The only exception
of any importance is presented by the beneficia militaria of French
Navarre.
of any importance is presented by the beneficia militaria of French
Navarre.
Cambridge Medieval History - v3 - Germany and the Western Empire
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. at a coronation ceremony, when great feudatories are made to present
dishes and cups, to lead horses, to superintend the arrangements of the
bedroom. As a rule, the central duty of the vassal comes to be his
military service, regulated according to a certain number of days,
generally forty, or a scutage payment in redemption of the latter.
Knight service of this kind shades off almost imperceptibly into so-called
military serjeanties, that is, services of archers, of garrison soldiers, etc.
a
1 “Rex autem habet superiorem, id est Deum, item legem, per quam factus est
Rex.
Item curiam suam, videlicet comites, barones, quia comites dicuntur quasi
socii regis, et qui habet socium, habet magistrum, et ideo si rex fuerit sine freno,
i. e. sine lege, debent ei frenum ponere. ”
CH. XVIII.
## p. 462 (#508) ############################################
462
Ministeriales; dominium
These again are not easily divided from petty serjeanties, in which the
menial services are still regarded as characteristic of the bond. In
the lists of serjeanties drawn up in the reign of Edward I (published
in the volumes of Feudal Aids and in the Testa de Nevill) we find
mentions of cooks, falconers, foresters, etc. In German feudal custom
the ministeriales correspond to the servientes of England and France,
but there is a peculiar trait about their condition, namely, that they
are distinctly unfree in origin. Some of the greatest warriors of
German medieval history came from such unfree stock—Marquard of
Anweiler, for instance, who received the March of Ancona as a fief
from Emperor Frederick II, was a ministerialis, an unfree retainer of the
Emperor. As homage creates a relation between man and man, it is not
intrinsically bound up with landholding, and a good many of the personal
followers and servants of medieval magnates must certainly have lived
in the castles of their lords, receiving equipment and arms from them :
they saw in the good cheer of the court and in occasional gifts a reward
for their personal attendance? But such personal relations tended
naturally to strike root in land. If the retainer was at all useful and
efficient he expected to be remunerated by a permanent source of income,
and such an outfit could only take the shape of a grant of land. On
the other hand, when a small landowner sought protection from a
magnate, he had generally to throw his tenement into the balance and
reassume it as a fief. . Thus homage and investiture, although historically
and institutionally distinct, grow, as it were, together, and form the
normal foundation of feudal contract.
Besides the political colouring of this contract, it assumes a peculiar
aspect from the point of view of land law. It gives rise to a significant
distinction of two elements in the notion of ownership (dominium). Roman
property (dominium) was characterised during the best period by uncom-
promising unity. A person having dominium over a thing, including an
estate in land, had it alone and excluded everyone else. Medieval lawyers,
on the other hand, came to deal with plots of land which had normally
two owners, a superior and an inferior, one having the direct ownership
(dominium directum, dominium eminens), the other having the useful
ownership, the right to exploit the land (dominium utile). In England
the splitting of the notion of dominium was avoided by opposing the
tenure in domain to the tenure of service (tenere in dominio—in servicio,
see, e. g. , Notebook of Bracton, case 1436), but the necessity for reckoning
with two kinds of right in respect of every holding contributed indirectly
to weaken the notion of absolute property in land. Contentions as to
1 Red Book of the Exchequer, 283: Hugh de Lacy's report as to his knights :
“Ricardus Brito et ipsi qui post ipsum sunt nominati tenent de domino Hugone sine
servitio aliquo quod eis statum est. Quidam de eis sunt mecum residentes et
invenio eis necessaria. Et quidam sunt in domibus meis in Wallia et invenio eis
necessaria. ”
## p. 463 (#509) ############################################
Subinfeudation; reliefs
463
land were made to turn principally on seisin, protected possession,
while the proof of title, which had played an important part in later
Anglo-Saxon times, receded, as it were, into the background. Instead
of trying to ascertain who the person was who ought to exercise the
absolute right of ownership, English courts came to concern themselves
with the practical question which of the two litigants had relatively the
better right (ius merum) in regard to an estate or tenement. From the
feudal point of view an estate held as a fief could be freely parcelled out
to under-tenants who would become the vassals of the man holding
directly of the lord, provided the obligations of that intermediate tenant
were not lessened by such a process.
Indeed it was not uncommon for
tenants to pass on the onerous duties with which the tenement was
charged to these under-tenants, who in such a case were called upon to
"defend” the land in regard to the superior lord in order that the mesne
(medius, middle) lord should be able to enjoy his tenure in peace. Various
complications arose from such subinfeudation in connexion with customary
requirements, and it was clearly in the interest of the overlords to restrict
such parcelling of fees as much as possible. The English Crown cut
short the practice by the statute Quia Emptores, which provided that
in future the creation of any new fief would involve not subinfeudation
but the recognition by the new tenant of immediate dependence on the
overlord: thus the grantee of a new fief was placed on the same level as
the grantor instead of being subordinated to him.
The incidents arising out of the double claims to land were manifested
in a striking manner in cases when the personnel of the contracting
parties was changed, more especially when in consequence of the death
of the tenant a new representative of the dominium utile had to come in.
While in the case of a Thronfall, as the Germans said, that is, of the
demise of the lord, homage and fealty had to be merely renewed, a
Lehnfall, the demise of the vassal, brought about a temporary resump-
tion of the fief by the direct owner, i. e. by the lord : as a rule he was
bound to regrant the fief to the right heir, but such a reinvestiture was
accompanied by a relief, a more or less heavy payment.
The struggle of English barons for reasonable reliefs called forth
well-known stipulations of the charters of Henry I and of John. In the
case of so-called base holdings the relief had its analogy in the heriot,
the surrender to the lord of the best horse or the best ox, and there
can be no doubt that this due, which had grown from the custom of
surrendering the outfit provided by the lord to his dependent, was
originally used quite as much in military fiefs as in villein or socage
tenements. In feudal practice, however, the military heriot was absorbed
by the relief, while it kept its ground in regard to base tenure.
The resumption of tenancies connected with ecclesiastical offices led,
as is well known, to protracted struggles as to rights of investiture between
the Church and State. Even when reinvestiture was made dependent on
:
CH. XVIII.
## p. 464 (#510) ############################################
464
The feudal nexus in politics
canonical elections, the fiscal interests of the secular power had to be
satisfied by the diversion of ecclesiastical revenues for a year or a similar
customary period for the benefit of the Crown or of other secular patrons.
There were other occasional rights connected with a breach of the con-
tinuity of possession, which would not arise out of vacancies in ecclesiastical
institutions; such were wardship and marriage, which accrued to the lords
in cases when fiefs descended to minors or to unmarried females. These
eventualities gave rise to very lucrative rights, and it is a matter of
common knowledge to what extent such opportunities were liable to be
misused. The English Charters contained provisions against these
abuses, but even in their mitigated form these practices were likely to
produce much hardship. Special classes of misdeeds arose in connexion
with them: we hear of judicial proceedings taken on account of ravish-
ment (kidnapping) of wards and of ravishment of heiresses in order to
get the profits, even when the corresponding right belonged to some one
else or was contested. From such exactions ecclesiastical tenements were
free, and this alone would have sufficed to make the passage of landed
property into the hands of the churches undesirable from the feudal
point of view. No wonder powerful kings tried to restrict the passage
of estates into the “dead hand" (manus mortua) of the Church. This
was among other things the aim of Edward I's Statute De religiosis.
Although these reassertions of the dominium directum forcibly shewed
that the proprietary rights of the lord were by no means a dead letter,
the “ useful domain” was protected from wanton interruption by clearly
established customs. The beneficia, which preceded fiefs in historical
evolution, were assumed to be granted for life, but when fiefs developed
out of them they nearly always became hereditary.
The only exception
of any importance is presented by the beneficia militaria of French
Navarre.
As political subjection was regarded as a matter of contract, the feudal
nexus tended towards a disruption of sovereignty, and often led in
practice to the formation of numerous political bodies within the
boundaries of historical States. This was especially the case in France,
Germany and Italy. An authoritative jurist like Beaumanoir summarised
the position in the saying, “chaque baron est souverain dans sa baronie";
and the mottoes chosen by some of the French magnates gave expression
to an unmeasured feeling of self-sufficiency. The Rohans of Brittany
boasted: “prince ne daigne, roi ne puis, Rohan je suis. ” The seigneur
of Coucy, a barony which gave great trouble to the early Capetian
kings, disguised his pride by mock humility: "je ne suis ni comte, ni
marquis, je suis le sire de Coucy. ” In Germany the dismemberment of
sovereignty was finally recognised by express law in Charles IV's Golden
Bull of 1356 in favour of the seven Electors, but it had already been
acknowledged in regard to princes in general by Frederick II, and had
been acted upon more or less all through the eleventh and twelfth
## p. 465 (#511) ############################################
Private war and its remedies
465
רי
centuries in the course of the protracted feuds between Frankish and
Swabian Emperors, on the one hand, and their various vassals on the
other. When Frederick Barbarossa went down on his knees, according
to tradition, when imploring Henry the Lion of Saxony and Bavaria to
stand by him against the rebel Italians, it would have been difficult to
say that the Emperor was the sovereign and the duke a mere subject.
A most important consequence of this acknowledgment of sovereign
rights on the part of vassals of the Crown lay in the fact that the latter
could resort to actual war, when asserting claims or defending infringed
interests. The endeavours, which were made by the Church, by royal
suzerains and by the barons themselves to restrict and suppress private
warfare, are in themselves characteristic of what we should call the
anarchy of the times. The end of the tenth century witnessed many
attempts to put an end to private wars in France. In consequence of
terrible epidemics and bad harvests, which were regarded as signs of
divine wrath and incitements to repentance, the magnates of central and
northern France met, agreed to renounce private war, and confirmed this
resolve by solemn oaths. Gerard, Bishop of Cambrai, objected to this
as political; he was much abused by the other members of the congress
for holding aloof, and yet, as the chronicler remarks, events proved
that he was right, “vix enim paucissimi crimen perjurii evaserunt.
It soon became evident that it was impossible to suppress the per-
nicious custom entirely. The Truce of God, treuga Dein made its ap-
pearance
in completion of the Peace of God'. The time from Thursday
night to Monday morning was considered a time of truce on account of
the memories of the Lord's sufferings and resurrection. Churches and
churchyards were naturally considered as hallowed and therefore neutral
territory. In the South, olive-trees were declared to be exempt from
destruction by reason of their vital importance in the economy of the
country. The movement for “truce” attained material results under
the guidance of the Church in the eleventh and twelfth centuries,
and it became even more effective in the thirteenth, when political
potentates took it up. Still, even St Louis did not insist on a complete
abandonment of the practice of private war by his vassals : he only
enforced from all those, who resorted to the last argument of war, sub-
mission to certain rules as to its declaration, the beginning of hostilities,
their course and so on; the quarantaine le Roi was a code as to usage in
private war.
To Germany some order was brought by powerful leagues between
princes and knights on the one hand, cities on the other. Such leagues
were offensive and defensive alliances, and ultimately had recourse to
force of arms in order to maintain their position. But as all extensive
armaments are apt to do, they prevented the danger and disorder of
petty collisions. It was only towards the end of the Middle Ages that
1 See also Chapter XJl. pp. 281—2 and Chapter xvii. p. 457.
C. MED. H. VOL. III. CH. XVIII.
30
## p. 466 (#512) ############################################
466
Growth of franchises and immunities
something like a peace of the Empire was recognised and to a certain
extent secured by the reforms of Maximilian's age. In England the
“franchise” or right of private war was suppressed at a very early time.
It did not tally with the social order inaugurated by the Norman Con-
quest, and the king's peace became one of the mainstays of early Common
Law. The only period when the real disruption of sovereignty through
private war seemed to prevail was the interregnum when Stephen of
Boulogne and the Plantagenets struggled for the Crown. But this lapse
into anarchy was short, and from the time when Henry II restored order,
private war ceased to be recognised as a legal outcome of disputes. Yet
the conditions of military contract remained the foundation of govern-
ment, and this made it possible for opposition to wrong to take the form
of armed resistance. . The revolt against John, the barons' war against
Henry III, the risings of Mortimer and Bolingbroke, the Wars of the
Roses, have as their necessary background a society ruled by groups
of knights, who considered themselves not merely as subjects, but as
peers of the king.
One of the most important consequences of the disruption of
sovereignty lay in the alienation of rights of jurisdiction by the central
government. As early as the ninth and tenth centuries we observe
everywhere the growth of franchises and immunities which break up the
ordinary sub-divisions of countries in respect of the administration of
justice. The English shires and hundreds, the continental counties and
Grafschaften are riddled with districts in which the place of the ordinary
judges of the land is taken by secular or ecclesiastical magnates or
their representatives, among whom the secular judges of ecclesiastical
corporations, the advocati (avoués, Vogte), are the most conspicuous.
The Sac and Soc grants of Anglo-Saxon kings, as well as the various
privileges of immunity conferred by Carolingian, Franconian and Saxon
monarchs, present different steps in the process of political dismember-
ment. The central authorities merely strove to retain their hold on
the most important varieties of jurisdiction, especially judgments as to
great crimes, the Ungerichte, as they were termed in Germany, for
which a man may lose his head and his hand (Haupt und Hand), while
jurisdiction in minor cases, when a person would only be chastised in
skin or hair (in Haut oder Haar), were left to local potentates. From
similar considerations early English kings tried as much as possible to
retain in their hand the great forfeitures. This led eventually to a
classification of feudal tribunals according to the amount of jurisdiction
acquired by them, some claiming high and some low justice (haute or
basse justice)". The proceedings of Quo Warranto instituted by Edward I
after his victory over the baronial opposition shew a most exuberant
growth of prescriptive rights in regard to the use of gallows, pillory,
1 The medium justice (moyenne justice) was a later development and was not
generally accepted.
## p. 467 (#513) ############################################
Ecclesiastical advocates
467
tumbrel, etc. by English noblemen and ecclesiastical magnates. The
institution of the advocaria (avouerie, Vogtei), on the contrary, never
attained to much importance in England, while it Hourished greatly in
Germany, France and Flanders. It sprang from the delegation of
public power within the territory of an ecclesiastical franchise to a
layman, who thereby came to be a kind of policemaster as well as a judge.
The ordinary judges, the counts and their subordinates were forbidden
to enter the enfranchised district. On the other hand the bishop or
abbot at the head of it abstained from the shedding of blood and did
not meddle with criminal justice or deal with cases of public coercion:
he appointed an advocate who had to arrest criminals, to conduct them
before the proper courts, to execute those found guilty, to assist the
ecclesiastical lord in cases when force had to be employed for the
collection of rents or the taking of distress. These powers ripened in
the course of the feudal age to an independent jurisdiction which greatly
hampered the freedom of action of the ecclesiastical lord and encroached
on his interests. Besides, churches and monasteries often availed themselves
of the advocaria in order to obtain protection from a powerful neigh-
bour: the surrender of certain rights and sources of income was the
price paid for support in those troubled times. No wonder that in the
eleventh and twelfth centuries the advocates often became local tyrants
at whose hands their clients had to suffer a great deal. This is how,
for instance, the Cartulary of St Mihiel in Flanders describes the conduct
of a certain Count Raynald, an advocate of the monastery in question :
“Count Raynald was the first to commit robberies in our estates under
the customary term of talliatae ; he also put our men into prison and
2
forced them to give up their own by means of torture—he bequeathed
this tyranny to his son, the present Raynald. The latter exceeded the
malice of his father to such an extent that our men cannot put up any
longer with such oppression and leave our estates. They are either
unable or do not care to acquit themselves of outstanding rents : he is
the only person they are afraid of'. "
The conflicts between ecclesiastical potentates and their secular
“advocates” often led to regular treaties, the so-called règlements
đavouerie. The Vogt of the Abbey of Prüm is forbidden to "clip"
(tondere-clip the hair as for convicts) or to flay anyone except those who
are guilty of murder, brigandage or battery, nor has he any part in the
wer-geld of a man unless he has helped to capture and to judge him.
In Echternach the Vogt is excluded from participating in civil trials.
In houses appertaining to the garden and the cellar, the laundry and the
kitchen of the monks, he is forbidden to hold any pleas or to exact any
services, except pro monomachia (trial by battle) et sanguinea percussura
(cf. A. S. blodwite) et scabinis constituendis (the appointment of popular
I Cartulary of St Mihiel quoted by Flach, Origines de l'ancienne France, 1. p. 442
CH. XVIII.
30--2
## p. 468 (#514) ############################################
468
Counsel and aid
assessors of the tribunals)? The long-standing rivalry between ecclesi-
astical institutions and their advocates was ultimately composed by the
intervention of the Crown when the latter grew strong. If we turn to
consider the relations between the lord and his vassals, we shall naturally
find that they differ greatly from the relations established at the present
time between the sovereign and his subjects. In the case of the
privileged holders of fiefs, however small, the tie which united them with
their suzerain being one not of general subordination but of limited
obligation, the view that the general will has to prevail over the
particular and can impose rules of conduct upon it did not hold
good. Noble vassals, ecclesiastics possessed of fiefs, and townsmen as
members of municipal corporate bodies were as regards their lords
bound to abstain from certain acts and to perform certain duties. A
systematic treatment of this kind of contractual relation may be found
in a letter of Bishop Fulbert of Chartres to the Duke of Aquitaine
(eleventh century)? The duties which he enumerates are derived more
especially from the oath of fealty, which accompanied the homage
ceremony and was distinct from the fealty of the base and non-
privileged population to be mentioned later on.
The negative duties of the faithful vassal are indicated by the
following terms: incolume, tutum, honestum, utile, facile, possibile. The
Benedictine editors of Fulbert's work have explained these expressions
to mean that the vassal undertakes not to assail his lord, not to
reveal his secret, not to endanger the safety of his castles, not to
wrong him in his judicial power, honours and possessions or to put
obstacles in his way which would render what he undertakes difficult or
impossible. On the positive side the vassal is bound to give his lord
advice and aid (consilium, auxilium). From the positive obligations of
consilium and auxilium various concrete duties are derived. The
principal form of advice (consilium) tendered to the lord by his men
nsists in their obligation to attend his court. Every lord had a court
of his own, but not every court of this kind was competent to judge all
cases. A feudal distinction has to be drawn in this respect between cases
arising from the feudal nexus and cases of delegated public jurisdiction.
These latter comprised chiefly criminal cases classified, as already pointed
out, under the heads of high and low justice. The privilege of giving
sentence in them and of exercising the fiscal exactions connected with
them accrued only to those among the feudal lords who had obtained
the corresponding franchises through express grant or by force. They
were called seigneurs justiciers in France. The more numerous class of
ordinary lords held courts if they had tenants of fiefs, and vassals and
villein subjects under them. These feudal courts took cognizance of all
processes as to land distributed by the lord to his dependents, but also
Quoted by Pergameni, L'avouerie ecclésiastique belge, Ghent 1907, pp. 83, 84.
Quoted by Luchaire, Manuel des institutions françaises, p. 185.
1
2
## p. 469 (#515) ############################################
Feudal Courts
469
to a great extent as to pleas concerning the persons of the vassals. The
first group of pleas stands out so clearly that there is no special
necessity to dwell on its range. It need only be noticed that the
proceedings concerning unfree tenures were substantially of the same
kind as those affecting free or noble tenancies. A dispute as to the
possession of a villenagium followed on the same lines as a trial in
which a free tenement was the object in dispute, although the latter was
naturally much more complex. From the technical point of view, in
the first case the trial took place before the peers of the contending
parties, who as suitors of the court were its judges, while in the second
case the lord or his steward was the only judge and such assessors as
were called up had only advisory powers. But as a matter of fact the
verdicts of the court were regarded as the expression of legal custom in
the second case, and the reservation that the lord might override the
customary rules was due to his exceptional position, and not to the
ordinary working of manorial courts. A body of legal tradition and of
conceptions of equity grew up in the lower social stratum as well as in
the upper. This is especially noticeable in the case of English manorial
courts, in the composition of which free and unfree elements are generally
intermixed in such a way that it is difficult to distinguish between
verdicts laid down by the free tenants and those contributed by the
villeins. The one really important difference lay in the fact that the
villeins had to look for justice to the manorial court in all cases, not
only tenurial, but also personal, such as cases of battery, defamation,
adultery and the like, while free men and specially men of noble birth
were either directly amenable to justice by the medium of the royal
tribunals or could, if they appeared before a feudal court, insist on a very
strict maintenance of their privileges in view of the supervision of royal
courts.
In a sense the circle of tenants constituting the peers' court was a
most complete expression of the principle of equality as between allied
sovereigns. The decision was formulated strictly by the peers of the
contending parties, and this led, in regard to criminal accusations, to the
famous doctrine of the Great Charter: "nullus liber homo capiatur vel
imprisonetur nisi per judicium parium suorum vel per legem terrae”
(sect. 39). The decision of a court of peers was final. An appeal was
impossible from the feudal point of view, because it would have meant
a revision of the judgment by higher authority, and feudal litigants
submitted not to higher authority but to a convention in which they
had taken part. There were, however, two cases in which a vassal
.
,
might seek redress from a source of law superior to the court of peers
presided over by his suzerain. If justice was denied to him by this
tribunal he could ask the overlord, that is, the suzerain of his immediate
lord, to see that justice should be done. This was, however, no appeal
as to law or facts, but only an attempt to set the machinery of feudal
a
CH. XVIII.
## p. 470 (#516) ############################################
470
Appeal of judgment
jurisdiction in motion. The second eventuality occurred when one of
the parties to a suit actually contested the justice of a particular decision
or sentence. He could in French feudal law attaint or falsify the verdict
by pronouncing the formula," je vous appelle de faux jugement. ” This
meant that he challenged the fairness and honour of the judges, and the
result was single combat between the protesting party and one or several
of the judges, not a satisfactory solution of the difficulties from our point
of view, nor, probably, from that of many judges concerned. There were
devices which rendered such attaint hazardous in some cases: the members
of the tribunal could pronounce the decision in corpore, and in this case
the option for the dissatisfied party was to fight them all. In any case
this mode of appeal was directed towards the revision of the judgment
by God rather than by man, and at bottom did not subvert the principle
that a man ought to be judged by his peers and by his peers only. It
is hardly necessary to add that the falsifying of judgments has been
described here in conformity to strict rules of feudal theory. In practice
all sorts of compromises took place. In England, for example, the
revision of judgments by higher courts was brought about at a very
early stage by the intervention of the king's court, though not without
opposition from the barons. An instructive case occurred, for example,
in the reign of William the Conqueror. In a trial as to land between
Bishop Gundulf of Rochester and Picot, the Sheriff of Cambridgeshire,
the county pronounced in favour of the latter, but through the inter-
vention of Odo of Bayeux twelve representatives of the shire were called
up to confirm the verdict by oath in the king's court, and ultimately,
after a declaration by a monk who had been steward of the estate in
question, the unlucky doomsmen were driven either to go through the
ordeal of redhot iron or to recant. The indirect way in which the
prejudiced intervention of the higher powers took effect in this case is
characteristic of the traditional difficulties which stood in the way of
downright revision. As on many other occasions, there are threads
connecting feudal theory with recent or actual practice, and we may not
unreasonably see in the doctrine as to the finality of jury verdicts a
modernised offshoot of the older doctrine of the judgment by peers.
Of course the differentiation between questions of fact and questions of
law has made it possible to concede to juries the highly privileged
position which they generally enjoy, but the germ of the corresponding
rules is historically connected with the immunity from outside influence
which formed one of the most characteristic traits of the feudal judg-
ment by peers.
Similar phenomena meet our eye when we come to consider the
processes of legislation obtaining in the feudal world. It is evident in
theory that a baron, being a sovereign, could not be subjected to any
will but his own, and that therefore such common arrangements as had
1 Bigelow, Placita Anglo-normannica, p. 34.
## p. 471 (#517) ############################################
Feudal legislation
471
to be made in medieval society had to be effected on the same lines as
modern international conventions. And indeed we find this idea at the
root of the feudal doctrine of legislation; in the custom of Touraine-Anjou
it was expressed in the following way: “The baron has all manner of
justice in his territory, and the king cannot proclaim his command in
the land of the baron without the latter's consent; nor can the baron
proclaim his command in the land of his tenant without the consent of
the tenant1. "
In consequence of this general principle, all feudal legislation ranging
outside the immediate demesne of the single baron takes the shape of a
stabilimentum (établissement) or of an assize enacted in the court of a
superior lord with the express or implied consent of his vassals. An
ordinance of the Viscount of Thouars (A. D. 1099), for example, instituting
a certain annual charge to be paid by the tenants, refers at the close to
“the authority and will of the barons of my land” (quoted by Luchaire,
Manuel des institutions françaises, p. 253). The same notion reappears
in ordinances made by much greater potentates, such as the dukes of
Normandy, e. g. by William the Conqueror, in 1064 (on public peace),
by counts of Flanders (Baldwin of Constantinople, in 1199, on usury),
by dukes of Brittany (in 1185, on succession to fiefs), even by kings of
France and kings of England; Henry II's Assize of the Forest, for
instance, begins in the following manner: “This is the assize of the Lord
King Henry, the son of Maud, in England, about forest and hunting, by
the advice and consent (per consilium et assensum) of the archbishops,
bishops and barons, earls (comitum) and noblemen of England at Wood-
stock(Stubbs, Select Ch. 157). Theoretically, the individual consent
of each member of the gathering to any decision was needed if it were
to bind him, but historically, the legislative assemblies were not merely
the outcome of feudal meetings, they were also survivals of more ancient
popular assemblies, while, as a matter of practice, the authority of the
superior lord and the influence of leading magnates asserted themselves
in a much greater degree than would have been allowed from a purely
individual point of view. It thus depended very much on circumstances
whether centripetal or centrifugal tendencies got the upper hand. The
majority principle had not been evolved either, at least during the
eleventh, twelfth and thirteenth centuries. As the French historian
Luchaire has expressed it, voices were rather weighed than counted. But
the idea of a convention made itself felt in a very definite manner, and
this point must be noticed as very important in view of subsequent develop-
ment. The early doctrine of medieval estates is clearly connected with these
feudal views on the side both of legislation and taxation. The view that
1 Coutume'de Touraine-Anjou, p. 17: Bers si a toutes en sa terre, ne li rois ne puet
mettre ban en la tere au baron, sanz son assentement, ne li bers ne puet mettre ban
en la terre au vavasor, sanz l'assentement au vavasor; (received in the Établissement
de St Louis, 1. p. 26. See P. Viollet, Établissements de St Louis, 11. p. 36).
а
CH. XVIII.
## p. 472 (#518) ############################################
472
The manor
the nation is not bound to pay a tax to the imposition of which it has
not consented through its representatives (the constitutional rule on
which the development of Parliament depended later on) certainly has
its roots in the feudal maxim that no baron was bound by ordinances in
the “establishment” of which he had not taken a part. It is also not
alien to our purpose to notice that the distinction between greater and
smaller barons suggested by the far-reaching differences, in regard to the
appropriation of public power, afforded a germ for the subsequent rise of
aristocratic “Second Chambers. ". The House of Lords, as a court, is
a house of peers, and it is not only in England that the prominence of
the magnates secured for them a special personal standing in legislative
organisation : a curious parallel, all the more instructive because it is
supplied by a microscopic state, is presented by the history of Béarn in
the Pyrenees. In that vicomté, an aristocratic council of twelve hereditary
jurati, drawn from the most powerful houses of local nobility, appears as
the cour majour and acts as a standing committee of the full court
(cour plénière). It had to settle disputes between the viscounts and
their vassals and in general to control the current administration of
law 1.
A survey of medieval society from the one point of view of
contractual relations would, however, be incomplete, one-sided and
artificial. In order to be correct it ought to be matched by an
examination of the constituent elements combining to form the feudal
organisation. Such an examination would have to take each feudal unit
singly and to describe the rule of the lord over his subjects as well as the
work of these subjects.
The most characteristic type of such a feudal unit is certainly the
English manor, and I should like to turn now to a study of it which
will afford a key to the understanding of similar phenomena in other
countries of Western Europe. The manor is a necessary outcome of
so-called natural husbandry, providing for the requirements of life by
work carried out on the spot, without much exchanging and buying.
It is the connecting link in the social life of classes, some of which are
primarily occupied with the rough work of feeding, clothing and housing
society, while others specialise in defending it and providing for its
secular and spiritual government. It presents the lowest and most
efficient unit of medieval organisation, and local justice, administration
and police are all more or less dependent on its arrangements. Let us
look at the different elements of which this historical group is composed.
First of all there is the economic element. The manor afforded the
most convenient, and even the necessary, arrangements of work and profit
in those times. It would be quite wrong to assume that the interests
and rights of the many were simply sacrificed to the interests and rights
of a few rulers, that the manor was nothing but an estate, cultivated
i Cadier, Les États du Béarn, quoted by Luchaire, Manuel, p. 254,
## p. 473 (#519) ############################################
The village community
473
and exploited for the sake of the lord and managed at discretion by his
will and the will of his servants. On the contrary, one of the best
established facts in the economic life of the manor was its double
mechanism, if one may say so.
It consisted, as a rule, of a village
community with wide though peculiar self-government and of a manorial
administration superimposed on it, influencing and modifying the life
of the community but not creating it. This double aim and double
mechanism of the manor must be noticed at the outset as
a very
characteristic feature; it places the manor in a sharp contrast both to
the plantations of slaves of the ancient world and to the commercial
husbandry of a modern estate struggling for profit as best it may.
Manorial husbandry was all along striving towards two intimately
connected aims, providing the villagers with means of existence and
providing the lord with profits. Hence a dual machinery to attain
these aims, both a village community and the lord's demesne.
The village community lay at the basis of the whole'. It gave rise
to a very peculiar system of holding and using land, not to be confused
either with the case of the tribal community in which rights are graduated
according to the pedigree of a person, or with that of the communalism of
the Russian mir or of some Hindu settlements, in which land is allotted
and redivided according to the requirements and the economic strength
of the settlers. The peculiar bent of the English rural community
would perhaps be best indicated by the expression “shareholding arrange-
ment” or “community of shareholders. ” Each of the households settled
in the village had a fixed and constant share, or maybe half a share, or
a quarter, or the eighth part of a share assigned to it. It stood in scot
and in lot with the village as a hide or two virgates or one virgate or
a bovate, according to the size of the share. By the standard of this
hereditary share all rights and duties were apportioned. By the side
of the shareholders there generally lived in the village smaller tenants
(cottagers, crofters) but they were merely an adjunct to the main body
of the tenantry and may be left out of reckoning in our general
survey.
The system of communal shareholding was very strikingly illustrated
by the treatment of waste and pasture in the medieval village. It was
not divided among the tenants, and, though later in legal theory
it belonged to the lord, it was everywhere considered by custom as a
common ” for the use of the villagers. In most cases it had to be
stinted to some extent: rules were formulated as to the species and number
of beasts to be sent to pasture, as to seasons, and as to precautions against
abuses; and these rules can generally be traced to the main principle,
that
every household has to use the common according to the size of its
1 In parts of the country settled on the system of scattered farms, arable and
meadows came naturally to be divided among separate households, but even then
a great deal of communalism remained in the management of pasture and wood.
66
CH, XVIII.
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. at a coronation ceremony, when great feudatories are made to present
dishes and cups, to lead horses, to superintend the arrangements of the
bedroom. As a rule, the central duty of the vassal comes to be his
military service, regulated according to a certain number of days,
generally forty, or a scutage payment in redemption of the latter.
Knight service of this kind shades off almost imperceptibly into so-called
military serjeanties, that is, services of archers, of garrison soldiers, etc.
a
1 “Rex autem habet superiorem, id est Deum, item legem, per quam factus est
Rex.
Item curiam suam, videlicet comites, barones, quia comites dicuntur quasi
socii regis, et qui habet socium, habet magistrum, et ideo si rex fuerit sine freno,
i. e. sine lege, debent ei frenum ponere. ”
CH. XVIII.
## p. 462 (#508) ############################################
462
Ministeriales; dominium
These again are not easily divided from petty serjeanties, in which the
menial services are still regarded as characteristic of the bond. In
the lists of serjeanties drawn up in the reign of Edward I (published
in the volumes of Feudal Aids and in the Testa de Nevill) we find
mentions of cooks, falconers, foresters, etc. In German feudal custom
the ministeriales correspond to the servientes of England and France,
but there is a peculiar trait about their condition, namely, that they
are distinctly unfree in origin. Some of the greatest warriors of
German medieval history came from such unfree stock—Marquard of
Anweiler, for instance, who received the March of Ancona as a fief
from Emperor Frederick II, was a ministerialis, an unfree retainer of the
Emperor. As homage creates a relation between man and man, it is not
intrinsically bound up with landholding, and a good many of the personal
followers and servants of medieval magnates must certainly have lived
in the castles of their lords, receiving equipment and arms from them :
they saw in the good cheer of the court and in occasional gifts a reward
for their personal attendance? But such personal relations tended
naturally to strike root in land. If the retainer was at all useful and
efficient he expected to be remunerated by a permanent source of income,
and such an outfit could only take the shape of a grant of land. On
the other hand, when a small landowner sought protection from a
magnate, he had generally to throw his tenement into the balance and
reassume it as a fief. . Thus homage and investiture, although historically
and institutionally distinct, grow, as it were, together, and form the
normal foundation of feudal contract.
Besides the political colouring of this contract, it assumes a peculiar
aspect from the point of view of land law. It gives rise to a significant
distinction of two elements in the notion of ownership (dominium). Roman
property (dominium) was characterised during the best period by uncom-
promising unity. A person having dominium over a thing, including an
estate in land, had it alone and excluded everyone else. Medieval lawyers,
on the other hand, came to deal with plots of land which had normally
two owners, a superior and an inferior, one having the direct ownership
(dominium directum, dominium eminens), the other having the useful
ownership, the right to exploit the land (dominium utile). In England
the splitting of the notion of dominium was avoided by opposing the
tenure in domain to the tenure of service (tenere in dominio—in servicio,
see, e. g. , Notebook of Bracton, case 1436), but the necessity for reckoning
with two kinds of right in respect of every holding contributed indirectly
to weaken the notion of absolute property in land. Contentions as to
1 Red Book of the Exchequer, 283: Hugh de Lacy's report as to his knights :
“Ricardus Brito et ipsi qui post ipsum sunt nominati tenent de domino Hugone sine
servitio aliquo quod eis statum est. Quidam de eis sunt mecum residentes et
invenio eis necessaria. Et quidam sunt in domibus meis in Wallia et invenio eis
necessaria. ”
## p. 463 (#509) ############################################
Subinfeudation; reliefs
463
land were made to turn principally on seisin, protected possession,
while the proof of title, which had played an important part in later
Anglo-Saxon times, receded, as it were, into the background. Instead
of trying to ascertain who the person was who ought to exercise the
absolute right of ownership, English courts came to concern themselves
with the practical question which of the two litigants had relatively the
better right (ius merum) in regard to an estate or tenement. From the
feudal point of view an estate held as a fief could be freely parcelled out
to under-tenants who would become the vassals of the man holding
directly of the lord, provided the obligations of that intermediate tenant
were not lessened by such a process.
Indeed it was not uncommon for
tenants to pass on the onerous duties with which the tenement was
charged to these under-tenants, who in such a case were called upon to
"defend” the land in regard to the superior lord in order that the mesne
(medius, middle) lord should be able to enjoy his tenure in peace. Various
complications arose from such subinfeudation in connexion with customary
requirements, and it was clearly in the interest of the overlords to restrict
such parcelling of fees as much as possible. The English Crown cut
short the practice by the statute Quia Emptores, which provided that
in future the creation of any new fief would involve not subinfeudation
but the recognition by the new tenant of immediate dependence on the
overlord: thus the grantee of a new fief was placed on the same level as
the grantor instead of being subordinated to him.
The incidents arising out of the double claims to land were manifested
in a striking manner in cases when the personnel of the contracting
parties was changed, more especially when in consequence of the death
of the tenant a new representative of the dominium utile had to come in.
While in the case of a Thronfall, as the Germans said, that is, of the
demise of the lord, homage and fealty had to be merely renewed, a
Lehnfall, the demise of the vassal, brought about a temporary resump-
tion of the fief by the direct owner, i. e. by the lord : as a rule he was
bound to regrant the fief to the right heir, but such a reinvestiture was
accompanied by a relief, a more or less heavy payment.
The struggle of English barons for reasonable reliefs called forth
well-known stipulations of the charters of Henry I and of John. In the
case of so-called base holdings the relief had its analogy in the heriot,
the surrender to the lord of the best horse or the best ox, and there
can be no doubt that this due, which had grown from the custom of
surrendering the outfit provided by the lord to his dependent, was
originally used quite as much in military fiefs as in villein or socage
tenements. In feudal practice, however, the military heriot was absorbed
by the relief, while it kept its ground in regard to base tenure.
The resumption of tenancies connected with ecclesiastical offices led,
as is well known, to protracted struggles as to rights of investiture between
the Church and State. Even when reinvestiture was made dependent on
:
CH. XVIII.
## p. 464 (#510) ############################################
464
The feudal nexus in politics
canonical elections, the fiscal interests of the secular power had to be
satisfied by the diversion of ecclesiastical revenues for a year or a similar
customary period for the benefit of the Crown or of other secular patrons.
There were other occasional rights connected with a breach of the con-
tinuity of possession, which would not arise out of vacancies in ecclesiastical
institutions; such were wardship and marriage, which accrued to the lords
in cases when fiefs descended to minors or to unmarried females. These
eventualities gave rise to very lucrative rights, and it is a matter of
common knowledge to what extent such opportunities were liable to be
misused. The English Charters contained provisions against these
abuses, but even in their mitigated form these practices were likely to
produce much hardship. Special classes of misdeeds arose in connexion
with them: we hear of judicial proceedings taken on account of ravish-
ment (kidnapping) of wards and of ravishment of heiresses in order to
get the profits, even when the corresponding right belonged to some one
else or was contested. From such exactions ecclesiastical tenements were
free, and this alone would have sufficed to make the passage of landed
property into the hands of the churches undesirable from the feudal
point of view. No wonder powerful kings tried to restrict the passage
of estates into the “dead hand" (manus mortua) of the Church. This
was among other things the aim of Edward I's Statute De religiosis.
Although these reassertions of the dominium directum forcibly shewed
that the proprietary rights of the lord were by no means a dead letter,
the “ useful domain” was protected from wanton interruption by clearly
established customs. The beneficia, which preceded fiefs in historical
evolution, were assumed to be granted for life, but when fiefs developed
out of them they nearly always became hereditary.
The only exception
of any importance is presented by the beneficia militaria of French
Navarre.
As political subjection was regarded as a matter of contract, the feudal
nexus tended towards a disruption of sovereignty, and often led in
practice to the formation of numerous political bodies within the
boundaries of historical States. This was especially the case in France,
Germany and Italy. An authoritative jurist like Beaumanoir summarised
the position in the saying, “chaque baron est souverain dans sa baronie";
and the mottoes chosen by some of the French magnates gave expression
to an unmeasured feeling of self-sufficiency. The Rohans of Brittany
boasted: “prince ne daigne, roi ne puis, Rohan je suis. ” The seigneur
of Coucy, a barony which gave great trouble to the early Capetian
kings, disguised his pride by mock humility: "je ne suis ni comte, ni
marquis, je suis le sire de Coucy. ” In Germany the dismemberment of
sovereignty was finally recognised by express law in Charles IV's Golden
Bull of 1356 in favour of the seven Electors, but it had already been
acknowledged in regard to princes in general by Frederick II, and had
been acted upon more or less all through the eleventh and twelfth
## p. 465 (#511) ############################################
Private war and its remedies
465
רי
centuries in the course of the protracted feuds between Frankish and
Swabian Emperors, on the one hand, and their various vassals on the
other. When Frederick Barbarossa went down on his knees, according
to tradition, when imploring Henry the Lion of Saxony and Bavaria to
stand by him against the rebel Italians, it would have been difficult to
say that the Emperor was the sovereign and the duke a mere subject.
A most important consequence of this acknowledgment of sovereign
rights on the part of vassals of the Crown lay in the fact that the latter
could resort to actual war, when asserting claims or defending infringed
interests. The endeavours, which were made by the Church, by royal
suzerains and by the barons themselves to restrict and suppress private
warfare, are in themselves characteristic of what we should call the
anarchy of the times. The end of the tenth century witnessed many
attempts to put an end to private wars in France. In consequence of
terrible epidemics and bad harvests, which were regarded as signs of
divine wrath and incitements to repentance, the magnates of central and
northern France met, agreed to renounce private war, and confirmed this
resolve by solemn oaths. Gerard, Bishop of Cambrai, objected to this
as political; he was much abused by the other members of the congress
for holding aloof, and yet, as the chronicler remarks, events proved
that he was right, “vix enim paucissimi crimen perjurii evaserunt.
It soon became evident that it was impossible to suppress the per-
nicious custom entirely. The Truce of God, treuga Dein made its ap-
pearance
in completion of the Peace of God'. The time from Thursday
night to Monday morning was considered a time of truce on account of
the memories of the Lord's sufferings and resurrection. Churches and
churchyards were naturally considered as hallowed and therefore neutral
territory. In the South, olive-trees were declared to be exempt from
destruction by reason of their vital importance in the economy of the
country. The movement for “truce” attained material results under
the guidance of the Church in the eleventh and twelfth centuries,
and it became even more effective in the thirteenth, when political
potentates took it up. Still, even St Louis did not insist on a complete
abandonment of the practice of private war by his vassals : he only
enforced from all those, who resorted to the last argument of war, sub-
mission to certain rules as to its declaration, the beginning of hostilities,
their course and so on; the quarantaine le Roi was a code as to usage in
private war.
To Germany some order was brought by powerful leagues between
princes and knights on the one hand, cities on the other. Such leagues
were offensive and defensive alliances, and ultimately had recourse to
force of arms in order to maintain their position. But as all extensive
armaments are apt to do, they prevented the danger and disorder of
petty collisions. It was only towards the end of the Middle Ages that
1 See also Chapter XJl. pp. 281—2 and Chapter xvii. p. 457.
C. MED. H. VOL. III. CH. XVIII.
30
## p. 466 (#512) ############################################
466
Growth of franchises and immunities
something like a peace of the Empire was recognised and to a certain
extent secured by the reforms of Maximilian's age. In England the
“franchise” or right of private war was suppressed at a very early time.
It did not tally with the social order inaugurated by the Norman Con-
quest, and the king's peace became one of the mainstays of early Common
Law. The only period when the real disruption of sovereignty through
private war seemed to prevail was the interregnum when Stephen of
Boulogne and the Plantagenets struggled for the Crown. But this lapse
into anarchy was short, and from the time when Henry II restored order,
private war ceased to be recognised as a legal outcome of disputes. Yet
the conditions of military contract remained the foundation of govern-
ment, and this made it possible for opposition to wrong to take the form
of armed resistance. . The revolt against John, the barons' war against
Henry III, the risings of Mortimer and Bolingbroke, the Wars of the
Roses, have as their necessary background a society ruled by groups
of knights, who considered themselves not merely as subjects, but as
peers of the king.
One of the most important consequences of the disruption of
sovereignty lay in the alienation of rights of jurisdiction by the central
government. As early as the ninth and tenth centuries we observe
everywhere the growth of franchises and immunities which break up the
ordinary sub-divisions of countries in respect of the administration of
justice. The English shires and hundreds, the continental counties and
Grafschaften are riddled with districts in which the place of the ordinary
judges of the land is taken by secular or ecclesiastical magnates or
their representatives, among whom the secular judges of ecclesiastical
corporations, the advocati (avoués, Vogte), are the most conspicuous.
The Sac and Soc grants of Anglo-Saxon kings, as well as the various
privileges of immunity conferred by Carolingian, Franconian and Saxon
monarchs, present different steps in the process of political dismember-
ment. The central authorities merely strove to retain their hold on
the most important varieties of jurisdiction, especially judgments as to
great crimes, the Ungerichte, as they were termed in Germany, for
which a man may lose his head and his hand (Haupt und Hand), while
jurisdiction in minor cases, when a person would only be chastised in
skin or hair (in Haut oder Haar), were left to local potentates. From
similar considerations early English kings tried as much as possible to
retain in their hand the great forfeitures. This led eventually to a
classification of feudal tribunals according to the amount of jurisdiction
acquired by them, some claiming high and some low justice (haute or
basse justice)". The proceedings of Quo Warranto instituted by Edward I
after his victory over the baronial opposition shew a most exuberant
growth of prescriptive rights in regard to the use of gallows, pillory,
1 The medium justice (moyenne justice) was a later development and was not
generally accepted.
## p. 467 (#513) ############################################
Ecclesiastical advocates
467
tumbrel, etc. by English noblemen and ecclesiastical magnates. The
institution of the advocaria (avouerie, Vogtei), on the contrary, never
attained to much importance in England, while it Hourished greatly in
Germany, France and Flanders. It sprang from the delegation of
public power within the territory of an ecclesiastical franchise to a
layman, who thereby came to be a kind of policemaster as well as a judge.
The ordinary judges, the counts and their subordinates were forbidden
to enter the enfranchised district. On the other hand the bishop or
abbot at the head of it abstained from the shedding of blood and did
not meddle with criminal justice or deal with cases of public coercion:
he appointed an advocate who had to arrest criminals, to conduct them
before the proper courts, to execute those found guilty, to assist the
ecclesiastical lord in cases when force had to be employed for the
collection of rents or the taking of distress. These powers ripened in
the course of the feudal age to an independent jurisdiction which greatly
hampered the freedom of action of the ecclesiastical lord and encroached
on his interests. Besides, churches and monasteries often availed themselves
of the advocaria in order to obtain protection from a powerful neigh-
bour: the surrender of certain rights and sources of income was the
price paid for support in those troubled times. No wonder that in the
eleventh and twelfth centuries the advocates often became local tyrants
at whose hands their clients had to suffer a great deal. This is how,
for instance, the Cartulary of St Mihiel in Flanders describes the conduct
of a certain Count Raynald, an advocate of the monastery in question :
“Count Raynald was the first to commit robberies in our estates under
the customary term of talliatae ; he also put our men into prison and
2
forced them to give up their own by means of torture—he bequeathed
this tyranny to his son, the present Raynald. The latter exceeded the
malice of his father to such an extent that our men cannot put up any
longer with such oppression and leave our estates. They are either
unable or do not care to acquit themselves of outstanding rents : he is
the only person they are afraid of'. "
The conflicts between ecclesiastical potentates and their secular
“advocates” often led to regular treaties, the so-called règlements
đavouerie. The Vogt of the Abbey of Prüm is forbidden to "clip"
(tondere-clip the hair as for convicts) or to flay anyone except those who
are guilty of murder, brigandage or battery, nor has he any part in the
wer-geld of a man unless he has helped to capture and to judge him.
In Echternach the Vogt is excluded from participating in civil trials.
In houses appertaining to the garden and the cellar, the laundry and the
kitchen of the monks, he is forbidden to hold any pleas or to exact any
services, except pro monomachia (trial by battle) et sanguinea percussura
(cf. A. S. blodwite) et scabinis constituendis (the appointment of popular
I Cartulary of St Mihiel quoted by Flach, Origines de l'ancienne France, 1. p. 442
CH. XVIII.
30--2
## p. 468 (#514) ############################################
468
Counsel and aid
assessors of the tribunals)? The long-standing rivalry between ecclesi-
astical institutions and their advocates was ultimately composed by the
intervention of the Crown when the latter grew strong. If we turn to
consider the relations between the lord and his vassals, we shall naturally
find that they differ greatly from the relations established at the present
time between the sovereign and his subjects. In the case of the
privileged holders of fiefs, however small, the tie which united them with
their suzerain being one not of general subordination but of limited
obligation, the view that the general will has to prevail over the
particular and can impose rules of conduct upon it did not hold
good. Noble vassals, ecclesiastics possessed of fiefs, and townsmen as
members of municipal corporate bodies were as regards their lords
bound to abstain from certain acts and to perform certain duties. A
systematic treatment of this kind of contractual relation may be found
in a letter of Bishop Fulbert of Chartres to the Duke of Aquitaine
(eleventh century)? The duties which he enumerates are derived more
especially from the oath of fealty, which accompanied the homage
ceremony and was distinct from the fealty of the base and non-
privileged population to be mentioned later on.
The negative duties of the faithful vassal are indicated by the
following terms: incolume, tutum, honestum, utile, facile, possibile. The
Benedictine editors of Fulbert's work have explained these expressions
to mean that the vassal undertakes not to assail his lord, not to
reveal his secret, not to endanger the safety of his castles, not to
wrong him in his judicial power, honours and possessions or to put
obstacles in his way which would render what he undertakes difficult or
impossible. On the positive side the vassal is bound to give his lord
advice and aid (consilium, auxilium). From the positive obligations of
consilium and auxilium various concrete duties are derived. The
principal form of advice (consilium) tendered to the lord by his men
nsists in their obligation to attend his court. Every lord had a court
of his own, but not every court of this kind was competent to judge all
cases. A feudal distinction has to be drawn in this respect between cases
arising from the feudal nexus and cases of delegated public jurisdiction.
These latter comprised chiefly criminal cases classified, as already pointed
out, under the heads of high and low justice. The privilege of giving
sentence in them and of exercising the fiscal exactions connected with
them accrued only to those among the feudal lords who had obtained
the corresponding franchises through express grant or by force. They
were called seigneurs justiciers in France. The more numerous class of
ordinary lords held courts if they had tenants of fiefs, and vassals and
villein subjects under them. These feudal courts took cognizance of all
processes as to land distributed by the lord to his dependents, but also
Quoted by Pergameni, L'avouerie ecclésiastique belge, Ghent 1907, pp. 83, 84.
Quoted by Luchaire, Manuel des institutions françaises, p. 185.
1
2
## p. 469 (#515) ############################################
Feudal Courts
469
to a great extent as to pleas concerning the persons of the vassals. The
first group of pleas stands out so clearly that there is no special
necessity to dwell on its range. It need only be noticed that the
proceedings concerning unfree tenures were substantially of the same
kind as those affecting free or noble tenancies. A dispute as to the
possession of a villenagium followed on the same lines as a trial in
which a free tenement was the object in dispute, although the latter was
naturally much more complex. From the technical point of view, in
the first case the trial took place before the peers of the contending
parties, who as suitors of the court were its judges, while in the second
case the lord or his steward was the only judge and such assessors as
were called up had only advisory powers. But as a matter of fact the
verdicts of the court were regarded as the expression of legal custom in
the second case, and the reservation that the lord might override the
customary rules was due to his exceptional position, and not to the
ordinary working of manorial courts. A body of legal tradition and of
conceptions of equity grew up in the lower social stratum as well as in
the upper. This is especially noticeable in the case of English manorial
courts, in the composition of which free and unfree elements are generally
intermixed in such a way that it is difficult to distinguish between
verdicts laid down by the free tenants and those contributed by the
villeins. The one really important difference lay in the fact that the
villeins had to look for justice to the manorial court in all cases, not
only tenurial, but also personal, such as cases of battery, defamation,
adultery and the like, while free men and specially men of noble birth
were either directly amenable to justice by the medium of the royal
tribunals or could, if they appeared before a feudal court, insist on a very
strict maintenance of their privileges in view of the supervision of royal
courts.
In a sense the circle of tenants constituting the peers' court was a
most complete expression of the principle of equality as between allied
sovereigns. The decision was formulated strictly by the peers of the
contending parties, and this led, in regard to criminal accusations, to the
famous doctrine of the Great Charter: "nullus liber homo capiatur vel
imprisonetur nisi per judicium parium suorum vel per legem terrae”
(sect. 39). The decision of a court of peers was final. An appeal was
impossible from the feudal point of view, because it would have meant
a revision of the judgment by higher authority, and feudal litigants
submitted not to higher authority but to a convention in which they
had taken part. There were, however, two cases in which a vassal
.
,
might seek redress from a source of law superior to the court of peers
presided over by his suzerain. If justice was denied to him by this
tribunal he could ask the overlord, that is, the suzerain of his immediate
lord, to see that justice should be done. This was, however, no appeal
as to law or facts, but only an attempt to set the machinery of feudal
a
CH. XVIII.
## p. 470 (#516) ############################################
470
Appeal of judgment
jurisdiction in motion. The second eventuality occurred when one of
the parties to a suit actually contested the justice of a particular decision
or sentence. He could in French feudal law attaint or falsify the verdict
by pronouncing the formula," je vous appelle de faux jugement. ” This
meant that he challenged the fairness and honour of the judges, and the
result was single combat between the protesting party and one or several
of the judges, not a satisfactory solution of the difficulties from our point
of view, nor, probably, from that of many judges concerned. There were
devices which rendered such attaint hazardous in some cases: the members
of the tribunal could pronounce the decision in corpore, and in this case
the option for the dissatisfied party was to fight them all. In any case
this mode of appeal was directed towards the revision of the judgment
by God rather than by man, and at bottom did not subvert the principle
that a man ought to be judged by his peers and by his peers only. It
is hardly necessary to add that the falsifying of judgments has been
described here in conformity to strict rules of feudal theory. In practice
all sorts of compromises took place. In England, for example, the
revision of judgments by higher courts was brought about at a very
early stage by the intervention of the king's court, though not without
opposition from the barons. An instructive case occurred, for example,
in the reign of William the Conqueror. In a trial as to land between
Bishop Gundulf of Rochester and Picot, the Sheriff of Cambridgeshire,
the county pronounced in favour of the latter, but through the inter-
vention of Odo of Bayeux twelve representatives of the shire were called
up to confirm the verdict by oath in the king's court, and ultimately,
after a declaration by a monk who had been steward of the estate in
question, the unlucky doomsmen were driven either to go through the
ordeal of redhot iron or to recant. The indirect way in which the
prejudiced intervention of the higher powers took effect in this case is
characteristic of the traditional difficulties which stood in the way of
downright revision. As on many other occasions, there are threads
connecting feudal theory with recent or actual practice, and we may not
unreasonably see in the doctrine as to the finality of jury verdicts a
modernised offshoot of the older doctrine of the judgment by peers.
Of course the differentiation between questions of fact and questions of
law has made it possible to concede to juries the highly privileged
position which they generally enjoy, but the germ of the corresponding
rules is historically connected with the immunity from outside influence
which formed one of the most characteristic traits of the feudal judg-
ment by peers.
Similar phenomena meet our eye when we come to consider the
processes of legislation obtaining in the feudal world. It is evident in
theory that a baron, being a sovereign, could not be subjected to any
will but his own, and that therefore such common arrangements as had
1 Bigelow, Placita Anglo-normannica, p. 34.
## p. 471 (#517) ############################################
Feudal legislation
471
to be made in medieval society had to be effected on the same lines as
modern international conventions. And indeed we find this idea at the
root of the feudal doctrine of legislation; in the custom of Touraine-Anjou
it was expressed in the following way: “The baron has all manner of
justice in his territory, and the king cannot proclaim his command in
the land of the baron without the latter's consent; nor can the baron
proclaim his command in the land of his tenant without the consent of
the tenant1. "
In consequence of this general principle, all feudal legislation ranging
outside the immediate demesne of the single baron takes the shape of a
stabilimentum (établissement) or of an assize enacted in the court of a
superior lord with the express or implied consent of his vassals. An
ordinance of the Viscount of Thouars (A. D. 1099), for example, instituting
a certain annual charge to be paid by the tenants, refers at the close to
“the authority and will of the barons of my land” (quoted by Luchaire,
Manuel des institutions françaises, p. 253). The same notion reappears
in ordinances made by much greater potentates, such as the dukes of
Normandy, e. g. by William the Conqueror, in 1064 (on public peace),
by counts of Flanders (Baldwin of Constantinople, in 1199, on usury),
by dukes of Brittany (in 1185, on succession to fiefs), even by kings of
France and kings of England; Henry II's Assize of the Forest, for
instance, begins in the following manner: “This is the assize of the Lord
King Henry, the son of Maud, in England, about forest and hunting, by
the advice and consent (per consilium et assensum) of the archbishops,
bishops and barons, earls (comitum) and noblemen of England at Wood-
stock(Stubbs, Select Ch. 157). Theoretically, the individual consent
of each member of the gathering to any decision was needed if it were
to bind him, but historically, the legislative assemblies were not merely
the outcome of feudal meetings, they were also survivals of more ancient
popular assemblies, while, as a matter of practice, the authority of the
superior lord and the influence of leading magnates asserted themselves
in a much greater degree than would have been allowed from a purely
individual point of view. It thus depended very much on circumstances
whether centripetal or centrifugal tendencies got the upper hand. The
majority principle had not been evolved either, at least during the
eleventh, twelfth and thirteenth centuries. As the French historian
Luchaire has expressed it, voices were rather weighed than counted. But
the idea of a convention made itself felt in a very definite manner, and
this point must be noticed as very important in view of subsequent develop-
ment. The early doctrine of medieval estates is clearly connected with these
feudal views on the side both of legislation and taxation. The view that
1 Coutume'de Touraine-Anjou, p. 17: Bers si a toutes en sa terre, ne li rois ne puet
mettre ban en la tere au baron, sanz son assentement, ne li bers ne puet mettre ban
en la terre au vavasor, sanz l'assentement au vavasor; (received in the Établissement
de St Louis, 1. p. 26. See P. Viollet, Établissements de St Louis, 11. p. 36).
а
CH. XVIII.
## p. 472 (#518) ############################################
472
The manor
the nation is not bound to pay a tax to the imposition of which it has
not consented through its representatives (the constitutional rule on
which the development of Parliament depended later on) certainly has
its roots in the feudal maxim that no baron was bound by ordinances in
the “establishment” of which he had not taken a part. It is also not
alien to our purpose to notice that the distinction between greater and
smaller barons suggested by the far-reaching differences, in regard to the
appropriation of public power, afforded a germ for the subsequent rise of
aristocratic “Second Chambers. ". The House of Lords, as a court, is
a house of peers, and it is not only in England that the prominence of
the magnates secured for them a special personal standing in legislative
organisation : a curious parallel, all the more instructive because it is
supplied by a microscopic state, is presented by the history of Béarn in
the Pyrenees. In that vicomté, an aristocratic council of twelve hereditary
jurati, drawn from the most powerful houses of local nobility, appears as
the cour majour and acts as a standing committee of the full court
(cour plénière). It had to settle disputes between the viscounts and
their vassals and in general to control the current administration of
law 1.
A survey of medieval society from the one point of view of
contractual relations would, however, be incomplete, one-sided and
artificial. In order to be correct it ought to be matched by an
examination of the constituent elements combining to form the feudal
organisation. Such an examination would have to take each feudal unit
singly and to describe the rule of the lord over his subjects as well as the
work of these subjects.
The most characteristic type of such a feudal unit is certainly the
English manor, and I should like to turn now to a study of it which
will afford a key to the understanding of similar phenomena in other
countries of Western Europe. The manor is a necessary outcome of
so-called natural husbandry, providing for the requirements of life by
work carried out on the spot, without much exchanging and buying.
It is the connecting link in the social life of classes, some of which are
primarily occupied with the rough work of feeding, clothing and housing
society, while others specialise in defending it and providing for its
secular and spiritual government. It presents the lowest and most
efficient unit of medieval organisation, and local justice, administration
and police are all more or less dependent on its arrangements. Let us
look at the different elements of which this historical group is composed.
First of all there is the economic element. The manor afforded the
most convenient, and even the necessary, arrangements of work and profit
in those times. It would be quite wrong to assume that the interests
and rights of the many were simply sacrificed to the interests and rights
of a few rulers, that the manor was nothing but an estate, cultivated
i Cadier, Les États du Béarn, quoted by Luchaire, Manuel, p. 254,
## p. 473 (#519) ############################################
The village community
473
and exploited for the sake of the lord and managed at discretion by his
will and the will of his servants. On the contrary, one of the best
established facts in the economic life of the manor was its double
mechanism, if one may say so.
It consisted, as a rule, of a village
community with wide though peculiar self-government and of a manorial
administration superimposed on it, influencing and modifying the life
of the community but not creating it. This double aim and double
mechanism of the manor must be noticed at the outset as
a very
characteristic feature; it places the manor in a sharp contrast both to
the plantations of slaves of the ancient world and to the commercial
husbandry of a modern estate struggling for profit as best it may.
Manorial husbandry was all along striving towards two intimately
connected aims, providing the villagers with means of existence and
providing the lord with profits. Hence a dual machinery to attain
these aims, both a village community and the lord's demesne.
The village community lay at the basis of the whole'. It gave rise
to a very peculiar system of holding and using land, not to be confused
either with the case of the tribal community in which rights are graduated
according to the pedigree of a person, or with that of the communalism of
the Russian mir or of some Hindu settlements, in which land is allotted
and redivided according to the requirements and the economic strength
of the settlers. The peculiar bent of the English rural community
would perhaps be best indicated by the expression “shareholding arrange-
ment” or “community of shareholders. ” Each of the households settled
in the village had a fixed and constant share, or maybe half a share, or
a quarter, or the eighth part of a share assigned to it. It stood in scot
and in lot with the village as a hide or two virgates or one virgate or
a bovate, according to the size of the share. By the standard of this
hereditary share all rights and duties were apportioned. By the side
of the shareholders there generally lived in the village smaller tenants
(cottagers, crofters) but they were merely an adjunct to the main body
of the tenantry and may be left out of reckoning in our general
survey.
The system of communal shareholding was very strikingly illustrated
by the treatment of waste and pasture in the medieval village. It was
not divided among the tenants, and, though later in legal theory
it belonged to the lord, it was everywhere considered by custom as a
common ” for the use of the villagers. In most cases it had to be
stinted to some extent: rules were formulated as to the species and number
of beasts to be sent to pasture, as to seasons, and as to precautions against
abuses; and these rules can generally be traced to the main principle,
that
every household has to use the common according to the size of its
1 In parts of the country settled on the system of scattered farms, arable and
meadows came naturally to be divided among separate households, but even then
a great deal of communalism remained in the management of pasture and wood.
66
CH, XVIII.
