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 Five

 

     In every age and country until times comparatively recent, personal

servitude appears to have been the lot of a large, perhaps the greater,

portion of mankind.  We lose a good deal of our sympathy with the spirit of

freedom in Greece and Rome when the importunate recollection occurs to us of

the tasks which might be enjoined, and the punishments which might be

inflicted, without control either of law or opinion, by the keenest patriot of

the Comitia, or the Council of Five Thousand.  A similar, though less

powerful, feeling will often force itself on the mind when we read the history

of the middle ages.  The Germans, in their primitive settlements, were

accustomed to the notion of slavery, incurred not only by captivity, but by

crimes, by debt, and especially by loss in gaming. When they invaded the Roman

empire they found the same condition established in all its provinces.  Hence,

from the beginning of the era now under review, servitude, under somewhat

different modes, was extremely common.  There is some difficulty in

ascertaining its varieties and stages.  In the Salic laws, and in the

Capitularies, we read not only of Servi, but of Tributarii, Lidi, and Coloni,

who were cultivators of the earth and subject to residence upon their lord's

estate, though not destitute of property or civil rights. ^j Those who

appertained to the demesne lands of the crown were called Fiscalini.  The

composition for the murder of one of these was much less than that for a

freeman. ^k The number of these servile cultivators was undoubtedly great, yet

in those early times, I should conceive, much less than it afterwards became.

Property was for the most part in small divisions, and a Frank who could

hardly support his family upon a petty allodial patrimony was not likely to

encumber himself with many servants.  But the accumulation of overgrown

private wealth had a natural tendency to make slavery more frequent. Where the

small proprietors lost their lands by mere rapine, we may believe that their

liberty was hardly less endangered. ^l Even where this was not the case, yet,

as the labor either of artisans or of free husbandmen was but sparingly in

demand, they were often compelled to exchange their liberty for bread. ^m In

seasons also of famine, and they were not infrequent, many freemen sold

themselves to slavery.  A capitulary of Charles the Bald in 864 permits their

redemption at an equitable price. ^n Others became slaves, as more fortunate

men became vassals, to a powerful lord, for the sake of his protection.  Many

were reduced into this state through inability to pay those pecuniary

compositions for offences which were numerous and sometimes heavy in the

barbarian codes of law; and many more by neglect of attendance on military

expeditions of the king, the penalty of which was a fine called Heribann, with

the alternative of perpetual servitude. ^o A source of loss of liberty which

may strike us as more extraordinary was superstition; men were infatuated

enough to surrender themselves, as well as their properties, to churches and

monasteries, in return for such benefits as they might reap by the prayers of

their new masters. ^p

 

[Footnote j: These passages are too numerous for reference.  In a very early

charter in Martenne's Thesaurus Anecdotorum, t. i. p. 20, lands are granted,

cum hominibus ibidem permanentibus, quos colonario ordine vivere constituimus.

Men of this class were called, in Italy, Aldiones.  A Lombard capitulary of

Charlemagne says, Aldiones ea lege vivunt in Italia sub servitute dominorum

suorum, qua Fiscalini, vel Lidi vivunt in Francia. l Muratori, Dissert. 14.

[Note XIV.]]

 

[Footnote k: Originally it was but 45 solidi (Leges Salicae, c. 43), but

Charlemagne raised it to 100.  Baluzii Capitularia, p. 402.  There are several

provisions in the laws of this great and wise monarch in favor of liberty.  If

a lord claimed any one either as his villein or slave (colonus sive servus),

who had escaped beyond his territory, he was not to be given up till strict

inquiry had been made in the place to which he was asserted to belong, as to

his condition and that of his family: p. 400. And if the villein showed a

charter of enfranchisement, the proof of its forgery was to lie upon the lord.

No man's liberty could be questioned in the Hundred-court.]

 

[Footnote l: Montesquieu ascribes the increase of personal servitude in France

to the continued revolts and commotions under the two first dynasties, l. xxx.

c. II.]

 

[Footnote m: Du Cange, v. Obnoxatio.]

 

[Footnote n: Baluzii Capitularia.  The Greek traders purchased famished

wretches on the coasts of Italy, whom they sold to the Saracens. - Muratori,

Annalia d'Italia, A.D. 785.  Much more would persons in this extremity sell

themselves to neighboring lords.]

 

[Footnote o: Du Cange, Heribannum.  A full heribannum was 60 solid; but it was

sometimes assessed in proportion to the wealth of the party.]

 

[Footnote p: Beaumanoir, c. 45. [Note XV.]]

 

     The characteristic distinction of a villein was his obligation to remain

upon his lord's estate.  He was not only precluded from selling the lands upon

which he dwelt, but his person was bound, and the lord might reclaim him at

any time, by suit in a court of justice, if he ventured to stray.  But,

equally liable to this confinement, there were two classes of villeins, whose

condition was exceedingly different.  In England, at least from the reign of

Henry II., one only, and that the inferior species, existed; incapable of

property, and destitute of redress, except against the most outrageous

injuries. ^q The lord could seize whatever they acquired or inherited, or

convey them, apart from the land, to a stranger. Their tenure bound them to

what were called villein services, ignoble in their nature and indeterminate

in their degree: the felling of timber, the carrying of manure, the repairing

of roads for their lord, who seems to have possessed an equally unbounded

right over their labor and its fruits. But by the customs of France and

Germany, persons in this abject state seem to have been called serfs, and

distinguished from villeins, who were only bound to fixed payments and duties

in respect of their lord, though, as it seems, without any legal redress if

injured by him. ^r "The third estate of men," says Beaumanoir, in the passage

above quoted, "is that of such as are not free; and these are not all of one

condition, for some are so subject to their lord that he may take all they

have, alive or dead, and imprison them, whenever he pleases, being accountable

to none but God; while others are treated more gently, from whom the lord can

take nothing but customary payments, though at their deatth all they have

escheats to him." ^s

 

[Footnote q: Littleton, l. ii. c. II. Non potest aliquis (says Glanvil), in

villenagio positus, libertatem suam propriis denariis suis quaerere - quia

omnia catalla cujuslibet nativi intelliguntur esse in potestate domini sui. -

l. v. c. 5.]

 

[Footnote r: This is clearly expressed in a French law-book of the thirteenth

century, the Conseil of Pierre des Fontaines, quoted by Du Cange, voc.

Villanus.  Et sache bien que selon Dieu tu n'as mie pleniere poeste sur ton

vilain. Dont se tu prens du sien fors les droites redevances que te doit, tu

les prens contre Dieu, et sur le peril de t'ame et come robierres. Et ce qu'on

dit-toutes les choses que vilains a, sont son Seigneur, c'est voir a garder.

Car s'il estoient son seigneur propre, il n'avoit nule difference entre serf

et vilain, mais par notre usage n'a entre toi et ton vilain juge fors Dieu,

tant com il est tes couchans et tes levans, s'il n'a autre loi vers toi fors

la commune.  This seems to render the distinction little more than

theoretical.]

 

[Footnote s: Beaumanoir, c. 45; Du Cange, Villanus, Servus, and several other

articles.  Schmidt, Hist. des Allemands, t. ii. p. 171, 435.  By a law of the

Lombards, a free woman who married a slave might be killed by her relations,

or sold; if they neglected to do so, the fisc might claim her as its own. -

Muratori, Dissert. 14.  In France also she was liable to be treated as a

slave. - Marculfi Formulae, l. ii. 29.  Even in the twelfth century it was the

law of Flanders that whoever married a villein became one himself after he had

lived with her a twelvemonth - Recueil des Historiens, t. xiii. p. 350.  And,

by a capitulary of Pepin, if a man married a villein believing her to be free,

he might repudiate her and marry another. - Baluze, p. 181.

 

     Villeins themselves could not marry without the lord's license, under

penalty of forfeiting their goods, or at least of a mulct. - Du Cange, v.

Forismaritagium.  This seems to be the true origin of the famous mercheta

mulierum, which has been ascribed to a very different custom. - Du Cange, v.

Mercheta Mulierum; Dalrymple's Annals of Scotland, vol. i. p. 312;

Archaeologia, vol. xii. p. 31.]

 

     Under every denomination of servitude, the children followed their

mother's condition, except in England, where the father's state determined

that of the children; on which account bastards of female villeins were born

free, the law presuming the liberty of their father. ^t The proportion of

freemen, therefore, would have been miserably diminished if there had been no

reflux of the tide which ran so strongly towards slavery.  But the usage of

manumission made a sort of circulation between these two states of mankind.

This, as is well known, was an exceedingly common practice with the Romans;

and is mentioned, with certain ceremonies prescribed, in the Frankish and

other early laws.  The clergy, and especially several popes, enforced it as a

duty upon laymen; and inveighed against the scandal of keeping Christians in

bondage. ^u As society advanced in Europe, the manumission of slaves grew more

frequent. ^v By the indulgence of custom in some places, or perhaps by

original convention, villeins might possess property and thus purchase their

own redemption.  Even where they had no legal title to property, it was

accounted inhuman to divest them of their little possession (the peculium of

Roman law), nor was their poverty, perhaps, less tolerable, upon the whole,

than that of the modern peasantry in most countries of Europe.  It was only in

respect of his lord, it must be remembered, that the villein, at least in

England, was without rights; ^w he might inherit, purchase, sue in the courts

of law; though, as defendant in a real action or suit wherein land was

claimed, he might shelter himself under the plea of villenage.  The peasants

of this condition were sometimes made use of in war, and rewarded with

enfranchisement; especially in Italy, where the cities and petty states had

often occasion to defend themselves with their own population; and in peace

the industry of free laborers must have been found more productive and better

directed.  Hence the eleventh and twelfth centuries saw the number of slaves

in Italy begin to decrease; early in the fifteenth a writer quoted by Muratori

speaks of them as no longer existing. ^x The greater part of the peasants in

some countries of Germany had acquired their liberty before the end of the

thirteenth century; in other parts, as well as in all the northern and eastern

regions of Europe, they remained in a sort of villenage till the present age.

Some very few instances of predial servitude have been discovered in England

so late as the time of Elizabeth, ^y and perhaps they might be traced still

lower. Louis Hutin, in France, after innumerable particular instances of

manumission had taken place, by a general edict in 1315, reciting that his

kingdom is denominated the kingdom of the Franks, that he would have the fact

to correspond with the name, emancipates all persons in the royal domains upon

paying a just composition, as an example for other lords possessing villeins

to follow. ^z Philip the Long renewed the same edict three years afterwards; a

proof that it had not been carried into execution. ^a Indeed there are letters

of the former prince, wherein, considering that many of his subjects are not

apprised of the extent of the benefit conferred upon them, he directs his

officers to tax them as high as their fortunes can well bear. ^b

 

[Footnote t: Littleton, s. 188. Bracton indeed holds that the spurious issue

of a neif, though by a free father, should be a villein, quia sequitur

conditionem matris, quasi vulgo conceptus, l. i. c. 6.  But the laws under the

name of Henry I. declare that a son should follow his father's condition; so

that this peculiarity is very ancient in our law. - Leges Hen. I. c. 75 and

77.]

 

[Footnote u: Enfranchisements by testament are very common.  Thus in the will

of Seniofred, Count of Barcelona, in 966, we find the following piece of

corrupt Latin: De ipsos servos meos et ancillas, illi qui traditi fuerunt

faciatis illos libros propter remedium animae meae; et alli qui fuerunt de

parentorum meorum remaneant ad fratres meos. - Marca Hispanica, p. 887.]

 

[Footnote v: No one could enfranchise his villein without the superior lord's

consent; for this was to diminish the value of his land, apeticer le fief. -

Beaumanoir, c. 15.  Etablissemens de St. Louis, c. 34.  It was necessary,

therefore, for the villein to obtain the suzerain's confirmation; otherwise he

only changed masters and escheated, as it were, to the superior; for the lord

who had granted the charter of franchise was estopped from claiming him

again.]

 

[Footnote w: Littleton, s. 189.  Perhaps this is not applicable to other

countries.  Villeins were incapable of being received as witnesses against

freemen. - Recueil des Historiens, t. xiv. preface, p. 65.  There are some

charters of kings of France admitting the serfs of particular monasteries to

give evidence, or to engage in the judicial combat, against freemen. -

Ordonnances des Rois, t. i. p. 3.  But I do not know that their testimony,

except against their lord, was ever refused in England; their state of

servitude not being absolute, like that of negroes in the West Indies, but

particular and relative, as that of an apprentice or hired servant.  This

subject, however, is not devoid of obscurity.]

 

[Footnote x: Dissert. 14.]

 

[Footnote y: Barrington's Observations on the Ancient Statutes, p. 274.]

 

[Footnote z: Ordonnances des Rois, t. i. p. 583.]

 

[Footnote a: Id. p. 653.]

 

[Footnote b: Velly, t. viii. p. 38.  Philip the Fair had emancipated the

villeins in the royal domains throughout Languedoc, retaining only an annual

rent for their lands, which thus became censives, or emphyteuses. It does not

appear by the charter that he sold this enfranchisement, though there can be

little doubt about it.  He permitted his vassals to follow the example. -

Vaissette, Hist. de Languedoc, t. iv.; Appendix, p. 3, 12.

 

     It is not generally known, I think, that predial servitude was not

abolished in all parts of France till the revolution.  In some places, says

Pasquier, the peasants are taillables a volonte, that is, their contribution

is not permanent, but assessed by the lord with the advice of prud' hommes,

resseants sur les lieux, according to the peasant's ability. Others pay a

fixed sum.  Some are called serfs de poursuite, who cannot leave their

habitations, but may be followed by the lord into any part of France for the

taille upon their goods.  This was the case in part of Champagne and the

Nivernois.  Nor could these serfs, or gens de mainmorte, as they were

sometimes called, be manumitted without letters-patent of the king, purchased

by a fine. - Recherches de la France, l. iv. c. 5.  Dubos informs us that, in

1615, the Tiers Etat prayed the king to cause all serfs (hommes de pooste) to

be enfranchised on paying a composition; but this was not complied with, and

they existed in many parts when he wrote. - Histoire, Critique, t. iii. p.

298.  Argou, in his Institutions du Droit Francois, confirms this, and refers

to the customaries of Nivernois and Vitry, I. i. c. I.  And M. de Brequigny,

in his preface to the twelfth volume of the collection of Ordonnances, p. 22,

says that throughout almost the whole jurisdiction of the parliament of

Besancon the peasants were attached to the soil, not being capable of leaving

it without the lord's consent; and that in some places he even inherited their

goods in exclusion of the kindred.  I recollect to have read in some part of

Voltaire's correspondence an anecdote of his interference, with that zeal

against oppression which is the shining side of his moral character, in behalf

of some of these wretched slaves of Franche-Comte.

 

     About the middle of the fifteenth century, some Catalonian serfs who had

escaped into France being claimed by their lords, the parliament of Toulouse

declared that every man who entered the kingdom en criant France should become

free.  The liberty of our kingdom is such, says Mezeray, that its air

communicates freedom to those who breathe it, and our kings are too august to

reign over any but freemen.  Villaret, t. xv. p. 348. How much pretence

Mezeray had for such a flourish may be decided by the former part of this

note.]

 

     It is deserving of notice that a distinction existed from very early

times in the nature of lands, collateral, as it were, to that of persons. Thus

we find mansi ingenui and mansi serviles in the oldest charters,

corresponding, as we may not unreasonably conjecture, to the liberum

tenementum and villenagium, or freehold and copyhold of our own law.  In

France, all lands held in roture appear to be considered as villein tenements,

and are so termed in Latin, though many of them rather answer to our socage

freeholds.  But although originally this servile quality of lands was founded

on the state of their occupiers, yet there was this particularity, that lands

never change their character along with that of the possessor; so that a

nobleman might, and often did, hold estates in roture, as well as a roturier

acquire a fief.  Thus in England the terre tenants in villenage, who occur in

our old books, were not villeins, but freemen holding lands which had been

from time immemorial of a villein quality.

 

     At the final separation of the French from the German side of

Charlemagne's empire by the treaty of Verdun in 843, there was perhaps hardly

any difference in the constitution of the two kingdoms.  If any might be

conjectured to have existed, it would be a greater independence and fuller

rights of election in the nobility and people of Germany.  But in the lapse of

another century France had lost all her political unity, and her kings all

their authority; while the Germanic empire was entirely unbroken under an

effectual, though not absolute, control of its sovereign.  No comparison can

be made between the power of Charles the Simple and Conrad the First, though

the former had the shadow of an hereditary right, and the latter was chosen

from among his equals. A long succession of feeble princes or usurpers, and

destructive incursions of the Normans, reduced France almost to a dissolution

of society; while Germany, under Conrad, Henry, and the Othos, found their

arms not less prompt and successful against revolted vassals than external

enemies.  The high dignities were less completely hereditary than they had

become in France; they were granted, indeed, pretty regularly, but they were

solicited as well as granted; while the chief vassals of the French crown

assumed them as patrimonial sovereignties, to which a royal investiture gave

more of ornament than sanction.

 

     In the eleventh century these imperial prerogatives began to lose part of

their lustre.  The long struggles of the princes and clergy against Henry IV.

and his son, the revival of more effective rights of election on the

extinction of the house of Franconia, the exhausting contests of the Swabian

emperors in Italy, the intrinsic weakness produced by a law of the empire,

according to which the reigning sovereign could not retain an imperial fief

more than a year in his hands, gradually prepared that independence of the

German aristocracy which reached its height about the middle of the thirteenth

century.  During this period the French crown had been insensibly gaining

strength; and as one monarch degenerated into the mere head of a confederacy,

the other acquired unlimited power over a solid kingdom.

 

     It would be tedious, and not very instructive, to follow the details of

German public law during the middle ages; nor are the more important parts of

it easily separable from civil history.  In this relation they will find a

place in a subsequent chapter of the present work.  France demands a more

minute attention; and in tracing the character of the feudal system in that

country, we shall find ourselves developing the progress of a very different

polity.

 

     To understand in what degree the peers and barons of France, during the

prevalence of feudal principles, were independent of the crown, we must look

at their leading privileges.  These may be reckoned: 1. The right of coining

money; 2. That of waging private war; 3. The exemption from all public

tributes, except the feudal aids; 4. The freedom from legislative control;

and, 5. The exclusive exercise of original judicature in their dominions.

Privileges so enormous, and so contrary to all principles of sovereignty,

might lead us, in strictness, to account France rather a collection of states,

partially allied to each other, than a single monarchy.

 

     1. Silver and gold were not very scarce in the first ages of the French

monarchy; but they passed more by weight than by tale.  A lax and ignorant

government, which had not learned the lucrative mysteries of a royal mint, was

not particularly solicitous to give its subjects the security of a known stamp

in their exchanges. ^c In some cities of France money appears to have been

coined by private authority before the time of Charlemagne; at least one of

his capitularies forbids the circulation of any that had not been stamped in

the royal mint.  His successors indulged some of their vassals with the

privilege of coining money for the use of their own territories, but not

without the royal stamp.  About the beginning of the tenth century, however,

the lords, among their other assumptions of independence, issued money with no

marks but their own. ^d At the accession of Hugh Capet as many as a hundred

and fifty are said to have exercised this power.  Even under St. Louis it was

possessed by about eighty, who, excluding as far as possible the royal coin

from circulation, enriched themselves at their subjects' expense by high

duties (seigniorages), which they imposed upon every new coinage, as well as

by debasing its standard. ^e In 1185 Philip Augustus requests the abbot of

Corvey, who had desisted from using his own mint, to let the royal money of

Paris circulate through his territories, promising that, when it should please

the abbot to coin money afresh for himself, the king would not oppose its

circulation. ^f

 

[Footnote c: The practice of keeping fine gold and silver uncoined prevailed

among private persons, as well as in the treasury, down to the time of Philip

the Fair.  Nothing is more common than to find, in the instruments of earlier

time, payments or fines stipulated by weight of gold or silver.  Le Blanc

therefore thinks that little money was coined in France, and that only for

small payments. - Traite des Monnoyes.  It is curious that, though there are

many gold coins extant of the first race of kings, yet few or none are

preserved of the second or third before the reign of Philip the Fair. - Du

Cange, v. Moneta.]

 

[Footnote d: Vaissette, Hist. de Languedoc, t. ii. p. 110; Rec. des

Historiens, t. xi. pref. p. 180; Du Cange, v. Moneta.]

 

[Footnote e: Le Blanc, Traite des Monnoyes, p. 91.]

 

[Footnote f: Du Cange, voc. Moneta; Velly, Hist. de France, t. ii. p. 93;

Villaret, t. xiv. p. 200.]

 

     Several regulations were made by Louis IX. to limit, as far as lay in his

power, the exercise of this baronial privilege, and, in particular, by

enacting that the royal money should circulate in the domains of those barons

who had mints, concurrently with their own, and exclusively within the

territories of those who did not enjoy that right. Philip the Fair established

royal officers of inspection in every private mint.  It was asserted in his

reign, as a general truth, that no subject might coin silver money. ^g In

fact, the adulteration practised in those baronial mints had reduced their

pretended silver to a sort of black metal, as it was called (moneta nigra),

into which little entered but copper.  Silver, however, and even gold, were

coined by the dukes of Brittany so long as that fief continued to exist.  No

subjects ever enjoyed the right of coining silver in England without the royal

stamp and superintendence ^h - a remarkable proof of the restraint in which

the feudal aristocracy was always held in that country.

 

[Footnote g: Du Cange, v. Moneta.  The right of debasing the coin was also

claimed by this prince as a choice flower of his crown.  Item, abaisser et

amenuser la monnoye est privilege especial au roy de son droit royal, si que a

luy appartient, et a non autre, et encore en un seul cas, c'est a scavoir en

necessite, et lors ne vient pas le ganeg, ne convertit en son profit especial,

mais en profit et en la defence du commun.  This was in a process commenced by

the king's procureur-general against the Comte de Nevers, for defacing his

coin. - Le Blanc, Traite des Monnoyes, p. 92.  In many places the lord took a

sum from his tenants every three years, under the name of monetagium or

focagium, in lieu of debasing his money.  This was finally abolished in 1830.

- Du Cange, v. Monetagium.]

 

[Footnote h: I do not extend this to the fact; for in the anarchy of Stephen's

reign both bishops and barons coined money for themselves. - Hoveden, p. 490.]

 

     2. The passion of revenge, always among the most ungovernable in human

nature, acts with such violence upon barbarians, that it is utterly beyond the

control of their imperfect arrangements of polity.  It seems to them no part

of the social compact to sacrifice the privilege which nature has placed in

the arm of valor.  Gradually, however, these fiercer feelings are blunted, and

another passion, hardly less powerful than resentment, is brought to play in a

contrary direction.  The earlier object accordingly of jurisprudence is to

establish a fixed atonement for injuries, as much for the preservation of

tranquillity as the prevention of crime.  Such were the weregilds of the

barbaric codes, which, for a different purpose, I have already mentioned. ^i

But whether it were that the kindred did not always accept, or the criminal

offer, the legal composition, or that other causes of quarrel occurred,

private feuds (faida) were perpetually breaking out, and many of Charlemagne's

capitularies are directed against them.  After his time all hope of

restraining so inveterate a practice was at an end; and every man who owned a

castle to shelter him in case of defeat, and a sufficient number of dependents

to take the field, was at liberty to retaliate upon his neighbors whenever he

thought himself injured.  It must be kept in mind that there was, frequently,

either no jurisdiction to which he could appeal, or no power to enforce its

awards; so that we may consider the higher nobility of France as in a state of

nature with respect to each other, and entitled to avail themselves of all

legitimate grounds of hostility.  The right of waging private war was

moderated by Louis IX., checked by Philip IV., suppressed by Charles VI.; but

a few vestiges of its practice may be found still later. ^j

 

[Footnote i: The antiquity of compositions for murder is illustrated by Iliad.

498, where, in the description of the shield of Achilles, two disputants are

represented wrangling before the judge for the weregild or price of blood.]

 

[Footnote j: The subject of private warfare is treated so exactly and

perspicuously by Robertson, that I should only waste the reader's time by

dwelling so long upon it as its extent and importance would otherwise demand.

- See Hist. of Charles V. vol. i. note 21.  Few leading passages in the

monuments of the middle ages relative to this subject have escaped the

penetrating eye of that historian; and they are arranged so well as to form a

comprehensive treatise in small compass.  I know not that I could add any much

worthy of notice, unless it be the following: - In the treaty between Philip

Augustus and Richard Coeur de Lion (1194), the latter refused to admit the

insertion of an article that none of the barons of either party should molest

the other; lest he should infringe the customs of Poitou and his other

dominions, in quibus consuetum erat ab antiquo, ut magnates suetum erat ab

antiquo, ut magnates causas proprias invicem gladiis allegarent. - Hoveden, p.

741 (in Saville, Script. Anglic.).]

 

     3. In the modern condition of governments, taxation is a chief engine of

the well-compacted machinery which regulates the system.  The payments, the

prohibitions, the licenses, the watchfulness of collection, the evasions of

fraud, the penalties and forfeitures, that attend a fiscal code of laws,

present continually to the mind of the most remote and humble individual the

notion of a supreme, vigilant, and coercive authority.  But the early European

kingdoms knew neither the necessities nor the ingenuity of modern finance.

From their demesne lands the kings of France and Lombardy supplied the common

expenses of a barbarous court. Even Charlemagne regulated the economy of his

farms with the minuteness of a steward, and a large portion of his

capitularies are directed to this object.  Their actual revenue was chiefly

derived from free gifts, made, according to an ancient German custom, at the

annual assemblies ^k of the nation, from amercements paid by allodial

proprietors for default of military service, and from the freda, or fines,

accruing to the judge out of compositions for murder. ^l These amounted to

one-third of the whole weregild; one-third of this was paid over by the count

to the royal exchequer.  After the feudal government prevailed in France, and

neither the heribannum nor the weregild continued in use, there seems to have

been hardly any source of regular revenue besides the domanial estates of the

crown; unless we may reckon as such, that during a journey the king had a

prescriptive right to be supplied with necessaries by the towns and abbeys

through which he passed; commuted sometimes into petty regular payments,

called droits de gist et de chevauche. ^m Hugh Capet was nearly indigent as

King of France, though, as Count of Paris and Orleans, he might take the

feudal aids and reliefs of his vassals.  Several other small emoluments of

himself and his successors, whatever they may since have been considered, were

in that age rather seigniorial than royal.  The rights of toll, of customs, of

alienage (aubaine), generally even the regale or enjoyment of the

temporalities of vacant episcopal sees and other ecclesiastical benefices, ^n

were possessed within their own domains by the great feudatories of the crown.

They, I apprehend, contributed nothing to their sovereign, not even those aids

which the feudal customs enjoined. ^o

 

[Footnote k: Du Cange, Dissertation quatrieme sur Joinville.]

 

[Footnote l: Mably, l. i. c. 2, note 3; Du Cange voc. Heribannum, Fredum.]

 

[Footnote m: Velly, t. ii. p. 329; Villaret, t. xiv. p. 174-195; Recueil des

Historiens, t. xiv. preface, p. 37.  The last is a perspicuous account of the

royal revenue in the twelfth century.  But far the most luminous view of that

subject, for the three next ages, is displayed by M. de Pastoret in his

prefaces to the fifteenth and sixteenth volumes of the Ordonnances des Rois.]

 

[Footnote n: The Duke of Burgundy and Count of Champagne did not possess the

regale.  But it was enjoyed by all the other peers; by the dukes of Normandy,

Guienne, and Brittany; the counts of Toulouse, Poitou, and Flanders. - Mably,

1. iii. c. 4; Recueil des Historiens, t. ii. p. 229, and t. xiv. p. 53;

Ordonnances des Rois, t. i. p. 621.]

 

[Footnote o: I have never met with any instance of a relief, aid, or other

feudal contribution paid by the vassals of the French crown; but in this

negative proposition it is possible that I may be deceived.]

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