17. As the quantity of land thus acquired was not sufficient to allow of an annual change, and as the increased knowledge of agriculture, and the refinement of manners which then took place, would have rendered such an annual change extremely inconvenient; the lands thus given became the permanent property of the occupiers.

18. The situation of a German tribe, on its first establishment in a conquered country, extremely precarious, the necessity of defence duced the chiefs to annex to each grant or alle ment of land a condition of military service; se generality of writers have concluded from this ir cumstance that the allotments of land originally made to the individuals of a German tribe, on their first establishment in a conquered country, were mere beneficia or feuds; and have derived from thence the origin of the feudal law. But a variety of arguments may be produced to prove that the lands thus granted were not feuds.

19. It is universally admitted that feuds were originally voluntary and gratuitous donations, to be held at the mere will of the giver, who could resume them at pleasure. Now when the Germans first settled in the southern parts of Europe, they enjoyed a very great degree of liberty; upon the distribution of the lands in a conquered province, each individual claimed that portion of them to which his rank and services entitled him, not as a favour, but as a right; being the just reward of his toils. Nor can it be supposed that a people who did not conquer for their chiefs only, but also for themselves, should submit to hold their acquisitions as the voluntary and gratuitous donations of their leader; and on so precarious a tenure as his will and pleasure.

20. The feudal system was not generally established till some centuries after the settlement of the Germans in Italy and France. The circumstance of annexing a condition of military service to a grant of lands does not imply that they are held by a feudal tenure for the possessors of allodial property, who were called in France liberi homines, were bound to the performance of military service.

Robertson's

21. Some very respectable French writers, among Droit Publiq. whom is Mons. Bouquiet, derive the word allodium Hist. of from los, which signifies lot, and conclude from this Cha. 5. V.1. etymology, that allodial property was that which was acquired by lot, upon the first distribution of lands among the Franks.

256.

id. 260.

22. The original idea of feuds appears to have been derived from the following circumstances. Tacitus says, the chief men among the Germans De Mor. § 13. endeavoured to attach to their persons and interests B. 30. c.3. Montesq. certain adherents whom they called Comites. Insignis Robertson, nobilitas, aut magna patrum merita, principis dignationem etiam adolescentulis adsignant. Ceteri robustioribus ac jampridem probatis aggregantur; nec rubor inter comites aspici. Gradus quinetiam et ipse comitatus habet, judicio ejus, quem sectantur: magnaque et comitum æmulatio, quibus primus apud principem suum locus; et principum, cui plurimi et acerrimi comites. Hæc dignitas, hæ vires, magno semper electorum juvenum globo circumdari; in pace decus, in bello præsidium.

23. This custom was continued by the German princes in their new settlements; those comites or attendants were called Vassi, Antrustiones, Leudes, Balus, V. 2.

898-928.

Homines in Truste Regis. The composition paid for Montesq. the murder of a person of this description, (the only id. c. 16. standard by which we are enabled to judge of the

Id. c. 14.

Du Cange,
Gloss. voce
Fiscus.

Balus,
V.1.453.

V. 2.875.

Dissert. 11.

rank and condition of persons in the middle ages,) was triple to that paid for the murder of a common freeman.

24. While the German princes remained in their own country, they courted and preserved the favour of their comites, by presents of arms and horses, and by hospitality. Thus Tacitus says, Exigunt (comites) principis sui liberalitate, illum bellatorum equum, illam cruentam victricemque frameam. Nam epuli et quamquam incompti, largi tamen apparatus pro stipendio cedunt. When these princes settled in the countries they had conquered, they bestowed a part of the lands allotted to them, which were known by the name of Fiscus Regis, or Domanium Regis, on their adherents, as the reward of their fidelity.

25. These donations were originally called beneficia, because they were gratuitous; in course of time they acquired the name of feuda. The persons to whom this kind of property was given, became thereby subject to fidelity, and the performance of military services, to those from whom they received them.

26. Mons. Bignon in his notes on the Formulæ of Marculphus says-Proprietate et fisco duæ notantur bonorum species, et velut maxima rerum divisio quæ eo seculo recepta erat. Omnia namque prædia, aut propria erant, aut fiscalia, propria seu proprietates dicebantur, quæ nullius juri obnoxia erant, sed optimo maximo jure possidebantur; ideoque ad hæredes transibant. Fiscalia vero beneficia, sive fisci, vocabantur, quæ a Rege ut plurimum, posteaque ab aliis, ita concedebantur, ut certis legibus servitiisque obnoxia, cum vita accipientis finirentur.

27. The learned Muratori, in his Antiquitates Italica Medii Evi, has given a dissertation on allo

dial and feudal tenures. He states that feuds derive their origin from the Germans, and were originally called beneficia. That the antient vassi et vassalli were persons who attached themselves to kings and princes, in order to acquire the privileges, to which those who formed a part of their families were entitled, and also in the hope of obtaining, from the liberality of their lords, beneficia, that is, the usufruct of a portion of their royal demesnes, during the lives of their lords. That whenever a person of noble birth attached himself in this manner to a prince, he took an oath of fidelity to him, and was afterwards called vassus or vassallus. That these words occurred in a capitularium of Louis the Pious, of the year 823. That to constitute a vassus, it was not necessary he should have a beneficium. That an allodium was an inheritance which might be alienated at the pleasure of the possessor: and the words, by which it was granted usually were, ut proprietario jure teneat atque possideat; seu faciat inde quicquid voluerit, tam ipse, quamque hæredes ipsius.

28. Although feuds were originally granted by kings and princes only, yet in a short time the great lords to whom the kings had allotted extensive tracts of land, partly from a disposition to imitate their superiors, and partly for the purpose of attaching persons to their particular fortunes, bestowed a portion of their demesnes, as benefices, or feuds. The greater part of the lands were however held by an allodial tenure, till the beginning of the tenth century, when the feudal system appears to have been generally adopted.

29. As allodial property was much more desirable than feudal, such a change appears surprising; espe

Esprit des Loix, B. 31. c. 8.

102.

cially when we are informed that allodial property was frequently converted into feudal, by a voluntary deed of the possessor.

30. The reasons which induced the proprietors of allodial lands to convert them into feuds are thus explained by the President Montesquieu. Those who held feuds were entitled to great privileges; Hervé, V. 1. the composition or fine for the commission of a crime, against a feudatory, was much greater than that for a person who held his lands by an allodial tenure. But the chief motive for this alteration was, to acquire the protection of some powerful lord; without which, in those times of anarchy and confusion, it was scarce possible for an individual to preserve either his liberty or his property. These and probably other reasons, with which we are unacquainted, produced an extension of the feudal tenure over the whole western world.

31. Feuds upon their first introduction were regulated by unwritten customs. In the year 1170, the Emperor Frederick Barbarossa directed a code of the feudal law to be compiled, which was accordingly executed, and published at Milan. It was called the Liber Feudorum, and was divided into five books, of which the two first, and some fragments of the three last, still exist, and are printed at the end of all the modern editions of the Corpus Juris Civilis. This work is probably no more than a collection of the customs most generally adhered to in feudal matters; and the constitutions of the Emperors Lotharius, Conrad, and Frederick, rẻspecting feuds.

32. A feud is thus defined by Craig-Est feudum beneficium, seu benevola et libera rei immobilis, aut æquipollentis, concessio, cum utilis dominii translatione ;