Feudalism In Europe, Its Frankish Birth And English Development

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Feudalism,  A general Overview

Author:     Stubbs, William

 Feudalism: Its Frankish Birth And English Development

 

Notes To Book II: Part VI

 

Note Thirteen

 

     The court of the palace possessed a considerable jurisdiction from the

earliest times.  We have its judgments under the Merovingian kings.  Thus in a

diploma of Clovis III., A.D. 693, dated at Valenciennes - "Cum ad universorum

causas audiendas vel recta judicia terminanda resideremus." (Rec. des Hist.

iv. 672.) Under the house of Charlemagne it is fully described by Hincmar in

the famous passage above mentioned.  It was not so much in form a court of

appeal as one acting by the sovereign's authority, to redress the oppression

of the subject by inferior magistrates.  Mr. Allen has well rejected the

singular opinion of Meyer, that an erroneous or corrupt judgment of the

inferior court was not reversible by this royal tribunal, though the judges

might be punished for giving it.  (Inquiry into Royal Prerogative, Appendix,

p. 29.) Though, according to what is said by M. Beugnot, the appeal was not

made in regular form, we cannot doubt that, where the case of injury by the

inferior judge was made out, justice would be done by annulling his sentence.

The emperor or king often presided here; or, in his absence, the count of the

palace.  Bishops, counts, household officers, and others constituted this

court, which is not to be confounded with that of the seneschal, having only a

local jurisdiction over the domains of the crown, and which did not continue

under the house of Capet.  (Beugnot, Registres des Arrets, vol. i. p. 15, 18,

in Documens Inedits, 1839.)

 

     This tribunal, the court of the palace, was not founded upon any feudal

principle; and when the right of territorial justice and the subordination of

fiefs came to be thoroughly established, it ought, according to analogy, to

have been replaced by one wherein none but the great vassals of France should

have sat.  Such, however, was not the case. This is a remarkable anomaly, and

a proof that the spirit of monarchy was not wholly extinguished.  For, weak as

was the crown under the first Capets, their court, though composed of persons

by no means the peers of all who were amenable to it, gave several judgments

affecting some considerable feudatories, such as the Count of Anjou under

Robert.  (Id. p. 22.) No court composed only of great vassals appears in the

eleventh or twelfth centuries; no notion of judicial subordination prevailed;

the vassals of the crown sat with those of the duchy of France; and latterly

even clerks came in as assessors or advisers, though without suffrage (p. 31).

But an important event brought forward, for the first time, the true feudal

principle.  This was the summons of John, as Duke of Normandy, to justify

himself as to the death of Arthur.  It has been often said that twelve peers

of France had appeared at the coronation of Philip Augustus, in 1179.  This,

however, a late writer has denied, and does not place them higher than the

proceedings against John, in 1204.  (Id. p. 44.) In civil causes, as has above

been said, there had been several instances wherein the king's court had

pronounced judgment against vassals of the crown.  The idea had gained ground

that the king, by virtue of his full prerogative, communicated to all who sat

in that court a portion of of his own sovereignty.  Such an opinion would be

sanctioned by the bishops, and by all who leaned towards the imperial theory

of government, never quite eradicated in the church.  But the high rank of

John, and the important consequences likely to result from his condemnation,

forbade any irregularity of which advantage might be taken.  John is always

said to have been sentenced, "judicio parium suorum;" whence we may conclude

that inferior lords did not take a part.  (Id. ibid.) And from that time we

find abundant proofs f of the peerage of France, composed of six lay and six

spiritual persons; though upon this supposition Normandy was never a

substantial member of that class, having only appeared for a moment, to vanish

in the next by its reunion to the domain.

 

     The feudal principle seemed now to have recovered strength: a right which

the vassals had never enjoyed, though in consistency their due, was formally

conceded.  But it was too late in the thirteenth century to render any new

privilege available against the royal power.  Though it was from that time an

uncontested right of the peers to be tried by some of their order, this was

construed so as not to exclude others, in any number, and with equivalent

suffrage.  One or more peers being present, the court was, in a later phrase,

"suffisamment garnie de pairs;" and thus the lives and rights of the Dukes of

Guienne or Burgundy were at the mercy of mere lawyers.

 

Note XVIII

 

     Savigny, in his History of Roman Law in the Middle Ages, and Raynouard,

in his Histoire du Droit Municipal (1828), have, since the first publication

of this work in 1818, traced the continuance of municipal institutions, in

several French cities, from the age of the Roman empire to the twelfth

century, when the formal charters of communities first appear. But it will

render the subject clearer if we look at the constitution which Rome gave to

the cities of Italy, and ultimately of the provinces.  We are not concerned

with the privileges of Roman citizenship, whether local or personal, but with

those appertaining to each city.  These were originally founded on the

republican institutions of Rome herself; the supreme power, so far as it was

conceded, and the choice of magistrates, rested with the assembly of the

citizens.  But after Tiberius took this away from the Roman comitia to vest it

in the senate, it appears that, either through imitation or by some imperial

edict, this example was followed in every provincial city.  We find everywhere

a class named "curiales," or "decuriones" (syonymous words), in whom, or in

those elected by them, resided whatever authority was not reserved to the

proconsul or other Roman magistrate. Though these words occur in early

writers, it must be admitted that our chief knowledge of the internal

constitution of provincial cities is derived from the rescripts of the later

emperors, especially in the Theodosian code.

 

     The decurions are several times mentioned by Pliny.  Pliny refers to a

lex Pompeia, probably of the great Pompey, which appears to have regulated the

internal constitution, at least of the Pontic and Bithynian cities.  According

to this, the members of the council, were named by certain censors, to whose

list the emperor, in the time of Pliny, added a few by especial favor.  (Plin.

Espist. x 113.) In later times the decurions are said to have chosen their own

members, which can mean little more than that the form of election was

required, for birth or property gave an inchoate title.  They were a local

aristocracy, ^a requiring perhaps originally the qualification of wealth,

which in the time of Pliny, at least in Asia, was of a hundred thousand

sesterces, or about 8ool.  (Epist. i. 19.) But latterly it appears that every

son of a decurion inherited the rights as well as the liabilities of his

father.  We read, "qui origine sunt curiales," and "honor quem nascendo

meruit." Property, however, gave a similar title; every one possessing

twenty-five jugera of freehold ought to be inscribed in the order.  This

title, honorable to Roman ears, ordo decurionum, or simply ordo, is always

applied to them. They were summoned on the Kalends of March to choose

municipal officers, of whom the most remarkable were the duumvirs, answering

to the consuls of the imperial city.  These possessed a slight degree of civil

and criminal jurisdiction, and were bound to maintain the peace.  They

belonged, however, only to cities enjoying the jus Italicum, a distinction

into which we need not now inquire; and Savigny maintains that, in Gaul

especially, which we chiefly regard, no local magistrate, in a proper sense,

ever existed, the whole jurisdiction devolving on the imperial officers.  This

is far from the representation of Raynouard, who, though writing after

Savigny, seems ignorant of his work, nor has it been adopted by later French

inquirers.

 

[Footnote a: Though I use this word, which expresses a general truth, yet, in

strictness of law, the decurions were "nulla praediti dignitate." (Cod. Theod.

12, I, 6.)]

 

     But another institution is highly remarkable, and does peculiar honor to

the great empire which established it, that of Defensor Civitatis - a standing

advocate for the city against the oppression of the provincial governor.  His

office is only known by the laws from the middle of the fourth century, the

earliest being of Valentinian and Valens, in 365; but both Cicero (Epist. xii.

56) and Pliny (Epist. x. 3) mention an Ecdicus with something like the same

functions; and Justinian always uses that word to express the Defensor

Civitatis.  He was chosen for five years, not by the curiales, but by the

citizens at large.  Nor could any decurion be defensor; he was to be taken "ex

aliis idoneis personis;" which Raynouard translates, "among the most

distinguished inhabitants;" a sense neither necessary nor probable.  (Cod.

Theod. i. tit. xi.; Du Cange; Troja, iii. 1066; Raynouard, i. 71.)

 

     The duties of the defensor will best appear by a passage in a rescript of

A.D. 385, inserted in the Code of Justinian: - "Scilicet, ut in primis

parentis vicem plebi exhibeas, descriptionibus rusticos urbanosque non

patiaris affligi; officialium insolentiae et judicum procacitati, salva

reverentia pudoris, occurras; ingrediendi cum voles ad judicem liberam habeas

facultatem; super exigendi damna, vel spolia plus petentium ab his quos

liberorum loco tueri debes, excludas; nec patiaris quidquam ultra delegationem

solitam ab his exigi, quos certum est nisi tali remedio non posse reparari."

(Cod. i. 55, 4.) But the defensors were also magistrates and preservers of

order: - "Per omnes regiones in quibus fera et periculi sui nescia latronum

fervet insania, probatissimi quique et districtissimi defensores adsint

disciplinae, et quotidianis actibus praesint, qui non sinant crimina impunita

coalescere; removeant patrocinia quae favorem reis, et auxilium scelerosis

impartiendo, maturari scelera fecerunt." (Id. i. 55, 6.  See, too, Theod. ubi

supra.)

 

     It may naturally be doubted whether the principles of freedom and

justice, which dictated these municipal institutions of the empire, were fully

carried out in effect.  Perhaps it might be otherwise even in the best times -

those of Trajan and the Antonines.  But in the decline of the empire we find a

striking revolution in the condition of the decurions. Those evil days

rendered necessary an immense pressure of taxation; and the artificial scheme

of imperial policy, introduced by Diocletian and perfected by Constantine, had

for its main object to drain the resources of the provinces for the imperial

treasury.  The decurions were made liable to such heavy burdens, their

responsibility for local as well as public charges was so extensive (in every

case their private estates being required to make up the deficiency in the

general tax), that the barren honors of the office afforded no compensation,

and many endeavored to shun them.  This responsibility, indeed, of the

decurions, and their obligation to remain in the city of the domicile, as well

as their frequent desire to escape from the burdens of their lot, is manifest

even in the Digest, that is, in the beginning of the third century (when the

opinions of the lawyers therein collected were given), while the empire was

yet unscathed; but the evil became more flagrant in subsequent times.  The

laws of the fourth and fifth centuries, in the Theodosian code, perpetually

compel the decurions, under severe penalties, to remain at home and undergo

their onerous duties. These laws are 192 in number, filling the first title of

the twelfth book of that code.  Guizot indeed, Savigny, and even Raynouard

(though his bias is always to magnify municipal institutions), have drawn from

this source such a picture of the condition of the decurions in the last two

centuries of the western empire, that we are almost at a loss to reconcile

this absolute impoverishment of their order with other facts which apparently

bear witness to a better state of society.  For, greatly fallen as the

decurions of the provincial cities must be deemed, in comparison with their

earlier condition, there was still, at the beginning of the fifth century,

especially in Gaul, a liberal class of good family, and not of ruined

fortunes, dwelling mostly in cities, or sometimes in villas or country houses

not remote from cities, from whom the church was replenished, and who kept up

the politeness and luxury of the empire. ^b The senators or senatorial

families are often mentioned; and by the latter term we perceive that an

hereditary nobility, whatever might be the case with some of the barbarian

nations, subsisted in public estimation, if not in privilege, among their

Roman subjects.  The word senate appears to be sometimes used for the curia at

large; ^c but when we find senatorius ordo, or senatorium genus, we may refer

it to the higher class, who had served municipal offices, or had become

privileged by imperial favor, and to whom the title of "clarissimi" legally

belonged.  It seems probable that this appellative senator, rather than

senior, has given rise to seigneur, sire, and the like in modern languages.

The word senatorius appears early to have acquired the meaning noble or

gentlemanlike; though I do not find this in the dictionaries.  This is, I

conceive, what Pliny means by the "quidam senatorius decor," which he ascribes

to his young son-in-law Acilianus. (Epist. i. 14.) It is the air noble, the

indescribable look, rarely met with except in persons of good birth and

liberal habits.  In the age of Pliny this could only refer to the Roman

senate. ^d

 

[Footnote b: The letters of Sidonius Apollinaris bear abundant testimony to

this, even for his age, which was after the middle of the century; and the

state of Gaul must have been much better before.  Salvian, too, in his

declamation against the vices of the provincials, gives us to understand that

they were the vices of wealth.]

 

[Footnote c: This was rather by analogy than in strictness: thus, "Suae, si

sic dici oportet, curiae senatorem." (Lib. 12, tit. I, lex 85.) But perhaps

the language in different parts of the empire, or in different periods, might

not be the same.  The law just cited is of Arcadius.  But Majorian says in the

next age and in the West, of the curiales, "Quorum coetum recte appellavit

antiquitas minorem senatum." (Gothofred, in leg. 85, supra citat.) Some modern

writers too must confound all who are denominated senators with the curiales.]

 

[Footnote d: I presume that Sidonius Apollinaris means something complimentary

where he says - "Prandebamus breviter, copiose, senatorium ad morem; quo

insitum institutumque multas epulas paucis paropsidibus apponi." - Epist. ii.

9.

 

     The hereditary nobility of the senate, implying purity of blood, was

recognized very early in imperial Rome.  By the lex Julia, the descendants of

senators to the fourth generation were incapable of marrying libertinae. -

Dig. xxiii. 2, 44.]

 

     A great number of laws in this copius title of the Theodosian code, many

of which are cited by Raynouard (vol. i. p. 80), manifest a distinction

between the curia and the senate, or, as it is sometimes called, "nobilissima

curia;" and though perhaps, in certain instances, they may be referred to the

great senates of Rome or Constantinople, which were the fountains of all

provincial dignity of this kind, there are others which can only be explained

on the supposition that they relate to decurions, as it were emeriti, and

promoted to a higher rank.  Thus, one of Valentinian and Valens, in 364, which

is the earliest that seems explicit: - "Nemo ad ordinem senatorium ante

functionem omnium munerum municipalium senator accedat.  Cum autem universis

transactis, patriae stipendia fuerit emensus, tum eum ita ordinis senatorii

complexus excipiet, ut reposcentium civium flagitatio non fatiget." (Lex.

lvii.) The second title of the sixth book of the Theodosian code, "De

Senatoribus," is unfortunately lost; but Gothofred has restored a Paratitlon

from other parts of the same code, and especially from the title above

mentioned, in the twelfth book, by reference to which this part of the

imperial constitution will be best understood.  It appears difficult to

explain every passage.  But on the whole we cannot hesitate to agree with

Guizot and Savigny, that the name of senator was given to a privileged class

in the provincial cities, who having served through all the public functions

of the curia, were entitled to a legal exemption in future, and ascended to

the dignity of "Clarissimi." Many others, independent of the decurions,

obtained this rather by the emperor's favor, or by the performance of duties

which regularly led to it.  They were nominated by the emperor, and might be

removed by him; but otherwise their rank was hereditary.  Those decurions,

therefore, who could bear the burdens of municipal liabilities without

impoverishment, rose so far above them that their families were secure in

wealth as well as privilege.  Thus the word senator must be taken, in relation

to them, as merely an aristocratic distinction, without regard to its original

sense. ^e It is sufficiently clear that senatorial families, by whatever means

separated from the rest, constituted the nobility of Gaul.  Thus we read in

Gregory of Tours (lib. ii. c. 21, sub ann. 475) - "Sidonius vir secundum

saeculi dignitatem nobilissimus, et de primis Galliarum senatoribus, ita ut

filiam sibi Aviti imperatoris in matrimonio sociarit." Another is called "vir

valde nobilis et de primis senatoribus Galliarum." Other passages from the

same historian might be adduced.  But this is not to our immediate purpose,

which is to trace briefly the state of municipal institutions in Gaul.  The

senatorial order, or Roman provincial nobility, of which we have just been

speaking, is different.

 

[Footnote e: For this distinction between curiales and senatores the reader

many consult the title of the Theodosian code on Decurions, above cited, Leg.

82, 90, 93, 108, 110, 111, 118, 122, 129, 130, 180, 182, 183; all of which

throw some light upon, or relate to, this rather obscure subject. Guizot,

Savigny, and Raynouard are the modern guides.]

 

    Raynouard, the diligent elucidator of this great question, answers the

very specious objection of Mably, drawn from the silence of the capitularies,

which, though addressed to many classes of magistrates, never mention any

peculiar to the cities, by observing that these capitularies were not designed

for those who lived by the Roman law.  (Vol. ii. p. 160.) Savigny had already

made the same remark.  There seems to be some force in this answer; and at

least it is impossible to argue with Mably, from a negative probability,

against the indisputable evidence that the municipal magistrates of some

cities were in being.  It may be justly doubted, indeed, whether they

possessed a considerable authority.  Subject to the count, as the great

depositary of royal power, they would not perhaps be held worthy of receiving

immediate commands from the sovereign in the national council.  Troja speaks

with contempt of these "curiae," whose chief business was to register

testaments and witness deeds: "Son sempre i medisimi ed anche derisorj i

ricordi delle curie, ridotte alle funzioni di registrar testamenti, donazioni

e contratti, o ad elegger magistrati che non poteano difendere il Romano dalle

violenze dei Franchi, senza l'intervenzione de' vescovi di sangue Romano, o di

sangue barbarico; ma in vano si cercherebbe la vita e la possanza della curia

Romana in questi vani simulacri." (Vol. i. part v. p. 133.) They might be,

nevertheless, quite as important as under the later emperors.

 

     It is not necessary to conclude that every city in which the curia or the

defensor subsisted during the imperial government retained those institutions

throughout the domination of the Franks.  It appears that the functions of

"defensor civitatis," that is to say, the protection of the city against

arbitrary acts of the provincial governors, and the exercise of jurisdiction

within its boundaries, frequently devolved upon the bishop. It is impossible

not to recognize the efficacy of episcopal government in sustaining municipal

rights during the first dynasty.  The bishops were a link, or rather a shield,

between the barbarians who respected them and the people whom they protected,

and to whose race they for a long time commonly belonged.  But the bishop was

legally, and sometimes actually, elected, as the defensor had been, by the

people at large.  This, indeed, ceased to be the case before the reign of

Charlemagne; and the crown, or (in the progress of the feudal system) its

chief vassals, usurped the power of nomination, though the formality of

election was not abolished.  Certain it is that from this analogy to the

defensor, and from the still closer analogy to the feudal vassal, after royal

grants of jurisdiction and immunity became usual, not less than by the respect

due to his station, the bishop became as much the civil governor of his city

as the count was of the rural district.

 

     This was a great revolution in the internal history of cities and one

which generally led to the discontinuance of their popular institutions; so

that after the reign of Charlemagne, if not earlier, we may perhaps consider a

municipality choosing its own officers as an exception, though not a very

unfrequent one, to the general usage.  But instances of this are more commonly

found to the south of the Loire, where Roman laws prevailed and the feudal

spirit was less vigorous than in the northern provinces. Thus Raynouard has

deduced the municipal government of ten cities from the fifth to the twelfth

century.  Seven of these are of the south - Perigueux, Bourges, Arles, Nismes,

Marseilles, Toulouse, and Narbonne; three only of the north - Paris, Rheims,

and Metz.  (Vol. ii. p. 177.) It seems, however, more than probable that these

were not the whole; even in the north Meaux and Chalons might be added, and,

what in early times was undoubtedly to be reckoned a Frank city, Cologne.  The

corporate character of many of these is displayed by their coins.  "Civitas

Massiliensis," or "Narbonensis," will be found on the reverse of pieces

bearing the heads of the French kings of the three dynasties, especially under

Louis the Debonair and Charles the Bald (p. 152).  But it seems to me that the

evidence of a popular assembly or curia, even in Rheims, which has always been

wont to boast peculiarly of the antiquity of her privileges, is weak

comparatively with what M. Raynouard has alleged for the cities of Provence.

As to Paris, it is absolutely none at all.  This assembly appears to have

hardly survived in the north of France, and to have been replaced by scabini.

These were originally chosen by the citizens, but gradually on the bishop's

nomination.  Those of Rheims appear in 847, exercising their functions under

an officer of the archbishop.  (Archives Administratifs de la Ville de Rheims,

Preface, p. 7, in Documens Inedits, 1839.) The editor, however, (M. Varin),

inclines to adopt the theory of a Roman origin for the privileges of that

city.  The citizens called themselves in 991, addressing the archbishop,

"cives tui;" whence M. Varin infers that they took an oath of allegiance to

that prelate, and that their claims to a prescriptive independence must be

given up.  (Vol. i. p. 156.) Such independence, (that is, of all but the

sovereign) can at most only be admitted as to the great cities of Provence and

Languedoc, which in the twelfth and thirteenth centuries entered into treaties

with foreign powers, and conducted themselves as independent republics, though

perhaps under the nominal superiority of the counts.  Emulous, as it appears,

of Italian liberty, they adopted the government by consuls, elected by the

community.  And this honorable title was given to the chief magistrates in

most cities south of the Loire, though a different system, as we shall see,

prevailed on the other bank.

 

     The Benedictine historians of Languedoc are of opinion that the city of

Nismes had municipal magistrates in the middle of the tenth century (t. ii. p.

III).  The burgesses of Carcassonne appear by name in a charter of 1107 (p.

515).  In one of 1131 the consuls, of Beziers are mentioned; they existed

therefore previously (p. 409, and Appendix, p. 959).  The magistrates of St.

Antonin en Rouergue are named in 1136; those of Montpellier in 1142; of

Narbonne in 1148; and of St. Gilles in 1149 (pp. 515, 432, 442, 464).  The

capitouls of Toulouse pretend to an extravagant antiquity; but were in fact

established by Alfonso, Count of Toulouse, who died in 1148.  In 1152 Raymond

V. confirmed the regulations made by the common council of Toulouse, which

became the foundation of the customs of that city (p. 472).

 

     If we may trust altogether to the Assises de Jerusalem in their present

shape, the court of burgesses, having jurisdiction over persons of that rank,

was instituted by Godfrey of Bouillon, who died in 1100.  (Ass. de Jerus. c.

2.) This would be even earlier than the charter of London, granted by Henry I.

Lord Lyttelton goes so far as to call it "certain that in England many cities

and towns were bodies corporate and communities long before the alteration

introduced into France by the charters of Louis le Gros." (Hist. of Henry II.

vol. iv. p. 29.) But this position, as I shall more particularly show in

another place, is not borne out by any good authority, if it extends to any

internal jurisdiction and management of their own police; whereof, except in

the instance of London, we have no proof before the reign of Henry II.

 

     The legal incorporation of communities was perhaps earlier in Spain than

in any other country.  Alfonso V. in 1020 granted a charter to Leon, which is

said to mention the common council of that city in terms that show it to be an

established institution.  During the latter part of the eleventh century, as

well as in subsequent times, such charters are very frequent.  (Marina, Ensayo

Historico-Critico sobre las sieta partidas.) In several instances we find

concessions of smaller privileges to towns, without any political power.  Thus

Berenger, Count of Barcelona, in 1025, confirms to the inhabitants of that

city all the franchises which they already possess.  These seem, however, to

be confined to exemption from paying rent and from any jurisdiction below that

of an officer deputed by the count.  (De Marca, Marca Hispanica, p. 1038.)

Another grant occurs in the same volume (p. 909), from the bishop of Barcelona

in favor of a town of his diocese.  By some inattention Robertson has quoted

these charters as granted to "two villages in the county of Rousillon." (Hist.

Charles V. note 16.) The charters of Tortosa and Lerida in 1149 do not contain

any grant of jurisdiction (p. 1303).

 

     The corporate towns in France and England always enjoyed fuller

privileges than these Catalonian charters impart.  The essential

characteristics of a commune, according to M. Brequigny, were an association

confirmed by charter; a code of fixed sanctioned customs; and a set of

privileges, always including municipal or elective government. (Ordonnances,

p. 3.) A distinction ought, however, to be pointed out, which is rather liable

to elude observation, between communes, or corporate towns, and boroughs

(bourgeoisies).  The main difference was that in the latter there was no

elective government, the magistrates being appointed by the king or other

superior.  In the possession of fixed privileges and exemptions, in the

personal liberty of their inhabitants, and in the certainty of their legal

usages, there was no distinction between corporate towns and mere boroughs:

and indeed it is agreed that every corporate town was a borough, though every

borough was not a corporation. ^f The French antiquary quoted above does not

trace these inferior communities or boroughs higher than the charters of Louis

VI.  But we find the name and a good deal of the substance, in England under

William the Conqueror, as is manifest from Domesday-Book.

 

[Footnote f: The preface to the twelfth volume of Ordonnances des Rois

contains a full account of bourgeoisies, as that to the eleventh does of

communes.  A great part of it, however, is applicable to both species, or

rather to the genus and the species.  See, too, that to the fourteenth volume

of Recueil des Historiens, p. 74.]

 

     It is evident that if extensive privileges of internal government had

been preserved in the north of France, there could have been no need for that

great movement towards the close of the eleventh century, which ended in

establishing civic freedom; much less could the contemporary historians have

spoken of this as a new era in the state of France.  The bishops were now

almost sovereign in their cities; the episcopal, the municipal, the feudal

titles, conspired to enhance their power; and from being the protectors of the

people, from the glorious office of defensores civitatis, they had, in many

places at least, become odious by their own exactions. Hence the citizens of

Cambray first revolted against their bishop in 957, and, after several

ineffectual risings, ultimately constituted themselves into a community in

1076.  The citizens of Mans, about the latter time, had the courage to resist

William, Duke of Normandy; but this generous attempt at freedom was premature.

The cities of Noyon, Beauvais, and St. Quentin, about the beginning of the

next century, were successful in obtaining charters of immunity and

self-government from their bishops; and where these were violated, on one side

or the other, the king, Louis VI., came in to redress the injured party or to

compose the dissensions of both.  Hence arose the royal charters of the Picard

cities, which soon extended to other parts of France, and were used as

examples by the vassals of the crown. This subject, and especially the

struggles of the cities against the bishops before the legal establishment of

communities by charter, is abundantly discussed by M. Thierry, in his Lettres

sur l'Histoire de France.  But even where charters are extant, they do not

always create an incorporated community, but, as at Laon, recognize and

regulate an internal society already established.  (Guizot, Civilisation en

France, Lecon 47.)

 

     We must here distinguish the cities of Flanders and Holland, which

obtained their independence much earlier; in fact, their self-government goes

back beyond any assignable date.  (Sismondi, iv. 432.) They appear to have

sprung from a distinct source, but still from the great reservoir of Roman

institutions.  The cities on the Rhine retained more of their ancient

organization than we find in northern France.  The Roman language, says

Thierry, had here perished; the institutions survived.  At Cologne we find

from age to age a corporation of citizens exactly resembling the curia, and

whose members set up hereditary pretensions to a Roman descent; we find there

a particular tribunal for the "cessio bonorum," a part of Roman law unknown to

the old jurisprudence of Germany as much as to that of the feudal system.  In

the twelfth century the free constitution of Cologne passed for ancient.  From

Cologne and Treves municipal rights spread to the Rhenish cities of less

remote origin, and reached the great communities of Flanders and Brabant.

Thierry has quoted a remarkable passage from the life of the Empress St.

Adelaide, who died in 999, whence we may infer the continuance, at least in

common estimation, of Roman privileges in the Rhenish cities.  "Ante

duodecimum circiter annum obitus sui, in loco qui diciter Salsa (Seltz in

Alsace), urbem decrevit fieri sub libertate Romana, quem affectum postea ad

perfectum perducit effectum." (Recits des T. M. i. 274.)

 

     But the acuteness of this writer has discovered a wholly different origin

for the communes in the north of France.  He deduces them from the old

Teutonic institution of guilds, or fraternities by voluntary compact, to

relieve each other in poverty, or to protect each other from injury. Two

essential characteristics belonged to them; the common banquet and the common

purse.  They had also in many instances a religious, sometimes secret,

ceremonial to knit more firmly the bond of fidelity.  They became, as usual,

suspicious to governments, as several capitularies of Charlemagne prove.  But

they spoke both to the heart and to the reason in a voice which no government

could silence.  They readily became connected with the exercise of trades,

with the training of apprentices, with the traditional rules of art.  We find

them in all Teutonic and Scandinavian countries; they are frequently mentioned

in our Anglo-Saxon documents, and are the basis of those corporations which

the Norman kings recognized or founded. The guild was, of course, in its

primary character a personal association; it was in the state, but not the

state; it belonged to the city without embracing all the citizens; its

purposes were the good of the fellows alone.  But when their good was

inseparable from that of their little country, their walls and churches, the

principle of voluntary association was readily extended; and from the private

guild, possessing already the vital spirit of faithfulness and brotherly love,

sprung the sworn community, the body of citizens, bound by a voluntary but

perpetual obligation to guard each other's rights against the thefts of the

weak or the tyranny of the powerful.

 

     The most remarkable proof of this progress from a merchant guild to a

corporation is exhibited in the local history of Paris.  No mention of a curia

or Roman municipality in that city has been traced in any record: we are

driven to Raynouard's argument - Could Paris be destitute of institutions

which had become the right of all other cities in Gaul?  A couple of lines,

however, from the poem of Gulielmus Brito, under Philip Augustus, are his only

proof (vol. ii. p. 219).  But at Paris there was a great college or

corporation of nautae or marchands d'eau; that is, who supplied the town with

commodities by the navigation of the Seine. ^g These, indeed, do not seem to

be traced very far back, but the necessary documents may be deficient.  They

appear abundantly in the twelfth century, with a provost and scabini of their

own.  And to this body the kings in that age conceded certain rights over the

inhabitants.  The arms borne by the city, a ship, are those of the college of

nautae.  The subsequent process by which this corporation slid into a

municipality is not clearly developed by the writer to whom I must refer.

 

[Footnote g: If an inscription quoted by the editors of Du Cange, voc. Nautae,

be genuine, the Nautae Parisiaci existed as a corporate institution under

Tiberius.  But this must prima facie be suspicious in no trifling degree.]

 

     Thus there were several sources of the municipal institutions in France;

first, the Roman system of decurions, handed down prescriptively in some

cities, but chiefly in the south; secondly, the German system of voluntary

societies or guilds, spreading to the whole community for a common end;

thirdly, the forcible insurrection of the inhabitants against their lords or

prelates; and lastly, the charters, regularly granted by the king or by their

immediate superior.  Few are likely now to maintain the old theory of

Robertson, that the kings of France encouraged the communities, in order to

make head with their help against the nobility, which a closer attention to

history refutes.  We must here, however, distinguish the corporate towns or

communities from the other class, called burgages, bourgeoisies.  The

chatelains encouraged the growth of villages around their castles, from whom

they often derived assistance in war, and conceded to these burgesses some

privileges, though not any municipal independence.

 

     Guizot observes, as a difference between the curial system of the empire

and that of the French communes in the twelfth century, that the former was

aristocratic in its spirit; the decurions filled up vacancies in their body,

and ultimately their privileges became hereditary.  But the latter were

grounded on popular election, though with certain modifications as to

eligibility.  Yet some of the aristocratic elements continued among the

communes of the south.  (Lecon 48.)

 

     It is to be confessed that while the kings, from the end of the

thirteenth century, altered so much their former policy as to restrain, in

great measure, and even in some instances to overthrow, the liberties of

French cities, there was too much pretext for this in their lawless spirit and

proneness to injustice.  The better class, dreading the populace, gave aid to

the royal authority, by admitting bailiffs and provosts of the crown to

exercise jurisdiction within their walls.  But by this the privileges of the

city were gradually subverted.  (Guizot, Lecon 49; Thierry, Lettre xiv.) The

ancient registers of the parliament of Paris, called Olim, prove this

continual interference of the crown to establish peace and order in towns, and

to check their encroachments on the rights of others.  "Nulle part," says M.

Beugnot, "on ne voit aussi bien que les communes etaient un instrument

puissant pour operer dans l'etat de grands et d'heureux changemens, mais non

une institution qui eut en elle-meme des conditions de duree." (Registres des

Arrets, vol. i. p. 192, in Documens Inedits, 1839.)

 

     A more favorable period for civic liberty commenced and possibly

terminated with the most tyrannical of French kings, Louis XI.  Though the

spirit of rebellion, which actuated a large part of the nobles in his reign,

was not strictly feudal, but sprung much more from the combination of a few

princes, it equally put the crown in jeopardy, and required all his sagacity

to withstand its encroachments.  He encouraged, therefore, with a policy

unusual in the house of Valois, the Tiers Etat, the middle orders, as a

counterpoise.  What has erroneously been said of Louis VI. is true of his

subtle descendant.  "His ordinances," it is remarked by Sismondi (xiv. 314),

"are distinguished by liberal views in government.  He not only gave the

citizens, in several places, the choice of their magistrates, but established

an urban militia, training the inhabitants to the use of arms, and placing in

their hands the appointment of officers." And thus, at the close of our

mediaeval period, we leave the municipal authority of France in no slight

vigor.  It may only be added that, for miscellaneous information as to the

French communes, the reader should have recourse to that great repository of

curious knowledge, the "Histoire des Francais, par Monteil, Siecle XV."

 

     The continuance of Italian municipalities has been more disputed of late

than that of the French, which both Savigny and Raynouard have placed beyond

question.  The former of these writers maintains that not only under the

Ostrogoths and Greeks (the latter indeed might naturally be expected) we have

abundant testimony to the ordo decurionum and other Roman institutions in the

Italian cities, but that, even under the Lombard dominion, the same privileges

were unimpaired, or at least not subverted. This is naturally connected with

the general question as to the condition of the natives in that period; those

who deny them any rights of citizenship, or even protection by the law, will

not be inclined to favor the supposition of an internal jurisdiction.  Troja

accordingly, following older writers, rejects the notion of civic government

in those cities which endured the Lombard yoke, and elaborately refutes the

proofs alleged by Savigny.  In this, however, he does not seem always

successful; but the early records of Italian communities are by no means so

decisive as those that we have found in France.

 

     Liutprand, as Troja conceives, established communities of Lombards alone.

But he suggests that even before the reign of Liutprand there may have been

such a district government as we find mentioned by Tacitus among the Germans;

and this might possibly be denominated by the Lombards curia or ordo, in

imitation of the Roman names.  If, therefore, we meet with these terms in the

laws or records of Italy before Charlemagne, there is no reason why they

should not relate to Lombards (p. 125).  This is hardly, perhaps, a conjecture

that will be favored.  Charlemagne, however, when he introduced the

distinction of personal law, constituted in every city a new Lombard

community, taking its name from the most numerous people, but in which each

nation chose its own scabini or judges (p. 295).

 

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