at the cost of his children, who were left without legal claim and compelled to make the best terms they could.[1] Applied to this use the precarium found extensive employment in the last age of the empire. The government looked on the practice with great disfavour, because it transferred large areas from the easy access of the state to an ownership beyond its reach. The laws repeatedly forbade it under increasing penalties, but clearly it could not be stopped. The motive was too strong on both sides—the need of protection on one side, the natural desire to increase large possessions and means of self-defence on the other.
These practices the Frankish conquerors of Gaul found in full possession of society when they entered into that province. They seem to have understood them at once, and, like much else Roman, to have made them their own without material change. The patrocinium they were made Frankish development. ready to understand by the existence of a somewhat similar institution among themselves, the comitatus, described by Tacitus. In this institution the chief of the tribe, or of some plainly marked division of the tribe, gathered about himself a band of chosen warriors, who formed a kind of private military force and body-guard. The special features of the institution were the strong tie of faith and service which bound the man, the support and rewards given by the lord, and the pride of both in the relationship. The patrocinium might well seem to the German only a form of the comitatus, but it was a form which presented certain advantages in his actual situation. The chief of these was perhaps the fact that it was not confined to king or tribal chief, but that every noble was able in the Roman practice to surround himself with his organized private army. Probably this fact, together with the more general fact of the absorption in most things of the German in the Roman, accounts for the substitution of the patrocinium for the comitatus which took place under the Merovingians.
This change did not occur, however, without some modification of the Roman customs. The comitatus made contributions of its own to future feudalism, to some extent to its institutional side, largely to the ideas and spirit which ruled in it. Probably the ceremony which grew into feudal homage, and the oath of fealty, certainly the honourable position of the vassal and his pride in the relationship, the strong tie which bound lord and man together, and the idea that faith and service were due on both sides in equal measure, we may trace to German sources. But we must not forget that the origin of the vassal relationship, as an institution, is to be found on Roman and not on German soil. The comitatus developed and modified, it did not originate. Nor was the feudal system established in any sense by the settlement of the comitatus group on the conquered land. The uniting of the personal and the land sides of feudalism came long after the conquest, and in a different way.
To the precarium German institutions offered no close parallel. The advantages, however, which it afforded were obvious, and this side of feudalism developed as rapidly after the conquest as the personal. The new German noble was as eager to extend the size of his lands and to increase the numbers of his dependants as the Roman had been. The new German government furnished no better protection from local violence, nor was it able any more effectively to check the practices which were creating feudalism; indeed for a long time it made no attempt to do so. Precarium and patrocinium easily passed from the Roman empire to the Frankish kingdom, and became as firmly rooted in the new society as they had ever been in the old. Up to this point we have seen only the small landowner and the landless man entering into these relations. Feudalism could not be established, however, until the great of the land had adopted them for themselves, and had begun to enter the clientage of others and to hold lands by the precarium tenure. The first step towards this result was easily and quickly taken. The same class continued to furnish the king’s men, and to form his household and body-guard whether the relation was that of the patrocinium or the comitatus, and to be made noble by entering into it. It was later that they became clients of one another, and in part at least as a result of their adoption of the precarium tenure. In this latter step the influence of the Church rather than of the king seems to have been effective. The large estates which pious intentions had bestowed on the Church it was not allowed to alienate. It could most easily make them useful to gain the influence and support which it needed, and to provide for the public functions which fell to its share, by employing the precarium tenure. On the other side, the great men coveted the wide estates of bishop and abbot, and were ready without persuasion to annex portions of them to their own on the easy terms of this tenure, not always indeed observed by the holder, or able to be enforced by the Church. The employment of the precarium by the Church seems to have been one of the surest means by which this form of landholding was carried over from the Romans to the Frankish period and developed into new forms. It came to be made by degrees the subject of written contract, by which the rights of the holder were more definitely defined and protected than had been the case in Roman law. The length of time for which the holding should last came to be specified, at first for a term of years and then for life, and some payment to the grantor was provided for, not pretending to represent the economic value of the land, but only to serve as a mark of his continued ownership.
These changes characterize the Merovingian age of Frankish history. That period had practically ended, however, before these two institutions showed any tendency to join together as they were joined in later feudalism. Nor had the king up to that time exerted any apparent influence on the processes that were going forward. Grants of land of the Merovingian kings had carried with them ownership and not a limited right, and the king’s patrocinium had not widened in extent in the direction of the later vassal relation. It was the advent of the Carolingian princes and the difficulties which they had to overcome that carried these institutions a stage further forward. Making their way up from a position among the nobility to be the rulers of the land, and finally to supplant the kings, the Carolingians had especial need of resources from which to purchase and reward faithful support. This need was greatly increased when the Arab attack on southern Gaul forced them to transform a large part of the old Frankish foot army into cavalry.[2] The fundamental principle of the Frankish military system, that the man served at his own expense, was still unchanged. It had indeed begun to break down under the strain of frequent and distant campaigns, but it was long before it was changed as the recognized rule of medieval service. If now, in addition to his own expenses, the soldier must provide a horse and its keeping, the system was likely to break down altogether. It was this problem which led to the next step. To solve it the early Carolingian princes, especially Charles Martel, who found the royal domains exhausted and their own inadequate, grasped at the land of the Church. Here was enough to endow an army, if some means could be devised to permit its use. This means was found in the precarium tenure. Keeping alive, as it did, the fact of the grantor’s ownership, it did not in form deprive the Church of the land. Recognizing that ownership by a small payment only, not corresponding to the value of the land, it left the larger part of the income to meet the need which had arisen. At the same time undoubtedly the new holder of the land, if not already the vassal of the prince, was obliged to become so and to assume an obligation of service with a mounted force when called upon.[3] This expedient seems to have solved the problem. It gave rise to the numerous precariae verbo regis, of the Church records, and to the condemnation of Charles Martel in the visions of the clergy to worse difficulties in the future life than he had overcome in this. The most important consequences of the expedient, however, were not intended or perceived at the time. It brought together the two sides of feudalism, vassalage and benefice, as they were now commonly called, and from this age their union into what is really a single
