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25。 See Leg。 4； ff。 ad leg。 Aquil。
26。 Ibid。； see the decree of Tassillon added to the law of the Bavarians； de popularib。 Legib。 art。 4。
27。 Ut carmen necessarium。 Cicero； De Leg。 ii； 23。
28。 It is the work of Irnerius。
29。 Testament。 Polit。
30。 Appendix to the Theodosian code in the first volume of Father Sirmond's works； p。 737。
31。 Aulus Gellius； xx。 1。
32。 We find in the verbal process of this ordinance the motives that determined him。
33。 In his ordinance of Montel…les…Tours； in the year 1453。
34。 They might punish the attorney； without there being any necessity of disturbing the public order。
35。 The ordinance of the year 1667 has made some regulations upon this head。
36。 Book ii； tit。 37。
37。 In Father Sirmond's appendix to the Theodosian code； i。
38。 Leg。 1； Cod。 de repudiis。
39。 See the authentic sed hodie； in the Cod。 de repudiis。
40。 Leg。 1； ff。 de Postulando。
41。 Sentences； iv。 9。
42。 Della guerra civile di Francia； p。 96。
43。 It was made on November 18； 1702。
44。 Laws； ix。
45。 It is the authentic sed cum testator。
46。 Book xii； tit。 2； § 16。
47。 See Julius Capitolinus； in Macrinus； 13。
48。 Ibid。
49。 In his Utopia。
Book XXX。 Theory of the Feudal Laws among the Franks in the Relation They Bear to the Establishment of the Monarchy
1。 Of Feudal Laws。 I should think my work imperfect were I to pass over in silence an event which never again； perhaps； will happen； were I not to speak of those laws which suddenly appeared over all Europe without being connected with any of the former institutions； of those laws which have done infinite good and infinite mischief； which have suffered rights to remain when the demesne has been ceded； which by vesting several with different kinds of seignory over the same things or persons have diminished the weight of the whole seignory； which have established different limits in empires of too great extent； which have been productive of rule with a bias to anarchy； and of anarchy with a tendency to order and harmony。
This would require a particular work to itself； but considering the nature of the present undertaking； the reader will here meet rather with a general survey than with a complete treatise of those laws。
The feudal laws form a very beautiful prospect。 A venerable old oak raises its lofty head to the skies； the eye sees from afar its spreading leaves； upon drawing nearer； it perceives the trunk but does not discern the root； the ground must be dug up to discover it。＇1＇
2。 Of the Source of Feudal Laws。 The conquerors of the Roman empire came from Germany。 Though few ancient authors have described their manners； yet we have two of very great weight。 C？sar making war against the Germans describes the manners of that nation；＇2＇ and upon these he regulated some of his enterprises。＇3＇ A few pages of C？sar upon this subject are equal to whole volumes。
Tacitus has written an entire work on the manners of the Germans。 This work is short； but it comes from the pen of Tacitus； who was always concise； because he saw everything at one glance。
These two authors agree so perfectly with the codes still extant of the laws of the Barbarians； that reading C？sar and Tacitus we imagine we are perusing these codes； and perusing these codes we fancy we are reading C？sar and Tacitus。
But if in this research into the feudal laws I should find myself entangled and lost in a dark labyrinth； I fancy I have the clue in my hand； and that I shall be able to find my way through。
3。 The Origin of Vassalage。 C？sar says＇4＇ that； 〃The Germans neglected agriculture； that the greatest part of them lived upon milk； cheese and flesh； that no one had lands or boundaries of his own； that the princes and magistrates of each nation allotted what portion of land they pleased to individuals； and obliged them the year following to remove to some other part。〃 Tacitus says＇5＇ that； 〃Each prince had a multitude of men； who were attached to his service； and followed him wherever he went。〃 This author gives them a name in his language in accordance with their state； which is that of companions。＇6＇ They had a strong emulation to obtain the prince's esteem； and the princes had the same emulation to distinguish themselves in the bravery and number of their companions。 〃Their dignity and power；〃 continues Tacitus； 〃consist in being constantly surrounded by a multitude of young and chosen people； this they reckon their ornament in peace； this their defence and support in war。 Their name becomes famous at home； and among neighbouring nations； when they excel all others in the number and courage of their companions： they receive presents and embassies from all parts。 Reputation frequently decides the fate of war。 In battle it is infamy in the prince to be surpassed in courage； it is infamy in the companions not to follow the brave example of their prince； it is an eternal disgrace to survive him。 To defend him is their most sacred engagement。 If a city be at peace； the princes go to those who are at war； and it is thus they retain a great number of friends。 To these they give the war horse and the terrible javelin。 Their pay consists in coarse but plentiful repasts。 The prince supports his liberality merely by war and plunder。 You might more easily persuade them to attack an enemy and to expose themselves to the dangers of war； than to cultivate the land； or to attend to the cares of husbandry； they refuse to acquire by sweat what they can purchase with blood。〃
Thus； among the Germans； there were vassals； but no fiefs； they had no fiefs； because the princes had no lands to give； or rather their fiefs consisted in horses trained for war； in arms； and feasting。 There were vassals； because there were trusty men who being bound by their word engaged to follow the prince to the field； and did very nearly the same service as was afterwards performed for the fiefs。
4。 The same Subject continued。 C？sar says＇7＇ that 〃when any of the princes declared to the assembly that he intended to set out upon an expedition and asked them to follow him； those who approved the leader and the enterprise stood up and offered their assistance。 Upon which they were commended by the multitude。 But； if they did not fulfil their engagements； they lost the public esteem； and were looked upon as deserters and traitors。〃
What C？sar says in this place； and what we have extracted in the preceding chapter from Tacitus； are the substance of the history of our princes of the first race。
We must not therefore be surprised that our kings should have new armies to raise upon every expedition； new troops to encourage； new people to engage； that to acquire much they were obliged to incur great expenses； that they should be constant gainers by the division of lands and spoils； and yet give these lands and spoils incessantly away： that their demesne should continually increase and diminish； that a father upon settling a kingdom on one of his children＇8＇ should always give him a treasure with it： that the king's treasure should be considered as necessary to the monarchy； and that one king could not give part of it to foreigners； even in portion with his daughter； without the consent of the other kings。＇9＇ The monarchy moved by springs； which they were continually obliged to wind up。
5。 Of the Conquests of the Franks。 It is not true that the Franks upon entering Gaul took possession of the whole country to turn it into fiefs。 Some have been of this opinion because they saw the greatest part of the country towards the end of the second race converted into fiefs； rear…fiefs； or other dependencies； but such a disposition was owing to particular causes which we shall explain hereafter。
The consequence which sundry writers would infer thence； that the barbarians made a general regulation for establishing in all parts the state of villainage is as false as the principle from which it is derived。 If at a time when the fiefs were precarious； all the lands of the kingdom had been fiefs； or dependencies of fiefs； and all the men in the kingdom vassals or bondmen subordinate to vassals； as the person that has property is ever possessed of power； the king； who would have continually disposed of the fiefs； that is； of the only property then existing； would have had a power as arbitrary as that of the Sultan is in Turkey； which is contradictory to all history。
6。 Of the Goths； Burgundians； and Franks。 Gaul was invaded by German nations。 The Visigoths took possession of the province of Narbonne； and of almost all the south； the Burgundians settled in the east； and the Franks subdued very nearly all the rest。
No doubt but these Barbarians retained in their respective conquests the manners； inclinations； and usages of their own country； for no nation can change in an instant their manner of thinking and acting。 These people in Germany neglected agriculture。 It seems by C？sar and Tacitus that they applied themselves greatly to a pastoral life； hence the regulations of the codes of Barbarian laws almost all relate to their flocks。 Roricon； who wrote a history among the Franks； was a shepherd。
7。 Different Ways of dividing the Land。 After the Goths and Burgundians had； under var