As we have seen, the sources attributed to feudal institutions are two, the beneficium and the commendatio . When theproprietor granted land, reserving certain payments and services, to a tenant, who thus became his vassal, a beneficium wasconstituted. When, on the other hand, an impoverished proprietor, threatened or continually harassed, surrendered his landto some powerful man capable of protecting him, reserving, however, for himself the hereditary enjoyment of the propertyfor certain rents and services, there was a commendatio . M. Fustel de Coulange has explained all these facts, (7) with thedearness and profound knowledge of ancient texts, that render his treatises so instructive. Sir H. Maine has discovered in theancient Irish legislation a third source of the feudal relation of lord and vassal, which dates back to a state of civilization longanterior to that in which the other two were produced. In fact, the beneficium and commendatio are based on the grantingof land, and consequently assume private property as already very definitely established, whereas the feudal bond existingamong the ancient Irish Celts sprung from the grant of cattle at a time when the soil had, one may say, no value. The factpointed out by Sir H. Maine seems of great importance; but, in order to understand it, we must take into account theeconomic condition of primitive ages. Institutions, custom and law, all regulate material interests or are connected withthem; we can therefore only arrive at a true understanding of them, when we know the economic conditions of the socialstate in which this law and these customs meet.
When the population is very thin, the soil has little value, because there is a portion for all. Even now, in some highlycivilized countries, such as the United States or Canada, excellent registered lands can be obtained, with a good andcomplete title, for a dollar an acre, or about 12 francs the hectare . In primitive times, therefore, the chief capital is ofnecessity cattle. Tribes of hunters live entirely on the beasts they kill. Pastoral tribes derive their sustenance from theproduce of the herds which they feed, and continue to do so even when agriculture has been introduced. Thus the Germans,Caesar tells us, lived chiefly on flesh and milk. As Sir H. Maine observes, the word capitale , that is head (caput) of cattle,has given birth to two of the words most frequently employed in political economy and law, capital and catel, (8) cheptel , or chattels . To shew the importance of cattle in primitive times, Adam Smith reminds us of the Tartars, who continually askedPlano Carpino, the ambassador to a son of Gengis-Khan, whether there were many sheep and oxen in France, theseconstituting every sort of wealth in their eyes. Formerly, cattle served as money, as etymology, poetic tradition, and theobservation of historians alike shew. The words peculium , pecunia , come from pecus . At the commencement of agriculture,the value of oxen, so far from diminishing, was increased, for it was their labour that won the corn, the precious food newlyacquired. At this point, the ox becomes a sacred animal, inspiring a sort of religious respect. (9) In India, the ancient Sanscritliterature shews that its flesh served at one time as an article of food. It is only later, at what period we know not, when theywished to preserve the ox for purposes of cultivation, that this was forbidden. In Egypt, the cow Apis was an object ofadoration. At Rome, the ox, like the slave and the soil, was raised to the dignity of a res mancipi , the most solemn form ofproperty applicable only to the soil, and that which is used for its cultivation. Those things, whose alienation demanded thepublic formalities of mancipatio , corresponded to the sacred soil of India, and the sacred ox of Siva. Among the Irish Celts,as among the Germans, tribute, penalties and compositions for crimes were originally paid in cattle.
In the ancient Irish laws, we constantly see the chiefs ****** grants of cattle " en cheptel " to men of their tribe, and variousforms of vassalage spring therefrom. Two documents of the Senchus Mor, the Cain-Saerrath and the Cain-Aigillne , aredevoted to this subject. Sir H. Maine gives the following explanation of the origin of this custom. As we have seen, the chiefof the clan, besides his private property, enjoyed a domain attached to his office, together with certain rights over theunoccupied lands of the commune. He could, therefore, feed more cattle than the others. Moreover, in his capacity asmilitary chief, he obtained a larger share in the spoil; which chiefly consisted of herds, the only capital they could take fromthe vanquished. Thus the chief often had more cattle than he required, while the rest were in want of them; and to attach hiscompanions to himself he granted them beasts under certain conditions. In this way, the free man became the vassal ceile or kyle of the chief, to whom he owed homage, service, and payments. We thus see the same relations produced here, as thosewhich result from the commendatio and the beneficium , that is, from what was the basis of the feudal system.
