history affords an opportunity of observing between any two races of uncivilized people, and this has produced a surprising similarity of manners.

NOTE VII. SECT. I. p. 14. [G].

THE booty gained by an army belonged to the army. The king himself had no part of it but what he acquired by lot. A remarkable instance of this occurs in the history of the Franks. The army of Clovis, the founder of the French monarchy, having plundered a church, carried off, among other sacred utensils, a vase of extraordinary size and beauty. The bishop sent deputies to Clovis, beseeching him to restore the vase, that it might be again employed in the sacred services to which it had been consecrated. Clovis desired the deputies to follow him to Soissons, as the booty was to be divided in that place, and promised, that if the lot should give him the disposal of the vase, he would grant what the bishop desired. When he came to Soissons, and all the booty was placed in one great heap in the middle of the army, Clovis entreated, that before making the division, they would give him that vase over and above his share. All appeared willing to gratify the king, and to comply with his request, when a fierce and ` haughty soldier lifted up his battle-axe, and striking the vase with the utmost violence, cried out with a loud voice, "You shall receive nothing here but that to which the lot gives you a right." Gregor. Turon. Histor. Francorum, lib. ii. c. 27. p. 70. Par. 1610.

NOTE VIII. SECT. I. p. 18. [H].

THE history of the establishment and progress of the feudal system, is an interesting object to all the nations of Europe. In some countries, their jurisprudence and laws are still in a great measure feudal. In others, many forms and practices established by custom, or founded on statutes, took their rise from the feudal law, and cannot be understood without attending to the ideas peculiar to it. Several authors of the highest reputation for genius and erudition, have endeavoured to illustrate this subject, but still many parts of it are obscure. I shall endeavour to trace, with precision, the progress and variation of ideas concerning property in land among the barbarous nations; and shall attempt to point out the causes which introduced these changes, as well as the effects which followed upon them. Property in land seems to have gone through four successive changes among the people who settled in the various provinces of the Roman empire.

I. WHILE the barbarous nations remained in their original countries, their property in land was only temporary, and they had no certain limits to their possessions. After feeding their flocks in one district, they removed with them, and with their wives and families, to another; and abandoned that likewise in a short time. They were not, in consequence of this imperfect species of property, brought under any positive or formal

obligation to serve the community; all their services were purely voluntary. Every individual was at liberty to chuse how far he would contribute towards carrying on any military enterprise. If he followed a leader in any expedition, it was from attachment, not from a sense of obligation. The clearest proof of this has been produced in Note VI. While property continued in this state,. we can discover nothing that bears any resemblance to a feudal tenure, or to the subordination and military service which the feudal system introduced.

II. UPON settling in the countries which they had subdued, the victorious troops divided the conquered lands. Whatever portion of them fell to a soldier, he seized as the recompence due to his valour, as a settlement acquired by his own sword. He took possession of it as a freeman in full property. He enjoyed it during his own life, and could dispose of it at pleasure, or transmit it as an inheritance to his children. Thus property in land became fixed. It was at the same time allodial, i. e. the possessor had the entire right of property and dominion; he held of no sovereign or superior lord, to whom he was bound to do homage and perform service. But as these new proprietors were in some danger, (as has been observed in the text) of being disturbed by the remainder of the ancient inhabitants, and in still greater danger of being attacked by successive colonies of barbarians as fierce and rapacious as themselves, they saw the necessity of coming un

der obligations to defend the community, more explicit than those to which they had been subject in their original habitations. On this account, immediately upon their fixing in their new settlements, every freeman became bound to take arms in defence of the community, and, if he refused or neglected so to do, was liable to a considerable penalty. I do not mean that any contract of this kind was formally concluded, or mutually ratified by any legal solemnity. It was established by tacit consent, like the other compacts which hold society together. Their mutual security and preservation made it the interest of all to recognize its authority, and to enforce the observation of it. We can trace back this new obligation on the proprietors of land to a very early period in the history of the Franks. Chilperic, who began his reign A. D. 562, exacted a fine, bannos jussit exigi, from certain persons who had refused to accompany him in an expedition. Gregor. Turon. lib. v. c. 26. p. 211. Childebert, who be gan his reign A. D. 576, proceeded in the same manner against others who had been guilty of a like crime. Ibid. lib. vii. c. 42. p. 342. Such a fine could not have been exacted while property continued in its first state, and military service was entirely voluntary. Charlemagne ordained, that every freeman who possessed five mansi, i. e. sixty acres of land, in property, should march in person against the enemy, Capitul. A. D. 807. Louis le Debonnaire, A. D. 815, granted lands to certain Spaniards who fled from the Saracens, and allowed them to settle in his territories, on condi

tion that they should serve in the army like other freemen. Capitul. vol. i. p. 500. By land possessed in property, which is mentioned in the law of Charlemagne, we are to understand, according to the style of that age, allodial land; alodes and proprietas, alodum and proprium being words perfectly synonimous. Du Cange voce Alodis. The clearest proof of the distinction between allodial and beneficiary possession, is contained in two charters published by Muratori, by which it appears, that a person might possess one part of his estate as allodial, which he could dispose of at pleasure, the other as a beneficium, of which he had only the usufruct, the property returning to the superior lord on his demise. Antiq. Ital. medii ævi, vol. i. p. 559. 565. The same distinction is pointed out in a Capitulare of Charlemagne, A. D. 812, edit. Baluz. vol. i. p. 491. Count Everard, who married a daughter of Louis le Debonnaire, in the curious testament, by which he disposes of his vast estate among his children, distinguishes between what he possessed proprietate, and what he held beneficio; and it appears that the greater part was allodial. A. D. 837. Aub. Miræi Opera Diplomatica, Lovan. 1723. Vol. p. 19.

In the same manner Liber homo is commonly opposed to Vassus or Vassallus; the former denotes an allodial proprietor, the latter one who held of a superior. These free men were under an obligation to serve the state; and this duty was considered as so sacred, that freemen were prohibit