Whatever may have
been the circumstances which produced this great change, it is
of the first importance in the history of political theory to
observe the fact of the change.
been the circumstances which produced this great change, it is
of the first importance in the history of political theory to
observe the fact of the change.
Thomas Carlyle
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39015002403882 Public Domain in the United States, Google-digitized / http://www.
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org/access_use#pd-us-google
? CHAP. II. ] JUSTICE AND LAW. 39
with other passages related to this matter. In the meanwhile
it is sufficient to observe the emphatic assertion that kingship
is impossible without law, and that the king is not only under
God but also under the law. It may perhaps be suggested that
the evidence of Bracton as to the principles of feudalism cannot
be accepted without much caution, for his work belongs to that
time when feudal relations were giving way before national.
Caution is no doubt necessary, but in this case we need have no
scruple in taking Bracton's phrases as representative of the
general system of feudal law, for these are precisely the prin-
ciples which are set out in all the earlier feudal law books.
It is this principle which is emphatically expressed in the
forms attendant on the coronation of the mediseval king. We
have in the first volume dealt at some length with the great
significance of the coronation oath in the earlier mediseval
societies;1 it was equally important in the feudal State. Jean
d'Ibelin describes at length the circumstances attendant on the
succession to the kingdom of Jerusalem. The king is to swear
that he will help the Patriarch of Jerusalem and protect the
liberties of the Church, that he will do justice to widows and
orphans, that he will maintain the ancient customs and assizes
of the kingdom, and that he will keep all the Christian people
of the kingdom according to their ancient and approved customs,
and according to the assizes of his predecessors in their rights
and "justises," as a Christian king and a faithful servant of
God ought to do. And what the king swears all the men of
the kingdom are also to swear, that they will hold and maintain
the good usages and customs of the kingdom. 2
1 Cf. vol. i. chap. 20.
2 'Assizes of Jerusalem,' Jean d'Ibe- as veves et as orfenins justise ferai;
lin, vii. : "Je tel . . . promet a tei mon les privileges des beneure? s reis mes
seignor tel, patriarche de Jerusalem devanciers et les assises dou roiaume
. . . que je de cest jour en avant, et dou rei Amauri et dou rei Baudoyn
serai ton feel aideor et defendeor de ta son fiz, et les ancienes costumes et
persone contre toz homes vivant el assises dou roiaume de Jerusalem gar-
reiaume de Jerusalem. Les possessions derai; et tot le peuple crestien dou
et les franchises de la sainte yglise dit roiaume, selonc les costumes an-
de Jerusalem ma mere et de totes les cienes et aproveez de ce mesme roiaume,
yglises apartenant a li principaument et selonc les assises des devant dis
. . . en mon tens maintendrai a ellei, rois en lor dreis et en lor justises
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? 40
THE INFLUENCE OF FEUDALISM. [pabt 1.
This principle of the loyal observance of the law is well
expressed in another place where Jean d'Ibelin says that the
kings and nobles of Jerusalem should be wise, loyal, and good
administrators of justice: they must be loyal, for they must
loyally keep and govern themselves and their people, and must
not do or suffer to be done disloyalty or falsehood; they must
be good administrators of justice, for they must uphold the
rights of every man in their several courts and lordships. 1
The same principle is again tersely expressed in one of the
Norman law books. When the Duke of Normandy is received
as Duke he must swear to serve the Church of God, and to
keep good peace and justice according to law;2 and again, in
the most important of the feudal law books of Germany, the
'Sachsenspiegel,' when the king is elected he is to swear to
uphold the law of the kingdom, according to his power. 3
We have already dealt with the important passage in which
Bracton sets out the same principle in relation to the coro-
nation oath of the King of England,4 and Bracton is only com-
menting on the immemorial customs attendant on English
coronations, customs which had not been in any way inter-
rupted by the Norman Conquest.
garderai, si come roi crestien et feil
de Dieu le doit faire en son roiaume. "
Id. Id. , cxi. : "Et toz les homesdou
roiaume de Jerusalem deivent jurer
ausi de garder les assizes, et les bons
us et les bones coustumes dou reaume
de Jerusalem et tenir et maintenir. "
1 Id. Id. , viii. : "Le chief seignor
do'1 roiaume de Jerusalem, seit rei ou
autre, et toz les barons et seignors dou
dit roiaume, qui ont court et coins et
justise, deivent estre sages, loiaus, droi-
turiers et bons justisiers . . . loiaus,
qui il loiaument teignent, mainent,
mamteigneut et gouvernent eaus et
lor homes et lor peuple, et que il ne
facent a lor escient ni ne sueffrent a
faire a leur pooir en lor seignorie des-
loiaute? ne faucete; dreituriers, que il
teignent et mainteignent dreiture drei-
tement a chascun en lor cours et en
lor seignories, selonc ce qu'il est en
droit soi. "
2 'Statuta et Consuetudines Nor-
manise,' i. 1: "Quando dux Norman-
nise in ducem recipitur, sacramento
tenetur ecclesiam Dei deservire et ea,
que ad eam pertinent, et bonam pacem
tenere et legalem iusticiam. "
3 'Sachsenspiegel,' iii. 54. 2: "Als
man den Koning ktiset, so sal he
deme rike hulde dun, unde sveren
dat he recht sterke, unde unrecht
krenke, unde it rike voresta an sime
rechte, als he kiinne unde moge. "
4 See p. 34.
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? 41
CHAPTER III.
THE SOURCE OF LAW.
The law is then to the feudal jurist the expression of the
principle of justice, and it is supreme in the state, the king
himself is the servant of the law.
What is then the source of law, what is the authority which
it represents? It is here perhaps that it is most difficult for
the modern to understand the Middle Ages, while it is to the
failure to do this that we may attribute most of the mistakes
which have'been made with regard to the nature of the
mediseval State and the conception of government in the
Middle Ages.
Above all things we must, if we are to make our way at all,
discard the common conception of sovereignty, the conception
that a law represents the mere command of a lawgiver, or even
of a community. This conception, whose value in regard to
modern times we cannot here discuss, is wholly foreign to the
Middle Ages. To them the law was not primarily something
made or created at all, but something which existed as a part
of the national or local life. The law was primarily custom,
legislative acts were not expressions of will, but records or pro-
mulgations of that which was recognised as already binding
upon men. The conception of legislation had perhaps already
appeared in the ninth century, but if so it had in the main
died out again in the tenth and eleventh. 1
Bracton, indeed, in a well-known passage based on Glanvill,
claims that while other countries use "leges" and "jus scrip-
1 Cf. vol. i. p. 235.
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? 42
[part I.
THE INFLUENCE OP FEUDALISM.
tum," England alone uses unwritten law and custom. 1 His
phrase probably is related to the fact that there were people
in some parts of Europe who lived under Eoman law, and
possibly to the great development of the influence of the
Eoman jurisprudence since the rise of the law school of
Bologna in the twelfth century. While, however, we can in
part explain Bracton's saying, and while it was no doubt
correct about England, it is a curiously inaccurate view of
the nature of law in the other European countries.
If we turn from Bracton to his great contemporary, Beau-
manoir, in France, we find that he asserts boldly that all pleas
are determined according to custom, and that the great feuda-
tories like the Count of Clermont, and even the King of France
himself, are bound to keep them, and cause them to be kept;
and Beaumanoir states the two tests by which it can be deter-
mined whether a custom is legally binding. The first is that
the custom is general, and has been observed without dispute
as far as man's memory goes, the second is that there has been
a dispute about the matter and that there has been a judgment
of the Court about it. 2
1 Bracton, i. 1. 2. : "Cum autem
fere in omnibus regionibus utatur legi-
bus et iure scripto, sola Anglia usa
est in suis finibus iure non scripto et
consuetudine. In ea quidem ex non
scripto ius venit, quod usus compro-
bavit. "
Cf. Qlanvill, Prologue.
2 Beaumanoir, xxiv. 682: "Pour ce
que tuit li plet sont demene? selonc les
coustumes, et que cest livre generau-
ment Arole selonc les coustumes de
la co1tee? de Clermont, noz dirons en
cest chapitre briement quele chose est
cou tume, tant soit ce que nous en aions
parle? especiaument en aucuns chapitres,
selone ce C? u'il convenoit es cas de quoi
nous parlions. . . .
Cc'ustume si est approuvee par l'une
des 1l voies, dont l'une des voies
si ett, quant elle est generaus par
toute la conte? e et maintenue de si lonc
tant comme il peut souvenir a home,
sans debat; si comme quant aucuns
hom de poeste connoist une dete, on
li fet commandement qu'il ait paie?
dedens vu jours et vu nuis, et au
gentil home dedens xv jors: ceste
coustume est si clere que je ne la vi
onques debatre. Et l'autre voie que l'en
doit connoistre et tenir pour coustume
si est quant debas en a este? , et l'une
des parties se vout aidier de coustume,
et fu approuvee par jugement si comme
il est avenu mout de fois en parties
d'oirs et en autres quereles. Par ces
n voies peut on prouver coustumes,
et ces coustumes est li cuens tenus a`
garder et a fere si garder a ses souge`is,
que nus ne les corrumpe. Et se li
cuens meismes les vouloit corrompre
ou soufrir qu'eles fussent corrump-
ues, ne le devroit pas li rois soufrir,
car il est tenu a garder, et a fere garder
? ? les coustumes de son roiaume. "
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? CHAP. III. ]
43
THE SOUKCE OF LAW.
Perhaps, however, the most illuminating view of the place
of custom in mediseval law may be found in the account of the
origin of the Assizes of Jerusalem which is given by Jean
d'Ibelin and Philip of Novara. The story is historically very
improbable,1 but it is none the less important for us, for it
represents in a very vivid fashion the conceptions of these
jurists. Jean d'Ibelin tells us that when Godfrey of Bouillon
had been elected as head of the newly conquered state of
Jerusalem, he, with the advice of the Patriarch and princes
and barons, and the wisest men whom he could find, ap-
pointed a certain number of wise men to inquire of those who
were in Jerusalem what were the customs of their various
countries, and to put these into writing. When this had
been done the collection was brought before Godfrey and the
Patriarch and notables, and he then with their counsel and
consent selected such of the customs as seemed good to him,
and made Assizes and usages, by which he and all the people
of the kingdom were to be governed. 2 He relates further how
the Kings of Jerusalem with the same advice and consent
added from time to time other Assizes and altered the old ones,
after inquiring from those who came to the Holy Land about
their customs and usages, and how several times the Kings of
Jerusalem sent to other countries to inquire directly about
their customs. 3
We have here a very suggestive account of what these jurists
1 Cf. G. Dodu, 'Histoire des Insti-
tutions Monarchiques dans le Royaume
Latin de Jerusalem,' pp. 36-61.
2 Jean d'Ibelin, i. : "Il. . . eslut par
le conseil dou patriarche de la sainte
cite? et yglise de Jerusalem, et par le
conseill des princes et des barons, et
des plus sages homes que il lors pot
aveirs, sages homes a` enquerre et a`
saveir des genz de diverses terres qui
la` estaient les usages de leur terres; et
tot quanque ciau que il ot eslu a` ce
faire en porent saveir ne aprendre il
mirent et firent metre en escrit, et
aporterent cel escrit devant le duc Gode-
froi; et il assembla le patriarche et
les autres avant dis, et lor mostra et
fist lire devant eaus cel escrit; et apre`s,
par leur conseill et par leur acort, il
concuilli de ciaus escrits ce que bon li
sembla, et en fist assises et usages que
l'on deust tenir et maintenir et user
ou roiaume de Jerusalem, par les quels
il et ses genz et son peuple et totes
autres manieres de genz alanz et venans
et demorans en son reiaume fussent
gouverne? s, garde? s, tenus, maintenus, et
mene? s et justise? s a` droit et a` raison el
dit roiaume. "
3 Jean d'Ibelin, iii. ; cf. Philip of
Novara, xlvii.
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? 44
THE INFLUENCE OF FEUDALISM. [part I.
looked upon as a great legislative action. The circumstances
indeed were unparalleled in mediseval history, for the Kingdom
of Jerusalem represented the establishment of a Western and
Christian state in an alien and infidel country, while the
Crusaders were not a homogeneous body, but were drawn from
many different "Western countries. They were therefore, as the
authors of the Assizes thought, compelled to create a system
of law for themselves, to proceed to a large and comprehensive
effort of legislation. It is the more significant that in doing
this they, according to the tradition, endeavoured scrupulously
to ascertain the customary laws of the various national societies
from which the Crusaders came, and formed their own laws by
a process of selection and conflation from them.
The whole story illustrates very vividly the fact that the
mediseval conception of law was dominated by custom, for even
when the jurists thought that the Crusaders had to legislate
for a new political society, they conceive of them as doing
this by the process of collecting existing customs, only select-
ing and modifying as far as was necessary to bring them into
some sort of harmony with each other. The Assizes of Jeru-
salem were, in their estimation, primarily written customs.
And it is of interest to observe that when, as they thought,
the great compilation was lost, when Saladin conquered Jeru-
salem, and when therefore they could no longer consult the
text of the written customs, they at once fell back upon the
unwritten customs and the decisions of the courts. 1
We have so far been dealing with the Assizes of the High
Court of Jerusalem, but there has also come down to us a col-
lection of the Assizes of the Court of Burgesses. It is noticeable
that these are influenced in a high degree by the Corpus Juris
Civilis: no doubt this seems to indicate that the population of
1 Jean d'Ibelin, cxi. : "Les assises assises ne pevent estre en pluisors
deivent estre tenus fermement en choses provees, que par le lone usage,
totes choses; et de ce de quei Ton ne ou por ce que Ton l'a veu faire et
sera certain qui seit assise, deit Ton user, comme assise; et ce est maniere
tenir selonc l'usage et la longue de lei, et deit estre et est tenu ou
acostumance. Et de ce que court reiaume de Jerusalem et en celui de
aura fait esgart ou conoissance ou Chypre miaus que leis ne decres ne
recort qui seit assise, deit estre tenu decretales. "
et maintenu come assise: car les
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? CHAP. III. ]
45
THE SOURCE OF LAW.
the towns was drawn in large measure from those countries like
the south of France, and some parts of Italy, in which there were
many who lived under Eoman law. Our text of these Assizes
dates from a much earlier time than the works of Jean d'Ibelin
and Philip of Novara, it is indeed generally thought to belong
to some time between 1173 and 1180. It is not quite clear
whether the statement of Jean d'Ibelin with regard to the origin
of the Assizes of the High Court refers to them also, but there
seems no substantial reason to doubt it. It is also deserving
of notice that there was established in Jerusalem a court for
the nativaJSyrian population, and that this administered a
justice based upon their own customs. 1
The first element in the conception of feudal law is that it
is custom, that it is something not made by the king or even
by the community, but something which is a part of its life.
We can, however, see that at least as early as the thirteenth
century there began to reappear the conception of laws as
being made, not that the idea of custom as law disappears, but
that there gradually grew up alongside of this the conception
that laws could be made under certain conditions and by
suitable authority. It is difficult to say how far the develop-
ment of this was due to the pressure of circumstances com-
pelling men deliberately to make new laws, or to modify old
ones, how far it may have been facilitated by the revived and
extended study of the Eoman jurisprudence, and by the sys-
tematic development of the Canon law, which in this matter
represents the same principles as the Eoman law, and was
indeed no doubt greatly influenced by it.
Whatever may have
been the circumstances which produced this great change, it is
of the first importance in the history of political theory to
observe the fact of the change.
We have here arrived at the heginnings of the modern
conception of sovereignty, that is, of the conception that there
is in every independent society the power of making and un-
making laws, some final authority which knows no legal limits,
and from which there is no legal appeal. We cannot here
consider how far, and in what sense, this conception was
1 Jean d'Ibelin, iv.
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? 46
THE INFLUENCE OF FEUDALISM. [part I.
present to the political thinkers of the ancient world. Still
less can we here consider what is the real character of the
modern theory, how far indeed it has been thought out com-
pletely and adequately, how far it still represents a somewhat
crude and inorganic conception of society, a somewhat crude
and partial apprehension of certain elements in the nature of
the state.
It is at any rate quite certain that the modern conception as
a whole was not only unknown to the Middle Ages, but that
it would have been to them almost unintelligible. For to
them the law of any particular state represented, in the first
place, the customs of the community, which had not been
made, but were part of the life of the community; and, in the
second place, so far as they reflected upon the principles which
lay behind these customs, they conceived of them as related to
and determined by the rule of justice; and, if and so far as
they went further, they conceived of the law of the state as
subservient to the natural law and the law of God.
It remains true that at least in the thirteenth century the
conception of definite legislative action begins to appear, and we
must therefore now consider the terms or forms of this legis-
lative action as it is presented to us by the feudal jurists.
We begin with a phrase of Glanvill which bears upon its face
the influence of the revival of Eo1nan law, and which is yet also
clearly mediseval in its principle. The laws of England, he
says, though unwritten, may properly be called "laws," for
the law says that whatever the Prince pleases has the force
of law; that is, we may properly call these "laws" which
have been promulgated on doubtful matters with the counsel
of the chief men and the authority of the prince. 1 We
may put beside this some sentences from the Norman
'Sum1na de legibus' of the middle of the thirteenth century.
"Consuetudines" are customs observed from ancient times,
approved by the prince, and maintained by the people, which
1 Glanvill, Prologue: "Leges 4. 1)), "eas scilicet, quas super dubiis
namque anglicanas, licet non scriptas, in consilio definiendis, procerum
leges appellari non videtur absurdum, quidem consilio, et principis accedente
(cum hoc ipsum lex sit, 'quod principi' authoritate, constat esse promulgatas. "
placet, legis habet vigorem" (Dig. , i.
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? CHAP.
m. ] THE SOURCE OF LAW. 47
determine to whom any thing belongs. Laws (leges) are
institutions made by the prince and maintained by the people
of the province, by which every dispute is decided. And
again, laws and institutions were made by the Norman princes
with great industry, by the counsel and consent of the prelates,
counts, barons, and other prudent men, for the wellbeing of the
human race. 1
In this passage the conception of the authority of law is
related first to custom, but the writers are aware that there are
forms of law which have an immediate origin of a different kind,
which have been made after due deliberation. The force of
these laws is derived from the authority of the prince, the
counsel and consent of the great men, and the observation,
or reception, or maintenance of them by the people: it is
difficult to find an exact rendering for the phrase "a populo
conservati. "
This conception of law is characteristic of the whole"^
mediseval tradition. It is for the prince or king to issue or
promulgate laws, and without his authority this cannot be
done; but to make his action legitimate he must consult the
great and wise men of the nation; and the people or whole
community has its place, for they have to receive or observe
the law. This is the conception which we find in the poli-
tical writers and in the legislative documents of the ninth
century,2 and it is evident that it continued to be the concep-
tion of the feudal lawyers of the twelfth and thirteenth
centuries. It may have some relation to the definition of law J
by Papinian. 3 It is possible that the terms of the phrases
which describe the part of the people in legislation may be
related to the principle laid down by Gratian, that no law is
1 'Summa de Legibus,' x. 1: "Con- tionum declarationem veritatis. "
suetudines vero sunt mores ab anti- Id. , Prologue: '' Quoniam ergo leges
quitate habiti, a principibus approbati et instituta, que Normannorum prin-
et a populo conservati, quid, cuius sit, cipes non sine magna provisionis
vel ad quem pertineat limitantes. industria, prelatorum, comitum, et
Leges autem sunt institutiones a prin- baronum necnon et ceterorum virorum
cipibus facte et a populo in provincia prudentium consilio et consensu, ad
conservate, per quas contentiones salutem humani generis statuerunt. "
singule deciduntur; sunt enim leges 3 CI. vol. i. pp. 229-239.
quasi instrumenta in iure ad conten- 3 Dig. , i. 3. 1.
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? 48
THE INFLUENCE OF FEUDALISM. [part 1.
valid, by whomsoever promulgated, unless it is accepted by
the custom of those concerned. 1 A similar doctrine was held
by some at least of the civilians of the twelfth and thirteenth
centuries. 2
The same principles, again, are stated by Bracton in the
passage of which we have already cited the first words. While
in almost all other countries men follow the laws (leges) and a
written "jus," England alone uses not written law but custom;
it is not, however, absurd to call the English laws "leges," for
that has the force of law (legis) which has been justly deter-
mined and approved, with the counsel and consent of the great
men, the approval (sponsione) of the whole commonwealth and
the authority of the king. And again, in another place, he says,
that such English laws and customs, by the king's authority,
sometimes command, sometimes forbid, and sometimes punish
transgressors, and inasmuch as they have been approved by the
consent of those who are concerned with them (utentium), and
confirmed by the oath of the king, they cannot be changed or
abolished without the common consent of all those by whose
counsel or consent they were promulgated, although they may
be improved (in melius converti) even without this consent, for
to improve is not to destroy. 3
There is one great feudal lawyer whose position requires
some special examination, and that is Beaumanoir. For his
phrases are, at least at first sight, a little ambiguous. In some
1 Gratian, 'Decretum,' D. iv. ,after 3.
Cf. vol. ii. p. 155.
2 Cf. vol. ii pp. 61-63.
3 Bracton, 'De Legibus,' i. 1. 2:
"Cum autem fere in omnibus region-
ibus utatur legibus et iure scripto,
sola Anglia usa est in suis finibus iure
non scripto et consuetudine. In ea
quidem ex non scripto ius venit, quod
usus comprobavit. Sed absurdum
non erit leges Anglicanas, licet non
scriptas, leges appellare, cum legis
vigorem habeat, quicquid de consilio et
de consensu magnatum et reipublicse
communi sponsione, authoritate regis
sive principis prtecedente, iuste fuerit
diffinitum et approbatum. "
Id. id. , i. 2. 6: "Huiusmodi vero
leges Anglicanse et consuetudines
regum auctoritate, iubent quandoque,
quandoque vetant, et quandoque judi-
cant et puniunt transgressores; quse
quidem, cum fuerint approbats e con-
sensu utentium, et sacramento regum
confirmatse, mutari non poterunt nec
destrui sine communi consensu eorum
omnium, quorum consilio et consensu
fuerunt promulgate. In melius
tamen converti possunt, etiam sine
eorum consensu, quia non destruitur
quod in melius commutatur. "
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? CHAP. III. ] THE SOURCE OF LAW. 49
passages he would seem to say simply that the king is the
legislator, and if this stood alone, we might conclude that to
him the authority of law was derived simply from the king's
will. It is indeed possible that Beaumanoir represents some
tendency which was peculiar to the Trench monarchy, and it
is more than probable that his conceptions of the nature of the
power of monarchy were strongly influenced by the revived study
of the Civil law, and its conception of the legislative authority
of the Emperor, and we might therefore incline to the conclusion
that his position was different from that of the feudal lawyers
whose principles we have so far examined. In order then that
we may rightly estimate his position we must examine briefly
his conception of the origin of kingship.
In an important passage, which we shall have to consider again
later, Beaumanoir says that in the beginning all men were free,
and of the same freedom, for we all are descended from one
common parent, but as the number of men increased strife
arose, and those who desired to live in peace recognised that
this was impossible while every man thought himself as good
as others. They therefore elected a king, and made him head
over them, and gave him power to judge their misdeeds, and to
make commandments and "establissements " over them. 1 The
phrases of the passage suggest very strongly the influence of the
Eoman jurisprudence; the conception of the original equality
of men, the appearance of war and its consequent confusions
and crimes, the conception of the people creating a king and
giving him authority to make laws, these may have come directly
to Beaumanoir by many channels, but it is at least very probable
that they represent the traditions of the Institutes and Digest. 2
1 Beaumanoir, xlv. 1453: "Comment peuple, cil qui avoient talent de vivre en
que plueeur estat de gent soient main- pes,regarderentqu'ilnepourroientvivre
tenant, voirs est qu'au commencement en pes tant comme chascuns cuideroit
tuit furent franc et d'une meisme estre aussi grans sires l'uns comme
franchise; car chascuns set que nous autres; si eslurent roi, et le firent
descendimes tuit d'un pere et d'une seigneur d'aus, et li donerent le pouoir
mere. Mes quant li pueples commenca d'aus justicier de lor meetes, de fere
a croistre, etguerresetmautalent furent commandemens et establissemens sur
commence, par orgueil et par envie, aus. "
qui plus regnoit lors et fet encore que s Cf. Digest, i. 1. 4. 5; 2. 11; 4. 1;
mestiers ne fust, le communetes du Institute, i. 2. 2.
VOL. in. D
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? 50
THE INFLUENCE OF FEUDALISM. [pakt I.
The phrases are remarkable both for their democratic con-
ception of human nature, and of the source of authority, and
for their sharply marked conception of the legislative power of
the king, and if they stood alone we might have to conclude
that Beaumanoir's theory of the nature of law was different
from that which we have so far seen to be characteristic of the
feudal jurists. But the phrases do not stand alone, and in order
to form a complete judgment upon his theory we must examine
some other passages in his work. The first is one in which
Beaumanoir is careful to point out that while every baron is
"souverain" in his own barony, the king is "souverain" in all
the kingdom, and has thus the general care of the whole kingdom,
JitAh and therefore he can make such "establissemens " as he thinks
well for the common good. 1 The words represent an important
development of the conception of the national monarchy, and
they attribute the supreme legislative power to the king; but
it should be noticed that he holds the power because he is
responsible for the care of the whole kingdom, and exercises it
not for his own ends, but for the common good. The last
phrase is important, and is constantly repeated, the legislative
power must be used for the common good. 2
In other passages we find, however, phrases which add another
principle to these. The king may make "establissemens" only
for his own domain, and in this case they do not concern his
barons, who must continue to administer their lands according to
the ancient customs. When, however, the " establissemens" are
general, they are in force throughout the kingdom. But such
"establissemens" are made "par tres grant conseil," and for
1Beaumanoir, xxxiv. 1043: "Pour
ce que nous parlons en cest livre, en
pluseurs lieus, du souverain, et de ce
qu'il peut et deit fere, li aucun por-
roient entendre, pour ce que nous ne
nommons conte ne duc, que ce fust du
roi, mais en tous les lieus que li rois
n'est pas nomme? s, nous entendons de
ceus qui tienent en baronie, car chascuns
barons est souverain en sa baronie.
Voirs est que li rois est souverains par
dessus tous, et a de son droit, la general
garde de tout son roiaume, par quoi il
pot fere teus establissemens comme il li
plest pour le commun pourfit, et ce
qu'il establist doit estre tenu. Et si
n'i a nul si grant dessous li que ne puist
estre tres en sa court par defaute de
droit ou pour faus jugement, et pour
tous les cas qui touchent le roi. "
2 Cf. Id. , xlix. 1512: "Mes li rois
le peut bien fere quant il li plest et
quant il voit que c'est li communs
pourfis. "
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? CHAP. III. ]
51
THE SOURCE OF LAW.
the common good. 1 Again, in another place; the king may
indeed make new "establissemens," but he must take great
care that he makes them for reasonable cause, for the common
good, and "par grant conseil. "2
Beaumanoir does not anywhere explain what precisely he
means by the words "par grant conseil"; but it would seem
most natural to understand them as referring to the need of
consultation with some body of persons qualified to advise the
king. We must then at least correct our first impression of
Beaumanoir's theory of legislation. He would seem to place
the royal authority in a more isolated position than is general
in the feudal jurists, he may be more influenced than they are
in general by the newly recovered conception of the legislative
power of the emperor in the Eoman law, and may possibly,
though on this we can express no opinion, represent some
conception of monarchy which was developing specially in
France at that time. But, on the other hand, in his insistence
upon the need of reasonable cause, on the "grant conseil,"
and on the principle that legislation must be for the common
good, he comes very near to the general principles of the other
feudalists. 3
We are therefore justified in the conclusion that the feudal
conception of law is first that of custom; and secondly, that
so far as men began to recognise the necessity of actual legis-
lative action, they conceived of the law as deriving its authority
not from the will or command of the ruler alone, but also from
the counsel and consent of the great or wise men, and the-
assent of the whole community.
1 Id. , xlviii. 1499: "Mais quant li
Rois fet aucun establissement espe-
cieaument en son demaine, si baron
ne lessent pas pour ce a user en leur
terres, selonc les anciennes coustumes.
Mes quant li establissemens est
generaus, il doit courre par tout
le roiaume. Et nous devons croire
que tel establissement sont fet par
tres grant conseil et pour le commun
pourfit. "
2 Id. , xlix. 6: "Tout soit il aiusi
que li Rois puist fere nouvecus establis-
semens, il doit mout prendre garde
qu'il les face par resnable cause, et
pour le commun pourfit, et par grant
conseil. "
3 Cf. p. 154 (note 4).
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? 52
CHAPTER IV.
THE MAINTENANCE OF LAW.
The feudal jurists held clearly and maintained emphatically
that the relations of men to each other are determined by the
principles of justice, that the law is the form and expression
of justice, and that it is in the strict observance of the law
that men find the security for the maintenance of justice.
The principle is clear, but it may be said that this was
little more than formal, that the king might indeed swear
to administer justice and to maintain the law, but there was
no method by which this obligation could be enforced. How
far this was from being true we shall see as we examine more
closely the principles of the structure of feudal society.
We shall do well to remind ourselves of a very noticeable
phrase in that passage in the Assizes of the Court of Burgesses
of Jerusalem which we have already quoted. If the lord
should break his oath and refuse to minister law and justice to
his people, they are not to permit this.
? CHAP. II. ] JUSTICE AND LAW. 39
with other passages related to this matter. In the meanwhile
it is sufficient to observe the emphatic assertion that kingship
is impossible without law, and that the king is not only under
God but also under the law. It may perhaps be suggested that
the evidence of Bracton as to the principles of feudalism cannot
be accepted without much caution, for his work belongs to that
time when feudal relations were giving way before national.
Caution is no doubt necessary, but in this case we need have no
scruple in taking Bracton's phrases as representative of the
general system of feudal law, for these are precisely the prin-
ciples which are set out in all the earlier feudal law books.
It is this principle which is emphatically expressed in the
forms attendant on the coronation of the mediseval king. We
have in the first volume dealt at some length with the great
significance of the coronation oath in the earlier mediseval
societies;1 it was equally important in the feudal State. Jean
d'Ibelin describes at length the circumstances attendant on the
succession to the kingdom of Jerusalem. The king is to swear
that he will help the Patriarch of Jerusalem and protect the
liberties of the Church, that he will do justice to widows and
orphans, that he will maintain the ancient customs and assizes
of the kingdom, and that he will keep all the Christian people
of the kingdom according to their ancient and approved customs,
and according to the assizes of his predecessors in their rights
and "justises," as a Christian king and a faithful servant of
God ought to do. And what the king swears all the men of
the kingdom are also to swear, that they will hold and maintain
the good usages and customs of the kingdom. 2
1 Cf. vol. i. chap. 20.
2 'Assizes of Jerusalem,' Jean d'Ibe- as veves et as orfenins justise ferai;
lin, vii. : "Je tel . . . promet a tei mon les privileges des beneure? s reis mes
seignor tel, patriarche de Jerusalem devanciers et les assises dou roiaume
. . . que je de cest jour en avant, et dou rei Amauri et dou rei Baudoyn
serai ton feel aideor et defendeor de ta son fiz, et les ancienes costumes et
persone contre toz homes vivant el assises dou roiaume de Jerusalem gar-
reiaume de Jerusalem. Les possessions derai; et tot le peuple crestien dou
et les franchises de la sainte yglise dit roiaume, selonc les costumes an-
de Jerusalem ma mere et de totes les cienes et aproveez de ce mesme roiaume,
yglises apartenant a li principaument et selonc les assises des devant dis
. . . en mon tens maintendrai a ellei, rois en lor dreis et en lor justises
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? 40
THE INFLUENCE OF FEUDALISM. [pabt 1.
This principle of the loyal observance of the law is well
expressed in another place where Jean d'Ibelin says that the
kings and nobles of Jerusalem should be wise, loyal, and good
administrators of justice: they must be loyal, for they must
loyally keep and govern themselves and their people, and must
not do or suffer to be done disloyalty or falsehood; they must
be good administrators of justice, for they must uphold the
rights of every man in their several courts and lordships. 1
The same principle is again tersely expressed in one of the
Norman law books. When the Duke of Normandy is received
as Duke he must swear to serve the Church of God, and to
keep good peace and justice according to law;2 and again, in
the most important of the feudal law books of Germany, the
'Sachsenspiegel,' when the king is elected he is to swear to
uphold the law of the kingdom, according to his power. 3
We have already dealt with the important passage in which
Bracton sets out the same principle in relation to the coro-
nation oath of the King of England,4 and Bracton is only com-
menting on the immemorial customs attendant on English
coronations, customs which had not been in any way inter-
rupted by the Norman Conquest.
garderai, si come roi crestien et feil
de Dieu le doit faire en son roiaume. "
Id. Id. , cxi. : "Et toz les homesdou
roiaume de Jerusalem deivent jurer
ausi de garder les assizes, et les bons
us et les bones coustumes dou reaume
de Jerusalem et tenir et maintenir. "
1 Id. Id. , viii. : "Le chief seignor
do'1 roiaume de Jerusalem, seit rei ou
autre, et toz les barons et seignors dou
dit roiaume, qui ont court et coins et
justise, deivent estre sages, loiaus, droi-
turiers et bons justisiers . . . loiaus,
qui il loiaument teignent, mainent,
mamteigneut et gouvernent eaus et
lor homes et lor peuple, et que il ne
facent a lor escient ni ne sueffrent a
faire a leur pooir en lor seignorie des-
loiaute? ne faucete; dreituriers, que il
teignent et mainteignent dreiture drei-
tement a chascun en lor cours et en
lor seignories, selonc ce qu'il est en
droit soi. "
2 'Statuta et Consuetudines Nor-
manise,' i. 1: "Quando dux Norman-
nise in ducem recipitur, sacramento
tenetur ecclesiam Dei deservire et ea,
que ad eam pertinent, et bonam pacem
tenere et legalem iusticiam. "
3 'Sachsenspiegel,' iii. 54. 2: "Als
man den Koning ktiset, so sal he
deme rike hulde dun, unde sveren
dat he recht sterke, unde unrecht
krenke, unde it rike voresta an sime
rechte, als he kiinne unde moge. "
4 See p. 34.
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? 41
CHAPTER III.
THE SOURCE OF LAW.
The law is then to the feudal jurist the expression of the
principle of justice, and it is supreme in the state, the king
himself is the servant of the law.
What is then the source of law, what is the authority which
it represents? It is here perhaps that it is most difficult for
the modern to understand the Middle Ages, while it is to the
failure to do this that we may attribute most of the mistakes
which have'been made with regard to the nature of the
mediseval State and the conception of government in the
Middle Ages.
Above all things we must, if we are to make our way at all,
discard the common conception of sovereignty, the conception
that a law represents the mere command of a lawgiver, or even
of a community. This conception, whose value in regard to
modern times we cannot here discuss, is wholly foreign to the
Middle Ages. To them the law was not primarily something
made or created at all, but something which existed as a part
of the national or local life. The law was primarily custom,
legislative acts were not expressions of will, but records or pro-
mulgations of that which was recognised as already binding
upon men. The conception of legislation had perhaps already
appeared in the ninth century, but if so it had in the main
died out again in the tenth and eleventh. 1
Bracton, indeed, in a well-known passage based on Glanvill,
claims that while other countries use "leges" and "jus scrip-
1 Cf. vol. i. p. 235.
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? 42
[part I.
THE INFLUENCE OP FEUDALISM.
tum," England alone uses unwritten law and custom. 1 His
phrase probably is related to the fact that there were people
in some parts of Europe who lived under Eoman law, and
possibly to the great development of the influence of the
Eoman jurisprudence since the rise of the law school of
Bologna in the twelfth century. While, however, we can in
part explain Bracton's saying, and while it was no doubt
correct about England, it is a curiously inaccurate view of
the nature of law in the other European countries.
If we turn from Bracton to his great contemporary, Beau-
manoir, in France, we find that he asserts boldly that all pleas
are determined according to custom, and that the great feuda-
tories like the Count of Clermont, and even the King of France
himself, are bound to keep them, and cause them to be kept;
and Beaumanoir states the two tests by which it can be deter-
mined whether a custom is legally binding. The first is that
the custom is general, and has been observed without dispute
as far as man's memory goes, the second is that there has been
a dispute about the matter and that there has been a judgment
of the Court about it. 2
1 Bracton, i. 1. 2. : "Cum autem
fere in omnibus regionibus utatur legi-
bus et iure scripto, sola Anglia usa
est in suis finibus iure non scripto et
consuetudine. In ea quidem ex non
scripto ius venit, quod usus compro-
bavit. "
Cf. Qlanvill, Prologue.
2 Beaumanoir, xxiv. 682: "Pour ce
que tuit li plet sont demene? selonc les
coustumes, et que cest livre generau-
ment Arole selonc les coustumes de
la co1tee? de Clermont, noz dirons en
cest chapitre briement quele chose est
cou tume, tant soit ce que nous en aions
parle? especiaument en aucuns chapitres,
selone ce C? u'il convenoit es cas de quoi
nous parlions. . . .
Cc'ustume si est approuvee par l'une
des 1l voies, dont l'une des voies
si ett, quant elle est generaus par
toute la conte? e et maintenue de si lonc
tant comme il peut souvenir a home,
sans debat; si comme quant aucuns
hom de poeste connoist une dete, on
li fet commandement qu'il ait paie?
dedens vu jours et vu nuis, et au
gentil home dedens xv jors: ceste
coustume est si clere que je ne la vi
onques debatre. Et l'autre voie que l'en
doit connoistre et tenir pour coustume
si est quant debas en a este? , et l'une
des parties se vout aidier de coustume,
et fu approuvee par jugement si comme
il est avenu mout de fois en parties
d'oirs et en autres quereles. Par ces
n voies peut on prouver coustumes,
et ces coustumes est li cuens tenus a`
garder et a fere si garder a ses souge`is,
que nus ne les corrumpe. Et se li
cuens meismes les vouloit corrompre
ou soufrir qu'eles fussent corrump-
ues, ne le devroit pas li rois soufrir,
car il est tenu a garder, et a fere garder
? ? les coustumes de son roiaume. "
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? CHAP. III. ]
43
THE SOUKCE OF LAW.
Perhaps, however, the most illuminating view of the place
of custom in mediseval law may be found in the account of the
origin of the Assizes of Jerusalem which is given by Jean
d'Ibelin and Philip of Novara. The story is historically very
improbable,1 but it is none the less important for us, for it
represents in a very vivid fashion the conceptions of these
jurists. Jean d'Ibelin tells us that when Godfrey of Bouillon
had been elected as head of the newly conquered state of
Jerusalem, he, with the advice of the Patriarch and princes
and barons, and the wisest men whom he could find, ap-
pointed a certain number of wise men to inquire of those who
were in Jerusalem what were the customs of their various
countries, and to put these into writing. When this had
been done the collection was brought before Godfrey and the
Patriarch and notables, and he then with their counsel and
consent selected such of the customs as seemed good to him,
and made Assizes and usages, by which he and all the people
of the kingdom were to be governed. 2 He relates further how
the Kings of Jerusalem with the same advice and consent
added from time to time other Assizes and altered the old ones,
after inquiring from those who came to the Holy Land about
their customs and usages, and how several times the Kings of
Jerusalem sent to other countries to inquire directly about
their customs. 3
We have here a very suggestive account of what these jurists
1 Cf. G. Dodu, 'Histoire des Insti-
tutions Monarchiques dans le Royaume
Latin de Jerusalem,' pp. 36-61.
2 Jean d'Ibelin, i. : "Il. . . eslut par
le conseil dou patriarche de la sainte
cite? et yglise de Jerusalem, et par le
conseill des princes et des barons, et
des plus sages homes que il lors pot
aveirs, sages homes a` enquerre et a`
saveir des genz de diverses terres qui
la` estaient les usages de leur terres; et
tot quanque ciau que il ot eslu a` ce
faire en porent saveir ne aprendre il
mirent et firent metre en escrit, et
aporterent cel escrit devant le duc Gode-
froi; et il assembla le patriarche et
les autres avant dis, et lor mostra et
fist lire devant eaus cel escrit; et apre`s,
par leur conseill et par leur acort, il
concuilli de ciaus escrits ce que bon li
sembla, et en fist assises et usages que
l'on deust tenir et maintenir et user
ou roiaume de Jerusalem, par les quels
il et ses genz et son peuple et totes
autres manieres de genz alanz et venans
et demorans en son reiaume fussent
gouverne? s, garde? s, tenus, maintenus, et
mene? s et justise? s a` droit et a` raison el
dit roiaume. "
3 Jean d'Ibelin, iii. ; cf. Philip of
Novara, xlvii.
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? 44
THE INFLUENCE OF FEUDALISM. [part I.
looked upon as a great legislative action. The circumstances
indeed were unparalleled in mediseval history, for the Kingdom
of Jerusalem represented the establishment of a Western and
Christian state in an alien and infidel country, while the
Crusaders were not a homogeneous body, but were drawn from
many different "Western countries. They were therefore, as the
authors of the Assizes thought, compelled to create a system
of law for themselves, to proceed to a large and comprehensive
effort of legislation. It is the more significant that in doing
this they, according to the tradition, endeavoured scrupulously
to ascertain the customary laws of the various national societies
from which the Crusaders came, and formed their own laws by
a process of selection and conflation from them.
The whole story illustrates very vividly the fact that the
mediseval conception of law was dominated by custom, for even
when the jurists thought that the Crusaders had to legislate
for a new political society, they conceive of them as doing
this by the process of collecting existing customs, only select-
ing and modifying as far as was necessary to bring them into
some sort of harmony with each other. The Assizes of Jeru-
salem were, in their estimation, primarily written customs.
And it is of interest to observe that when, as they thought,
the great compilation was lost, when Saladin conquered Jeru-
salem, and when therefore they could no longer consult the
text of the written customs, they at once fell back upon the
unwritten customs and the decisions of the courts. 1
We have so far been dealing with the Assizes of the High
Court of Jerusalem, but there has also come down to us a col-
lection of the Assizes of the Court of Burgesses. It is noticeable
that these are influenced in a high degree by the Corpus Juris
Civilis: no doubt this seems to indicate that the population of
1 Jean d'Ibelin, cxi. : "Les assises assises ne pevent estre en pluisors
deivent estre tenus fermement en choses provees, que par le lone usage,
totes choses; et de ce de quei Ton ne ou por ce que Ton l'a veu faire et
sera certain qui seit assise, deit Ton user, comme assise; et ce est maniere
tenir selonc l'usage et la longue de lei, et deit estre et est tenu ou
acostumance. Et de ce que court reiaume de Jerusalem et en celui de
aura fait esgart ou conoissance ou Chypre miaus que leis ne decres ne
recort qui seit assise, deit estre tenu decretales. "
et maintenu come assise: car les
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? CHAP. III. ]
45
THE SOURCE OF LAW.
the towns was drawn in large measure from those countries like
the south of France, and some parts of Italy, in which there were
many who lived under Eoman law. Our text of these Assizes
dates from a much earlier time than the works of Jean d'Ibelin
and Philip of Novara, it is indeed generally thought to belong
to some time between 1173 and 1180. It is not quite clear
whether the statement of Jean d'Ibelin with regard to the origin
of the Assizes of the High Court refers to them also, but there
seems no substantial reason to doubt it. It is also deserving
of notice that there was established in Jerusalem a court for
the nativaJSyrian population, and that this administered a
justice based upon their own customs. 1
The first element in the conception of feudal law is that it
is custom, that it is something not made by the king or even
by the community, but something which is a part of its life.
We can, however, see that at least as early as the thirteenth
century there began to reappear the conception of laws as
being made, not that the idea of custom as law disappears, but
that there gradually grew up alongside of this the conception
that laws could be made under certain conditions and by
suitable authority. It is difficult to say how far the develop-
ment of this was due to the pressure of circumstances com-
pelling men deliberately to make new laws, or to modify old
ones, how far it may have been facilitated by the revived and
extended study of the Eoman jurisprudence, and by the sys-
tematic development of the Canon law, which in this matter
represents the same principles as the Eoman law, and was
indeed no doubt greatly influenced by it.
Whatever may have
been the circumstances which produced this great change, it is
of the first importance in the history of political theory to
observe the fact of the change.
We have here arrived at the heginnings of the modern
conception of sovereignty, that is, of the conception that there
is in every independent society the power of making and un-
making laws, some final authority which knows no legal limits,
and from which there is no legal appeal. We cannot here
consider how far, and in what sense, this conception was
1 Jean d'Ibelin, iv.
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? 46
THE INFLUENCE OF FEUDALISM. [part I.
present to the political thinkers of the ancient world. Still
less can we here consider what is the real character of the
modern theory, how far indeed it has been thought out com-
pletely and adequately, how far it still represents a somewhat
crude and inorganic conception of society, a somewhat crude
and partial apprehension of certain elements in the nature of
the state.
It is at any rate quite certain that the modern conception as
a whole was not only unknown to the Middle Ages, but that
it would have been to them almost unintelligible. For to
them the law of any particular state represented, in the first
place, the customs of the community, which had not been
made, but were part of the life of the community; and, in the
second place, so far as they reflected upon the principles which
lay behind these customs, they conceived of them as related to
and determined by the rule of justice; and, if and so far as
they went further, they conceived of the law of the state as
subservient to the natural law and the law of God.
It remains true that at least in the thirteenth century the
conception of definite legislative action begins to appear, and we
must therefore now consider the terms or forms of this legis-
lative action as it is presented to us by the feudal jurists.
We begin with a phrase of Glanvill which bears upon its face
the influence of the revival of Eo1nan law, and which is yet also
clearly mediseval in its principle. The laws of England, he
says, though unwritten, may properly be called "laws," for
the law says that whatever the Prince pleases has the force
of law; that is, we may properly call these "laws" which
have been promulgated on doubtful matters with the counsel
of the chief men and the authority of the prince. 1 We
may put beside this some sentences from the Norman
'Sum1na de legibus' of the middle of the thirteenth century.
"Consuetudines" are customs observed from ancient times,
approved by the prince, and maintained by the people, which
1 Glanvill, Prologue: "Leges 4. 1)), "eas scilicet, quas super dubiis
namque anglicanas, licet non scriptas, in consilio definiendis, procerum
leges appellari non videtur absurdum, quidem consilio, et principis accedente
(cum hoc ipsum lex sit, 'quod principi' authoritate, constat esse promulgatas. "
placet, legis habet vigorem" (Dig. , i.
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? CHAP.
m. ] THE SOURCE OF LAW. 47
determine to whom any thing belongs. Laws (leges) are
institutions made by the prince and maintained by the people
of the province, by which every dispute is decided. And
again, laws and institutions were made by the Norman princes
with great industry, by the counsel and consent of the prelates,
counts, barons, and other prudent men, for the wellbeing of the
human race. 1
In this passage the conception of the authority of law is
related first to custom, but the writers are aware that there are
forms of law which have an immediate origin of a different kind,
which have been made after due deliberation. The force of
these laws is derived from the authority of the prince, the
counsel and consent of the great men, and the observation,
or reception, or maintenance of them by the people: it is
difficult to find an exact rendering for the phrase "a populo
conservati. "
This conception of law is characteristic of the whole"^
mediseval tradition. It is for the prince or king to issue or
promulgate laws, and without his authority this cannot be
done; but to make his action legitimate he must consult the
great and wise men of the nation; and the people or whole
community has its place, for they have to receive or observe
the law. This is the conception which we find in the poli-
tical writers and in the legislative documents of the ninth
century,2 and it is evident that it continued to be the concep-
tion of the feudal lawyers of the twelfth and thirteenth
centuries. It may have some relation to the definition of law J
by Papinian. 3 It is possible that the terms of the phrases
which describe the part of the people in legislation may be
related to the principle laid down by Gratian, that no law is
1 'Summa de Legibus,' x. 1: "Con- tionum declarationem veritatis. "
suetudines vero sunt mores ab anti- Id. , Prologue: '' Quoniam ergo leges
quitate habiti, a principibus approbati et instituta, que Normannorum prin-
et a populo conservati, quid, cuius sit, cipes non sine magna provisionis
vel ad quem pertineat limitantes. industria, prelatorum, comitum, et
Leges autem sunt institutiones a prin- baronum necnon et ceterorum virorum
cipibus facte et a populo in provincia prudentium consilio et consensu, ad
conservate, per quas contentiones salutem humani generis statuerunt. "
singule deciduntur; sunt enim leges 3 CI. vol. i. pp. 229-239.
quasi instrumenta in iure ad conten- 3 Dig. , i. 3. 1.
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? 48
THE INFLUENCE OF FEUDALISM. [part 1.
valid, by whomsoever promulgated, unless it is accepted by
the custom of those concerned. 1 A similar doctrine was held
by some at least of the civilians of the twelfth and thirteenth
centuries. 2
The same principles, again, are stated by Bracton in the
passage of which we have already cited the first words. While
in almost all other countries men follow the laws (leges) and a
written "jus," England alone uses not written law but custom;
it is not, however, absurd to call the English laws "leges," for
that has the force of law (legis) which has been justly deter-
mined and approved, with the counsel and consent of the great
men, the approval (sponsione) of the whole commonwealth and
the authority of the king. And again, in another place, he says,
that such English laws and customs, by the king's authority,
sometimes command, sometimes forbid, and sometimes punish
transgressors, and inasmuch as they have been approved by the
consent of those who are concerned with them (utentium), and
confirmed by the oath of the king, they cannot be changed or
abolished without the common consent of all those by whose
counsel or consent they were promulgated, although they may
be improved (in melius converti) even without this consent, for
to improve is not to destroy. 3
There is one great feudal lawyer whose position requires
some special examination, and that is Beaumanoir. For his
phrases are, at least at first sight, a little ambiguous. In some
1 Gratian, 'Decretum,' D. iv. ,after 3.
Cf. vol. ii. p. 155.
2 Cf. vol. ii pp. 61-63.
3 Bracton, 'De Legibus,' i. 1. 2:
"Cum autem fere in omnibus region-
ibus utatur legibus et iure scripto,
sola Anglia usa est in suis finibus iure
non scripto et consuetudine. In ea
quidem ex non scripto ius venit, quod
usus comprobavit. Sed absurdum
non erit leges Anglicanas, licet non
scriptas, leges appellare, cum legis
vigorem habeat, quicquid de consilio et
de consensu magnatum et reipublicse
communi sponsione, authoritate regis
sive principis prtecedente, iuste fuerit
diffinitum et approbatum. "
Id. id. , i. 2. 6: "Huiusmodi vero
leges Anglicanse et consuetudines
regum auctoritate, iubent quandoque,
quandoque vetant, et quandoque judi-
cant et puniunt transgressores; quse
quidem, cum fuerint approbats e con-
sensu utentium, et sacramento regum
confirmatse, mutari non poterunt nec
destrui sine communi consensu eorum
omnium, quorum consilio et consensu
fuerunt promulgate. In melius
tamen converti possunt, etiam sine
eorum consensu, quia non destruitur
quod in melius commutatur. "
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? CHAP. III. ] THE SOURCE OF LAW. 49
passages he would seem to say simply that the king is the
legislator, and if this stood alone, we might conclude that to
him the authority of law was derived simply from the king's
will. It is indeed possible that Beaumanoir represents some
tendency which was peculiar to the Trench monarchy, and it
is more than probable that his conceptions of the nature of the
power of monarchy were strongly influenced by the revived study
of the Civil law, and its conception of the legislative authority
of the Emperor, and we might therefore incline to the conclusion
that his position was different from that of the feudal lawyers
whose principles we have so far examined. In order then that
we may rightly estimate his position we must examine briefly
his conception of the origin of kingship.
In an important passage, which we shall have to consider again
later, Beaumanoir says that in the beginning all men were free,
and of the same freedom, for we all are descended from one
common parent, but as the number of men increased strife
arose, and those who desired to live in peace recognised that
this was impossible while every man thought himself as good
as others. They therefore elected a king, and made him head
over them, and gave him power to judge their misdeeds, and to
make commandments and "establissements " over them. 1 The
phrases of the passage suggest very strongly the influence of the
Eoman jurisprudence; the conception of the original equality
of men, the appearance of war and its consequent confusions
and crimes, the conception of the people creating a king and
giving him authority to make laws, these may have come directly
to Beaumanoir by many channels, but it is at least very probable
that they represent the traditions of the Institutes and Digest. 2
1 Beaumanoir, xlv. 1453: "Comment peuple, cil qui avoient talent de vivre en
que plueeur estat de gent soient main- pes,regarderentqu'ilnepourroientvivre
tenant, voirs est qu'au commencement en pes tant comme chascuns cuideroit
tuit furent franc et d'une meisme estre aussi grans sires l'uns comme
franchise; car chascuns set que nous autres; si eslurent roi, et le firent
descendimes tuit d'un pere et d'une seigneur d'aus, et li donerent le pouoir
mere. Mes quant li pueples commenca d'aus justicier de lor meetes, de fere
a croistre, etguerresetmautalent furent commandemens et establissemens sur
commence, par orgueil et par envie, aus. "
qui plus regnoit lors et fet encore que s Cf. Digest, i. 1. 4. 5; 2. 11; 4. 1;
mestiers ne fust, le communetes du Institute, i. 2. 2.
VOL. in. D
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? 50
THE INFLUENCE OF FEUDALISM. [pakt I.
The phrases are remarkable both for their democratic con-
ception of human nature, and of the source of authority, and
for their sharply marked conception of the legislative power of
the king, and if they stood alone we might have to conclude
that Beaumanoir's theory of the nature of law was different
from that which we have so far seen to be characteristic of the
feudal jurists. But the phrases do not stand alone, and in order
to form a complete judgment upon his theory we must examine
some other passages in his work. The first is one in which
Beaumanoir is careful to point out that while every baron is
"souverain" in his own barony, the king is "souverain" in all
the kingdom, and has thus the general care of the whole kingdom,
JitAh and therefore he can make such "establissemens " as he thinks
well for the common good. 1 The words represent an important
development of the conception of the national monarchy, and
they attribute the supreme legislative power to the king; but
it should be noticed that he holds the power because he is
responsible for the care of the whole kingdom, and exercises it
not for his own ends, but for the common good. The last
phrase is important, and is constantly repeated, the legislative
power must be used for the common good. 2
In other passages we find, however, phrases which add another
principle to these. The king may make "establissemens" only
for his own domain, and in this case they do not concern his
barons, who must continue to administer their lands according to
the ancient customs. When, however, the " establissemens" are
general, they are in force throughout the kingdom. But such
"establissemens" are made "par tres grant conseil," and for
1Beaumanoir, xxxiv. 1043: "Pour
ce que nous parlons en cest livre, en
pluseurs lieus, du souverain, et de ce
qu'il peut et deit fere, li aucun por-
roient entendre, pour ce que nous ne
nommons conte ne duc, que ce fust du
roi, mais en tous les lieus que li rois
n'est pas nomme? s, nous entendons de
ceus qui tienent en baronie, car chascuns
barons est souverain en sa baronie.
Voirs est que li rois est souverains par
dessus tous, et a de son droit, la general
garde de tout son roiaume, par quoi il
pot fere teus establissemens comme il li
plest pour le commun pourfit, et ce
qu'il establist doit estre tenu. Et si
n'i a nul si grant dessous li que ne puist
estre tres en sa court par defaute de
droit ou pour faus jugement, et pour
tous les cas qui touchent le roi. "
2 Cf. Id. , xlix. 1512: "Mes li rois
le peut bien fere quant il li plest et
quant il voit que c'est li communs
pourfis. "
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? CHAP. III. ]
51
THE SOURCE OF LAW.
the common good. 1 Again, in another place; the king may
indeed make new "establissemens," but he must take great
care that he makes them for reasonable cause, for the common
good, and "par grant conseil. "2
Beaumanoir does not anywhere explain what precisely he
means by the words "par grant conseil"; but it would seem
most natural to understand them as referring to the need of
consultation with some body of persons qualified to advise the
king. We must then at least correct our first impression of
Beaumanoir's theory of legislation. He would seem to place
the royal authority in a more isolated position than is general
in the feudal jurists, he may be more influenced than they are
in general by the newly recovered conception of the legislative
power of the emperor in the Eoman law, and may possibly,
though on this we can express no opinion, represent some
conception of monarchy which was developing specially in
France at that time. But, on the other hand, in his insistence
upon the need of reasonable cause, on the "grant conseil,"
and on the principle that legislation must be for the common
good, he comes very near to the general principles of the other
feudalists. 3
We are therefore justified in the conclusion that the feudal
conception of law is first that of custom; and secondly, that
so far as men began to recognise the necessity of actual legis-
lative action, they conceived of the law as deriving its authority
not from the will or command of the ruler alone, but also from
the counsel and consent of the great or wise men, and the-
assent of the whole community.
1 Id. , xlviii. 1499: "Mais quant li
Rois fet aucun establissement espe-
cieaument en son demaine, si baron
ne lessent pas pour ce a user en leur
terres, selonc les anciennes coustumes.
Mes quant li establissemens est
generaus, il doit courre par tout
le roiaume. Et nous devons croire
que tel establissement sont fet par
tres grant conseil et pour le commun
pourfit. "
2 Id. , xlix. 6: "Tout soit il aiusi
que li Rois puist fere nouvecus establis-
semens, il doit mout prendre garde
qu'il les face par resnable cause, et
pour le commun pourfit, et par grant
conseil. "
3 Cf. p. 154 (note 4).
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? 52
CHAPTER IV.
THE MAINTENANCE OF LAW.
The feudal jurists held clearly and maintained emphatically
that the relations of men to each other are determined by the
principles of justice, that the law is the form and expression
of justice, and that it is in the strict observance of the law
that men find the security for the maintenance of justice.
The principle is clear, but it may be said that this was
little more than formal, that the king might indeed swear
to administer justice and to maintain the law, but there was
no method by which this obligation could be enforced. How
far this was from being true we shall see as we examine more
closely the principles of the structure of feudal society.
We shall do well to remind ourselves of a very noticeable
phrase in that passage in the Assizes of the Court of Burgesses
of Jerusalem which we have already quoted. If the lord
should break his oath and refuse to minister law and justice to
his people, they are not to permit this.
