France, that country was ruled by the Theodosian code, and the laws of the different German tribes, who had settled there. But the Theodosian code was in course of time abrogated or forgotten; because great advantages were allowed to those who lived under the Salic law. 7. During the reigns of the first French monarchs, a general assembly of the nation took place every year, in the month of March, afterwards in the month of May; where many ordinances were made, which acquired the force of law, and were called capitularia. 8. The introduction of feuds produced a variety of regulations, inconsistent with the antient codes of laws; and France became at that time divided into an infinite number of small seignories, whose Montesq. lords acknowledged a feudal dependency only, not a political one, on the monarch. In consequence of this circumstance it became impossible that they Idem, c.12. should all be regulated by the same laws. The codes of the Germans and the capitularia were superseded by these local customs: each seignory and province had its own; and there were scarce two seignories in the whole kingdom whose customs agreed in every particular. 9. All these customs were reduced into writing, by the direction of the kings of France, in the course of the fifteenth century, and authenticated by the most eminent lawyers and magistrates of the different provinces; but they had in general been put into writing by private individuals, long before that period. 10. Normandy, like all the other provinces of France, was governed by its own customs; when it was ceded to Rollo, in the year 912, he caused an enquiry to be made into its antient usages, and added his sanction to their former authority. Now Houard's Origin of as Normandy did not experience those troubles and revolutions which disturbed the other parts of France, during the tenth and eleventh centuries, it is generally supposed that the original laws and customs of the Franks were preserved with more purity, and suffered less from a mixture of the canon and civil law, in Normandy, than in any other province of France. 11. Upon the establishment of the Normans in England, the whole customary law of that province, which according to Basnage, one of its best commentators, had been already reduced into writing, was introduced here. And as our kings had great possessions in France, and frequently visited that country for two centuries after the conquest, they borrowed from the French many of the improvements which were made in their jurisprudence, and established them in England. 12. If these facts are admitted, it will follow that the primeval customs of the Germans, as described by Tacitus, the codes of the different German tribes, together with the laws of the Germans during the middle ages; the capitularia of the French monarchs of the two first races; and the customs of the different provinces of France, particularly those of Normandy, are the real sources from which our antient laws can, with any certainty, be deduced. 13. Upon these grounds I shall proceed to enquire into the origin and nature of feuds. In the ninth and tenth centuries there were only two tenures, or modes of holding land, upon the continent; which were called allodial and feudal. Allodial lands were those whereof the owner had the dominium di *Sir Henry Spelman says, In legibus Henrici I. Regis Angliæ multa reperio e lege Salica deprompta; interdum nominatim, interdum verbatim.' Gloss. voce Lex. Art. 46. n. 1. rectum et verum; the complete and absolute property, free from all services to any particular lord. Allo- Dumoulin, dium proprietas quæ a nullo recognoscitur. Tenere in allodium, id est in plenam et absolutam proprietatem. Habet integrum et directum dominium, quale a principio de jure gentium fuit distributum & distinctum. So that the owner of an allodium could dispose of it at pleasure, or transmit it as an inheritance to his children. 14. A feud was a tract of land held by a voluntary and gratuitous donation, on condition of fidelity and certain services; which were in general of a military nature. The tenure of the feudatory was of the most precarious kind, depending entirely on the will and pleasure of the person who granted the feud. 15. We learn from Cæsar and Tacitus that the individual German had no private property in land; that it was his nation or tribe which allowed him annually a portion of ground for his support; that the ultimate property or dominium verum of the lands was vested in the tribe; and that the portions dealt out to individuals returned to the public, after they had reaped the fruits of them. Thus Tacitus says, Agri pro numero cultorum ab universis per vices occupantur, quos mox inter se secundum dignationem partiuntur. Facilitatem partiendi camporum spatia prestant; arva per annos mutant, et superest ager. 16. With these ideas and this practice, the Germans made conquests: when they acquired a province of the empire, the land became the property of the victorious nation; each individual laid claim to a share of it; a tract of ground was accordingly marked out for the leader of the expedition, and to the inferior orders, portions, corresponding to their respective merit and importance, were allotted. De Bello Gal. De Mor. Ger. 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, being extremely precarious, the necessity of defence induced the chiefs to annex to each grant or allotment of land a condition of military service; the generality of writers have concluded from this circumstance 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. Bouquet, 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 |