No More Learning

The serfs were divided as in the Visigothic period into those
belonging to the State (fiscales), those owned by ecclesiastics (ecclesi-
ásticos) and those who were the property of private individuals (par-
ticulares). According to their status they might be either personal
property (personales) or bound to the soil (colonos). The latter were
indissolubly tied to the soil (gleba), so that they were regarded as
part of the land like trees or buildings, and were therefore included
in contracts for sale or purchase. The status of a serf might be ac-
quired by birth, by debt, by captivity or by voluntary assignment to
a lord (obnoxacion). These last had a higher status and were called
oblati. Freedom might be recovered by manumission, which was due
to the influence of Christianity and to economic necessities, by revolt or
Aight; hence arose a class of freedmen with special privileges and more
advantages than the primitive serf. By the end of the tenth century
these freedmen formed the majority of the population and were known
as juniores. They spoke of themselves as tenants-in-chief (de cabeza),
though they were liable to personal service, and were regarded as part
and parcel of the inheritance (heredad) or ancestral demesne (solariegos);
even when they worked elsewhere or lived away on an alien plot, they
still paid tribute. Such was their condition as it appears in the charter
of Leon at the beginning of the eleventh century; but afterwards it
steadily improved.
The king was at the head of the government, but his power varied
in different cases. He combined legislative and judicial functions, and
claimed the sole prerogative of coining money as well as the right
to summon his vassals to war (fonsadera). There was, however,
considerable variation in practice. In the lands directly dependent
on the king (realengas) he had full jurisdiction over all orders, and was
himself their mesne lord. But the nobles sometimes exercised over their
own lands an authority that practically superseded the king's. All
the inhabitants of the domain were dependent on their feudal lord,
some as serfs, others under his patronage. He collected tribute from
them, he accepted their personal services; he compelled them to go out
on military duty ; in a sense he dictated their laws and divided the
functions of government between the judex, mayordomus, villicus, and
sagio who presided over the concilium. He could not extend his privi-
leges over lands newly acquired without the express leave of the king.
The powers of the king over the lands of ecclesiastical vassals were also
CH. XVI.


## p. 440 (#486) ############################################

440
Leon and Castile; their nobles and towns
limited, while the ecclesiastics had the advantage of setting down their
privileges in written documents. Their duties as well as their rights were
on the same footing as those of secular feudatories.
The nobles, bishops and abbots could often interfere in lands which
were exempt from aristocratic or ecclesiastical control. They were
members of the Palatine Office (oficio palatino) as well as of the Royal
Council and the other councils. They kept in their hands the govern-
ment and administration of the districts, called commissa, mandationes,
tenentiae, etc. , and in their capacity of counts they were assisted by a
vicar and the council of neighbours (conventus publicus vicinorum). Such
powers intensified their turbulent spirit. They imposed their policy on
the crown, interfered in the struggles for the succession, and consequently
the monarchy found in them the strongest force in the country. But
despite all this there was no feudal hierarchy as in France and Germany,
since they exercised all their privileges by the favour of the king.
In Leon and Castile we can trace the rise of behetrías or collective
benefices (benefactorías collectivas), “groups of free men who sought
the protection of a powerful lord. ” If they might freely choose their
own lord, they were known as behetrías de mar a mar, but if their
choice were restricted to one family, they were called de linaje a linaje.
They were never very vigorous, owing to their dependence, but in
the tenth century they gave rise to the chartered town or concejo which
comprised “ the inhabitants who had been conquered by the king and
were attached to the royal domain, as well those who had recently
settled there and were exempt from the jurisdiction of the counts. ” The
reason for the establishment of concejos was the necessity of populating
the frontier. Since no one would live there owing to its insecurity,
the king had to attract inhabitants for chartered towns by granting
them privileges. Sometimes all who entered them were declared free
men, even if they sprang from the lowest serfs ; sometimes they were
exempted from services and contributions ; sometimes they were allowed
some political independence and self-government; sometimes the existing
practices and customary exemptions were recognised. These privileges
were definitely set forth in the fuero or charter of the inhabitants
(carta de poblacion); of those that have come down to us the charters
of Burgos, Castrojeriz, etc. , date from the tenth, and those of Nájera,
Sepúlveda and Leon from the beginning of the eleventh century. As a
rule the organisation of the chartered town depended on the formation of
the concilium (concejo) or assembly of neighbours, which exercised judicial
and administrative functions. The Council appointed every year a judge,
several assessors, clerks of the market and inspectors, who were entirely
dependent on its goodwill. Such were the beginnings of municipal life.
Its growth was marked by the gradual absorption by the concilium
of the powers and prerogatives, which had once belonged to the king and
the count; but the king still kept the right to appoint judges who con-


## p. 441 (#487) ############################################

Aragon and Navarre; Catalonia
441
tinued side by side with those elected by the council. There were usually
distinctions between greater and lesser members of the concejo; between
nobles (infanzones) and citizens, between holders of office (honoratii) and
simple neighbours (vicini), the villagers or townsmen.
Legislation had other sources besides the Fuero Juzgo through the new
charters granted by the king. The municipality exercised jurisdiction
according to custom and tradition in cases which were not expressly
included in their charter. Further, the fueros of the bishop and the
lords contributed an element to the legislation of the period, just as did
the municipal councils.
The inhabitants of Leon and Castile lagged far behind the Muslims in
point of material comfort. Agriculture,limited as yet by the bare necessities
of life, was fostered by the Benedictine monks alone, and for the most part
the population confined its energies to war. Industries, however, sprang up
at Santiago de Compostela in Galicia round the shrine of St James, and
craftsmen began to organise gilds. The salt industry, too, was kept up
in
Galicia. But there was less freedom of trade than in the preceding period,
and taxation generally took the form of duties imposed on the necessaries
of life. Money was scarce, and Roman and Gothic types of coin were
still current. The official language was Latin; but Romance was already
a formed language, although there are no documents extant in the vulgar
tongue till the end of the eleventh or the beginning of the twelfth century.
Scarcely anything is known of Aragon and Navarre at this period.
In Catalonia, a West Frankish fief, the Franks exercised a profound
influence on the organisation of society. Here the counts were landowners,
who granted or leased out their lands, and this practice gave rise to the
copyholders(censatarios), the viscounts and other subordinates of the count.
Later, the grant of lands by the king to soldiers, whether in the shape of
alods or in that of beneficia, led to the formation of a fresh group of free
owners. Thus the nobility of Catalonia acquired the full powers of French
feudal seigneurs. The common law of all three realms was the Fuero
Juzgo, to which Catalonia added the Frankish capitularies. There were
also charters for towns in Aragon and Navarre, but their text has not come
down to us, while the fuero of Sobrarbe is generally regarded as a forgery.
In Catalonia there are extant the fuero of Montmell, the town charter
of Cardona given by Wifred, and the privilege of Barcelona granted by
Berengar-Raymond I.
The history of Spain, so far traced, is very different from that of
other Western countries. No land is more marked out by its mere
geography and local separations as the very home of rival kingdoms. It
fronts towards the sea, and it looks towards Africa: if it borders upon
modern France, it is yet separated from it by the almost impassable
Pyrenees. It still bore the imperishable marks of Roman rule: it had
been flooded by the Teutonic invaders when the Empire fell, and it had
been by them even more closely joined to Africa. Then it was again
a
CH. XVI.


## p. 442 (#488) ############################################

442
Unique history of Spain
marked out from the rest of Europe by the Muslim conquest, and Spain
gave a rival to the Eastern Caliphate just as the Franks gave a rival
to the Eastern Emperor. In itself the Iberian peninsula was split up by
many mountain ranges, and marked by startling variations in climate
and soil : it had a unity compatible with the strongest local divergencies.
Thus it was destined for a history strangely apart from other lands: if
at times it drew to itself outside races and outside influences, these in
their turn were moulded into types among themselves both akin and
separate. So, if splendid, it was always weak through its many divisions,
and many contests between Berbers and Arabs, and of Arabs among
themselves. The history of Arab civilisation in Spain intertwines itself
in
many links with medieval learning, science and thought, while the
presence of a rival race and rival creed at its very doors gave a special
tinge to Spanish fervour and Spanish faith. In the field of thought,
even in constitutional experiments, Spanish history has thus from early
times a significance far greater than that of its mere events. Even after
its splendour had reached its height the influence of the Moorish kingdom
was not ended. Small Christian states, separated from each other by
physical conditions, had been born in conflict with it, and were some-
times united in enmity against it, sometimes at strife in contest for its
alliance. Thus the later Spanish kingdoms were growing up, but their
day was yet to come.


## p. 443 (#489) ############################################

443
CHAPTER XVII.
THE CHURCH FROM CHARLEMAGNE TO SYLVESTER II.
The preceding volume came to an end with the picture of a vast
Empire seemingly destined to absorb Europe itself. This volume, on
the contrary, has offered little for our consideration save the spectacle of
Europe fallen to fragments, of its kingdoms sundered from one another,
and of disintegration steadily advancing. The alluring dream of Charles
the Great has vanished ; after his death no temporal prince was found
capable of carrying on his work, and it fell to ruins.
Nevertheless, the root idea which had inspired him still persisted :
the idea of the unity of the Christian world, bound together and
grouped round a single head, ready to give battle to the infidel, and to
undertake the conversion of the barbarians. But it was the Church
„which now appropriated the idea, and which alone, amidst the
surrounding confusion, succeeded in maintaining itself as the principle of
order and the power of cohesion. To shew in broad outline how and to
what extent the Church succeeded in this design during the disturbed
period which preceded the great Church reform of the eleventh century
is the object of these few pages which will thus sum up the history.
€
Under the ever-present influence of scriptural ideals, Charles the
Great had really come to see in himself what he was so often called, a
new David, or another Solomon, at once priest and king, the master and
overlord of the Bishops of his realms; in reducing those Bishops to
the level of docile fellow-labourers with him in the work of government,
he had believed himself to be working for the consolidation of his own
power. But in this matter, as in so many others, the results of his
policy had not accorded with his wishes and expectations. The Bishops,
having been called upon to take part in affairs of State, were conse-
quently quite ready to busy themselves with them even uninvited, while,
on the other hand, by the investment of the Emperor with a semi-sacer-
dotal character the clergy were encouraged to see in him one of them-
selves, and, despite his superior position, to look upon him as amenable
to their jurisdiction.
CH. XVII.


## p. 444 (#490) ############################################

444
Louis the Pious and the Bishops
>
9
This had been clearly perceived as early as the time of Louis the
Pious, when, on the morrow of Lothar's usurpation (833), the Bishops,
alleging the obligation laid on them by their “priestly office," had
“
plainly asserted their right to examine and punish the conduct of a
prince who had incurred guilt by “refusing to obey,” as the official
record declares, “the warnings of the clergy. ” For, although Louis the
Pious was already looked upon as deposed at the time of the ceremony
in St Medard's at Soissons, the course which the Bishops had adopted
without hesitation was in point of fact to bring him to trial for his
conduct as a sovereign, imposing on him the most humiliating of
penances, “after which,” as the record concludes, “none can resume his
post in the world's army. "
Louis the Pious, as already seen', did, nevertheless, return to the
world's army," and was even reinstated in the imperial dignity. Yet
this decisive action taken by the Bishops in the crisis of 833 shewed
clearly that the parts had been inverted. Louis the Pious was the king
of the priests, but no longer in the same sense as Charles the Great: he
was at their
mercy.
The precedent thus set was not forgotten. During the fratricidal
struggle which, on the morrow of the death of Louis the Pious, broke
out amongst Lothar, Louis the German, and Charles the Bald, the
Bishops more than once took occasion to interfere, and to make them- .
selves masters of the situation. \In March 842, in particular, when
Charles the Bald and Louis the German had encamped in the palace of
Aix-la-Chapelle whence their brother had precipitately fled at their
approach, the clergy, as Nithard, an eye-witness, relates, “reviewing
Lothar's whole conduct, how he had stripped his father of power, how
often, by his cupidity, he had driven Christian people to commit
perjury, how often he had himself broken his engagements to his father
and his brothers, how often he had attempted to despoil and ruin the
latter since his father's death, how many adulteries, conflagrations and
acts of violence of every description his criminal ambition had inflicted
on the Church, finally, considering his incapacity for government, and
the complete absence of good intentions in this matter shewn by him,
declare that it is with good reason and by a just judgment of the
Almighty that he has been reduced to take flight, first from the field of
battle, and then from his own kingdom. ” Without a dissentient voice the
Bishops proclaimed the deposition of Lothar, and after having demanded
of Louis and Charles whether they were ready to govern according to the
Divine Will the States abandoned by their brother, “ Receive them,”
they bade them, “and rule them according to the Will of God; we require
it of you in His Name, we beseech it of you, and we command it you. ”
In thus encroaching on the domain of politics, the Bishops were
persuaded that they were only acting in the interest of the higher
1 See Chapter 1. p. 19.
a


## p. 445 (#491) ############################################

Aims of the Episcopate
445
concerns committed to their care. They had gradually accustomed
themselves to the idea that the Empire ought to be the realisation upon
earth of the “ City of God,” the ideal city, planned by St Augustine.
The study of St Augustine had been the mental food of Bishops,
learned clerks and princes themselves, and in their complaints the clergy
had always a source of inspiration in the complaints echoed four
centuries earlier by St Augustine and his followers. The Empire was
hastening to its ruin because religion was no longer honoured, because
every man was concerned only for his own interests and was careless of
the higher interests of the Church, because instead of brotherliness and
concord only cupidity and selfishness reigned unchecked. If the Empire
were to be saved, the first thing to be done was to recall every man to
Christian sentiments and to the fear of God.
Whatever work of the period we open, whether we go to the letters
written at the time by the clergy, or whether we examine the considera-
tions on which the demands made by their synods to the king are based,
we shall find the same arguments upon the necessity of reverting to the
Christian principles which had constituted the strength of the Empire
and had been the condition of its existence. For the deacon Florus,
the decadence of the Empire is merely one aspect of the decadence of the
Church : at the period when the Empire flourished “ the clergy used to
meet frequently in councils, to give holy laws to the people”; to-day,
he goes on, there is nothing but conciliabula of men greedy of lands and
benefices, “ the general interest is not regarded, everyone is concerned
about his own affairs, all things command attention except God. ” The
conclusion of the whole matter is, he says, that “all is over with the
honour of the Church" and that “the majesty of the State is a prey to
the worst of furies. ” The same reflections may be found in Paschasius
Radbertus, biographer of the Abbot Wala ; the whole of the disorder in
the State arises from the disappearance of religion, the imperial power
has made shipwreck at the same time as the authority of the Church.
Wala's comment, as he made his appearance amidst the partisans of
Lothar on the morrow of the penance at St Medard's, is well known :
“ It is all perfect, save that you have left naught to God of all that was
due to Him. "
To restore to the 6 Church of God” and to its ministers the honour
that is their due, such is the sheet-anchor which the Episcopate offers
to sovereigns. Over and over again during the years that followed the
death of Louis the Pious and the partition of Verdun, the Bishops press
upon rulers the necessity of acting “with charity,” and in cases where
any error has been committed, of doing penance, and, as a document of
844 expresses it, “asking the forgiveness of the Lord according to the
exhortation and counsel of the priests. ” And these exhortations bear
fruit; in April 845, while a synod was sitting at Beauvais, the King of
France, Charles the Bald, after swearing on the hilt of his sword in the
CH, XVII.


## p. 446 (#492) ############################################

446
Bishops' attempt at control
Name of God and the saints to respect till death the privileges and laws
of the Church, admits the right and even the duty of the prelates both
to suspend the execution
of any measure he might take which should
be to the detriment of these privileges and laws, and also to address
remonstrances to him, calling upon him to amend any decisions contrary
to them.
Strong in this pledge, the prelates of France, a few months later
(June 845) ventured to put forward, at the Synod of Meaux, a whole
series of claims directed not less against their king than against the
whole lay aristocracy, reproaching both alike with hindering the free
exercise of religion. Their reproaches were expressed in a language of
command, which on this occasion was carried to such a height that the
king, with the support of the magnates, resisted.
Nevertheless, the Bishops remained masters of the situation. In the
years that follow, making common cause now with the lay aristocracy,
they succeed, throughout the various kingdoms which sprang from
Charles the Great's empire, in imposing their will upon the sovereigns.
They are at once the leaders and the spokesmen of the turbulent vassals,
ever ready to league themselves together to resist the king. In an
assembly held in August 856 at Bonneuil near Paris, with unprecedented
violence they accuse Charles the Bald of having broken all his engage-
ments; they warn him “in charity” that they are all, priests and laymen,
of one mind in resolving to see them carried out, and they summon him,
in consequence, to amend without delay all provisions to the contrary,
concluding this singular “ request " with a threatening quotation from
the Psalms: “If a man will not turn, He will whet His sword : He
hath bent His bow, and made it ready. He hath prepared for him the
instruments of death. ”
We have already seen', how two years later this prediction was
apparently realised. Louis the German, in response to the appeal of a
portion of his brother Charles the Bald's subjects, invaded his dominions
and succeeded in occupying a great part of them. Called upon to ratify
his usurpation, a group of Bishops from the ecclesiastical provinces of
Rheims and Rouen gathered together at Quierzy-sur-Oise, following the
suggestions of Archbishop Hincmar, carried matters with a high hand;
after having recommended him to meditate upon the duties which a
prince owes to the Church, they thought fit to bring to his notice these
words from the Psalms : “Instead of thy fathers thou shalt have
children,” together with the interpretation : “ Instead of the Apostles,
I have ordained Bishops that they may govern and instruct thee. ”
Kings working for the maintenance of peace under the aegis of the
Church, such was thenceforward the programme of the Episcopate.
And by peace is intended the peace of Christendom, the peace of the
Church ; to disturb it is to infringe the laws of which the Church is the
1 Chapter 11. pp. 36–37.


## p. 447 (#493) ############################################

Hincmar in the State
447
guardian, and to revolt against the Church itself. Thus in a synod
assembled at Metz on 28 May 859, the Bishops of the kingdoms of
Western Francia and Lorraine do not hesitate to characterise the
attempt of Louis the German to seize upon his brother's lands as a
“schism in the Holy Church and in Christendom," adding that he is
bound to ask “absolution " for it. A month later in an assembly held
at Savonnières (14 June 859) Charles the Bald himself appears to give
official recognition to the claims of the clergy; in making a complaint
against Wenilo (Ganelon), Archbishop of Sens, who had ventured to
crown his brother Louis the German king in his place, he expresses
astonishment that a claim should have been set up to depose him,
“ without the case having been submitted to the judgment of the
Bishops, by whose ministry he had been consecrated king, and to whose
fatherly admonitions and sentences he had been and ever was ready to
submit himself. "
The episcopal theory was thus expanded to its utmost limits, as it
was about to be stated even more rigorously, and with the greatest
boldness by the illustrious Archbishop of Rheims, Hincmar, in numerous
treatises and letters or in the decrees of councils which on all hands are
allowed to be his work. The theory, very simple in itself, may be
brought under these few heads : The king is king because the Bishops
have been pleased to consecrate him: “It is rather through the
spiritual unction and benediction of the Bishops than from any earthly
power that you hold the royal dignity," writes Hincmar to Charles the
Bald in 868. The Bishops make kings by virtue of their right to con-
secrate, and so are superior to them, “ for they consecrate kings, but
cannot be consecrated by them. ” Kings, then, are the creatures, the
delegates of the Bishops: the monarchy “is a power which is preserved
and maintained for the service of God and the Church ”; it is “ an
instrument in the hands of the Church which is superior to it, because
she directs it towards its true end. ” Except “for this special power which
the king has at his disposal and which lays upon him special duties, he
is but a man like other men, his fellows and equals in the city of God.
Like them he is bound to live as a faithful Christian. ”
The whole trend of this ecclesiastical reaction, thus traced in outline
during the half century which followed the death of Charlemagne, was
to form a system logically invulnerable but making the monarchy the
slave of the clergy. To make head against the unbridled appetites of
men the Church claimed as its own the twofold task of maintaining
union and concord and of directing the monarchy in the paths of the
Lord.
:
Left, however, to their own resources, and compelled, in addition, to
resist the claims and the violent attacks of the lay aristocracy, the
Bishops would have been in no position to translate their principles into
CH. XVII.


## p. 448 (#494) ############################################

448
The Forged Decretals
action. Only a centralized Church, gathered round a single head, could
enable them to give practical force to their views, and for this reason,
the eyes of an important section of the Bishops were very early directed
towards Rome.
This tendency is strikingly shewn in the famous collection of the
False Decretals which are still to a great extent an unsolved problem
despite endless discussion. They were composed within Charles the
Bald's dominions about the year 850 by a Frankish clerk assuming the
name of Isidorus Mercator, who, in order to contribute solid support to
the prerogatives of the Bishops at once against the arbitrary control
of the Archbishops or metropolitans and the attacks of the civil power,
did not hesitate to misattribute, to interpolate and rearrange, and thus
practically to forge from beginning to end a whole series of pseudo-
papal decisions. This collection clearly lays down as a principle the
absolute and universal supremacy of the Chair of Peter. It makes
the Pope_ the sovereign lawgiver without whose consent no council,
not even that of a whole province, may meet or pronounce valid
decrees ; it makes him, at the same time, the supreme judge without
whose intervention no Bishop may be deposed, who in the last resort
decides not only the causes of Bishops but all “major” causes, whose
decision constitutes law even before any other ecclesiastical tribunal has
been previously invoked. In this manner, while the Episcopate, freed
from the civil authority, is the regulating power within the borders of
every State, the Pope appears as the Supreme Head of the whole of
Christendom.
Such a theory harmonised too well with the aspirations of the Popes
not to find an echo at Rome. They had themselves been trying for
some time on parallel lines: to take advantage of the decline of the
imperial power to strengthen their own authority, and to claim over the
Christian world as a whole that office of supreme guardian of peace and
concord which the local Episcopate had assumed for itself inside each
of the Frankish kingdoms. The weakness of Louis the Pious and the
conflict of interests and of political aims which characterised his reign
had been singularly favourable to this project. It has been shewn in a
preceding chapter? how in 833, when the revolt in favour of Lothar
broke out, Pope Gregory IV had allowed himself to be drawn into
espousing the rebel cause. Urged on by the whole of the higher
Frankish clergy who, though maintaining Lothar's claims on the ground
of principle, were, nevertheless, well pleased to be able to shelter
themselves behind the papal authority, and, supporting themselves by
various texts, pressed upon him the prerogatives attaching to the Chair
of Peter, Gregory spoke as sovereign lord. In a letter couched in tart
and trenchant language in which the hand of Agobard, Archbishop
of Lyons, may probably be traced, he resolutely put forward rights
1 Chapter 1. pp. 17-18.


## p. 449 (#495) ############################################

Pope Nicholas I
449
superior to those of any other power whatever. To those Bishops and
priests who, loyal to Louis the Pious, had pleaded his orders as a justi-
fication for not having hastened to present themselves when summoned
by the Pope, Gregory does not hesitate to retort: “Why speak to me
of the orders of the Emperor? Are not the orders of the Pope of
equal weight? And is not the authority over souls which belongs to the
Pope above the imperial rule which is of this world ? ”
This letter of Gregory IV touched the vital point, since the most
formidable obstacle to the centralisation of the Church was the de-
pendence of the body of the clergy in each kingdom upon the different
princes among whom the secular rule over Christendom was divided. It
was left for Nicholas I (858–867) to make energetic resistance to this
danger, and to enable the Papacy to attain that position of supreme
headship over the Church which his predecessors had often claimed with
theories not hitherto wrought out in practice.
At the outset, a series of sensational events, involving nearly
simultaneous struggles with the Carolingian sovereigns and with the
Emperor of the East, forced upon Nicholas the choice between a
humiliating submission and the offensive in circumstances which, if
mishandled, might lead to the gravest consequences. Between these
two courses a man of Nicholas I's type could not hesitate. He stood
firmly on the rights of the Holy See, and shewed himself resolved
on their triumphant vindication.
The first question to be decided was, whether in the important
matter of the divorce of Lothar II, King of Lorraine, which has been
already under discussion', the last word was to rest with the king,
supported by a complaisant clergy ready to grant him a divorce, or with
the Pope to whom Theutberga, the discarded wife, had appealed.
Lothar and the Bishops of his party imagined that they could easily
hoodwink the Pope. When Nicholas commissioned two Italian prelates
as legates to examine into the matter, and instructed them to hold a
council at Metz to which the Bishops of the German, French and
Provençal kingdoms were to be convoked as well as the Bishops of
Lorraine, Lothar bought over the legates, contrived to exclude the
foreign Bishops from the Council, and easily secured the annulment of
his first marriage, thanks to the connivance of Gunther, Archbishop
of Cologne, and of Theutgaud, Archbishop of Trèves (June 863).
Nicholas I replied with a bold stroke. When the two Archbishops
reached Rome to announce to the Pope the decisions arrived at, he
brought them to trial before a synod composed only of Italian prelates,
and declared them deposed (October 863), at the same time quashing
the decisions of “this new robber rout of Ephesus," as he called the
synod held at Metz.
a
1 Cf. Chapter 11. pp. 38 ff.
C. MED. H. VOL. III. CH. XVII.
29


## p. 450 (#496) ############################################

450
Divorce of Lothar II
That a Pope should venture under such conditions to depose Bishops
or Archbishops was a thing unheard of. It was in national or provincial
councils
that condemnation had been pronounced upon Theodulf, Bishop
of Orle $, in 817, and upon the Archbishops Ebbo of Rheims, Agobard
of L Bernard of Vienne and Bartholomew of Narbonne in 835,
who reigning Popes had not even been consulted. But Nicholas I
had resolved not to be guided by these precedents. At the same synod
in which he pronounced the deposition of the two Archbishops in
Lorraine to shew his determination to deal once and for all with all
unworthy prelates, he further declared to be deposed Hagano, Bishop
of Bergamo, and John, Archbishop of Ravenna, the first being accused of
having lent his help to Gunther and Theutgaud, the second of having
made common cause with the enemies of the Holy See (October 863).
At the same time he announced that a like penalty would be inflicted
upon any bishop who did not immediately signify his adhesion to the
sentence which he had pronounced. Finally, he threatened with
anathema anyone who should contemn on any occasion whatsoever the
measures taken by the Pope, the orders given or the sentences pronounced
by him.
Thus above the will of kings the will of the Pope asserted itself
haughtily and resolutely.
Lothar's brother, the Emperor Louis II,
appealed to by the deposed prelates to intervene, determined to vindicate
the honour of kings, and marched straight upon Rome at the head of his
army. But Nicholas I did not yield to the storm. Having ordered
fasts and litanies, he shut himself up in the Church of St Peter and
awaited in prayer the moment when Louis II should be overawed and
brought to give way. The advantage remained with the Pope, and he
even came forth from the struggle with a heightened conception of his
own power.
The affair of the Patriarch Photius, to be dealt with more at length
in the next volume, the controversies arising from which became in the
end involved with the Lorraine question, had accentuated the triumphant
mood of the Pope. The Patriarch Ignatius, having been banished by
order of Bardas the Regent, and Photius, an official of the imperial
palace having been put in his place, Nicholas I was requested to sanction
what had been done (860). "Reports containing a distorted account of
)
the facts were submitted to him, but he resolved that as the first step
an inquiry should be held, and despatched two legates. This was incon-
venient to Photius and to the court at Constantinople, for they had
counted upon the Pope's unconditional acceptance. They succeeded in
terrorising the legates and inducing them to preside over a so-called
general council at Constantinople, which condemned Ignatius and
confirmed his deposition (May 861). Nicholas I, from whom the
details of the affair were sedulously concealed, limited himself for the
time being to the disavowal of the decrees, the council having been


## p. 451 (#497) ############################################

Photius
451
summoned contrary to his orders. But he soon took a higher tone.
Being, after long delay, made aware of the facts and of the treachery of
the legates, he sent out an urgent summons to a council to meet at
Rome, pronounced sentence of deposition on Zachary, Bishop of Anagni,
one of the legates, and on Gregory Asbestas, Archbishop of Syracuse,
who had consecrated Photius, anathematised the latter, declared
Ignatius sole legitimate Patriarch, restored to their offices all the
Bishops and clergy deposed for their support of his cause, and declared
the deposition of all who had been ordained by Photius (beginning of
863).
This meant war.
The Emperor Michael III, surnamed, not without
reason, the Drunkard, as soon as he was informed of the
measures which
had been taken, replied from Constantinople by an abusive letter.
Nicholas retorted by insisting before everything else on the immediate
restoration of Ignatius whether guilty or innocent, claiming for himself
the sole right to judge him afterwards in the name of the authority
belonging to the See of Rome, “which confers upon the Pope judiciary
power over the whole Church,” without his being himself capable of
“ being judged by anyone. " He prohibited the Emperor from in-
terfering with a matter which did not come within the province of
the civil authority, “for,” he added, “ the day of king-priests' and
'Emperor-Pontiffs' is past, Christianity has separated the two func-
tions, and Christian Emperors have need of the Pope in view of the
life eternal, whereas Popes have no need of Emperors except as regards
temporal things” (865). Finally, after a few months, in November 866,
as the Emperor Michael refused to give way, Nicholas demanded of him
the official retractation and the destruction of the insulting letter of 865,
failing which he declared that he would convoke a General Council of the
Bishops of the West, when anathema would be pronounced against the
Emperor and his abettors.
Stimulated by the conflict, the Pope had thus reached the point,
through the logical development of the theories which we have already
seen put forward by the Bishops from their standpoint, of so conceiving of
his power that he no longer saw in kings and emperors anything more
than ordinary Christians, accountable to him for their actions, and as
such amenable to his sovereign authority. With all alike he takes the
tone of a master. To Charles the Bald he writes in 865 that it is for
him to see that one of his (the Pope's) decisions is put in execution,
adding that “were the king to offer him thousands' of precious stones
and the richest of jewels, nothing, in his eyes, could take the place of
obedience. " He does not fail to remind Charles, as well as Louis the
German and Lothar, that the duty of kings is to work for the exaltation
of the Church of Rome," for how think you,” he writes to one of them,
" that we can, on occasion, support your government, your efforts, and
the Churches of your kingdom, or offer you the protection of our
CH. XVII.
29-2


## p. 452 (#498) ############################################

452
Pope, King, and Prelate
buckler against your enemies, if, in so far as it depends on you, you
allow that power to be in any degree weakened to which your fathers
had recourse, finding in it all the increase of their dignities and all their
glory? " Kings should accordingly shew themselves docile to the
admonitions of the Pope, as well in the matter of general policy, that is,
in the maintenance of concord among princes, as in the concerns of
religion, otherwise the Pope will find himself constrained to launch his
thunderbolts against them. He does not even admit of
any
discussion of
his orders; in 865 Charles and his brother Louis the German having put
forward various pretexts for not sending Bishops from their dominions to
the council about to pronounce at Rome upon the incidents arising out
of Lothar's divorce, Nicholas wrote them a stinging rebuke, expressing,
in particular, his astonishment that they should have dared to question
the necessity of sending Bishops when he, the Pope, had demanded their
presence. And when, on one occasion, Charles the Bald who, be it said,
was docility personified, shewed himself offended by certain rather
ungentle reproofs, the Pope sharply replied that, even if his reprimands
were undeserved, the king must needs bow to them as Job bowed beneath
the chastening of the Most High.
Yet all was not accomplished when kings were restricted in their
initiative and were turned into the agents of the Papal will: the clergy,
over whom they were deprived of control, had still to be made, in their
turn, a docile instrument in his hands. In this way would the work of
uniting Christendom be completed.
It is at first sight surprising that it was in this quarter that
Nicholas I met with the most vigorous resistance. It came in the
main, from the archbishops, at whose expense the work of ecclesiastical
consolidation must necessarily be carried out. Yet even they were
forced to yield to the iron will of the Pope. The case of Archbishop
Hincmar of Rheims is the most conclusive proof of this. In 861, at a
synod held at Soissons he had caused his suffragan Rothad, Bishop of
that city, whom he accused of insubordination, to be “cut off from the
communion of the Bishops. ” Threatened with deposition when another
synod met at Pitres next year (1 June 862) Rothad had lost no time in
lodging an appeal to Rome, and, in spite of menaces, had refused to
appear before the assembled Bishops. Hincmar, proceeding, never-
,
theless, with the case, had procured sentence of deposition, and con-
signed Rothad to a monastery. At once the Pope intervenes with a
high hand, insisting before anything else that Hincmar and his
suffragans shall reinstate the bishop within thirty days, whatever may
be the merits of the controversy, and this under penalty of an interdict.
Further, he declares that the cause is to be laid before his own court,
and charges the archbishop to dispatch to Rome, also within thirty
days, two accredited agents who, together with Rothad, shall submit
themselves to the judgment of the Holy See. For month after month,


## p. 453 (#499) ############################################

Claims of Nicholas I
453
a
Hincmar, by various subterfuges, evaded compliance, but in January 865,
the Pope decided on bringing the matter to an issue, and the tone
adopted by him in announcing the reinstatement of the bishop is that
of a master who will tolerate no discussion of his orders. In trenchant
language he censures the conduct of Hincmar, publicly reprobates his
bad faith, prescribes to him submission pure and simple under pain of
excommunication, and since Hincmar has declared that no appeal lay to
Rome in Rothad's case, Nicholas does not hesitate to assert that even
had the bishop lodged no appeal he could not have been deposed except
by the Pope or with his consent. For in all grave matters, and notably
those in which Bishops are concerned, the Pope is the sole and sovereign
judge: “ that which the Pope has decided is to be observed by all. ”
These general principles which were thus transforming the Church
into a vast highly centralised body wholly in the hands of the Pope,
were to be unceasingly proclaimed and defined by Nicholas : Every
grade of the ecclesiastical hierarchy must yield to the pontifical
authority ; Archbishops owe their existence to the Pope in virtue of the
pallium conferred on them by him ; Bishops cannot be judged except by
him or in virtue of the authority delegated by him ; councils derive
their force and their validity from the power and the sanction of the
Holy See. Nicholas I thus takes up the position of the False
Decretals', at the same time setting up, in place of the system of
Christendom united around the Emperor, that of Christendom united
around the Pope.
But hardly was Nicholas I dead (867) than his ideas seemed as
obsolete as those of Charles the Great, and the Papacy found itself
obliged to abandon the ideal, which Nicholas himself had only very
partially realised, of a confederation of princes exclusively occupied in
carrying out his will.
In the first place, the Popes, being themselves temporal princes
throughout the Patrimony of Peter, were obliged, from the time of
Hadrian II's pontificate (867–872), to provide for the defence of the
States of the Church against the terrible risks to which they were
exposed by the Saracen invasions. This care, secular in its nature, soon
became by force of circumstances their chief preoccupation. The
pontificate of John VIII (872–882), though he also was an energetic
Pope, consists to a large extent of a series of desperate attempts to
organise the defence against the invader, while he makes every possible
endeavour to set up an Emperor capable of undertaking the leadership
1 'It is, however, a much-disputed question to what extent the papal doctrine was
influenced by this famous collection. In “ Étude sur les Fausses Décrétales,"
Revue d'histoire ecclésiastique, tome viu. 1907, pp. 18 et sqq. M. Paul Fournier
estimates their influence at practically nothing. His arguments appear to prove
his case. It is certain that the papal theory had been formulated in its main
outlines before Nicholas had cognizance of the False Decretals.
CH. XVII.


## p. 454 (#500) ############################################

454
Decline of the Papacy
in this enterprise. And although John VIII still maintains the
pretensions of the Holy See at a high level, although he goes so far as to
claim the sole right of choosing the Emperor himself, and on two
occasions, in 875 and in 881, succeeds in making his view prevail,
crowning first Charles the Bald and then Charles the Fat, the horizon of
the Papacy nevertheless narrows perceptibly. It becomes less and less
feasible for the Popes to exercise over kings as a body a directing and
moderating power. Anxiety for their own safety outweighs everything
else. Formosus (891–896) is even reduced in 893 to imploring the help
of Arnulf, King of Germany, in order to repel the aggressions of the
House of Spoleto, as in former days Stephen II had called upon Pepin
for succour against the attacks of Aistulf the Lombard.
Taking this course, the Papacy was speedily brought into subjection
,
to those princes and kings over whom it had once claimed to reign. For
some time the head of the House of Spoleto, the Emperor Lambert, was,
with his mother Ageltrude, the real ruler of Rome. Later, the Papacy
fell into the hands of the local aristocracy, and for more than half a
century a family of native origin, that of a noble named Theophylact,
a chief official of the papal palace, contrived to seize upon the direction
of affairs and to make and unmake Popes at its pleasure. Then, when
the influence of the direct line of Theophylact began to decline, the
Kings of Germany came into the field to dispute with them and with
another branch of their family, the Counts of Tusculum, the power of
electing the Pope. From 963, the date when Otto I caused a council
which he presided over to decree the deposition of Pope John XII,
up to the middle of the eleventh century, the Kings of Germany and
the Counts of Tusculum turn by turn set up Popes, and thrice at least
the lords of Tusculum themselves assumed the tiara. Two sons of
(Count Gregory, Theophylact and Romanus (the latter being “Senator
of the Romans” at the time of his elevation to the papal throne),
and later their nephew Theophylact, a child of twelve, successively filled
the Holy See, under the names of Benedict VIII (1012-1024), John XIX
(1024-1032) and Benedict IX (1032-1044). When the latter grew
tired
of exercising power, he sold it for cash down to his godfather, a priest
named John Gratian, who took the name of Gregory VI.
The prestige of the Papacy could not fail to suffer grievously from
these strange innovations, the more so as Popes thus chosen, to be set
aside as soon as they ceased to give satisfaction, had, for the most part,
little to boast of in the matter of morals, and in any case, seldom
inspired much confidence in point of religion. Stephen VI (896-897),
too passive a tool in the hands of Lambert of Spoleto and his mother,
did not hesitate, in order to recommend himself to them, to disinter the
body of his predecessor Formosus, to arraign the corpse before a council,
to have it condemned, and stripped of the pontifical ornaments in which
it had been beforehand arrayed, to order it to be thrown into the
a


## p. 455 (#501) ############################################

Ecclesiastical anarchy
455
a
7
common grave whence it was torn by the populace and cast into the
Tiber. But what is to be said of the Popes of the tenth century ?
Sergius III (904-911) was well known to be the lover of Marozia, one of
the daughters of Theophylact, and had a son by her, whom later she
made first a cardinal and then Pope under the name of John XI (931–
936). The warlike Pope, John X (914-928), owed the tiara to Theophy-
lact and Theodora, Marozia's mother? In 955 came the turn of John
Octavian, a grandson of Marozia, a youth of sixteen, son of Alberic,
“Senator of the Romans," and himself “Senator of the Romans” since
the death of his father in 954. He was raised to the Chair of Peter
under the name of John XII (955–964) and completed the debasement of
the Papacy by his debauched life and the orgies of which the Lateran
palace soon became the scene.
This personal degradation of the Popes, which lasted for nearly a
century and a half, had the most untoward results upon the eccle-
siastical hierarchy. The progress made in breaking down the resis-
tance of national priesthoods, or that of such a man as Hincmar,
through the prestige enjoyed by Nicholas I, could not be maintained by
his successors in their very different position. Suffice it to recall here?
the violence which in 991 and 993 Arnulf, Bishop of Orleans, and later
the prelates assembled in the synod of Chelles, thought fit to use in
repelling the interference of Pope John XV, to whom they denied all
right of intervention in the matter of the deposition of the Archbishop
of Rheims, and even any title to impugn the decisions arrived at by a
provincial council.
On the other hand, the Bishops, left to their own resources, were no
better able than the Sovereign Pontiff to maintain themselves in the
dominant position which they had gradually acquired in the course of
the ninth century. They fell anew into dependence upon the king, or
upon the feudal lords who were nearer at hand and even greater tyrants.
In the tenth century and in the beginning of the eleventh the Episcopate
as a whole is in the hands of the feudal nobility, for whom bishoprics are
hardly more than fiefs in which it is allowable to traffic, while many of
the Bishops themselves, though contrasted with some striking exceptions,
are merely lords with whom everything gives way to temporal interests,
and whose importance in certain countries, notably in Germany, is to be
computed by the part they play as the rulers of principalities or as the
vassals and counsellors of kings.
The Church itself thus appears as the victim of the same anarchy in
which lay society is weltering; all evil appetites range unchecked, and,
more than ever, such of the clergy as still retain some concern for
religion and for the salvation of the souls committed to their charge
1 On the later unfounded scandals about John X, see Fedele, ASRSP. xxxIv.
pp. 75 ff. , 393 ff.
2 Cf. supra, Chapter v. pp. 100-102.
CH. XVII.


## p. 456 (#502) ############################################

456
Legend of the year 1000 A. D.
mourn over the universal decadence and direct the eyes of the faithful
towards the spectre of the end of the world and of the Last Judgment.
Let us, however, avoid laying too much stress upon these allusions to
the final cataclysm predicted in the Apocalypse for the period when the
thousand years should be fulfilled, during which Satan was to remain
bound. Historians have long believed that, as the year 1000 drew near,
the populations, numb with terror, and, as it were, paralysed, awaited in
painful anxiety, crowded together in the churches with their faces to the
ground, the catastrophe in which they believed the world was about to
founder. A few passages from contemporaries, wrongly interpreted,
account for this erroneous impression.
As the thousandth year
approached, the people small and great, priests and lay folk, continued
the same way of life as in the past, without being alarmed by those
apocalyptic threats in which, even after the thousandth year was past,
certain gloomy spirits continued to indulge. Before as after the year
1000, as the facts brought together throughout the whole of this
volume abundantly prove, feudal society, wholly given up to its warlike
instincts and its passion for violence, still went on dreaming of smashing
blows to be dealt and great conquests to be achieved.
But out of the excess of evil good was to spring. In proportion as
the lay world allowed itself to be thus carried away, and as the Bishops
and their clergy suffered the feudal spirit and customs to encroach upon
them more and more, the ascetic life came to present an ever stronger
fand deeper attraction for all truly devout minds. The tenth century,
which saw the Chair of Peter filled by a succession of the most unworthy
of Popes, saw also the foundation of the Order of Cluny, and the great
monastic reforms initiated and spread abroad by the monks of this order.
'We shall treat more at length in a later volume of this history of this
fruitful new departure, which was one day to have a mighty influence on
the reform of the Church as a whole. It need only be said here that, by
procuring for the modest hermitage which he planted in Burgundy in 910
complete enfranchisement from all temporal control and by placing
it under that of the Holy See only, the founder of Cluny, Duke William
of Aquitaine, was laying the foundation for the future greatness of the
Abbey. Firmly attached to the Benedictine Rule in its primitive purity,
strictly subjected to the absolute control of its abbot, Cluny, thanks to
its independent position, rapidly became the refuge of faith and the
model to be followed. Not only did benefactions flow in for the support
of these pattern monks, whose prayers were doubtless held to be of
greater efficacy than those of their fellows, but a whole series of
monasteries, old and new, begged for the favour of placing themselves
under its patronage and of being reckoned among the number of its
priories, in order to share in its Rule and in its exemption from secular
domination. France was soon covered with convents affiliated to it from


## p. 457 (#503) ############################################

Cluny and reform
457
Burgundy to Aquitaine and from Languedoc to Normandy; Italy,
Lorraine, Spain, England, Germany, distant Hungary and Poland were
won for it.
And at the very time when Cluny was going forth to its early
conquests, quite independently and outside the walls of the Burgundian
abbey other fires of monastic revival were being kindled. It was at
this moment, to cite only one illustrious instance, that Gerard, lord
of Brogne, near Namur, suddenly won over by the attraction of monastic
life, founded on his own estate a little monastery, where at first he merely
thought to end his days in retirement, contemplation and prayer (923).
But before long the fame of saintliness, acquired for him and his companions
by their strict observance of the Benedictine Rule, brought about the
same miracles in Lorraine as the example of Cluny had worked in Gaul.
Gerard gained followers throughout Lorraine and Flanders: the ancient
monasteries of the land, the chapters already established, reformed them-
selves under his direction, new abbeys arose on every side reverting,
after the example of Brogne, to the wise and holy precepts of St Benedict.
Thus in the shades of the cloister a new religious society is growing
up, preparing itself for the struggle, ready to aid in a general reform of
the Church so soon as Popes shall arise with enough energy and
independence to resolve upon and inaugurate it.
Meanwhile, in the busier world outside, society, even if led by
Bishops themselves worldly, was seeking a remedy against violence which
brought anarchy and famine in its train. “The Peace of God” was one
such attempt, springing up in a world which knew its own disease. From
989 onwards, synods, beginning in Aquitaine and Burgundy where
kingly rule was weakest, anathematised ravagers of churches and despoilers
of the poor. The movement spread, and sworn promises to keep from
violence to non-combatants and the like misdeeds were prescribed and
even gladly taken. It is true that, like most medieval legislation, this
was only partly effective, and had to be renewed again and again. But
it was a triumph of moral power over brute strength, and upon its solid
success the reign of order was founded. Thus civil rulers inherited the
Church's task. Feudalism became, to some degree, a regulator of its own
disorder, and the supplementary “Truce of God” (c. 1040) tried to
complete what the “ Peace” (c. 990) had begun.
CH. XVII.


## p. 458 (#504) ############################################

458
CHAPTER XVIII.
FEUDALISM.
The feudal organisation of state and society is the dominant fact
of medieval history on its institutional side quite as much as the
city-state is the dominant fact of ancient history from the institutional
point of view. Such dominant facts cannot be restricted chronologi-
cally to a definite period; they arise gradually and give way slowly
to new conditions. But it may be said in a general way that the
epoch when feudalism formed most characteristically the centre of
political and social arrangements comprised the eleventh and twelfth
centuries. From the thirteenth century onwards feudal law continued to
be appealed to and feudal principles were sometimes formulated even more
sharply than before, but the modern State was beginning to assert itself
in most European countries in an unmistakable manner and its influence
began to modify the fundamental conceptions of feudalism. In our
survey of feudal society we shall therefore look for illustrations mainly
to the period between the years 1000 and 1200, though sometimes we
may have to draw on the materials presented by thirteenth century
documents.
The essential relations of feudalism are as unfamiliar to us as the
conception of the city-state. In one sense it may be defined as an
arrangement of society on the basis of contract. Contracts play an
important part in the business life of our time, but we do not think
of the commonwealth as based on leases ; we do not consider a nation
primarily as a number of lords and tenants; we do not take the status
of every single person to be determined by obligations as to land ;
we do not assume that the notions of sovereignty and of citizenship
depend on the stipulations of an express or implied contract. In the
medieval period under consideration, on the other hand, it would be
easy to deduce all forms of political organisation and of social inter-
course from feudal contract. The status of a person depended in every
way on his position on the land, and on the other hand, land-tenure
determined political rights and duties. The public organisation of
England, for example, was derived from the fact that all the land


## p. 459 (#505) ############################################

The feudal contract
459
in the country was held by a certain number of tenants-in-chief, includ-
ing ecclesiastical incorporations and boroughs, from the king, while all
the rest of the population consisted either of under-tenants or of persons
settled on the land of some tenant and amenable to jurisdiction through the
latter. In other West-European countries the distribution of the people
was more intricate and confused because there had been no wholesale
conquest capable of reducing conditions to uniformity, but the funda-
mental facts were the same. Every West-European country was arranged
on the basis of feudal land-tenure.
The acts constituting the feudal contract were called homagium
and investitura. The tenant had to appear in person before the lord
surrounded by his court, to kneel before him and to put his folded
hands into the hand of the lord, saying: “I swear to be faithful and
attached to you as a man should be to his lord. ” He added sometimes :
“I will do so as long as I am your man and as I hold your land”
(Saxon Lehnrecht, ch. 3). To this act of homage corresponded the
“ investiture” by the lord, who delivered to his vassal a flag, a staff,
a charter or some other symbol of the property conceded. There were
many variations according to localities and, of course, the ceremony
differed in the case of a person of base status. Yet even a villein
received his yard-land or oxgang from the steward of a lord after
swearing an oath of fealty and in the form of an "admittance” by the
staff
, of which a record was kept in the rolls of the manorial court: hence
the copyhold tenure of English law.
Tenure conditioned by service was called the feudum, fief, Lehn, but
sometimes these terms were restricted to the better class of such estates,
those held by military service, while the lands for which rents and
labour-services were rendered were described as censivae, in England
socagia. The holdings of villeins or rustics (Bauern, roturiers) were
deemed in law to be at the will of the lord, but in practice were protected
by the local custom and generally subjected to quasi-legal rules of
possession and inheritance. Although feudal tenure was certainly the
most common mode of holding land, it was not the only one. In France
and Germany there were still many survivals of allodial right, that is of
complete ownership, not subject to any conditions of service or payment.
In fact, while in northern France there obtained the rule nulle terre
sans seigneur, that is, the doctrine that all estates were held by feudal
law under lords, in southern France, the territory of written law based
on Roman books, the contrary was expressed in the words nul seigneur
sans titre: no lordship was recognised unless proof of title were forth-
coming. Many documents shew the constant spread of feudal tenure
at the expense of the allodial : the process of feudalisation is, e. g. ,
forcibly illustrated by the inquest as to land-tenures made in 1272
and 1273 by order of King Edward I in Aquitaine: it testified to all
sorts of variations in the mode of holding land in these parts; claims to
CH. XVIII.


## p. 460 (#506) ############################################

460
Feudal reciprocity
allodial rights are often recorded. But the tendency of the inquest is
to impose the burden of services as widely as possible. The circum-
stances in which the process of feudalisation was going on may be
illustrated by the following tale of a Flemish chronicle (Lambert d'Ardre,
quoted by Luchaire, Manuel, 151). In the beginning of the eleventh
century two brothers, Herred and Hacket, possessed considerable allodial
estates in Poperinghe, but were persecuted by the Count of Guines and
the Count of Boulogne, powerful neighbours, each of whom wanted to
obtain feudal suzerainty over these lands. The elder Herred, in order
to put an end to these vexations, surrendered his estates to the Bishop
of Terouanne and received them back as a hereditary fief (perpetuum et
hereditarium recepit in feodum), while the junior brother effected a
similar release of his part of the estates to the Count of Boulogne.
The dangers of keeping outside the feudal nexus were self-evident:
in a time of fierce struggles for bare existence it was necessary for every-
one to look about for support, and the protection of the central
authority in the State was, even at its best, not sufficient to provide for
the needs of individuals. Even in England, where the Conquest had given
rise to a royal power possessed of very real authority, and the “king's
peace” was by no means a mere word, the maintenance afforded by
powerful lords was an important factor in obtaining security.
In any case the feudal nexus originated by such conditions involved
reciprocity. The vassal expected gifts and at least efficient protection,
and sometimes the duty of the suzerain in this respect is insisted on
in as many words; as the French jurist Beaumanoir has it, “the lord
is quite as mucl. bound to be faithful to his man as the latter is bound
in regard to the lord” (Coutumes de Beauvaisis, $ 58). If the tenant
thought that he was not treated properly, feudal theory allowed him to
sever the connexion. He might leave the estate (déguerpissement)
without any further claim on the part of the lord, but according to
French notions he might even do more, namely disavow the subjection
to the lord while retaining the estate (désaveu). "The Assizes of Jerusalem
are careful to state the cases of denial of right, in which a vassal may
rightfully renounce his obligations in regard to his immediate lord with
the natural consequence that henceforth such duties are transferred
to the overlord of the one at fault (Assises de Jérusalem, "gager le
fief”). This implied a proof on his part that the lord had not fulfilled
his part of the agreement. Though as a matter of fact such a désaveu
led more often to war than to a judicial process, it was derived from
a juridical conception, and expressed the view that the man, vassal or
tenant, had definite rights as against his lord. Some of the famous
assertions of feudal independence on the part of barons opposed to
royal lords are based on this very doctrine of désaveu for breach of
agreement. Thus the barons of Aragon swore to their king that
they would obey and serve him if he maintained the rights, customs


## p. 461 (#507) ############################################

Duties of vassals
461
and laws of the kingdom, and if not, not. The peers of the Kings
,
of Jerusalem, according to the Assizes, might in case of infringement of
their rights lawfully refuse allegiance and offer resistance. The clause
of the Great Charter stipulating that a committee of twenty-five barons
should watch King John's actions, and in case of his breaking his solemn
pledges should make war on him and call on all his subjects to do the
same, proceeds from the same fundamental assumption. This view was
readily extended from the notion of a breach of agreement between the
lord and his tenants to a conception of infringement of laws in general.
In this way the feudal view could be made a starting-point for the
development of a constitutional doctrine. We may notice this in the
case of Bracton. In his treatise on the laws of England, written at
the time of Simon de Montfort's supremacy, the English judge, instead
of urging with the Roman jurists and with his predecessor Glanvill that
the sovereign's will has the force of law, states that kings are not above
the law, although they have no single human superior (f. 5 v. ), and that
they ought to be restrained by their peers from breaking the law
(f. 34)
The other side of the medal is presented by the duties of vassals
in regard to the lord. Close analysis shews that these duties proceed
from different sources. There is to begin with a general obligation
.
of fealty, faithful obedience (fidelitas) which is owed by all subjects of
the lord without distinction of rank, the rustic subjects (villani) being
especially concerned. This obligation evidently had its roots in the
relation between sovereign and subject, and in so far represented rather
the gradual decay of sovereign power than the purely contractual side
of feudalism; but in so much as fealty became a relation between private
lords and their subjects, it was related to the feudal nexus and com-
bined in various ways with the kindred notions of homage and investi-
ture. Homage again, which is distinctly contractual, arises essentially
from a contract of service. It proceeds directly from the bond created
by free agreement between a leader and a follower, the lord (hlaford) and
his man. But this contract of service gradually assumed a peculiar form:
the personal duties of the servant-retainer are asserted only occasionally,
e. g.