Many public domains," say they to him, "have been taken from you, some by force, and some by fraud; and because men have made false reports, and unjust demands of you, they have retained them by way either of benefices, or freeholds. It appears to us useful and necessary that you should send into the countries of your kingdom, firm and faithful messengers, taken from each order; they shall carefully draw up a list of the estates which, in the time of your father and grandfather, belonged to the royal domain, and of those which formed the benefices of vassals; they shall examine what each now withholds of them, and shall render a true account thereof to you. When you find that there is reason, utility, justice, or sincerity, whether in the donation or in the taking possession, things shall remain in their present state. But when you see that there is unreasonableness, or rather fraud, then, with the counsel of your faithful, reform this evil in such a manner that reason, prudence, or justice be not overlooked, and that at the same time your dignity be not debased, nor reduced by necessity to that which is unbecoming it. Your house cannot be filled with servants to do their duties, if you have not the means of recompensing their merits, or of alleviating their poverty."

The greater part of the lands thus usurped certainly did not re-enter into the domain of the first possessor, king or subject. It was too difficult to dispossess the usurpers; but they undertook to hold them as benefices, and to observe the obligations attending them. A new, and I think very influential cause, of the extension of beneficiary property.

There were also many deserted, uncultivated lands; men driven from their dwellings, or still leading a wandering life, or monks, established themselves upon them and cultivated them. When they had become valuable, some powerful neighbour often demanded them, in order afterwards to concede them, by way of benefices, to those who occupied them.

Lastly, a fourth cause powerfully contributed to make the beneficiary condition the common condition of territorial property; by a practice known under the name of recommendation, numerous freeholds were converted into benefices. The proprietor of a freehold presented himself before some neigh

1 Bal., vol. ii., col. 31.

bour, some powerful man, whom he wished to select as a patron, and holding in his hand either a clod of turf, or a branch of a tree, he ceded to him his freehold, which he immediately resumed by way of benefice, to enjoy according to the rules and duties, but also with the privileges of this new condition.

This practice was allied with the ancient German manners, with the primitive relation of chief and companions. Then also free men recommended themselves to another man, that is, they selected a chief for themselves. But this was an entirely personal and perfectly free relation. When it pleased him, the companion quitted his chief and took another; the engagement entered into between them was purely moral, and rested on their will alone. Immediately after the territorial establishment, the same liberty continued to exist; they could recommend themselves, that is to say, they could select for a patron whom they wished, and might change him at their will. Still, in proportion as society became a little strengthened, attempts were made to introduce some regularity into these proceedings and relations. The law of the

Visigoths declares:

"If any one has given arms, or aught else, to a man whom he receives into his patronage, let those gifts remain to him who received them. If the latter choose another patron, let him be free to recommend himself to whom he wills; this cannot be interdicted to a free man, for he belongs to himself; but let him return to the patron from whom he separates all which he has received from him."1

And we read in a capitulary of Pepin, son of Charlemagne, and king of Italy

"If any one, occupying the portion of land which has fallen to him, choose another lord, whether the count, or any other man, let him have full liberty to leave him; but let him not retain or carry away any of the things which he possesses, and let all revert to the domain of his first lord."2

Matters soon proceeded still farther. Men were in the transition from the wandering life to the sedentary life. It was above all things necessary to put an end to the fluctuation, the

1 Laws of the Visigoths, 1. v., tit. 3, c. 1.

Capit. de Charlemagne, in 813; Bal., vol. i., col. 510.

disorder of situations; in this direction tended the effort of superior men who aimed at the progression of society. Charlemagne undertook to determine, on the one hand, under what circumstance the client might quit his patron; and on the other, to impose upon all free men the necessity of recommending themselves to a patron, that is to say, of placing themselves under the authority and responsibility of a superior. We read in his capitularies:

"Let no man who has received the value of a solidus from his lord quit him, unless his lord has sought to kill him, or to strike him with a stick, or to dishonour his wife or daughter, or to despoil him of his heritage."1

"If any free man quit his lord against the will of the latter, and go into the kingdom of another, let not the king receive him into his patronage, and not allow his men to receive him."2

"Let no one buy a horse, a beast of burden, an ox, or anything else, without knowing him who sells it, or of what country he is, where he lives, and who is his lord."3

In 858, the bishops wrote to Louis le Germanique: "We bishops, sacred to the Lord, we are not, like the laity, obliged to recommend ourselves to any patron."

Charlemagne did not obtain all he wished; for a long time still an extreme fluctuation pervaded this class of relations. Yet his genius was not mistaken as to the true need of the time, his labours had ever in view the natural course of things. The necessity and fixedness of the recommendation of persons and lands prevailed more and more. Many freehold proprietors were weak, not in a state to defend themselves; they had need of a protector; others became weary of their isolation: free and masters, it is true, in their domain, they had no tie, no influence beyond it; they held no place in that hierarchy of beneficiaries which was become the general society. They wished to enter into it, and to participate in the movement of the period. Thus was brought about the metamorphosis of the greater part of the freeholds into benefices; a metamorphosis less complete in the South

1 Capit. de Pepin, king of Italy, in 795; Bal., vol. i., col. 597.
Capit. de Charlemagne, in 806; Bal., t. i., col. 443.

3 Capit. of the year 806, vol. i., col. 450.

Ibid., vol. i., col. 118.

of France, where the feudal system did not pervade all things, and where many freeholds continued to exist, but which was not the less general, and which made the beneficiary condition the common condition of territorial property.

Such was the state in which it found itself at the close of the tenth century, after going through the vicissitudes which I have attempted to trace; and not only did most lands become fiefs at this epoch, but the feudal character gradually penetrated into all kinds of properties. At that time almost everything was given in fief: the gruerie or forest jurisdiction; the right of hunting therein; a share in the pèage (toll-money,) or in the rouage (wine-toll,) of a place; the convoy or escort of merchants going to fairs; the office of judge in the palace of the prince or high lord; the mintoffices in those of his towns where money was coined; the letting of the places in which fairs were held; the houses where the public stoves were; the common ovens of towns; lastly, down to the swarms of bees which might be found in forests. The whole civil order, in a word, became feudal We shall see the same revolution in the political order.

1 Usage Général des Fiefe, by Brussel, t. i. p. 42.

THIRD LECTURE.

Of the amalgamation of sovereignty and property, the second characteristic of the feudal system-True meaning of this fact-Its origin—It comes neither from the Roman society nor from the German band-Is it the result of conquest only ?-Of the system of feudal publicists on this subject-Two forms of society in Germany, the tribe and the band— Social organization of the tribe-Domestic sovereignty is there distinct from political sovereignty-Twofold origin of domestic sovereignty among the ancient Germans-It arose from family and from conquestWhat became of the organization of the German tribe, and especially of domestic sovereignty after the establishment of the Germans in Gaul— What it retained of the family spirit gradually diminished; what it retained of conquest became dominant-Recapitulation and true character of feudal sovereignty.

WE have studied the first of the great facts which constitute and characterise the feudal system; I mean the special nature of landed property, in its progressive development from the fifth to the tenth century. I now approach the second of these facts, the amalgamation of sovereignty and property.

It is first of all necessary to come to an understanding as to the meaning of these words, and as to the limits of the fact itself. Our business here is solely with the sovereignty of the possessor of the fief in his domains, and over their inhabitants. Beyond the fief, and in his relations with other posBessors of fiefs, superior or inferior, and whatever the inequality between them, the lord was not a sovereign. No one in this association possessed the sovereignty. There other principles and other forms prevailed, which we shall study in treating of the third characteristic of the feudal system, that is to say, the hierarchical organization of the general society which the possessors of fiefs formed among themselves.