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29

Grants of Land to Clients-Freedmen—Services, &c.

he might be deprived of life. Colonies, cities, towns, villages, and companies or corporations, as well as individuals, were in the habit of choosing patrons. Sometimes a rent or some other benefit was stipulated to be rendered to the patron (c) as the price of his protection. It would seem that a written charter of commendation was sometimes prepared (d). Many persons, with a view to protection from the exactions to which those of inferior condition were liable,-others to secure immunity for their crimes, commended themselves and their lands to the patronage of the Magistri militiæ, Duces, Comites, Proconsules, Vicarii, or other powerful individuals (e), who were exempted from many of the exactions to which holders of land of inferior rank were liable, and whose influence enabled them to afford the requisite protection.

Many edicts were issued to counteract the fraudulent effects of this species of commendation (ƒ); but it is plain, from their constant repe[30] tion of the Barbarians. tition, that the practice continued down to the time of the irrup

Patrons of senatorial rank, during the republic, frequently granted to their clients, as the price of their dependence, small plots of land out of the portion of the public domain which they enjoyed. Such grants were revocable at pleasure (g), as benefices were, as has been alleged, according to the original feudal constitution.

The relation of the patron and freedman was very similar: reverence was due to the patron, though the freedman had purchased his freedom (h). But the patron of a freedman had some additional rights,-he was entitled to a certain portion of the inheritance of his freedman (i); and it was usual for the patron to stipulate that his freedman and his children should perform certain services for him (k). The patron was the guardian of his infant freedman (1). A freed woman could not marry without obtaining the consent of her patron (m). Gratitude was due from the freedman independently of contract, especially if, as was frequently the case, he had received any gift from his patron; indeed it would seem that every gift, to whomsoever made, might be revoked for ingratitude (n).

Almost every one of these artificial concomitants of Roman patronage modified and expanded, and little more, is to be found as we shall see in the subsequent relation of lord and vassal (0); whereas, not only are

(c) Rosini. Antiq. Rom., by Dempster, c. xvi. p. 68. 70; Cod. Theod. xi. tit. 24; et Comm. Omnes enim hi qui defendi videntur, defensoribus suis omnem fere substantiam prius quam defendantur addicant et sic ut patres habeant defensionem perdant filii hereditatem et v. rel. Salvian de Gub. Dei, c. 5, A. D. 440, there cited; Cod. Just. xi. tit. 53; and see Dr. Phillimore's Pref. to Burn Eccles. Law. p. xii.

(d) Cod. Just. xi. 53, 1. The Francs also frequently commended themselves as vassals to the king, or some other superior lord, by a written instrument, Form. ed. Lindenb. Form. 47; Form. Sirmond, § 44. (e) Cod. Theod. xi. tit. 24, and the Com

mentary.

(f) Cod. Theod. xi. tit. 24; ib. i. 11.4;

ib. xiii. 7. 1; Novel. Justin. xvii. c. 13; Cod. Just. xi. 17. 1; xi. tit. 53.

(g) Niebuhr, vol. ii. 107; but as to benefices, v. inf.

(h) Dig. xxxvii. tit. 15; xxxviii. 1. 5; Cod. Just. vi. 3. 12; Inquiry, &c. p. 58.

(i) The Anglo-Saxon heriot, as will be explained hereafter, was something of this nature: the Anglo-Saxon manumitter of a slave was entitled to his entire inheritance, Wihtr. § 8.

(k) Dig. xxxviii. 1. 22.

(1) Dig. xxvi. 1. 8; Inst. Just. i. 17.

(m) Dig. xxxviii. 1. 28; Cod. vi. 3. 8 & 11. (n) Dig. xxxvii. 15. 11; Cod. v. 3. 12; Si tamen ingrati existant homines in quos beneficium collatum est, etc. Inst. ii. 7. 2.

(0) I have not overlooked the observa

Tenure of Land in Roman Provinces-Military Benefices. 30

they not to be found in the ancient German institutions, but as regards the tie of gratitude, one main element of the feudal connection, it was repudiated by the Germans (p). I proceed to the doctrines as to tenure of land which prevailed in the Roman provinces.

[*31]

A portion of the lands which were seized by the Romans in the course of their conquests during the republic, was parceled out to the citizens under the laws which were enacted from time to time to appease the agrarian seditions (q). The dominium directum of these lands which were not subject to the land tax (census), or any other burden or service, passed to the persons to whom they were allotted; it might be aliened by the solemn mode of mancipation (a symbolical mode of sale); it might also be acquired by long enjoyment, that is, by prescription. The unallotted portion continued to be the property of the state; it was called the Ager Publicus (r). During the empire, at least as regards most of the provinces, the ager publicus formed part of the property of the fisc or patrimonial domains of the emperor who represented the state (s). The dominium directum or absolute ownership in these lands always remained in the state, but an absolute right of enjoyment, or dominium utile, descendible and alienable, might be acquired by individuals by the direct sanction of the state, or against the state by quasi prescription founded on long undisturbed possession. The greatest part of the land in the Roman provinces was held by persons of senatorial rank, and others, by this title (t).

Traces of parts of the public domains having been assigned to colonists expressly for the defence of the frontiers are distinctly found as

tions of Mr. Hallam, Mid. A. i. p. 134. 197, but in this instance I cannot concur with that very intelligent writer.

(p) Permulta largiebantur (Romani) sed patronis et clientibus non ut liberales essent, sed ut imputarent illa munera, Heinnecc. El. Jur. German, i. § 79. It was just the reverse with the ancient Germans, Tac. de Mor. c. 21; Gronov. p. 644. The feudal vassal was clearly bound to his lord by the tie of gratitude, Lib. Feud. ii. tit. 33. I must not omit to notice that Mr. Whitaker, in his History of Manchester, broadly states that feudalism was of ancient British origin, founding this statement principally on the traces of feudal customs to be found in the laws of Howel Dda (see vol. i. p. 350. 364), which he asserts were continued under the Romans, p. 364. But it must be remembered that the British princes became the homagers of the kings of England at least as early as the reign of Alfred; they paid tribute to Edward the Elder, Athelstane, and Edgar. The tribute, which is described to be of old standing, is expressly mentioned in the laws of Howel Dda, and a payment in the nature of a relief, was paid by each sovereign prince on his accession, each of whom exacted a similar payment from his dependents. (Palgrave, Rise, &c. 458, 459, ccxli.) Howel, and others of the British princes, are frequently

found at the courts of the English kings, particularly of Athelstane. (At Luton, a. D. 931; at Dorchester, A. D. 938, Palg. ccxlvi.

vii. et v. ccxliv.) The laws of Howel Dda, in which the traces of feudalism are to be found, were compiled by a joint commission of clerks and laics, and then Howel, three bishops, and some others, making together thirteen, went to Rome, some time between 914 and 944, (Pref. to Anc. L.) to obtain for them the sanction of the pope. There is internal evidence (Anc. Laws of Wales, i. 217) that the Roman law was consulted in their compilation (ib. p. 423, ii. 840), so that we may well account for the laws of Howel Dda containing traces of the customs which then prevailed throughout Europe, without assuming that they were of British original.

(9) Liv. iv. c. 47, v. c. 24. 30, &c. To veterans, Liv. xxxi. 4. 49. A. u. c. 553, xxxii. 1, &c.

(r) Liv. iv. 51, xl. 38, xlii. 19, &c.

(s) During the empire the farms and rustic slaves in the conquered territory were usually added to the patrimonial domains, Cod. Theod. x. 8. 4, and then for the most part granted out as after mentioned.

(1) Some of the cities of Gaul enjoyed the Jus Italicum, which conferred the capacity of mancipation, legal prescription, and vindication, Savigny, M. A. tom. i. 63, 64.

31 Liabilities of Beneficiaries and their Descendants—Emphyteusis.

early as A. u. c. 313; 400 years before the Christian era (u). This system was continued as the Romans extended their conquests into Gaul (≈): 100 years before the Christian era some of the Gallic tribes petitioned the Romans to make to them grants of land on similar terms (y).

During the empire that part of the public domain which was on the extreme frontier was very generally committed to Roman veterans, limitanei milites, or to Gallic or German tribes, to be held by them and their descendants, on the condition of their performing military service *for the state (z). The occupants of these lands usually cultivated [*32] them for themselves, taking the produce for their pay; but some lands, agri limitrophi, were granted out on the condition of the holders furnishing the limitanei milites, or frontier militia, particularly those who were in garrison in the fortresses, with provisions and necessaries (a). No length of time or prescription could be set up by those who possessed lands of this description, whether by inheritance or otherwise, so as to exempt them from the duties and services originally imposed (b). The veterans to whom lands were assigned during the republic and the empire, were all liable to be called out-evocari-if their services were required (c). Parcels of that portion of the ager publicus which was held by senators and others were frequently, as before observed, committed by them to their clients by way of benefice, of course on their own terms as regards services or rents.

It was the habit of the emperors to grant by charter, portions of the lands of the imperial fisc or patrimonial domains together with the coloni and other cultivators to private persons, probably their officials or dependents, and their heirs general, or heirs of a particular class, to be held on condition that the tenant should render a certain rent. Unless the grant were restrictive, the dominium utile in these lands descended to the "sui hæredes" of the donee, that is, children by birth in the power of the parent, or children by adoption, and it might be the subject of devise, sale, or gift; but the ownership, dominium directum, remained in the crown. These lands were said to be held jure emphyteutico (d); they were forfeited on non-payment of the rent; and on the

(u)“Præsidii causa adversus Volscos," Liv. iv. c. 11. A. U. c. 360. v. 24. The ancient mode was to place whole legions with their officers together in one district, Tac. Ann. xiv. c. 27.

(x) V. int. al Liv. Epit. 20, a. u. c. 530, Liv. xxxix. c. 44. 64. et v. Dion. C. xxxvi.

(y) Florus, lib. iii. c. 3. Sir W. Blackstone's deduction from this incident can hardly be acquiesced in, Comm. ii. p. 47. Dion Cassius records many similar embassies to the emperors, lib. lxxi. &c.

(z) Subsidium adversus rebelles, Tac. Ann. xii. 32, et v. int. al. Cod. Theod. de terr. limitan. 7. 1; Cod. Just. xi. 59. § 1, 2, and 3; Tac. Ann. lib. xiii. c. 54. temp. Neronis; Vopisc Probus, c. 16, p. 940; Amm. Marcell. xiv. c. 3, p. 11; and the notes of Valesius. Lands were so assigned to Legionaries and their descendants in Britain, Tac. ubi sup. Whitaker's Hist. of Manch. vol. ii. c. xii. p. 197; Carte, i. 115.

(a) V. int. alia, Cod. Just. xii. 43. 1; ib. xi. 59 1.

(b) The principal authorities on this subject from the Roman historians, the Corpus Juris, and Theodos. Code, are collected, and many of them set out at length in the Introd. to the Code Napol. p. ccviii. ccxii., and Inquiry into the Laws and Political Institutions of Modern Europe, 42-49. Sir F. Palgrave, p. 350-362 has investigated this subject in his very accurate and learned work on the Rise of the British Commonwealth.

(c) See Dion Cassius, lib. c. xlv. p. 276, and xlviii. p. 363; and Suetonius Galba, x. c. 4. et not. Pitisci, Prima belli cura, agere delectus, evocare veteranos, Tac. Hist. Vespas. ii. 82

(d) Sir F. Palgrave thinks that the word "feud" may have been derived from some word of which emphyteusis was the original, p. ccvi.; and see the note, Hallam, i.

Possessory Title-Donations-Delivery of Possession.

32

expiration of the estate granted, by failure of heirs or otherwise, the lands reverted to the imperial fisc (e). The possessors of these lands were liable to the general burden of the repairs of the public ways, and the like (ƒ).

*Such parts of the patrimonial domains of the emperor as were held in demesne were parceled out in farms or vills, which [*33] were under the superintendence of one of the officers of the household. The emperor Theodosius ordained that no person attached to these domains whether freeman (colonus) or freedman, should be subject to the jurisdiction of the ordinary judges (h).-The emperors reserved to themselves and their companions the privilege of hunting ferocious animals; but rabbits, and animals of that description, were not royal game, and might be hunted by any one at pleasure on his own lands (i). It is hardly necessary to add that the right of possession was all that could be acquired by a subject on any of these lands, the dominium directum, as before mentioned, always remaining in the state; payment of the census or land-tax was the badge of such ownership (k).

Some of the incidents relating to the transfer of property of this nature being closely analogous to those which will have to be noticed in the subsequent pages, must also here be adverted to. The title to lands held by the possessory titles above described was passed by delivery. Constantine ordained that no grant, "donatio," except in favor of children, either direct or mortis causa, and whether absolute or subject to condition, of movables, or immovables not capable of passing by mancipation (1), should be good, unless the terms were reduced into writing, and transcribed in the registers (m), and unless it were followed by delivery of possession made before witnesses, "advocatâ vicimitate" (n).

The distinction above described between dominium utile and dominium directum formed one of the main characteristics of the feudal

201. The modification of this tenure as now existing in Europe is described in Mr. Burge's highly esteemed work, vol. iii. p. 450, et seq., to which I may refer the student for all that he can desire to know as to the authority of the Roman law in modern Europe and the English colonies.

(e) See Burge on Civil and Colonial Law, iii. 451.

(f) Cod. Just. xi. 61. Z. 1. 3, 4. 6. 13; tit. 64, 21. 5.

(h) Cod. J. iii. 26. 1. 6. 11.

(i) Cod. Theod. xv. 11. 1; Inst. J. lib. ii; Inquiry, p. 53.

(k) The lands assigned to the limitanei milites were like the rest expressly called "possessiones," Cod. Just. xii. 36. . 11. "Possessio" is thus defined in the Digest de Verb. Signif. § 15, "Quidquid adprehendimas cujus proprietas ad nos non pertinet, aut nec potest pertinere." "The legitimate expression employed exclusively in speaking of those who held a portion of the pub

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(m) Savigny, tom. i. p. 84.

(n) Cod. Theod. viii. 12. l. 1, 2, and l. 4, 8. The livery of seisin of the English law, and the Statute of Frauds, 29 Car. II. will forcibly remind the reader of these provisions. Niebuhr, in his History of Rome, has profoundly investigated the subject treated of in the text, vol. ii. p. 129, et seq. and Appendix, iv. p. 323. There is an excellent summary in the Quarterly Review, No. Ixiii. p. 73, et seq. et v. Vinn. et Heinnec. Comm. ad Inst. Just. p. 688; and Gothofredi, Comment. in Cod. Theodos. p. 614; and see Palgrave, Rise, &c. p. 357, et seq.

33

Feuds-Nature of Feudal Tenure.-Origin of Vassalage.

system (o); indeed it appears in the very definition of a feud, as *received in this country. Thus a feud is defined by Sir H.

[*34] Spelman, the father of the modern English feudists, to be "a right which the vassal hath in the land or some immovable thing of his lord's, to use the same, and take the profits thereof hereditarily—in perpetuum-rendering unto his lord such feudal duties and services as belong to military tenure (p); the mere propriety of the soil always remaining in the lord." This definition is approved by the very learned Mr. Butler (q), who, in terms, likens the respective interests of the two parties to the dominium directum and dominium utile above described. The passing of this possessory interest by delivery, also, as we shall see, found its way into the English jurisprudence, not only in the original creation (donatio) of a feud or benefice, but in its transfer or alienation. These observations may be considered as a little premature, but they are, as I believe, essential to the due understanding of the subject on which we are about to enter.

CHAPTER VIII.

ORIGIN OF VASSALAGE.

The Comites, or Adherents of the ancient German Chiefs-King's Thanes and Antrustions their Successors-Vassols of the King-Offices bestowed on them-Grants of Lands to them from Public Domain-Their Were, or Personal Value-Vassals of Bishops. Eorls, King's Thanes, and other Landed Proprietors-Generality of relation of Lord and Man in England and on the Continent-This Institution one main Basis of Feudal SystemNot to be explained from German Institutions alone-Relation of Patron and Client and Patron and Freedman before described must be looked to.

THE ancient German chieftains, as we learn from Tacitus, were surrounded by a band of adherents or companions, who voluntarily attached themselves to his person. These men constituted the pride and ornament of the chief in peace, his strength and security in war (a). Honor alone was the tie by which the follower was bound to his prince -he partook of his feasts, and presents were bestowed on him, but the tie of gratitude for favors conferred was unknown, or rather repudiated, by the prince, as well as the inferior (b). The kings's thanes of *the early Saxon kings (c), like the Leudes and Antrustions of [*35] the continental sovereigns, may be recognized as the successors of these ancient companions, and their devoted attachment to their

(0) The distinction is expressly recog nized as applicable to the relative titles of the lord and the feudal tenant, Lib. Feud. tit. 8. § 2; and see Savigny, tom. i. p. 141, § 58.

(p) In the "Book of Feuds,” (lib. ii. c. 23,) usually of conclusive authority with Sir H. Spelman, military service is not treated as an essential to the constitution of a feud.

(9) Note to Co. Litt. 191 a.

(a) Tac. de Mor. Germ. These comites are frequently mentioned by other writers. Polybius notices the same custom amongst the Senones, a tribe of Gauls, ii. c. 17. v. inf. King's Council.

(b) Gaudent muneribus, sed nec data imputant nec acceptis obligantur, Tac. de Mor. c. 13, 14, v. sup. p. 30, note (p).

(c) "Regis Vassi," Leg. Bavar. ii. xv. § 1.

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