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flourished among the Frank nations, and therefore, as suzerainty originated from the system of feudal tenure,* greater importance may fairly be attached to the opinions of these French writers on this subject than might otherwise be their due.
Bodin, in his Six Livres de la Republique (published in 1593) devotes to this question part of a chapter, under the heading “Du Prince tributaire ou feudataire & s'il est souverain.” He seems to experience considerable difficulty in answering the question he therein raises, for, after saying, “ Celuy est Absolument souverain, qui ne tient rien, apres Dieu, que de l'espee. S'il tient d'autruy, il n'est plus souverain," he points out the difficulty in these words: “Si donques ceux qui tiennent en foy & hommage ne sont pas souverains il n'y aura quasi point de Prince Souverain. Et si nous accordons que ceux qui tiennent en foy & hommage
soyent souverains il faudra confesser par mesme suite de raisons que le vassal et le seigneur, le maistre & le serviteur sont egaux en grandeur, en puissance, en authorité." (Livre Premier, ch. ix., p. 162). But he nevertheless comes to the conclusion that a feudatory rendering “hommage simple” (planum hominium), which will be shown to correspond to the state of a vassal Power subject to nude vassalage, is not absolutely sovereign, as he is “homme d'autruy c'est à dire serviteur' (p. 171).
Loyseau, in his “Traité des Seigneuries,” published in 1610, says: “C'est une grande question, si le Prince foudataire peut estre souverain;” but he answers it by remarking that “Il est bien vray, que la protection le tribut et la feudalité rabaissent & diminuent le lustre de l'Estat souverain, qui sans doute n'est pas si pur, si souverain & si maiestatis (s'il faut ainsi dire) quand il est subiect à ces
* "C'est l'é:ablissement des Fiefs qui lui” (à la Suzeraineté) a donné la naissance parmi presque toutes les Nations de l'Europe." Réal, IV., p. 139.
charges : mais le Prince qui le possede ne laisse pourtant d'estre souverain en effect,” and he dissents from and points out the inconvenience of Bodin's definition of an absolute sovereign, remarking that by his account almost all the kingdoms of the world are feudatories either of the Holy See or of the German Empire, and that it is against common sense to hold that these kingdoms are not sovereign (ch. ii., pp. 42-48).
Réal, again, in his “La Science du Gouvernement" published in 1765, asserts that “ La féodalité rabaisse l'Etat Souverain et entraîne avec soi de la dépendance dans certaines circonstances ; Mais le Prince vassal non lige peut exercer tous les actes de Souveraineté, sans que le Prince à qui il doit l'hommage puisse y mettre obstacle ni par voie de ressort ni autrement, l'hommage que ces sortes de vassaux sont obligés de rendre & la redevance qu'ils peuvent être tenus de payer aux termes de la premiére investiture, diminuent la splendeur de la souveraineté, sans mettre d'obstacle à l'exercice de ces droits dans toute leur plénitude.” And, again, he asserts Les Souverains, pour étre vassaux d'autres Souverains, ne cessant
d'être Souverains eux-mêmes. La féodalité
n'empêche point par ellemême, l'exercice des droits de la Souveraineté.” (Vol. IV., pp. 132 and 170.)
It would seem, therefore, that both the writers on General International Law, and those who have more particularly considered the subject of national seignory, are practically unanimous in affirming that vassal States can, and when subject only to nude vassalage, do possess the rights of sovereignty.
The authorities on this point have been quoted at some length for the reason that vassal States admittedly acknowledge the supremacy of their Suzerains, and would appear therefore, to some extent, to lack the attributes of
sovereignty, Independence and Equality. How to reconcile this fact with the apparently contradictory conclusion just arrived at is no doubt difficult.
Is it that the sovereignty referred to does not include the general rights both external and internal, but only the latter? It can hardly be so, for the possession of these external rights is the especial criterion of sovereignty. . Many States obviously not altogether sovereign possess full power of home government. The great English dependency of India, many of the Colonial possessions of this and other nations, the individual States of the North American Union, and many other States may be mentioned as possessing the right of self-government as regards internal administration (with the exception, perhaps, of appeal in civil actions), but which certainly are never reputed to possess sovereign rights.* It would appear that what is. meant is rather that States in a condition of simple vassalage possess all the rights both external and internal of sovereignty in their relations both with foreign powers other than their suzerain, and also in relation with that power, although as between the vassal and the suzerain they may be and in fact are restricted by certain conditions necessarily inherent to the status of vassalage, these conditions being of such a nature as not to be incompatible with any of the admitted general rights of sovereignty. If this is the correct interpretation of the apparent contradiction, the question as to the rights of a vassal State
As striking instances of the possession of marked rights of internal government not giving sovereign rights, the hereditary colonies of North America and the colony of Rhode Island, prior to the independence of the United States of America, may be instanced. The government of the former descended in hereditary succession and the latter by free election, without any control on the part of the home Government, yet all continued to form integral parts of the British Empire as completely as the other colonial possessions.
See Mr. Gladstone's answer to Earl Percy in the House of Commons, May 5th, 1881; Hansard, vol. 260, p. 1831.
may be considered partly answered, but it still remains necessary to consider what the conditions so inherent to vassalage are.
The comprehensive idea of the dependence of a State as vassal on another State as suzerain is derived from, and analogous to, that of the feudal state of dependence of an individual vassal on his seignor, and the conditions attaching to the dependence may be considered as identical. Feudalism, as has been said before, is of distinctly Frank growth, and although there were somewhat similar systems in force previous to the general adoption of this feudalism, as, for example, the Roman Emphyteusis, and the English system of Dependence, none of them were connected in any way with it, and as they were all superseded by it* it is only necessary to consider for the purpose here requisite this Frank system. This system depended on the connection with the superior either by Commendation or by Beneficium. The former was the voluntary binding of a person to a lord, whether king or not, to be recompensed by the protection to be thenceforth afforded by the lord to his inferior, and was personal. The latter was the voluntary binding of a recipient of land to the lord, whether king or not, who granted it, in return for the gift of the land, and was also recompensed by the duty of the lord to protect the vassal and his land so received by him.
The former tie involved the obligation of fealty, the latter of homage, which may be considered as sometimes including fealty. I Homage therefore designates the
* For instance, in England the system of Dependence gave way to that of Frank Feudality after the Conquest.
† Stubbs, III., 514. This accords with Ré il's statement that “ Foi est rélatif à la personne.
Hommage à la terre,”—IV., p. 149. † Réil, IV., 149 says “foi ” and “hommage" seem to present only one and the same idea. This is so in the more limited sense of homage ; there the terms become identical, the homage only' necessitating the obligation of tealty, but it is not so in its more extended sense.
engagements of vassalage consequent on the holding of land feudal
tenure. was, according to the French authors, of three kinds 5* ist, the Ordinary Homage, which bound the vassal to render to the suzerain fidelity (fiance, fiducia), obedience to his final jurisdiction (ressort de la justice, justicia), and service in war (service, servitium), whether personal or by deputy, for a limited period ; 2nd, the Plain or Simple Homage, which involved only the obligation to live faithfully and to render service in war by deputy ;t 3rd, the Liege Homage, which was a strengthened form of ordinary homage, the service lasting as long as the war in which the lord was engaged endured, and being personal as will be seen by comparing the forms of oath given in Britton, † the oath taken to a liege lord containing the words, “ I will bear you faith of life and limb,” the oath to a lord not liege omitting the words, " of life and limb.' Besides these definite duties, homage, as the ceremony itself showed, inferred the rendering of respect or reverence. Bracton, Book II., c. xxxv. (8), says:-“Item qualiter & per quæ verba fieri debeat homagium ? Et sciendum, quód ille, qui homagium suum facere debet, obtentu reverentiæ quam debet domino suo, adire debet dominum suum & non tenetur dominus quærere suum tenentem, & sic debet homagium ei facere. Debet quidem tenens manus suas utrasque ponere inter manus utrasque domini sui per quod significatur
ex parte tenentis reverentia.''S From this it will be seen that the duties attaching to each description of homage were the obligation to be faithful, to render the lord some service in war and to hold him in
Brussel, Normal Examen de l'usage general des Fiess en France, pp. 95.120. Réal, IV., pp. 150-152.
† Réal omits the service in his first definition of plain homage, but it is evidently an accidental omission, as he expressly includes it later in the chapter, page 159.
Lib., III. c. 4. They are given in Stubbs, III., p. 515, n. 2, § See also Glanvil, lib. 9, cap. 4, temp. Henry II. Calvin's Case, i Rep., 4.