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 Seven


     Excepting a few instances, most of which have been mentioned, it does not

appear that the kings of the house of Capet acted according to the advice and

deliberation of any national assembly, such as assisted the Norman sovereigns

of England: nor was any consent required for the validity of their edicts;

except that of the ordinary council, chiefly formed of their household

officers and less powerful vassals.  This is at first sight very remarkable.

For there can be no doubt that the government of Henry I. or Henry II. was

incomparably stronger than that of Louis VI. or Louis VII.  But this apparent

absoluteness of the latter was the result of their real weakness and the

disorganization of the monarchy. The peers of France were infrequent in their

attendance upon the king's council, because they denied its coercive

authority.  It was a fundamental principle that every feudal tenant was so far

sovereign within the limits of his fief, that he could not be bound by any law

without his consent. The king, says St. Louis in his Establishments, cannot

make proclamation, that is, declare any new law, in the territory of a baron,

without his consent, nor can the baron do so in that of a vavassor. ^v Thus,

if legislative power be essential to sovereignty, we cannot in strictness

assert the king of France to have been sovereign beyond the extent of his

domanial territory.  Nothing can more strikingly illustrate the dissimilitude

of the French and English constitutions of government than the sentence above

cited from the code of St. Louis.


[Footnote v: Ne li rois ne puet mettre ban en la terre au baron sans son

assentment, ne li bers [baron] ne puet mettre ban en la terre au vavasor.

Ordonnances des Rois, t. i. p. 126.]


     Upon occasions when the necessity of common deliberation, or of giving to

new provisions more extensive scope than the limits of a single fief, was too

glaring to be overlooked, congresses of neighboring lords met in order to

agree upon resolutions which each of them undertook to execute within his own

domains.  The king was sometimes a contracting party, but without any coercive

authority over the rest.  Thus we have what is called an ordinance, but, in

reality, an agreement between the king (Philip Augustus), the Countess of

Troyes or Champagne, and the Lord of Dampierre, ^w relating to the Jews in

their domains; which agreement or ordinance, it is said, should endure "until

ourselves, and the Countess of Troyes, and Guy de Dampierre, who make this

contract, shall dissolve it with the consent of such of our barons as we shall

summon for that purpose." ^x


[Footnote w: In former editions I have called the lord of Dampierre Count of

Flanders.  But it has been suggested to me that the lord of Dampierre was

never Count of Flanders; his second brother married the younger sister of the

heiress of that fief, who, after his death, inherited it from the elder.  The

ordinance related to the domains of Dampierre, in the Nivernois.  This,

however, makes the instance stronger against the legislative authority of the

crown than as I had stated it.]


[Footnote x: Quosque nos, et comitissa, Trecensis, et Guido de Domna petra,

qui hoc facimus, per nos, et illos de baronibus nostris, quos ad hoc vocare

volumus, illud diffaciamus.  Ordonnances des Rois, t. i. p. 29. This ordinance

bears no date, but it was probably between 1218 and 1223, the year of Philip's



     Ecclesiastical councils were another substitute for a regular

legislature; and this defect in the political constitution rendered their

encroachments less obnoxious, and almost unavoidable.  That of Troyes in 878,

composed perhaps in part of laymen, imposed a fine upon the invaders of church

property. ^y And the council of Toulouse, in 1229, prohibited the erection of

any new fortresses, or the entering into any leagues, except against the

enemies of religion; and ordained that judges should administer justice

gratuitously, and publish the decrees of the council four times in the year.



[Footnote y: Vaissette, Hist. de Languedoc, t. ii. p. 6.]


[Footnote z: Velly, t. iv. p. 132.]


     The first unequivocal attempt, for it was nothing more, at general

legislation, was under Louis VIII. in 1223, in an ordinance which, like

several of that age, relates to the condition and usurious dealings of the

Jews.  It is declared in the preamble to have been enacted per assensum

archiepiscoporum, episcoporum, comitum, baronum, et militum regni Franciae,

qui Judaeos habent, et qui Judaeos non habent.  This recital is probably

untrue, and intended to cloak the bold innovation contained in the last clause

of the following provision: Sciendum, quod nos et barones nostri statuimis et

ordinavimus de statu Judaeorum quod nullus nostrum alterius Judaeos recipere

potest vel retinere; et hoc intelligendum est tam de his qui stabilimentum

juraverint quam de illis qui non juraverint. ^a This was renewed with some

alteration in 1230, de communi consilio baronum nostrorum. ^b


[Footnote a: Ordonnances des Rois, t. i. p. 47.]


[Footnote b: Id. p. 53.]


     But whatever obedience the vassals of the crown might pay to this

ordinance, their original exemption from legislative control remained, as we

have seen, unimpaired at the date of the Establishment of St. Louis, about

1269; and their ill-judged confidence in this feudal privilege still led them

to absent themselves from the royal council.  It seems impossible to doubt

that the barons of France might have asserted the same right which those of

England had obtained, that of being duly summoned by special writ, and thus

have rendered their consent necessary to every measure of legislation.  But

the fortunes of France were different.  The Establishments of St. Louis are

declared to be made "par grand conseil de sages hommes et de bons clers," but

no mention is made of any consent given by the barons; nor does it often, if

ever, occur in subsequent ordinances of the French kings. The nobility did not

long continue safe in their immunity from the king's legislative power.  In

the ensuing reign of Philip the Bold, Beaumanoir lays it down, though in very

moderate and doubtful terms, that "when the king makes any ordinance specially

for his own domains, the barons do not cease to act in their territories

according to the ancient usage; but when the ordinance is general, it ought to

run through the whole kingdom, and we ought to believe that it is made with

good advice, and for the common benefit." ^c In another place he says, with

more positiveness, that "the king is sovereign above all, and has of right the

general custody of the realm, for which cause he may make what ordinances he

pleases for the common good, and what he ordains ought to be observed; nor is

there anyone so great but may be drawn into the king's court for default of

right or for false judgment, or in matters that affect the sovereign." ^d

These latter words give us a clue to the solution of the problem by what means

an absolute monarchy was established in France.  For though the barons would

have been little influenced by the authority of a lawyer like Beaumanoir, they

were much less able to resist the coercive logic of a judicial tribunal.  It

was in vain for them to deny the obligation of royal ordinances within their

own domains, when they were compelled to acknowledge the jurisdiction of the

parliament of Paris, which took a very different view of their privileges.

This progress of the royal jurisdiction will fall under the next topic of

inquiry, and is only now hinted at, as the probable means of confirming the

absolute legislative power of the French crown.


[Footnote c: Coutumes de Beauvoisis, c. 48.]


[Footnote d: C. 34.  Beaumanoir uses in one place still stronger language

about the royal authority.  The king, he says, may annul the releases of debts

made by any one who accompanies him in military service, so that he may

enforce them again; "for what it pleases him to do ought to be held as law"

(c. 35).  This I owe to the new edition of the "Coutumes de Beaumanoir," by M.

Beugnot, 1842.]


     The ultimate source, however, of this increased authority will be found

in the commanding attitude assumed by the kings of France from the reign of

Philip Augustus, and particularly in the annexation of the two great fiefs of

Normandy and Toulouse.  Though the chatelains and vavassors who had depended

upon those fiefs before their reunion were, agreeably to the text of St.

Louis' ordinance, fully sovereign, in respect of legislation, within their

territories, yet they were little competent, and perhaps little disposed, to

offer any opposition to the royal edicts; and the same relative superiority of

force, which had given the first kings of the house of Capet a tolerably

effective control over the vassals dependent on Paris and Orleans, while they

hardly pretended to any over Normandy and Toulouse, was now extended to the

greater part of the kingdom.  St. Louis, in his scrupulous moderation, forbore

to avail himself of all the advantages presented by the circumstances of his

reign; and his Establishments bear testimony to a state of political society

which, even at the moment of their promulgation, was passing away.  The next

thirty years after his death, with no marked crisis, and with little

disturbance, silently demolished the feudal system such as had been

established in France during the dark confusion of the tenth century. Philip

the Fair, by help of his lawyers and his financiers, found himself, at the

beginning of the fourteenth century, the real master of his subjects. ^e


[Footnote e: The reign of Philip the Fair has been very well discussed by

Mably, Sismondi, and Guizot.  "He changed," says the last, "monarchy into

despotism; but he was not one of those despots who employ their absolute power

for the public good." "On ne rencontre dans tout le cours de son regne aucune

idee generale, et qui s'y rapporte au bien de ses sujets; c'est un despote

egoiste, devoue a lui-meme qui regne pour lui seul." (Lecon 45.) The royal

authority gained so much ascendency in his reign, that, while we have only 50

ordonnances of St. Louis in forty-two years, we have 334 of Philip IV. in

about thirty.]


     There was, however, one essential privilege which he could not hope to

overturn by force, the immunity from taxation enjoyed by his barons. This, it

will be remembered, embraced the whole extent of their fiefs, and their

tenantry of every description; the king having no more right to impose a

tallage upon the demesne towns of his vassals than upon themselves.  Thus his

resources, in point of taxation, were limited to his own domains; including

certainly, under Philip the Fair, many of the noblest cities in France, but by

no means sufficient to meet his increasing necessities.  We have seen already

the expedients employed by this rapacious monarch - a shameless depreciation

of the coin, and, what was much more justifiable, the levying taxes within the

territories of his vassals by their consent.  Of these measures, the first was

odious, the second slow and imperfect.  Confiding in his sovereign authority -

though recently, yet almost completely, established - and little apprehensive

of the feudal principles, already grown obsolete and discountenanced, he was

bold enough to make an extraordinary innovation in the French constitution.

This was the convocation of the States-General, a representative body,

composed of the three orders of the nation. ^f They were first convened in

1302, in order to give more weight to the king's cause in his great quarrel

with Boniface VIII.; but their earliest grant of a subsidy is in 1314.  Thus

the nobility surrendered to the crown their last privilege of territorial

independence; and, having first submitted to its appellant jurisdiction over

their tribunals, next to its legislative supremacy, now suffered their own

dependents to become, as it were, immediate, and a third estate to rise up

almost coordinate with themselves, endowed with new franchises, and bearing a

new relation to the monarchy.


[Footnote f: It is almost unanimously agreed among French writers that Philip

the Fair first introduced a representation of the towns into his national

assembly of States-General.  Nevertheless, the Chronicles of St. Denis, and

other historians of rather a late date, assert that the deputies of towns were

present at a parliament in 1241, to advise the king what should be done in

consequence of the Count of Angouleme's refusal of homage.  Boulainvilliers,

Hist. de l'Ancien Gouvernement de France, t. ii. p. 20; Villaret, t. ix. p.

125.  The latter pretends even that they may be traced a century farther back;

on voit deja les gens de bonnes villes assister aux etats de 1145.  Ibid.  But

he quotes no authority for this; and his vague language does not justify us in

supposing that any representation of the three estates, properly so

understood, did, or indeed could, take place in 1145, while the power of the

aristocracy was unbroken, and very few towns had been incorporated.  If it be

true that the deputies of some royal towns were summoned to the parliament of

1241, the conclusion must not be inferred that they possessed any consenting

voice, nor perhaps that they formed, strictly speaking, an integrant portion

of the assembly.  There is reason to believe that deputies from the royal

burghs of Scotland occasionally appeared at the bar of parliament long before

they had any deliberative voice. - Pinkerton's Hist. of Scotland, vol. i. p.



     An ordinance of St. Louis, quoted in a very respectable book, Vaissette's

History of Languedoc, t. iii. p. 480, but not published in the Recueil des

Ordonnances, not only shows the existence, in one instance, of a provincial

legislative assembly, but is the earliest proof perhaps of the tiers etat

appearing as a constituent part of it.  This relates to the seneschaussee, or

county, of Beaucaire in Languedoc, and bears date in 1254.  It provides that,

if the seneschal shall think fit to prohibit the export of merchandise, he

shall summon some of the prelates, barons, knights, and inhabitants of the

chief towns, by whose advice he shall issue such prohibition, and not recall

it, when made, without like advice. But though it is interesting to see the

progressive importance of the citizens of towns, yet this temporary and

insulated ordinance is not of itself sufficient to establish a constitutional

right.  Neither do we find therein any evidence of representation; it rather

appears that the persons assisting in this assembly were notables, selected by

the seneschal.


     I am not aware of any instance of regular provincial estates being

summoned with such full powers, although it was very common in the fourteenth

century to ask their consent to grants of money, when the court was unwilling

to convoke the States-General.  Yet there is a passage in a book of

considerable credit, the Grand Customary, or Somme Rurale of Bouteiller, which

seems to render general the particular case of the seneschaussee of Beaucaire.

Bouteiller wrote about the end of the fourteenth century.  The great courts

summoned from time to time by the baillis and seneschals were called assises.

Their usual function was to administer justice, especially by way of appeal,

and perhaps to redress abuses of inferior officers.  But he seems to give them

a more extended authority.  En assise, he says, appelles, lec sages et

seigneurs du pais, peuvent estre mises sus nouvelles constitutions, et

ordonnances sur le pais et destruites autre que seront grevables, et en autre

temps non, et doivent etre publiees safin que nul ne les pueust ignorer, et

lors ne les peut ne doit jamais nul redarguer. - Mem. de l'Acad. des

Inscriptions, t. xxx. p. 606.


     The taille was assessed by respectable persons chosen by the advice of

the parish priests and others, which gave the people a sort of share in the

repartition, to use a French term, of public burdens; a matter of no small

importance where a tax is levied on visible property.  Ordonnances des Rois,

p. 291; Beaumanoir, p. 269.  This, however, continued, I believe, to be the

practice in later times; I know it is so in the present system of France, and

is perfectly distinguishable from a popular consent to taxation.]


     It is impossible not to perceive the motives of Philip in embodying the

deputies of towns as a separate estate in the national representation. He

might, no question, have convoked a parliament of his barons, and obtained a

pecuniary contribution, which they would have levied upon their burgesses and

other tenants.  But, besides the ulterior policy of diminishing the control of

the barons over their dependents, he had good reason to expect more liberal

aid from the immediate representatives of the people than through the

concession of a dissatisfied aristocracy.  "He must be blind, indeed," says

Pasquier, "who does not see that the roturier was expressly summoned to this

assembly, contrary to the ancient institutions of France, for no other reason

than that, inasmuch as the burden was intended to fall principally upon him,

he might engage himself so far by promise, that he could not afterwards murmur

or become refractory." ^g Nor would I deny the influence of more generous

principles; the example of neighboring countries, the respect due to the

progressive civilization and opulence of the towns, and the application of

that ancient maxim of the northern monarchies, that whoever was elevated to

the perfect dignity of a freeman acquired a claim to participate in the

imposition of public tributes.


[Footnote g: Recherches de la France, 1. ii. c. 7.]


     It is very difficult to ascertain the constitutional rights of the

States-General, claimed or admitted, during forty years after their first

convocation.  If, indeed, we could implicitly confide in an historian of the

sixteenth century, who asserts that Louis Hutin bound himself and his

successors not to levy any tax without the consent of the three estates, the

problem would find its solution. ^h This ample charter does not appear in the

French archives; and though by no means to be rejected on that account, when

we consider the strong motives for its destruction, cannot fairly be adduced

as an authentic fact.  Nor can we altogether infer, perhaps, from the

collection of ordinances, that the crown had ever intentionally divested

itself of the right to impose tallages on its domanial tenants.  All others,

however, were certainly exempted from that prerogative; and there seems to

have been a general sentiment that no tax whatever could be levied without

free consent of the estates. ^i Louis Hutin, in a charter granted to the

nobles and burgesses of Picardy, promises to abolish the unjust taxes

(maltotes) imposed by his father; ^j and in another instrument, called the

charter of Normandy, declares that he renounces for himself and his successors

all undue tallages and exactions, except in case of evident utility. ^k This

exception is doubtless of perilous ambiguity; yet, as the charter was

literally wrested from the king by an insurrectionary league, it might be

expected that the same spirit would rebel against his royal interpretation of

state-necessity.  His successor, Philip the Long, tried the experiment of a

gabelle, or excise upon salt.  But it produced so much discontent that he was

compelled to assemble the States-General, and to publish an ordinance,

declaring that the impost was not designed to be perpetual, and that, if a

sufficient supply for the existing war could be found elsewhere, it should

instantly determine. ^l Whether this was done I do not discover; nor do I

conceive that any of the sons of Philip the Fair, inheriting much of his

rapacity and ambition, abstained from extorting money without consent. Philip

of Valois renewed and augmented the duties on salt by his own prerogative, nor

had the abuse of debasing the current coin been ever carried to such a height

as during his reign and the first years of his successor.  These exactions,

aggravated by the smart of a hostile invasion, produced a very remarkable

concussion in the government of France.


[Footnote h: Boulainvilliers (Hist. de l'Anc. Gouvernement, t. ii. p. 128)

refers for this to Nicholas Gilles, a chronicler of no great repute.]


[Footnote i: Mably, Observat.  sur l'Hist.  de France, 1. v. c. 1, is positive

against the right of Philip the Fair and his successors to impose taxes.

Montlosier (Monarchie Francaise, t.i. p. 202) is of the same opinion.  In

fact, there is reason to believe that the kings in general did not claim that

prerogative absolutely, whatever pretexts they might set up for occasional

stretches of power.]


[Footnote j: Ordonnances des Rois, t. i. p. 566.]


[Footnote k: Ibid, t. i. p. 679.]


[Footnote l: Ordonnances des Rois, t.i. p. 589.]


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