similar exactions upon the retail of goods, and upon the inland trade of a nation. Thus the payment of customs, and of what, in a large sense, may be called excise, is introduced and gradually extended.
It is not proposed to enter into a comparison of these different taxes, or to consider the several advantages and disadvantages of each. Their general effects in altering the political constitution of a state are more immediately the object of the present enquiry. With respect to this point, it merits attention that, as the sovereign claims a principal share at least, in the nomination of public officers, as he commonly obtains the chief direction in collecting and disposing of the revenue which is raised upon their account, he is enabled thereby to give subsistence to a great number of persons, who, in times of faction and disorder, will naturally adhere to his party, and whose interest, in ordinary cases, will be employed to support and to extend his authority. These circumstances contribute to strengthen the hands of the monarch, to undermine and destroy every opposite power, and to increase the general bias towards the absolute dominion of a single person.
SECTION II: Other circumstances, which contribute to advance the privileges of the people.
After viewing those effects of opulence and the progress of arts which favour the interest of the crown, let us turn our attention to other circumstances, proceeding from the same source, that have an opposite tendency, and are manifestly conducive to a popular form of government.
In that early period of agriculture when manufactures are unknown, persons who have no landed estate are usually incapable of procuring subsistence otherwise than by serving some opulent neighbour, by whom they are employed, according to their qualifications, either in military service, or in the several branches of husbandry. Men of great fortune find that the entertaining a multitude of servants, for either of these purposes, is highly conducive both to their dignity and their personal security; and in a rude age, when people are strangers to luxury, and are maintained from the simple productions of the earth, the number of retainers who may be supported upon any particular estate is proportionably great.
In this situation, persons of low rank, have no opportunity of acquiring an affluent fortune, or of raising themselves to superior stations; and remaining for ages in a state of dependence, they naturally contract such dispositions and habits as are suited to their circumstances. They acquire a sacred veneration for the person of their master, and are taught to pay an unbounded submission to his authority. They are proud of that servile obedience by which they seem to exalt his dignity, and consider it as their duty to sacrifice their lives and their possessions in order to promote his interest, or even to gratify his capricious humour.
But when the arts begin to be cultivated in a country, the labouring part of the inhabitants are enabled to procure subsistence in a different manner. They are led to make proficiency in particular trades and professions; and, instead of becoming servants to any body, they often find it more profitable to work at their own charges, and to vend the product of their labour. As in this situation their gain depends upon a variety of customers, they have little to fear from the displeasure of any single person; and, according to the good quality and cheapness of the commodity which they have to dispose of, they may commonly be assured of success in their business.
The farther a nation advances in opulence and refinement, it has occasion to employ a greater number of merchants, of tradesmen and artificers; and as the lower people, in general, become thereby more independent in their circumstances, they be-gin to exert those sentiments of liberty which are natural to the mind of man, and which necessity alone is able to subdue. In proportion as they have less need of the favour and patronage of the great, they are at less pains to procure it; and their application is more uniformly directed to acquire those talents which are useful in the exercise of their employments. The impressions which they received in their former state of servitude are therefore gradually obliterated, and give place to habits of a different nature. The long attention and perseverance, by which they become expert and skilful in their business, render them ignorant of those decorums and of that politeness which arises from the intercourse of society; and that vanity which was formerly discovered in magnifying the power of a chief, is now equally displayed in sullen indifference, or in contemptuous and insolent behaviour to persons of superior rank and station.
While, from these causes, people of low rank are gradually advancing towards a state of independence, the influence derived from wealth is diminished in the same proportion. From the improvement of arts and manufactures, the ancient simplicity of manners is in a great measure destroyed; and the proprietor of a landed estate, instead of consuming its produce in hiring retainers, is obliged to employ a great part of it in purchasing those comforts and conveniencies which have become objects of attention, and which are thought suitable to his condition. Thus while fewer persons are under the necessity of depending upon him, he is daily rendered less capable of maintaining dependents; till at last his domestics and servants are reduced to such as are merely subservient to luxury and pageantry, but are of no use in supporting his authority.
From the usual effects of luxury and refinement, it may at the same time be expected that old families will often be reduced to poverty and beggary. In a refined and luxurious nation those who are born to great affluence, and who have been bred to no business, are excited, with mutual emulation, to surpass one another in the elegance and refinement of their living. According as they have the means of indulging themselves in pleasure, they become more addicted to the pursuit of it, and are sunk in a degree of indolence and dissipation which renders them incapable of any active employment. Thus the expence of the landed gentleman is apt to be continually increasing, without any proportional addition to his income. His estate, therefore, being more and more incumbered with debts, is at length alienated, and brought into the possession of the frugal and industrious merchant, who, by success in trade, has been enabled to buy it, and who is desirous of obtaining that rank and consequence which landed property is capable of bestowing. The posterity, however, of this new proprietor, having adopted the manners of the landed gentry, are again led, in a few generations, to squander their estate, with a heedless extravagance equal to the parsimony and activity by which it was acquired.
This fluctuation of property, so observable in all commercial countries, and which no prohibitions are capable of preventing, must necessarily weaken the authority of those who are placed in the higher ranks of life. Persons who have lately attained to riches, have no opportunity of establishing that train of dependence which is maintained by those who have remained for ages at the head of a great estate. The hereditary influence of family is thus, in a great measure, destroyed; and the consideration derived from wealth is often limited to what the possessor can acquire during his own life. Even this too, for the reasons formerly mentioned, is greatly diminished. A man of great fortune having dismissed his retainers, and spending a great part of his income in the purchase of commodities produced by tradesmen and manufacturers, has no ground to expect that many persons will be willing either to fight for him, or to run any great hazard for promoting his interest. Whatever profit he means to obtain from the labour and assistance of others, he must give a full equivalent for it. He must buy those personal services which are no longer to be performed either from attachment or from peculiar connexions. Money, therefore, becomes more and more the only means of procuring honours and dignities; and the sordid pursuits of avarice are made subservient to the nobler purposes of ambition.
It cannot be doubted that these circumstances have a tendency to introduce a democratical government. As persons of inferior rank are placed in a situation which, in point of subsistence, renders them little dependent upon their superiors; as no one order of men continues in the exclusive possession of opulence; and as every man who is industrious may entertain the hope of gaining a fortune; it is to be expected that the prerogatives of the monarch and of the ancient nobility will be gradually undermined, that the privileges of the people will be extended in the same proportion, and that power, the usual attendant of wealth, will be in some measure diffused over all the members of the community.1
SECTION III: Result of the opposition between these different principles.
So widely different are the effects of opulence and refinement, which, at the same time that they furnish the king with a standing army, the great engine of tyranny and oppression, have also a tendency to inspire the people with notions of liberty and independence. It may thence be expected that a conflict will arise between these two opposite parties, in which a variety of accidents may contribute to cast the balance upon either side.
With respect to the issue of such a contest, it may be remarked that, in a small state, the people have been commonly successful in their efforts to establish a free constitution. When a state consists only of a small territory, and the bulk of the inhabitants live in one city, they have frequently occasion to converse together, and to communicate their sentiments upon every subject of importance. Their attention therefore is roused by every instance of oppression in the government; and as they easily take the alarm, so they are capable of quickly uniting their forces in order to demand redress of their grievances. By repeated experiments they become sensible of their strength, and are enabled by degrees to enlarge their privileges, and to assume a greater share of the public administration.
In large and extensive nations, the struggles between the sovereign and his people are, on the contrary, more likely to terminate in favour of despotism. In a wide country, the encroachments of the government are frequently overlooked; and, even when the indignation of the people has been roused by flagrant injustice, they find it difficult to combine in uniform and vigorous measures for the defence of their rights. It is also difficult, in a great nation, to bring out the militia with that quickness which is requisite in case of a sudden invasion; and it becomes necessary, even before the country has been much civilized, to maintain such a body of mercenaries as is capable of supporting the regal authority.
It is farther to be considered that the revenue of the monarch is commonly a more powerful engine of authority in a great nation than in a small one. The influence of a sovereign seems to depend, not so much upon his absolute wealth, as upon the proportion which it bears to that of the other members of the community. So far as the estate of the king does not exceed that of the richest of his subjects, it is no more than sufficient to supply the ordinary expence of living, in a manner suitable to the splendour and dignity of the crown; and it is only the surplus of that estate which can be di-rectly applied to the purposes of creating dependence. In this view the public revenue of the king will be productive of greater influence according to the extent and populousness of the country in which it is raised. Suppose in a country, like that of ancient Attica, containing about twenty thousand inhabitants, the people were, by assessment or otherwise, to pay at the rate of twenty shillings each person, this would produce only twenty thousand pounds; a revenue that would probably not exalt the chief magistrate above many private citizens. But in a kingdom, containing ten millions of people, the taxes, being paid in the same proportion, would in all probability render the estate of the monarch superior to the united wealth of many hundreds of the most opulent individuals. In these two cases, therefore, the disproportion of the armies maintained in each kingdom should be greater than that of their respective revenues; and if in the one, the king was enabled to maintain two hundred and fifty thousand men, he would, in the other, be incapable of supporting the expence of five hundred. It is obvious, however, that even five hundred regular and well disciplined troops will not strike the same terror into twenty thousand people, that will be created, by an army of two hundred and fifty thousand, over a nation composed of ten millions.
Most of the ancient republics, with which we are acquainted, appeared to have owed their liberty to the narrowness of their territories. From the small number of people, and from the close intercourse among all the individuals in the same community, they imbibed a spirit of freedom even before they had made considerable progress in arts; and they found means to repress or abolish the power of their petty princes, before their effeminacy or industry had introduced the practice of maintaining mercenary troops.
The same observation is applicable to the modern states of Italy, who, after the decay of the western empire, began to flourish in trade, and among whom a republican form of government was early established.
In France, on the other hand, the introduction of a great mercenary army, during the administration of Cardinal Richelieu, which was necessary for the defence of the country, enabled the monarch to establish a despotical power. In the beginning of the reign of Lewis XIII. was called the last convention of the states general which has ever been held in that country: and the monarch has, from that period, been accustomed to exercise almost all the different powers of government. Similar effects have arisen from the establishment of standing forces in most of the great kingdoms of Europe.
The fortunate situation of Great Britain, after the accession of James I. gave her little to fear from any foreign invasion, and superseded the ne-cessity of maintaining a standing army, when the service of the feudal militia had gone into disuse. The weakness and bigotry of her monarchs, at that period, prevented them from employing the only expedient capable of securing an absolute authority. Charles I. saw the power exercised, about this time, by the other princes of Europe; but he did not discover the means by which it was obtained. He seems to have been so much convinced of his divine indefeasible right as, at first, to think that no force was necessary, and afterwards, that every sort of duplicity was excuseable, in support of it. When at the point of a rupture with his parliament, he had no military force upon which he could depend; and he was therefore obliged to yield to the growing power of the commons.
The boldness and dexterity, joined to the want of public spirit, and the perfidy of Oliver Cromwell, rendered abortive the measures of that party, of which he obtained the direction; but the blood that had been shed, and the repeated efforts that were made by the people in defence of their privileges, cherished and spread the love of liberty, and at last produced a popular government, after the best model, perhaps, which is practicable in an extensive country.
Many writers appear to take pleasure in remarking that, as the love of liberty is natural to man, it is to be found in the greatest perfection among barbarians, and is apt to be impaired according as people make progress in civilization and in the arts of life. That mankind, in the state of mere savages, are in great measure unacquainted with government, and unaccustomed to any sort of constraint, is sufficiently evident. But their independence, in that case, is owing to the wretchedness of their circumstances, which afford nothing that can tempt any one man to become subject to another. The moment they have quitted the primitive situation, and, by endeavouring to supply their natural wants, have been led to accumulate property, they are presented with very different motives of action, and acquire a new set of habits and principles. In those rude ages when the inhabitants of the earth are divided into tribes of shepherds, or of husbandmen, the usual distribution of property renders the bulk of the people dependent upon a few chiefs, to whom fidelity and submission becomes the principal point of honour, and makes a distinguishing part of the national character. The ancient Germans, whose high notions of freedom have been the subject of many a well-turned period, were accustomed, as we learn from Tacitus, to stake their persons upon the issue of a game of hazard, and after an unlucky turn of fortune, to yield themselves up to a voluntary servitude. Whereever men of inferior condition are enabled to live in affluence by their own industry, and, in procuring their livelihood, have little occasion to court the favour of their superiors, there we may expect that ideas of liberty will be universally diffused. This happy arrangement of things is naturally produced by commerce and manufactures; but it would be as vain to look for it in the uncultivated parts of the world, as to look for the independent spirit of an English waggoner among persons of low rank in the highlands of Scotland.
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.
- Δώδεκα γὰρ κατὰ δη̑μον ὰριπρεπέες βασιλη̑ες
- Α’ρχοὶ κραίνουσι, τρισκαιδέκα ος δ’ ἐγὼ αὐτός
- [[“For twelve distinguished kings have we had in our land as rulers, and I am the thirteenth.”]]
Odyss. lib. 8. v. 390.
Pope’s Odyss. book 2. l. 19.
See Thucydides’ history of the Peloponnesian war, book 1. 2.
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 [].
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.
This account seems liable to great objections. 1st, It may be asked how the king came to possess so much power as would enable him, at once, to acquire the entire property of the conquered lands? For it must be remembered that the conquest extended over the ancient inhabitants of the country, not over his own followers; and with respect to these last, the accounts given by Caesar and Tacitus of the German nations, represent their princes as possessing a very limited authority.
2dly, Upon the supposition that all the conquered lands were originally held of the king during pleasure, his authority, immediately upon the settlement of these nations, must have been rendered altogether despotical. If the king had a power of dispossessing all his subjects of their landed estates, he must have been more absolute than any monarch at present upon the face of the earth. But the early history of the modern European nations, gives an account of their government very different from this, and informs us that the nobility of each kingdom enjoyed great independence, and a degree of opulence, in many cases, little inferior to that of the monarch.
The idea that the king became originally proprietor of all the conquered lands seems now, upon a fuller examination of facts, to be in a great measure relinquished; and several writers of late have made it at least extremely probable that the land in the conquered provinces was at first occupied, according to circumstances, by different individuals, or distributed by lot among the warriors of each victorious tribe; and that each possessor became the full proprietor of that portion of land which had fallen to his share. See Le droit publique de France, eclairci par les monumens de l’antiquité. Par M. Bouquet. [[12.]] See also observations sur l’histoire de France. Par M. L’Abbé de Mably. [[I:50–52.]]
It is true that, in the modern kingdoms of Europe, the proprietors of lands were early understood to be under an obligation of going out to war as often as the public interest required it. But this was a duty which they owed to the community as citizens, not to the king as vassals; and their attendance was required, not by an order of the monarch, but in consequence of a determination of the national assembly, of which they themselves were the constituent members.
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.]]
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. [] 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.]]
De bell. Gall. lib. 1. [[29.]]
This paragraph and the one preceding it are perhaps the most succinct description to be found in eighteenth-century political theory of the growth of commerce and opulence, and of the subsequent democratization and breakdown of static hierarchies of ranks. But as is apparent from the next section, Millar thought that opulence in large nations tended to give more power to the sovereign than to the people.