Pocock, an Arabian chief dine in the streets
of a town where he had come to sell his cattle,
and invited all passengers, even common beggars,
to sit down with him and partake of his
banquet.
The occupiers of land were in every respect
as dependent upon the great proprietor
as his retainers. Even such of them as were
not in a state of villanage, were tenants at
will, who paid a rent in no respect equivalent
to the subsistence which the land afforded
them. A crown, half a crown, a sheep, a
lamb, was some years ago, in the Highlands
of Scotland, a common rent for lands which
maintained a family. In some places it is so
at this day; nor will money at present purchase
a greater quantity of commodities there
than in other places. In a country where the
surplus produce of a large estate must be consumed
upon the estate itself, it will frequently
be more convenient for the proprietor, that
part of it be consumed at a distance from his
own house, provided they who consume it are
as dependent upon him as either his retainers
or his menial servants. He in thereby saved
from the embarrassment of either too large a
company, or too large a family. A tenant at
will, who possesses land sufficient to maintain
his family for little more than a quit-rent, is
as dependent upon the proprietor as any servant
or retainer whatever, and must obey him
with as little reserve. Such a proprietor, as
he feeds his servants and retainers at his own
house, so he feeds his tenants at their houses.
The subsistence of both is derived from his
bounty, and its continuance depends upon his
good pleasure.
Upon the authority which the great proprietors
necessarily had, in such a state of
things, over their tenants and retainers, was
founded the power of the ancient barons.
They necessarily became the judges in peace,
and the leaders in war, of all who dwelt upon
their estates. They could maintain order, and
execute the law, within their respective demesnes,
because each of them could there turn
the whole force of all the inhabitants against
the injustice of any one. No other person
had sufficient authority to do this. The king,
in particular, had not. In those ancient times,
he was little more than the greatest proprietor
in his dominions, to whom, for the sake of
common defence against their common enemies,
the other great proprietors paid certain
respects. To have enforced payment of a
small debt within the lands of a great proprietor,
where all the inhabitants were armed,
and accustomed to stand by one another, would
have cost the king, had he attempted it by his
own authority, almost the same effort as to
extinguish a civil war. He was, therefore, obliged
to abandon the administration of justice,
through the greater part of the country, to
those who were capable of administering it;
and, for the same reason, to leave the command
of the country militia to those whom
that militia would obey.
It is a mistake to imagine that those territorial
jurisdictions took their origin from the
feudal law. Not only the highest jurisdictions,
both civil and criminal, but the power
of levying troops, of coining money, and even
that of making bye-laws for the government
of their own people, were all rights possessed
allodially by the great proprietors of land, several
centuries before even the name of the
feudal law was known in Europe. The authority
and jurisdiction of the Saxon lords in
England appear to have been as great before
the Conquest as that of any of the Norman
lords after it. But the feudal law is not supposed
to have become the common law of
England till after the Conquest. That the
most extensive authority and jurisdictions were
possessed by the great lords in France allodially,
long before the feudal law was introduced
into that country, is a matter of fact
that admits of no doubt. That authority, and
those jurisdictions, all necessarily flowed from
the state of property and manners just now
described. Without remounting to the remote
antiquities of either the French or English
monarchies, we may find, in much later times,
many proofs that such effects must always flow
from such causes. It is not thirty years ago
since Mr Cameron of Lochiel, a gentleman of
Lochaber in Scotland, without any legal warrant
whatever, not being what was then called
a lord of regality, nor even a tenant in chief,
but a vassal of the Duke of Argyll, and without
being so much as a justice of peace, used,
notwithstanding, to exercise the highest criminal
jurisdictions over his own people. He
is said to have done so with great equity,
though without any of the formalities of justice;
and it is not improbable that the state
of that part of the country at that time made
it necessary for him to assume this authority,
in order to maintain the public peace. That
gentleman, whose rent never exceeded L.500
a-year, carried, in 1745, 800 of his own people
into the rebellion with him.
The introduction of the feudal law, so far
from extending, may be regarded as an attempt
to moderate, the authority of the great
allodial lords. It established a regular subordination,
accompanied with a long train of
services and duties, from the king down to
the smallest proprietor. During the minority
of the proprietor, the rent, together with the
management of his lands, fell into the hands
of his immediate superior; and, consequently,
those of all great proprietors into the hands
of the king, who was charged with the maintenance
and education of the pupil, and who,
from his authority as guardian, was supposed
to have a right of disposing of him in marriage,
provided it was in a manner not unsuitable
to his rank. But though this institution
necessarily tended to strengthen the authority