« ElőzőTovább »
To this day, it is against all etiquette to bargain with | for some time degenerating, that those great collections a barrister for his work. The law gives him no claim of legislative wisdom which have come down to modern for remuneration, which it kindly views as unworthy times were commenced. The first attempt to construct of the dignity of his profession; and it is usual to pay a code seems to have been the Perpetual Edict of him beforehand for his legal assistance. On the other Hadrian, already alluded to. Two private individuals, hand, though he has been paid beforehand, he cannot Gregorius and Hermogenes, appear to have collected be compelled to perform any duty in return, for he is the imperial constitutions into a system, or code, of presumed to assist the client from his own free good which some fragments are still preserved. Nothing will. In most other professions, it is the custom for whatever is known of the biography of these compilers: the person employed to feel under a sort of obligation it has not even been discovered in what reigns they reto the employer who has preferred him to others. spectively lived, though their labours received high This principle is reversed at the bar; for the person commendation at the hands of Theodosius the Younger. employed is the patron, and the employer the client. Under this emperor the celebrated Theodosian Code
But to return to the legislation of the sages of the was promulgated, in the year 438. The compilation of law. During the commonwealth, whoever, by his supe- this body of laws was committed to eight individuals, rior sagacity or knowledge, could obtain deference for who were allowed considerable latitude in explaining his opinions, might be said to be a manufacturer of and abridging, and even in supplying deficiencies. It laws. Under the earlier emperors, the privilege of pro- contains the legislative acts of sixteen emperors, from mulgating authoritative opinions was confined to a the year 312 to 438. Fragments of this code have been limited number of lawyers, of equestrian rank, licensed rescued from oblivion inch by inch, by modern scholars, by the government; but the profession was again thrown whose labours, it may safely be calculated, have open to the public by Hadrian. The most brilliant era amounted to some twenty or thirty times more than of legal wisdom commences within a short period of the those of the original compilers. The celebrated Godedecline of the republic, and terminates with the reign froy of Geneva spent thirty years in the task; and of Alexander Severus. Mucius Scævola, the tutor of within the last thirty years the discovery of some furCicero, was one of its earliest ornaments; and it in ther fragments induced the celebrated Angelo Mai to cluded the celebrated jurisconsults Paul, Ulpian, Papi- study the Roman law for the purpose of editing them. nian, Capito, and Labeo. The two last of these, who We may now notice those great collections of the lived in the age of Augustus, were the founders of the legal wisdom of the Romans, to which the above may two sects—the Proculians and Sabinians--into which be considered only preparatory. In 529, ten commisthe Roman lawyers were divided. The former advo- sioners, appointed by Justinian, prepared The Code or cated the doctrine that the laws should be amended at Codex, as it is termed, from the collections previously discretion, to meet circumstances as they occurred; the made, and the intermediate enactments, Soon after latter maintained the theory of their strict interpre- its promulgation, the emperor issued several new con. tation, be its inexpediency in the particular instance stitutions, and the whole were consolidated and reissued what it may. Capito, applying his doctrines to the in 534. This great task was superintended by the celeinroads which the emperors were gradually making in brated Tribonian, whose eminent learning and discrithe freedom of the republic, was a supporter of this mination, allied with untiring industry, but stained by species of innovation, and his followers were enrolled the vices of corruption and partiality, have afforded a among the ready tools of despotism. Labeo sought to fruitful theme of praise and obloquy. This was by no support the ancient freedom of the republic by an means Tribonian's only labour. In the year 530, he adherence to the letter of the old laws, and his sect was appointed the chief of a commission of sixteen, became the champions of what may be termed consti- whose duty it was to cull the choice and useful passages tutional freedom. The conflict is not unlike that which from the authors of comments and opinions. The at one time existed in Britain between Lord Mansfield various authorities, which, we are told, would have and Lord Camden; the former supporting, to a certain made several camels' loads, were thus reduced within degree, an equitable, the latter, in all cases, a strict | a compass which, if it do look somewhat formidable to interpretation of the law.
the consulter, is still manageable. Such are the fifty Having now enumerated the principal sources of the books which constitute the celebrated 'Pandects,' or Roman law, we may notice its remarkable epochs. The 'Digest' of the Roman law—a work without which laws enacted during the reigns of the kings, although a modern Europe would have known but little of the curious subject of inquiry among antiquaries, exercised subject. Along with Theophilus and Dorotheus, the too little influence on the civil law, as handed down to indefatigable commissioner was able to prepare, in conmodern Europe, to be of much practical importance. junction with this great digest of the law, an abridgDuring the administration of the decemvirs, the cele- ment or manual of its leading principles, which bears brated laws of the Twelve Tables were adopted. The the well-known name of The Institute.' This contraditionary history connected with this code is, that densed and elegant little work was sanctioned by the the Roman government, conscious of the want of a emperor in 533. It has become the subject of innuproper legal system, sent commissioners to Greece, who, merable comments, and has afforded the model on after studying the laws of that comparatively civilised which the legal writers of most modern nations have nation, produced the Twelve Tables for the acceptance desired to prepare their treatises. Justinian continued, of the Romans. The tradition, like many others con- during the remainder of his life, to promulgate new nected with the Roman history of the period, has not laws; and these, collected together under the title of sufficient historical evidence to support it against its · Novella,' or ' Novels,' form the remaining department natural improbability. These laws, of which specimens of the corpus juris,' or body of the civil law. are professed to be preserved, are written in a language With Justinian we reach the climax of the Roman so different from that of the classical writers of Rome, law; and to trace its farther progress in the Empire that they were to Cicero an object of much the same has been more a subject of curiosity to the antiquary curiosity as the old Scottish acts were to Bacon. Like than of importance to the lawyer. Some fragments by the first laws of other rude states, they are simple and later commentators, chiefly in the Greek language, have brief in their enactments. The bankruptcy system been disentombed by zealous searchers. The Roman which has so sadly shocked several benevolent scholars, law was nominally respected by the northern conthat they have endeavoured to explain it as a merely querors of Rome. "Alaric, king of the Visigoths, insymbolical provision--is peculiarly sharp and effective. deed, caused a compendium to be prepared for the use It enacts that the insolvent debtor shall be cut in pieces, of his dominions, consisting chiefly of an abridgment of and that his body shall be distributed among his credi- the codes of Gregorius, Hermogenes, and Theodosius. tors. When law became a science openly studied, the Towards the end of the ninth century, Basilius, empeTwelve Tables became the subject of many commen- ror of the East, issued a new code, intended to supersede taries. It was not, however, till the Romans had been the labours of Tribonian, termed the · Basilica.'
In the dark ages, however much of the Roman law | rived a marriage law so different from the ceremonious may have remained in practice, it had died away in system that prevails in England. Its leading prinliterature, and was neither studied nor commented on. ciple is, that the consent of the parties alone is necesAt the taking of Constantinople in the fifteenth cen- sary to a valid marriage, and that when that is proved, tury, only one copy of one of the Justinian labours, the nothing more is necessary; and that a child born Novels, seems to have been discovered. It was long between parties who are subsequently married, becomes believed, indeed, in the learned world, that from the legitimate by that act. The law of trusts and of the
eriod of the Basilica to the twelfth century, the very mutual rights and obligations of guardian and ward, existence of the Roman law was among the things for- have found their way more or less into every modern gotten. The circumstances of its resuscitation were system, and even into the statute-law of England. found in a traditional anecdote, that at the siege of Prescription, or the principle that claims are limited Amalphi in 1137, some Pisan peasants discovered a by the lapse of time, has come down to us from the complete copy of the Pandects among the plunder, the Romans. The law of testaments, and the descent of melodious language, comprehensive philosophy, and movable property, is mainly derived from the same clear definitions of which, so charmed the readers of quarter. It is in the case of the tenure and transmisthat barbarous age, that its contents were immediately sion of land, indeed, that the person versed in modern devoured with avidity and propagated with zeal. In systems will find himself least at home in the Roman, Florence, a manuscript is still preserved, said to be the from the effect which the feudal institutions of the identical book with which this anecdote is connected, various nations of Europe have produced on that taken at the siege of Pisa in 1406. The essence of the branch of the law. The subjection in which children tradition has been disproved by late discoveries, which were placed to their parents is apt to create surprise, show that the civil law was known previously to the even when compared with the strict filial etiquette of siege of Amalphi.
our own ancestors. A revolting feature of the corpus The real revival of the civil law is to be traced in the juris is the portion of legislation devoted to the subject history of the universities. Of these, Paris, Bologna, of slavery and the property in slaves. and Leyden, took the lead in the department of juris- The Roman law has already been mentioned as the prudence. Contemporary with, or immediately after source of the law of nations, or, as it is more justly the siege of Amalphi, lectures were given on the Pan- called, the international law, in modern Europe. It was dects in the university of Oxford, by a teacher of the quite natural that a system voluntarily adopted among name of Vacarius. For reasons which we shall have nations for regulating their mutual intercourse, should to state when we come to treat of the laws of England, be founded, to as great an extent as might be expedient, the civil law, thus early commenced, never made much on the system of the internal laws which the majority progress in England. Nor, although the civil law was so of the nations had chosen to adopt. But the law of prominent a subject of professional study in Scotland, nations is perpetually varying with circumstances, and has that part of the empire done much to elucidate it is impossible to draw that distinct view of its nature the science. Both England and Scotland, indeed, have and provisions which may be given of the laws of any produced writers on the civil law; but with one or two particular state. It has been argued, indeed, that the exceptions, the British jurists are not among those term “law' is improperly applied to the system. Wherenames which become familiar to the readers on the ever the term law is used, there is understood not only subject, from the frequent reference made to them by a regulation laid down, but a means of enforcing it in subsequent commentators. The earlier modern civi- the hands of a superior power. The civil and criminal lians followed three oracles --- Bartolus, Baldus, and laws are enforced by the ordinary courts; the military Accursius, whose works, it is believed, the most enthu- law, by courts martial; the law of the church, by the siastic admirer of the study would not now peruse, and ecclesiastical courts, &c. But who, it is said, is to be who probably retain their chief celebrity from having the judge to enforce the law between nations? When been targets for the wit of Rabelais. In the seventeenth two nations have a dispute, and their power is equal, it century, more elegant and philosophical commentators remains undecided ; if the one is much superior in followed, and the subject was pursued with zeal to the strength to the other, it has matters its own way. In middle of the following century. A prodigious number the late war, Great Britain maintained that she had a of civil law books issued from the press during that right to search all neutral vessels, for the purpose of period; and we have heard it asserted, that a complete ascertaining if they contained contraband goods or collection of all the books published on the civil and sheltered deserters. The smaller states were bound to canon law would make a library of two hundred thou- submit; but America resisted, and the dispute occasand volumes. The labours of Godefroy alone are sioned a bloody war. So it probably will be again sufficient to damp the ardour of a modern literary cold when the same claim is urged. Instead of being a lector; and there is perhaps no surer mode of compre- fixed law applicable to all, the weak will have to obey, hending what human patience and perseverance is and the strong will resist. For the enforcement of any capable of, than the contemplation of a civil law rules that may be called the law of nations, then, it is library. Holland has been profuse with great autho-clear that there is no better sanction than this, that the rities - Grotius, Matthæus, Schulting, Noodt, Voet, powers which openly outrage them will call forth a and Huber, belonged to that country. Germany pro- degree of indignation on the part of the rest of the duced the philosophic jurist Puffendorf, and Heinec- world which may prove dangerous. The partition of cius, whose elementary works—as the clearest and Poland, for instance, called forth the indignation of the most methodical of the commentaries--have been popu- rest of Europe; and it may be still a question whether lar as class-books of civil law. Among modern in the acquisition was a prudent one to the nations convestigators in this laborious science, the Germans have cerned. It is not to be supposed, however, that there taken the lead.
are no courts where the law of nations is enforced. To give a general outline of the Roman law, would Each country in Europe has generally a court where be to describe the common principles of the majority its own views on the subject are laid down. England of the codes of civilised mankind. Although the pro- has, for instance, the prize jurisdiction of the Court of gress of commerce and manufactures has introduced a Admiralty, which is thus called a civil law court. quantity of transactions such, for instance, as bills of During the late war, when Napolcon, by his Berlin exchange—which the Roman lawgivers could never decrees, declared Great Britain and her colonies in a have contemplated, yet their system is the foundation state of blockade, and Britain retaliated by the orders of all the cominercial laws of Europe--a circumstance in council on the rest of Europe, a multitude of cases which has probably facilitated the uniformity so ne- where the ships of neutral powers had been seized for cessary in transactions which involve inhabitants of breach of neutrality were adjudged. And here a cir. different countries. From the same source, Scotland cumstance occurred which could not take place proand the greater part of continental Europe have de- l bably in any other country, that the view taken of the law of nations by the judge was different from that | Perth in 1242 and 1269, passed some important laws taken by his government; for Lord Stowell declared regarding tithes. that a blockade could not be held to exist by mere The great aim of ecclesiastical legislation was to bring proclamation, but that there must be present on the civil questions within its pale. Disputes as to tithe and spot an armament sufficient to enforce it.
the privileges of the clergy came very naturally to its One of the principal defects of the writings in the hand. The priesthood were in a great measure incivil law, and one that renders the subject in a great trusted with the administration of legacies, especially measure unpopular at the present day, is the spirit of where they were destined to pious uses ; and they thus speculation with which they are imbued, and the extent acquired a jurisdiction in questions of succession, of to which they carry divisions and arrangements which which we see vestiges in this country in the Court of are of no service in practice, and provide for wants Arches and the other ecclesiastical courts of England, purely hypothetical. The civilian in his study, shut and the commissary system in Scotland. Marriage out from the world, and ignorant of its pursuits, sets his being constituted a sacrament, the canon law not only brain at work to create the various exigencies of prac- took into its hands all questions regarding the union tical life to which the maxims of the institute were and separation of the parties, but adjudged in the criapplicable, and to devise how they could be applied; minal act out of which the latter circumstance might but when his labours were brought to the light of day, arise, and took under its cognisance questions as to it was found that the world in its practice, and he in dower. The church obtained a powerful hold over the his thoughts, had taken totally different routes, and proceedings of ordinary courts of law, by the introducthat the one could not be the companion of the other. tion of the practice of witnesses and parties calling God If a tailor make clothes with another man's cloth, to to attest the truth of their statements—the origin of the which of the two shall they belong? If an artist paint present system of administering an oath. Over this on another man's canvas, who shall be the proprietor ceremony, and all matters connected with the truth or of the picture! Such were among the subtleties dis- falsehood of the statement it sanctioned, the clergy cussed among the Roman jurists. In later days, when took a particular charge. Notaries, who, in the days of legislators bave too much to do in keeping up with the ignorance, were intrusted with the execution and repractical demands of society to indulge in hypothetical gistration of contracts—who, in fact, were the living law-making, such subjects would not be taken up until registers of almost all transactions of importance, were cases of difficulty actually occurred; and then, before necessarily taken from the only class who could write deciding the abstract questions, it would probably be the churchmen--and their appointment and removal asked under what circumstances tailors are likely to naturally fell into ecclesiastical hands. make garments out of cloth which does not belong to A great rivalry thus existed between the civil and the them, or artists to paint on other people's canvas ? canon law; but it was a friendly rivalry. The clergy
were the repositaries of both systems, and they had to THE CANON LAW,
decide how much should be assigned to the one and The Canon Law is, properly speaking, the ecclesias- how much to the other. The canon law borrowed tical law of the Roman Catholic Church. In its more largely from the civil, of which it is sometimes conlimited acceptation, it may be called the by-laws of the sidered a mere branch ; it was naturally, indeed, the church as a separate corporation; but its field widened object of the clergy not so much to change the law with the influence of the hierarchy. It embraced many itself, as to take the administration of it into their subjects of pure civil and municipal law, such as the own hands. To be juris utriusque doctor, or doctor of distribution of property between married persons, suc- either law, civil and canon, was a common distinction. cession, &c., by linking them with ecclesiastical matters; During Henry VIII.'s reign, lectures on the canon law and thus the clerical tribunals came to rival, if not to were abolished in England, and with them the correexcel in importance, those of the state. The canons sponding degree. Jealous as the English were of the of the Greek Church, a portion of which were said to encroachments of the civil law, they still more deterbe the work of the apostles, added to and explained by minedly opposed that of the canon.
What the powergeneral councils, were sanctioned by the Novels of Jus- ful court of Rome had set its heart upon, however, tinian, and have so been viewed as a portion of the could not be wholly resisted; but it was always a body of civil law. A collection of canons was made in principle, that though the civil authorities of England the year 520; and this work, with the papal decrees, might take laws from the ecclesiastical system, the and the privileges conceded to the church by Charle- canon law was never, in its own simple authority, to magne, formed the chief subject matter of the canon be obeyed within the realm. law down to the twelfth century. It was then that this law ceased to be the mere regulations of a peculiar body, and became a general system of jurisprudence. The feudal system and the Roman law may be said About the year 1114, a collection of the decrees of to have struggled for supremacy through nearly the popes and cardinals was commenced by Ivo, Bishop of whole of modern Europe. Of the influence of the latter Chartres, and was revised and completed in 1149 by we have already taken a cursory view. The former Gratian, a Benedictine monk. Another element in the was an ingredient in the constitution of the continental system consisted of the Decretals, which were rescripts and British monarchies. It was the source of those or epistles by the pope, or by the pope and cardinals, popular or aristocratic assemblies which shared more deciding how the law of the church stood concerning or less, according to circumstances, the government of disputed matters referred to them. These were first the various states in which they existed ; and it was collected and edited in 1234 by Raimond de Renafort, thus the ostensible origin of the British parliament. chaplain to Gregory IX. This work was divided into The constitution of the German empire is essentially five books, to which a sixth was added under the feudal; and the customs, or peculiar local laws of the auspices of Boniface VIII. in 1298. These two great various provinces of France, previously to the Revoluworks, with some additions made to them by succeed- tion, were models from which the system was studied. ing popes, formed what, in imitation of the collected The English law, especially that of real or landed proworks in the law of Rome, was called the Corpus Juris perty, is full of feudal usages, though their operation Canonici, or Body of the Canon Law. Besides these has often been checked. In Scotland, the forms of the general statutes, there were local canon laws passed by feudal system may be found existing in almost original the clergy of various countries, at national or provincial purity, though, as we shall hereafter see, they have assemblies, held under the auspices of papal legates been adapted, perhaps as far as they are capable of or archbishops. In the reign of Henry III. there were being so, to the wants of civilised times. assemblies of the former kind; and under the respective An account of the rise and progress of the Roman archbishops of England there were frequent provincial law must, for obvious reasons, be far more satisfactory synods. In Scotland, two provincial synods, held at than any that can be given of the feudal system. The
THE FEUDAL LAW.
former was (at least the greater part of it) the con- | despotism, which is frequently adduced as a disgusting struction of ingenious individuals, possessed of authority memorial of the barbarism of feudality. Of illustrato enforce their mandates on their fellow-beings. The tions of despotism, indeed, the feudal system is full. latter gradually rose out of circumstances and the Independently of its own peculiarities, it would have state of society. It was not devised by a powerful been impossible for any legal system to have passed legislator, to be promulgated to a willing people; but through the scenes of rapine, blood, and barbarism it rose out of habits and events which took place in an which characterised the middle ages of Europe, without age when there were no historians to record their pro- being the instrument of many iniquities. At the outgress. Hence the origin of the feudal system has been break of the French Revolution, which at first was little à fruitful subject of debate and theory; and in the more than an attack on the most offensive relics of absence of facts, it has often been necessary to resort feudalism in France, some of these horrors were dragged to moral deductions. It has been maintained by some from their dingy retreat in parchment records and that nothing can be more simple than the feudal sys- black-letter chronicles, to add to the frenzy of the tem; that it was a mere arrangement by which military times. Among other instances, was adduced that of service was given in exchange for land, and that many a feudal lord, on his return from the chase in winter, half-civilised nations present instances of a similar disembowelling a vassal, that he might keep his feet contract. Ingenious speculators have found the resem- warm in the reeking trunk during the evening revel. blance of the system in particular stages of the history proper return of the vassal for his lands and the of Greece and Rome, in Turkey, Persia, Hindoostan, protection of his lord was, as already stated, military and the Highlands of Scotland, among the aborigines service. Where this system was established as a fixed of North America, and in the Loo-choo Islands. But law, the quantity of service to be so given was regulated. however important may be the investigation of such a knight's fee imposed on the holder the duty of being analogies between the practice of mankind under diffe- forty days in the field for his superior, and the half or rent circumstances, as a part of the history of the human quarter of a knight's fee involved corresponding propormind, they throw but little light on the feudal system, tions of service. When fiefs came first into existence, the chief interest of which is to be found in the vastness it is probable that there was no other service worth posof the field which it covered, and the influence which sessing but the use of the strong arm. Conquered land it has exercised for so many centuries over the legal was what the chief possessed, men to fight more battles institutions of Europe.
was what he wanted; so that the one became the price The essential elements of the feudal system were of the other. It was not always the case, however, that land, and military service given for the use of it, by the land was valuable for nothing but as the reward of vassal who held it, to the superior of whom it was held. fighting, and it was gradually bestowed for other conIt would be wrong to speak of either of these two par-siderations; yet so closely connected had the relation ties as the absolute proprietor of the lands; for in the of a military tenure become with land, that any other more perfect stage of the system, each had his own method of disposal was considered as irregular, and peculiar privileges, with which the other had no right merely exceptional. Hence, when land was given withto interfere, except where the law permitted himn. The out a price, and for the understood return of military vassal was not, in the general case, the slave of the service, it was said to be a proper feu; when any other superior. The duties and services he had to perform consideration, such as a sum of money, was stipulated were regulated by compact or custom. On the other for, it was said to be improper. The former was always hand, however, he was not the independent pro- presumed to be the condition on which land was given, prietor of the lands he held. He could not convey the latter required to be specially proved, and the unthem to a purchaser, nor could he pledge or bequeath willingness to admit it called for those legal subtleties them, without obtaining the sanction of the superior which have made the commerce inland to this day to the person to be substituted to him. Land was thus so complicated. It behoved that there should be poscompletely removed from the operation of commerce ; sessors of land who were not of necessity soldiers, and and in those countries where the feudal system conti- it was necessary to the monarch, or feudal superior, to nued to exist, it was only by fictions and connivances-employ people in various other capacities. All, howby bribing the superior, or getting the courts of law to ever, took the impression and stamp, as it were, of compel him to give his consent—that sales and pledges fiefs. Salaries, taxes, honours, and dignities, even board could be effected. The lands held in this manner were and lodging, were feued out: the person who had entermed ficfs. When they became hereditary, as they gaged to bestow them acted the part of superior, and did apparently by custom, arising from the tacit con- he who received them that of vassal. The church sent of the parties interested, the superior was still enjoyed lands which were not exempt from the ordipresumed to give an assent to the change from father nary feudal services. In the earlier ages, churchmen io son; and before he acknowledged the latter as his in many cases themselves assumed the spear and vassal, he exacted from him a fine. When the suc- buckler. When it was considered inconsistent for cessor was a minor, and thence unable to fulfil the churchmen to fight, it was held as by no means unsuit. military duties of the fief, the superior in some cases able for the church to employ soldiers. A clerical became his guardian, drawing the rents of the estate, establishment would sometimes appoint a patron, or and compelling him to marry whom he should point chivalrous assistant, in the person of a neighbouring out, under a penalty which, it would seem, ought to baron, who would be called the 'advocate' of the estabamount to the sum which the guardian, or superior, lishment—the use, by the way, to which that word, could receive by selling the alliance. The superiors which now designates a class of peaceful lawyers, was claim upon the estate during the vassal's minority be- first applied. It is not unfrequent to find in old tenures came, like most other feudal exactions, fixed by usage, that a particular monastery is to supply so many archers and seems in general to have amounted to one year's and spearmen for so many days. rent of the land. In some countries females could not Borough communities were another class to whom succeed. In others, where their right was acknow- military service seems inapplicable, but who neverledged, the superior claimed the privilege of assigning theless almost universally held by that tenure. They husbands to them; and exacted a fine, sometimes for obtained certain privileges, and in return they had admitting the husband as a new vassal, sometimes as generally to keep watch and ward in their respective the price for permitting him to marry his ward. The towns; a service in which their own safety might not feudal system, like every other, had its degrees of good be less interested than the ambition of their lord. As ness and badness. Where we find the milder features the privileges conceded to these communities were large of the feudal law, the right of the lord over his female and important, they did not, in general, escape taxation vassals, or the wives and children of his followers, was along with their military duties; and in later times, a mere tax; but where the darker influences of the these exactions became generally commuted for a money system were at work, it gave legality to a licentious payment. The privileges usually conceded to these
commercial communities consisted of an exemption petuity to their bounty by written deeds. From all these from the more vexatious of the feudal exactions, to be circumstances, the investiture of the vassal became a shortly noticed. These were generally conceded to them very important and solemn affair. Investiture was by the monarchs, as a counterpoise to the growing power divided into proper and improper. By the former, the of the feudal aristocracy; and within these sanctuaries superior went in person to the land, assembled all his commerce and civilisation created a power, by which other vassals upon it, and showed them the portion he both kings and nobility were effectually held in check. had assigned to his new follower. The vassal, upon
Among those who were placed in the position of this, did homage, accepting the grant, and promising feudal vassals to the seignior, or lord, were his own to perform the usual services in return. By the imdomestic servants, whose power and influence would be, proper investiture, of the full practice of which in our to a certain extent, measured by that of their master. own day we shall give an instance, the superior gave To perform the menial duties of his household, a Roman authority to his bailiff, or some other person, to give emperor employed a slave, just as a senator or a pro-investiture, which was done by the symbolical delivery consul might do. The barbarian conquerors, however, of a portion of the property-some earth and a piece of gave lands to those who performed these functions; and stone generally—to the vassal, or some person authothe person who performed for Charlemagne the office of rised by him to accept the grant and perform his homage. butler, valet, huntsman, or groom, got for his services Writing was probably in use before this latter usage the commodity most readily at his master's hands-por- was commenced, and the authority was generally a tions of conquered territory. The services were thus written one. The solemn investiture in presence of performed as the consideration for feudal benefices. the co-vassals finally descended to a mummery between The menial servant of the monarch might have tenants an attorney and his clerks. The necessity to have acts and retainers under him; and thus the wages ennobled regarding the fiefs of a superior witnessed by his vassals, the functions. Hence we have had in modern Europe can be traced to a connection with two of the inost immasters of the robes, grooms of the stole, masters of portant institutions of modern times. The great vasthe buckhounds, masters of the horse, &c. held by the sals of a king, met together in public assembly to dishighest nobility of the realm. The graf, or land-steward cuss what aids they might afford for their fiefs, how of a district, was an important personage. Instead of they were to defend them, &c. merged into a great attending to the letting of paddocks, and the rotation council or legislature; and it is to such a body that the of crops, he was intrusted with the power of life and British parliament at least partly owes its origin. At death over the inhabitants. The humble grieve, who this moment, the bishops of England sit in the House has the management of a small landed estate in Scot- of Lords in virtue of the feudal baronies which they land, and the shire-rieve, or sheriff, who performs high hold of the crown. Vassals of the lower grade were judicial functions in the same part of the empire, have often summoned to attend at the ball of their lord as divided, as it were, between them the original duties assessors, or assizers, to give, partly opinion, partly of the feudal officer from whom their names are derived. evidence, concerning some matter connected with the The same feudal origin may be as distinctly traced, on fief, or the conduct or rights of a fellow-vassal. With a larger scale, in the relation of master and servant in this institution, the system of trial by jury is intimodern tinies. Servitude, however menial, when allied mately connected. A jury of perambulation, for the with feudal dependence, did not carry the same degra- purpose of ascertaining boundaries -- a sort of body dation as mere slavery; and in the opinion of some, the lineally descended from the assein blage of co-vassals situation of the feudal attendant was higher than that who were present at the investiture, and witnessed the of the inenial servant of modern days, who freely gives extent of the gift-has been known in modern times. his labour and attendance for a price. In Scotland, It is probable, that if the feudal system had only where feudal usages have lingered so long, it has been established a relation between the monarch and his remarked that the relation between master and servant immediate vassals, the intluence it would have exeris of a more confidential nature than it is found to be cised over the state of Europe would have been comin other parts of the country. While the line drawn paratively slight. The distribution of land as the between their positions is as clear as it can well be in reward of services, is frequently exemplified in hisa free country, the situation of the servant has a more tory; but that which chietiy distinguished the feudal than ordinary share of respectability attached to it, system, is the numerous grades of dependence, and the because, instead of being the individual servant of an manner in which all parts of society, from the emperor individual master, he and his race are looked upon, to to the lowest serf, were bound together in one system a certain extent, as the retainers of the house which he of lord and vassal. In the first place, there were serves. On this point, indeed, an adherence to feudal various grades of vassals holding of the monarch. The usages in situations to which they are not applicable, majority of the lower classes, however, generally found has been productive of one of the greatest evils of themselves under the protection of some intermediate modern society-the extent to which servants are kept, chief. The duke, or count, who held immediately of not for use, but as an ornamental evidence of wealth. the crown, sub-feued to a dependant, who, on his part, Our lineal aristocracy continue to follow, so far as the might dispose of a fragment in a similar manner. By usages of the day permit, the practice of their ancestors; such an alienation, however, the vassal dared not in and the gentlemen of plush and shoulder-knots are anyway interfere with his superior's rights; the latter, the representatives of those who wore buff jerkins, and indeed, was not presumed to be conscious of the subhandled the pike. The rich merchant and manufacturer infeudation, unless he had specially sanctioned it, and must not be without the usual insignia of wealth; and by doing so, he acknowledged the sub-vassal as his thus a race, whom idleness and constant association own immediate retainer. When a vassal, therefore, with each other must deprave, are kept up among a sub-feued without his superior's consent, he gave only bustling and active community, as if we lived in the a portion of the estate he himself possessed, his subdays when the majority must either serve or starve. vassal being liable to meet all the exactions that might It has been remarked, that in republics such as Hol. fall upon him. So, if he rebelled against his lord, or
the wealth of rich individuals generally took withheld the feudal exactions, the superior could seize the more ennobling direction of patronising the fine upon the fief without reference to the claims of the arts and literature.
sub-vassal. The highest feudal noble was the Heretoch, In the earlier ages of the feudal system, when there who, from the Latin dux, a leader, received the desig. was much land to distribute, the natural features and nation of duke: this class was intrusted with the admiboundaries were sometimes little known to those who nistration of large provinces. The graf, who had a gave it away. The persons who received it were aggran- smaller charge, was called comes, or count; and one dising and ambitious, and not likely to yield to each class of graf, who was intrusted with the marches, was other disputed portions. Above all, the conquerors called the mar-grave, march-graf, or marquis. These were uneducated, and had little means of giving per- nobles generally held lands of their sovereign, while