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

 

Part Three

 

     A relief was a sum of money (unless where charter or custom introduced a

different tribute) due from everyone of full age, taking a fief by descent.

This was in some countries arbitrary, or ad misericordiam, and the exactions

practised under this pretence both upon superior and inferior vassals ranked

amongst the greatest abuses of the feudal policy.  Henry I. of England

promises in his charter that they shall in future be just and reasonable; but

the rate does not appear to have been finally settled till it was laid down in

Magna Charta at about a fourth of the annual value of the fief.  We find also

fixed reliefs among the old customs of Normandy and Beauvoisis.  By a law of

St. Louis, in 1245, ^a the lord was entitled to enter upon the lands, if the

heir could not pay the relief, and possess them for a year.  This right

existed unconditionally in England under the name of primer seisin, but was

confined to the king. ^b

 

[Footnote a: Ordonnances des Rois.  p. 55.]

 

[Footnote b: Du Cange, v. Placitum, Relevium, Sporla.  By many customs a

relief was due on every change of the lord, as well as of the vassal, but this

was not the case in England.  Beaumont speaks of reliefs as due only on

collateral succession.  Coutumes de Beauvoisis, c. 27.  And this, according to

Du Cange, was the general rule in the customary law of France.  In Anjou and

Maine they were not even due upon succession between brothers.  Ordonnances

des Rois, t. i. p. 58.  And M. de Pastoret, in his valuable preface to the

sixteenth volume of that collection, says it was a rule that the king had

nothing upon lineal succession of a fief, whether in the ascending or

descending line, but la bouche et les mains, i. e., homage and fealty: p. 20.]

 

     Closely connected with reliefs were the fines paid to the lord upon the

alienation of his vassal's feud; and indeed we frequently find them called by

the same name.  The spirit of feudal tenure established so intimate a

connection between the two parties that it could be dissolved by neither

without requiring the other's consent.  If the lord transferred his seigniory,

the tenant was to testify his concurrence; and this ceremony was long kept up

in England under the name of attornment.  The assent of the lord to his

vassal's alienation was still more essential, and more difficult to be

attained.  He had received his fief, it was supposed, for reasons peculiar to

himself, or to his family; at least his heart and arm were bound to his

superior; and his service was not to be exchanged for that of a stranger, who

might be unable or unwilling to render it.  A law of Lothaire II. in Italy

forbids the alienation of fiefs without the lord's consent. ^c This

prohibition is repeated in one of Frederic I., and a similar enactment was

made by Roger, King of Sicily. ^d By the law of France the lord was entitled,

upon every alienation made by his tenant, either to redeem the fief by paying

the purchase-money, or to claim a certain part of the value, by way of fine,

upon the change of tenancy. ^e In England even the practice of subinfeudation,

which was more conformable to the law of fiefs and the military genius of the

system, but injurious to the suzerains, who lost thereby their escheats and

other advantages of seigniory, was checked by Magna Charta, ^f and forbidden

by the statute 18 Edward I., called Quia Emptores, which at the same time gave

the liberty of alienating lands, to be holden to the grantor's immediate lord.

The tenants of the crown were not included in this act; but that of I Edward

III. c. 12, enabled them to alienate, upon the payment of a composition into

chancery, which was fixed at one-third of the annual value of the lands. ^g

 

[Footnote c: Lib. Feudorum, l. ii. tit. 9 and 52.  This was principally

levelled at the practice of alienating feudal property in favor of the church,

which was called pro anima judicare.  Radevicus in Gestis Frederic I. l. iv.

c. 7; Lib. Feud. l. i. tit. 7, 16, l. ii. tit. 10.]

 

[Footnote d: Giannone, l. ii. c. 5.]

 

[Footnote e: Du Cange, v. Reaccapitum, Placitum, Rachatum.  Pastoret, preface

au seizieme tome des Ordonnances, p. 20; Houard, Dict. du Droit Normand, art.

Fief Argou, Inst. du Droit Francois, l. ii. c. 2.  In Beaumanoir's age and

district at least, subinfeudation without the lord's license incurred a

forfeiture of the land; and his reason extends of course more strongly to

alienation.  Coutumes de Beauvoisis, c. 2; Velly, t. vi. p. 187.  But, by the

general law of feuds, the former was strictly regular, while the tenant

forfeited his land by the latter.  Craig mentions this distinction as one for

which he is perplexed to account. Jus Feudale, l. iii. tit. 3, p. 632.  It is,

however, perfectly intelligible upon the original principles of feudal

tenure.]

 

[Footnote f: Dalrymple seems to suppose that the 32d chapter of Magna Charta

relates to alienation and not to subinfeudation.  Essay on Feudal Property,

edit. 1758, p. 83.  See Sir E. Coke, 2 Inst. p. 65, 501; and Wright on

Tenures, contra.  Mr. Hargrave observes that "the history of our law with

respect to the powers of alienation before the statute of Quia Emptores

terrarum is very much involved in obscurity." Notes on Co. Lit. 43, a.  In

Glanville's time apparently a man could only alienate (to hold of himself)

rationabilem partem de terra sua, l. vii. c. 1.  But this may have been in

favor of the kindred as much as of the lord.  Dalrymple's Essay, ubi supra.

 

     It is probable that Coke is mistaken in supposing that "at the common law

the tenant might have made a feoffment of the whole tenancy to be holden of

the lord."]

 

[Footnote g: 2 Inst. p. 66; Blackstone's Commentaries, vol. ii. c. 5.]

 

     These restraints, placed for the lord's advantage upon the transfer of

feudal property, are not to be confounded with those designed for the

protection of heirs and preservation of families.  Such were the jus

protimeseos in the books of the fiefs, ^h and retrait lignager of the French

law, which gave to the relations of the vendor a preemption upon the sale of

any fief, and a right of subsequent redemption.  Such was the positive

prohibition of alienating a fief held by descent from the father (feudum

paternum), without the consent of the kindred on that line. ^i Such, too, were

the still more rigorous fetters imposed by the English statute of entails,

which precluded all lawful alienation, till, after two centuries, it was

overthrown by the fictitious process of a common recovery.  Though these

partake in some measure of the feudal spirit, and would form an important head

in the legal history of that system, it will be sufficient to allude to them

in a sketch which is confined to the development of its political influence.

 

[Footnote h: Lib. Feud. l. v. t. 13.  There were analogies to this jus in the

Roman law, and, still more closely, in the constitutions of the latter

Byzantine emperors.]

 

[Footnote i: Alienatio feudi paterni non valet etiam domini voluntate, nisi

agnatis consentientibus.  Lib. Feud. apud Wright on Tenures, pp. 108, 156.]

 

     A custom very similar in effect to subinfeudation was the tenure by

frerage, which prevailed in many parts of France.  Primogeniture, in that

extreme which our common law has established, was unknown, I believe, in every

country upon the Continent.  The customs of France found means to preserve the

dignity of families, and the indivisibility of a feudal homage, without

exposing the younger sons of a gentleman to absolute beggary or dependence.

Baronies, indeed, were not divided; but the eldest son was bound to make a

provision in money, by way of appanage, for the other children, in proportion

to his circumstances and their birth. ^j As to inferior fiefs, in many places

an equal partition was made; in others, the eldest took the chief portion,

generally two-thirds, and received the homage of his brothers for the

remaining part, which they divided.  To the lord of whom the fief was held,

himself did homage for the whole. ^k In the early times of the feudal policy,

when military service was the great object of the relation between lord and

vassal, this, like all other subinfeudation, was rather advantageous to the

former; for when the homage of a fief was divided, the service was diminished

in proportion.  Suppose, for example, the obligation of military attendance

for an entire manor to have been forty days; if that came to be equally split

among two, each would owe but a service of twenty.  But if, instead of being

homagers to the same suzerain, one tenant held immediately of the other, as

every feudatory might summon the aid of his own vassals, the superior lord

would, in fact, obtain the service of both.  Whatever opposition, therefore,

was made to the rights of subinfeudation or frerage, would indicate a decay in

the military character, the living principle of feudal tenure.  Accordingly,

in the reign of Philip Augustus, when the fabric was beginning to shake, we

find a confederate agreement of some principal nobles sanctioned by the king,

to abrogate the mesne tenure of younger brothers, and establish an immediate

dependence of each upon the superior lord. ^l This, however, was not

universally adopted, and the original frerage subsisted to the last in some of

the customs of France. ^m [Footnote j: Du Cange, v. Apanamentum, Baro.

Baronie ne depart mie entre freres se leur pere ne leur a fait partie; mes li

ainsnez doit faire avenant bienfet au puisne, et si doit les filles marier.

Etablissem. de St. Louis, c. 24.]

 

[Footnote k: This was also the law of Flanders and Hainault.  Martenne,

Thesaurus Anecdotor, t. i. p. 1092.  The customs as to succession were

exceedingly various, as indeed they continued to be until the late

generalization of French law.  Recueil des Histor. t. ii. preface, p. 108;

Hist. de Languedoc, t. ii. p. 111, 511.  In the former work it is said that

primogeniture was introduced by the Normans from Scandinavia.]

 

[Footnote l: Ordonnances des Rois, t. i. p. 29.]

 

[Footnote m: Du Cange, Dissert. III. sur Joinville: Beauman. c. 47.]

 

     As fiefs descended but to the posterity of the first taker, or at the

utmost to his kindred, they necessarily became sometimes vacant for want of

heirs; especially where, as in England, there was no power of devising them by

will.  In this case it was obvious that they ought to revert to the lord, from

whose property they had been derived.  These reversions became more frequent

through the forfeitures occasioned by the vassal's delinquency, either towards

his superior lord or the state.  Various cases are laid down in the Assises de

Jerusalem, where the vassal forfeits his land for a year, for his life, or

forever. ^n But under rapacious kings, such as the Norman line in England,

absolute forfeitures came to prevail, and a new doctrine was introduced, the

corruption of blood, by which the heir was effectually excluded from deducing

his title at any distant time through an attainted ancestor.

 

[Footnote n: C. 200, 201.]

 

     Reliefs, fines upon alienation, and escheats, seem to be natural

reservations in the lord's bounty to his vassal.  He had rights of another

class which principally arose out of fealty and intimate attachment.  Such

were the aids which he was entitled to call for in certain prescribed

circumstances.  These depended a great deal upon local custom, and were often

extorted unreasonably. Du Cange mentions several as having existed in France;

such as an aid for the lord's expedition to the Holy Land, for marrying his

sister or eldest son, and for paying a relief to his suzerain on taking

possession of his land. ^o Of these, the last appears to have been the most

usual in England.  But this, and other aids occasionally exacted by the lords,

were felt as a severe grievance; and by Magna Charta three only are retained;

to make the lord's eldest son a knight, to marry his eldest daughter, and to

redeem his person from prison.  They were restricted to nearly the same

description by a law of William I. of Sicily, and by the customs of France. ^p

These feudal aids are deserving of our attention, as the beginnings of

taxation, of which for a long time they in a great measure answered the

purpose, till the craving necessities and covetous policy of kings substituted

for them more durable and onerous burdens.

 

[Footnote o: Du Cange, voc. Auxilium.]

 

[Footnote p: Giannone, l. xii. c. 5; Velly, t. vi. p. 200; Ordonnances des

Rois, t. i. p. 138, t. xvi.  preface.]

 

     I might here, perhaps, close the enumeration of feudal incidents, but

that the two remaining, wardship and marriage, though only partial customs,

were those of our own country, and tend to illustrate the rapacious character

of a feudal aristocracy.

 

     In England, and in Normandy, which either led the way to, or adopted, all

these English institutions, the lord had the wardship of his tenant during

minority. ^q By virtue of this right he had both the care of his person and

received to his own use the profits of the estate.  There is something in this

custom very conformable to the feudal spirit, since none was so fit as the

lord to train up his vassal to arms, and none could put in so good a claim to

enjoy the fief, while the military service for which it had been granted was

suspended.  This privilege of guardianship seems to have been enjoyed by the

lord in some parts of Germany; ^r but in the law of France the custody of the

land was intrusted to the next heir, and that of the person, as in socage

tenures among us, to the nearest kindred of that blood which could not

inherit. ^s By a gross abuse of this custom in England, the right of

guardianship in chivalry, or temporary possession of the lands, was assigned

over to strangers.  This was one of the most vexatious parts of our feudal

tenures, and was never, perhaps, more sorely felt than in their last stage

under the Tudor and Stuart families.

 

[Footnote q: Recueil des Historiens, t. xi. pref. p. 162; Argou, Inst. au

Droit Francois, l. i. c. 6; Houard, Anciennes Loix des Francois, t. i. p.

147.]

 

[Footnote r: Schilter, Institutiones Juris Feudalis, p. 85.]

 

[Footnote s: Du Cange, v. Custodia; Assises de Jerusalem, c. 178;

Etablissemens de St. Louis, c. 17; Beaumanoir, c. 15; Argou, l. i. c. 6. The

second of these uses nearly the same expression as Sir John Fortescue in

accounting for the exclusion of the next heir from guardianship of the person;

that mauvaise convoitise li fairoit faire la garde du loup.

 

     I know not any mistake more usual in English writers who have treated of

the feudal law than that of supposing that guardianship in chivalry was an

universal custom.  A charter of 1198, in Rymer, t. i. p. 105, seems indeed to

imply that the incidents of garde noble and of marriage existed in the Isle of

Oleron.  But Eleanor, by a later instrument, grants that the inhabitants of

that island should have the wardship and marriage of their heirs without any

interposition, and expressly abrogates all the evil customs that her husband

had introduced: p. 112.  From hence I should infer that Henry II. had

endeavored to impose these feudal burdens (which perhaps were then new even in

England) upon his continental dominions. Radulphus de Diceto tells us of a

claim made by him to the wardship of Chateauroux in Berry, which could not

legally have been subject to that custom.  Twysden, X Scriptores, p. 599.  And

he set up pretensions to the custody of the duchy of Brittany after the death

of his son Geoffrey. This might perhaps be justified by the law of Normandy,

on which Brittany depended.  But Philip Augustus made a similar claim.  In

fact, these political assertions of right, prompted by ambition and supported

by force, are bad precedents to establish rules of jurisprudence.  Both Philip

and Henry were abundantly disposed to realize so convenient a prerogative as

that of guardianship in chivalry over the fiefs of their vassals.  Lyttleton's

Henry II. vol. iii. p. 441.]

 

     Another right given to the lord by the Norman and English laws, was that

of marriage, or of tendering a husband to his female wards while under age,

whom they could not reject without forfeiting the value of the marriage; that

is, as much as anyone would give to the guardian for such an alliance.  This

was afterwards extended to male wards, and became a very lucrative source of

extortion to the crown, as well as to mesne lords.  This custom seems to have

had the same extent as that of wardships.  It is found in the ancient books of

Germany, but not of France. ^t The kings, however, and even inferior lords, of

that country, required their consent to be solicited for the marriage of their

vassals' daughters.  Several proofs of this occur in the history as well as in

the laws of France; and the same prerogative existed in Germany, Sicily, and

England. ^u A still more remarkable law prevailed in the kingdom of Jerusalem.

The lord might summon any female vassal to accept one of three whom he should

propose as her husband.  No other condition seems to have been imposed on him

in selecting these suitors than that they should be of equal rank with

herself.  Neither the maiden's coyness nor the widow's affliction, neither

aversion to the proffered candidates nor love to one more favored, seem to

have passed as legitimate excuses.  One, only one, plea could come from the

lady's mouth who was resolute to hold her land in single blessedness.  It was,

that she was past sixty years of age; and after this unwelcome confession it

is justly argued by the author of the law-book which I quote, that the lord

could not decently press her into matrimony. ^v However outrageous such an

usage may appear to our ideas, it is to be recollected that the peculiar

circumstances of that little state rendered it indispensable to possess in

every fief a proper vassal to fulfil the duties of war.

 

[Footnote t: Schilter, ubi supra.  Du Cange, voc. Disparagare, seems to admit

this feudal right in France; but the passages he quotes do not support it.

See also the word Maritagium.  [M. Guizot has, however, observed (Hist. de la

Civilisation en France, Lecon 39) that the feudal incidents of guardianship in

chivalry by marriage were more frequent than I seem to suppose.  The customary

law was so variable, that it is dangerous to rely on particular instances, or

to found a general negative on their absence. 1848.]]

 

[Footnote u: Ordonnances des Rois, t. i. p. 155; Assises de Jerus. c. 180, and

Thaumassiere's note; Du Cange, ubi supra; Glanvil. l. vii. c. 12; Giannone, l.

xi. c. 5; Wright on Tenures, p. 94.  St. Louis in return declared that he

would not marry his own daughter without the consent of his barons.

Joinville, t. ii. p. 140.  Henry I. of England had promised the same.  The

guardian of a female minor was obliged to give security to her lord not to

marry her without his consent.  Etablissemens de St. Louis, c. 63.]

 

[Footnote v: Ass. de Jerus. c. 224.  I must observe that Lauriere says this

usage prevailed en plusieurs lieux, though he quotes no authority. -

Ordonnances des Rois, p. 155.]

 

     These feudal servitudes distinguish the maturity of the system.  No trace

of them appears in the capitularies of Charlemagne and his family, nor in the

instruments by which benefices were granted.  I believe that they did not make

part of the regular feudal law before the eleventh, or, perhaps, the twelfth

century, though doubtless partial usages of this kind had grown up

antecedently to either of those periods.  If I am not mistaken, no allusion

occurs to the lucrative rights of seigniory in the Assises de Jerusalem, which

are a monument of French usages in the eleventh century.  Indeed, that very

general commutation of allodial property into tenure which took place between

the middle of the ninth and eleventh centuries would hardly have been effected

if fiefs had then been liable to such burdens and so much extortion.  In

half-barbarous ages the strong are constantly encroaching upon the weak; a

truth which, if it needed illustration, might find it in the progress of the

feudal system.

 

     We have thus far confined our inquiry to fiefs holden on terms of

military service; since those are the most ancient and regular, as well as the

most consonant to the spirit of the system.  They alone were called proper

feuds, and all were presumed to be of this description until the contrary was

proved by the charter of investiture.  A proper feud was bestowed without

price, without fixed stipulation, upon a vassal capable of serving personally

in the field.  But gradually, with the help of a little legal ingenuity,

improper fiefs of the most various kinds were introduced, retaining little of

the characteristics, and less of the spirit, which distinguished the original

tenures.  Women, if indeed that were an innovation, were admitted to inherit

them; ^w they were granted for a price, and without reference to military

service.  The language of the feudal law was applied by a kind of metaphor to

almost every transfer of property.  Hence pensions of money and allowances of

provisions, however remote from right notions of a fief, were sometimes

granted under that name; and even where land was the subject of the donation,

its conditions were often lucrative, often honorary, and sometimes ludicrous.

^x

 

[Footnote w: Women did not inherit fiefs in the German empire.  Whether they

were ever excluded from succession in France I know not; the genius of a

military tenure, and the old Teutonic customs, preserved in the Salic law,

seem adverse to their possession of feudal lands; yet the practice, at least

from the eleventh century downwards, does not support the theory.]

 

[Footnote x: Crag. Jus Feudale, l. i. tit. 10; Du Cange, voc. Feudum de

Camera, &c.  In the treaty between Henry I. of England and Robert, Count of

Flanders, A.D. 1101, the king stipulates to pay annually 400 marks of silver,

in feodo, for the military service of his ally.  Rymer, Foedera, t. i. p. 2.]

 

     There is one extensive species of feudal tenure which may be distinctly

noticed.  The pride of wealth in the middle ages was principally exhibited in

a multitude of dependents.  The court of Charlemagne was crowded with officers

of very rank, some of the most eminent of whom exercised functions about the

royal person which would have been though fit only for slaves in the palace of

Augustus or Antonine.  The freeborn Franks saw nothing menial in the titles of

cup-bearer, steward, marshal, and master of the horse, which are still borne

by the noblest families in many parts of Europe, and, till lately, by

sovereign princes in the empire. ^y From the court of the king this favorite

piece of magnificence descended to those of the prelates and barons, who

sorrounded themselves with household officers called ministerials; a name

equally applied to those of a servile and of a liberal description. ^z The

latter of these were rewarded with grants of lands, which they held under a

feudal tenure by the condition of performing some domestic service to the

lord.  What was called in our law grand serjeanty affords an instance of this

species of fief. ^a It is, however, an instance of noblest kind; but Muratori

has given abundance of proofs that the commonest mechanical arts were carried

on in the houses of the great by persons receiving lands upon those

conditions. ^b

 

[Footnote y: The Count of Anjou, under Louis VI., claimed the office of Great

Seneschal of France; that is, to carry dishes to the king's table on state

days.  (Sismondi, v. 135.) Thus the feudal notions of grand serjeanty prepared

the way for the restoration of royal supremacy, as the military tenures had

impaired it.  The wound and the remedy came from the same lance.  If the

feudal system was incompatible with despotism, and even, while in its full

vigor, with legitimate authority, it kept alive the sense of a supreme chief,

of a superiority of rank, of a certain subjection to an hereditary sovereign,

not yet testified by unlimited obedience, but by homage and loyalty.]

 

[Footnote z: Schmidt, Hist. des Allemands, t. iii. p. 92; Du Cange, v.

Familia, Ministeriales.]

 

[Footnote a: "This tenure," says Littleton, "is where a man holds his lands or

tenements of our sovereign lord the king by such services as he ought to do in

his proper person to the king, as to carry the banner of the king, or his

lance, or to lead his array, or to be his marshal, or to carry his sword

before him at his coronation, or to be his sewer at his coronation, or his

carver, or his butler, or to be one of his chamberlains at the receipt of his

exchequer, or to do other like services." Sect. 153.]

 

[Footnote b: Antiq. Ital. Dissert. II, ad finem.]

 

     These imperfect feuds, however, belong more properly to the history of

law, and are chiefly noticed in the present sketch because they attest the

partiality manifested during the middle ages to the name and form of a feudal

tenure.  In the regular military fief we see the real principle of the system,

which might originally have been defined an alliance of free landholders

arranged in degrees of subordination, according to their respective capacities

of affording mutual support.

 

     The peculiar and varied attributes of feudal tenures naturally gave rise

to a new jurisprudence, regulating territorial rights in those parts of Europe

which had adopted the system.  For a length of time this rested in

traditionary customs, observed in the domains of each prince or lord, without

much regard to those of his neighbors.  Laws were made occasionally by the

emperor in Germany and Italy, which tended to fix the usages of those

countries.  About the year 1170, Girard and Obertus, two Milanese lawyers,

published two books of the law of fiefs, which obtained a great authority, and

have been regarded as the groundwork of that jurisprudence. ^c A number of

subsequent commentators swelled this code with their glosses and opinions, to

enlighten or obscure the judgment of the imperial tribunals.  These were

chiefly civilians or canonists, who brought to the interpretation of old

barbaric customs the principles of a very different school.  Hence a manifest

change was wrought in the law of feudal tenure, which they assimilated to the

usufruct or the emphyteusis of the Roman code; modes of property somewhat

analogous in appearance, but totally distinct in principle, from the

legitimate fief.  These Lombard lawyers propagated a doctrine which has been

too readily received, that the feudal system originated in their country; and

some writers upon jurisprudence, such as Duck and Sir James Craig, incline to

give a preponderating authority to their code.  But whatever weight it may

have possessed within the limits of the empire, a different guide must be

followed in the ancient customs of France and England. ^d These were fresh

from the fountain of that curious polity with which the stream of Roman law

had never mingled its waters.  In England we know that the Norman system

established between the Conquest and the reign of Henry II. was restrained by

regular legislation, by paramount courts of justice, and by learned writings,

from breaking into discordant local usages, except in a comparatively small

number of places, and has become the principal source of our common law.  But

the independence of the French nobles produced a much greater variety of

customs.  The whole number collected and reduced to certainty in the sixteenth

century, amounted to two hundred and eighty-five, or omitting those

inconsiderable for extent or peculiarity, to sixty.  The earliest written

customary in France is that of Bearn, which is said to have been confirmed by

Viscount Gaston IV. in 1088. ^e Many others were written in the two subsequent

ages, of which the customs of Beauvoisis, compiled by Beaumanoir under Philip

III., are the most celebrated, and contain a mass of information on the feudal

constitution and manners.  Under Charles VII an ordinance was made for the

formation of a general code of customary law, by ascertaining forever in the

written collection those of each district; but the work was not completed till

the reign of Charles IX.  This was what may be called the common law of the

pays coutumiers, or northern division of France, and the rule of all their

tribunals, unless where controlled by royal edicts.

 

[Footnote c: Giannone, Ist. di Napoli, l. xiii. c. 3.  The Libri Feudorum are

printed in most editions of the Corpus Juris Civilis.]

 

[Footnote d: Giannone explicitly contrasts the French and Lombard laws

respecting fiefs.  The latter was the foundation of the Libri Feudorum, and

formed the common law of Italy.  The former was introduced by Roger Guiscard

into his dominions, in three books of constitutions, printed in Lindebrog's

collection.  There were several material differences, which Giannone

enumerates, especially the Norman custom of primogeniture.  Ist. di Nap. l.

xi. c. 5.]

 

[Footnote e: There are two editions of this curious old code; one at Pau, in

1552, republished with a fresh title-page and permission of Henry IV. in 1602;

the other at Lescars, in 1633.  These laws, as we read them, are subsequent to

a revision made in the middle of the sixteenth century, in which they were

more or less corrected.  The basis, however, is unquestionably very ancient.

We even find the composition for homicide preserved in them, so that murder

was not a capital offence in Bearn, though robbery was such. - Rubrica de

Homicidis, Art. xxxi.  See too Rubrica de Poenis, Art. i. and ii.]

 

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