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 Nine

 

     In England a manor is extinguished, at least as to jurisdiction, when

there are not two freeholders subject to escheat left as suitors to the

court-baron.  Their tenancy must therefore have been created before the

statute of Quia Emptores, 18 Edw. I. (1290), since which no new estate in

fee-simple can be held of the lord, nor consequently be liable to escheat to

him.]

 

     These courts of a feudal barony or manor required neither the knowledge

of positive law nor the dictates of natural sagacity.  In all doubtful cases,

and especially where a crime not capable of notorious proof was charged, the

combat was awarded; and God, as they deemed, was the judge. ^u The nobleman

fought on horseback, with all his arms of attack and defence; the plebeian on

foot, with his club and target.  The same were the weapons of the champions to

whom women and ecclesiastics were permitted to intrust their rights. ^v If the

combat was intended to ascertain a civil right, the vanquished party of course

forfeited his claim and paid a fine.  If he fought by proxy, the champion was

liable to have his hand struck off; a regulation necessary, perhaps, to

obviate the corruption of these hired defenders.  In criminal cases the

appellant suffered, in the event of defeat, the same punishment which the law

awarded to the offence of which he accused his adversary. ^w Even where the

cause was more peaceably tried, and brought to a regular adjudication by the

court, an appeal for false judgment might indeed be made to the suzerain, but

it could only be tried by battle. ^x And in this, the appellant, if he would

impeach the concurrent judgment of the court below, was compelled to meet

successively in combat every one of its members; unless he should vanquish

them all within the day, his life, if he escaped from so many hazards, was

forfeited to the law.  If fortune or miracle should make him conqueror in

every contest, the judges were equally subject to death, and their court

forfeited their jurisdiction forever.  A less perilous mode of appeal was to

call the first judge who pronounced a hostile sentence into the field.  If the

appellant came off victorious in this challenge, the decision was reversed,

but the court was not impeached. ^y But for denial of justice, that is, for a

refusal to try his suit, the plaintiff repaired to the court of the next

superior lord, and supported his appeal by testimony. ^z Yet, even here the

witnesses might be defied, and the pure stream of justice turned at once into

the torrent of barbarous contest. ^a

 

[Footnote u: Trial by combat does not seem to have established itself

completely in France till ordeals went into disuse, which Charlemagne rather

encouraged, and which, in his age, the clergy for the most part approved.  The

former species of decision, may, however, be met with under the first

Merovingian kings (Greg. Turon.  l. vii. c. 19, l. x. c. 10), and seems to

have prevailed in Burgundy.  It is established by the laws of the Alemanni or

Suabians.  Baluz. t. i. p. 80.  It was always popular in Lombardy, Liutprand,

King of the Lombards, says in one of his laws, Incerti sumus de judicio Dei,

et quosdam audivimus per pugnam sine justa causa suam causam perdere.  Sed

propter consuetudinem gentis nostrae Langobardorum legem impiam vetare non

possumus.  Muratori, Script. Rerum Italicarum, t. ii. p. 65.  Otho II.

established it in all disputes concerning real property; and there is a famous

case where the right of representation, or preference of the son of a deceased

elder child to his uncle in succession to his grandfather's estate, was

settled by this test.]

 

[Footnote v: For the ceremonies of trial by combat, see Houard, Anciennes Loix

Francoises, t. i. p. 264; Velly, t. vi. p. 106; Recueil des Historiens, t. xi.

preface, p. 189; Du Cange, v. Duellum.  The great original authorities are the

Assises de Jerusalem, c. 104, and Beaumanoir, c. 31.]

 

[Footnote w: Beaumanoir, p. 315.]

 

[Footnote x: Id. c. 61.  In England the appeal for false judgment to the

king's court was not tried by battle.  Glanvil, l. xii. c. 7.]

 

[Footnote y: Id. c. 61.]

 

[Footnote z: Beaumanoir, p. 315.  The practice was to challenge the second

witness, since the testimony of one was insufficient.  But this must be done

before he completes his oath, says Beaumanoir, for after he has been sworn he

must be heard and believed: p. 316. - No one was bound, as we may well

believe, to be a witness for another, in cases where such an appeal might be

made from his testimony.]

 

[Footnote a: Mably is certainly mistaken in his opinion that appeals for

denial of justice were not older than the reign of Philip Augustus.

(Observations sur l'Hist. de F. l. iii. c. 3.) Before this time the vassal's

remedy, he thinks, was to make war upon his lord.  And this may probably have

been frequently practised.  Indeed it is permitted, as we have seen by the

code of St. Louis.  But those who were not strong enough to adopt this

dangerous means of redress would surely avail themselves of the assistance of

the suzerain, which in general would be readily afforded.  We find several

instances of the king's interference for the redress of injuries in Suger's

Life of Louis VI.  That active and spirited prince, with the assistance of his

enlightened biographer, recovered a great part of the royal authority, which

had been reduced to the lowest ebb in the long and slothful reign of his

father, Philip I.  One passage especially contains a clear evidence of the

appeal for denial of justice, and consequently refutes Mably's opinion.  In

1105 the inhabitants of St. Severe, in Berri, complain of their lord Humbald,

and request the king aut ad exequendam justitiam cogere, aut jure pro injuria

castrum lege Salica amittere.  I quote from the preface to the fourteenth

volume of the Recueil des Historiens, p. 44.  It may be noticed, by the way,

that lex Salica is here used for the feudal customs; in which sense I believe

it not unfrequently occurs.  Many proofs might be brought of the interposition

of both Louis VI. and VII. in the disputes between their barons and arriere

vassals.  Thus the war between the latter and Henry II. of England in 1166 was

occasioned by his entertaining a complaint from the Count of Auvergne, without

waiting for the decision of Henry, as Duke of Guienne. - Velly, t. ii. p. 190;

Lyttelton's Henry II. vol. ii. p. 448; Recueil des Historiens, ubi supra, p.

49.]

 

     Such was the judicial system of France when St. Louis enacted that great

code which bears the name of his Establishments.  The rules of civil and

criminal procedure, as well as the principles of legal decisions, are there

laid down with much detail.  But that incomparable prince, unable to overthrow

the judicial combat, confined himself to discourage it by the example of a

wiser jurisprudence.  It was abolished throughout the royal domains.  The

bailiffs and seneschals who rendered justice to the king's immediate subjects

were bound to follow his own laws.  He not only received appeals from their

sentences in his own court of peers, but listened to all complaints with a

kind of patriarchal simplicity.  "Many times," says Joinville, "I have seen

the good saint, after hearing mass, in the summer season, lay himself at the

foot of an oak in the wood of Vincennes, and make us all sit round him; when

those who would, came and spake to him without let of any officer, and he

would ask aloud if there were any present who had suits; and when they

appeared, would bid two of his bailiffs determine their cause upon the spot."

^b

 

[Footnote b: Collection des Memoires, t. i. p. 25.  Montesquieu supposes that

the Establishments of St. Louis are not the original constitutions of that

prince, but a work founded on them - a compilation of the old customs blended

with his new provisions.  Esprit des Loix, xxviii. 37, 38.  I do not know that

any later! inquirers have adopted this hypothesis.]

 

     The influence of this new jurisprudence established by St. Louis,

combined with the great enhancements of the royal prerogatives in every other

respect, produced a rapid change in the legal administration of France.

Though trial by combat occupies a considerable space in the work of

Beaumanoir, written under Philip the Bold, it was already much limited.

Appeals for false judgment might sometimes be tried, as he expresses it, par

erremens de plait; that is, I presume, where the alleged error of the court

below was in matter of law.  For wager of battle was chiefly intended to

ascertain controverted facts. ^c So where the suzerain saw clearly that the

judgment of the inferior court was right, he ought not to permit the combat.

Or if the plaintiff, even in the first instance, could produce a record or a

written obligation, or if the fact before the court was notorious, there was

no room for battle. ^d It would be a hard thing, says Beaumanoir, that if one

had killed my near relation in open day before many credible persons, I should

be compelled to fight in order to prove his death.  This reflection is the

dictate of common sense, and shows that the prejudice in favor of judicial

combat was dying away.  In the Assises de Jerusalem, a monument of customs two

hundred years earlier than the age of Beaumanoir, we find little mention of

any other mode of decision.  The compiler of that book thinks it would be very

injurious if no wager of battle were to be allowed against witnesses in causes

affecting succession; since otherwise every right heir might be disinherited,

as it would be easy to find two persons who would perjure themselves for

money, if they had no fear of being challenged for their testimony. ^e This

passage indicates the real cause of preserving the judicial combat, systematic

perjury in witnesses, and want of legal discrimination in judges.

 

[Footnote c: Beaumanoir, p. 22.]

 

[Footnote d: Id. p. 314.]

 

[Footnote e: C. 167.]

 

     It was, in all civil suits, at the discretion of the litigant parties to

adopt the law of the Establishments, instead of resorting to combat. ^f As

gentler manners prevailed, especially among those who did not make arms their

profession, the wisdom and equity of the new code were naturally preferred.

The superstition which had originally led to the latter lost its weight

through experience and the uniform opposition of the clergy. The same

superiority of just and settled rules over fortune and violence, which had

forwarded the encroachments of the ecclesiastical courts, was now manifested

in those of the king.  Philip Augustus, by a famous ordinance in 1190, first

established royal courts of justice, held by the officers called bailiffs or

seneschals, who acted as the king's lieutenants in his domains. ^g Every

barony, as it became reunited to the crown, was subjected to the jurisdiction

of one of these officers, and took the name of a bailliage or seneschaussee;

the former name prevailing most in the northern, the latter in the southern,

provinces.  The vassals whose lands depended upon, or, in feudal language,

moved, from the superiority of this fief, were obliged to submit to the

ressort or supreme appellant jurisdiction of the royal court established in

it. ^* This began rapidly to encroach upon the feudal rights of justice.  In a

variety of cases, termed royal, the territorial court was pronounced

incompetent; they were reserved for the judges of the crown; and, in every

case, unless the defendant excepted to the jurisdiction, the royal court might

take cognizance of a suit, and decide it in exclusion of the feudal

judicature. ^h The nature of cases reserved under the name of royal was kept

in studied ambiguity, under cover of which the judges of the crown perpetually

strove to multiply them.  Louis X., when requested by the barons of Champagne

to explain what was meant by royal causes, gave this mysterious definition:

Everything which by right or custom ought exclusively to come under the

cognizance of a sovereign prince. ^i Vassals were permitted to complain in the

first instance to the king's court of injuries committed by their lords.

These rapid and violent encroachments left the nobility no alternative but

armed combinations to support their remonstrances.  Philip the Fair bequeathed

to his successor the task of appeasing the storm which his own administration

had excited.  Leagues were formed in most of the northern provinces for the

redress of grievances, in which the third estate, oppressed by taxation,

united with the vassals, whose feudal privileges had been infringed.  Separate

charters were granted to each of these confederacies by Louis Hutin, which

contain many remedial provisions against the grosser violations of ancient

rights, though the crown persisted in restraining territorial jurisdiction. ^j

Appeals became more common for false judgment, as well as denial of right; and

in neither was the combat permitted.  It was still, however, preserved in

accusations of heinous crimes, unsupported by any testimony but that of the

prosecutor, and was never abolished by any positive law, either in France or

England.  But instances of its occurrence are not frequent even in the

fourteenth century; and one of these, rather remarkable in its circumstances,

must have had a tendency to explode the remaining superstition which had

preserved this mode of decision. ^k

 

[Footnote f: Beaumanoir, p. 309.]

 

[Footnote g: Ordonnances des Rois, t. i. p. 18.]

 

[Footnote *: Du Cange, v. Balivi.  Mem. del'Acad.  des Inscriptions, t. xxx:

p. 603.  Mably, l. iv. c. 4.  Boulainvilliers, t. ii. p. 22.]

 

[Footnote h: Mably, Boulainvilliers, Montlosier, t.i.p.104.t.i.p. 104.]

 

[Footnote i: Ordonnances des Rois, p. 606.]

 

[Footnote j: Hoc perpetuo prohibemus edicto, ne subditi, seu justiciabiles

praelatorum aut baronum nostrorum, aut aliorum subjectorum nostrorum,

trahantur in causum coram nostris officialibus, nec eorum causae, nisi in casu

ressorti, in nostris curiis audiantur, vel in alio casu ad nos pertinenti.

Ordonnances des Rois, t. i. p. 362.  This ordinance is of Philip the Fair, in

1302; but those passed under Louis Hutin are to the same effect.  They may be

read at length in the Ordonnances des Rois; or abridged by Boulainvilliers, t.

ii. p. 94.]

 

[Footnote k: Philip IV. restricted trial by combat to cases where four

conditions were united.  The crime must be capital; its commission certain;

the accused greatly suspected; and no proof to be obtained by witnesses.

Under these limitations, or at least some of them, for it appears that they

were not all regarded, instances occur for some centuries.

 

     See the singular story of Carouges and Le Gris, to which I allude in the

text.  Villaret, t. xi. p. 412.  Trial by combat was allowed in Scotland

exactly under the same conditions as in France.  Pinkerton's Hist. of

Scotland, vol. i. p. 66.]

 

     The supreme council, or court of peers, to whose deliberate functions I

have already adverted, was also the great judicial tribunal of the French

crown from the accession of Hugh Capet. ^l By this alone the barons of France,

or tenants in chief of the king, could be judged.  To this court appeals for

denials of justice were referred.  It was originally composed, as has been

observed, of the feudal vassals, coequals of those who were to be tried by it;

and also of the household officers, whose right of concurrence, however

anomalous, was extremely ancient.  But after the business of the court came to

increase through the multiplicity of appeals, especially from the bailiffs

established by Philip Augustus in the royal domains, the barons found neither

leisure nor capacity for the ordinary administration of justice, and reserved

their attendance for occasions where some of their own orders were implicated

in a criminal process.  St. Louis, anxious for regularity and enlightened

decisions, made a considerable alteration by introducing some councillors of

inferior rank, chiefly ecclesiastics, as advisers of the court, though, as is

supposed, without any decisive suffrage.  The court now became known by the

name of parliament.  Registers of its proceedings were kept, of which the

earliest extant are of the year 1254.  It was still, perhaps, in some degree

ambulatory; but by far the greater part of its sessions in the thirteenth

century were at Paris.  The councillors nominated by the king, some of them

clerks, others of noble rank, but not peers of the ancient baronage, acquired

insensibly a right of suffrage. ^m

 

[Footnote l: [Note XVII.]]

 

[Footnote m: Boulainvilliers, t. ii. p. 29, 44; Mably, l. iv. c. 2;

Encyclopedie, art.  Parlement; Mem. de l'Acad. des Inscript. t. xxx. xxx, p.

603.  The great difficulty I have found in this investigation will plead my

excuse if errors are detected.]

 

     An ordinance of Philip the Fair, in 1302, is generally supposed to have

fixed the seat of parliament at paris, as well as altered its constituent

parts. ^n Perhaps a series of progressive changes has been referred to a

single epoch.  But whether by virtue of this ordinance, or of more gradual

events, the character of the whole feudal court was nearly obliterated in that

of the Parliament of Paris.  A systematic tribunal took the place of a loose

aristocratic assembly.  It was to hold two sittings in the year, each of two

months' duration; it was composed of two prelates, two counts, thirteen

clerks, and as many laymen.  Great changes were made afterwards in this

constitution.  The nobility, who originally sat there, grew weary of an

attendance which detained them from war, and from their favorite pursuits at

home.  The bishops were dismissed to their necessary residence upon their

sees. ^o As they withdrew, a class of regular lawyers, originally employed, as

it appears, in the preparatory business, without any decisive voice, came

forward to the higher places, and established a complicated and tedious system

of procedure, which was always characteristic of French jurisprudence.

 

[Footnote n: Pasquier (Recherches de la France, l. ii. c. 3) published this

ordinance, which, indeed, as the editor of Ordonnances des Rois, t. i. p. 547,

observes, is no ordinance, but a regulation for the execution of one

previously made; nor does it establish the residence of the parliament in

Paris.]

 

[Footnote o: Velly, Hist. de France, t. vii. p. 303, and Encyclopedie, art.

Parlement, are the best authorities I have found.  There may very possibly be

superior works on this branch of the French constitution which have not fallen

into my hands.]

 

     They introduced at the same time a new theory of absolute power, and

unlimited obedience.  All feudal privileges were treated as encroachments on

the imprescriptible rights of monarchy.  With the natural bias of lawyers in

favor of prerogative conspired that of the clergy, who fled to the king for

refuge against the tyranny of the barons.  In the civil and canon laws a

system of political maxims was found very uncongenial to the feudal customs.

The French lawyers of the fourteenth and fifteenth centuries frequently give

their king the title of emperor, and treat disobedience to him as sacrilege.

^p

 

[Footnote p: Mably, l. iv. c. 2, note 10.]

 

     But among these lawyers, although the general tenants of the crown by

barony ceased to appear, there still continued to sit a more eminent body, the

lay and spiritual peers of France, representatives, as it were, of that

ancient baronial aristocracy.  It is a very controverted question at what time

this exclusive dignity of peerage, a word obviously applicable by the feudal

law to all persons coequal in degree of tenure, was reserved to twelve

vassals.  At the coronation of Philip Augustus, in 1179, we first perceive the

six great feudatories, dukes of Burgundy, Normandy, Guienne, counts of

Toulouse, Flanders, Champagne, distinguished by the offices they performed in

that ceremony.  It was natural, indeed, that, by their princely splendor and

importance, they should eclipse such petty lords as Bourbon and Coucy, however

equal in quality of tenure.  During the reign of Philip Augustus, six

ecclesiastical peers, the duke-bishops of Rheims, Laon, and Langres, the

count-bishops of Beauvais, Chalons, and Noyon, were added as a sort of

parallel or counterpoise. ^q Their precedence does not, however, appear to

have carried with it any other privilege, at least in judicature, than other

barons enjoyed.  But their pre-eminence being fully confirmed, Philip the Fair

set the precedent of augmenting their original number, by conferring the

dignity of peerage on the Duke of Brittany and the Count of Artois. ^r Other

creations took place subsequently; but these were confined, during the period

comprised in this work, to princes of the royal blood.  The peers were

constant members of the parliament, from which other vassals holding in chief

were never, perhaps, excluded by law, but their attendance was rare in the

fourteenth century, and soon afterwards ceased altogether. ^s

 

[Footnote q: Velly, t. ii. p. 287; t. iii. p. 221; t. iv. p. 41.]

 

[Footnote r: Id. t. vii. p. 97.]

 

[Footnote s: Encyclopedie, art. Parlement, p. 6.]

 

     A judicial body, composed of the greatest nobles in France, as well as of

learned and eminent lawyers, must naturally have soon become politically

important.  Notwithstanding their disposition to enhance every royal

prerogative, as opposed to feudal privileges, the parliament was not

disinclined to see its own protection invoked by the subject.  It appears by

an ordinance of Charles V., in 1371, that the nobility of Languedoc had

appealed to the parliament of Paris against a tax imposed by the king's

authority; and this, at a time when the French constitution did not recognize

the levying of money without consent of the States-General, must have been a

just ground of appeal, though the present ordinance annuls and overturns it.

^t During the tempests of Charles VI.'s unhappy reign the parliament acquired

a more decided authority, and held, in some degree, the balance between the

contending factions of Orleans and Burgundy.  This influence was partly owing

to one remarkable function attributed to the parliament, which raised it much

above the level of a merely political tribunal, and has at various times

wrought striking effects in the French monarchy.

 

[Footnote t: Mably, l. v. c. 5, note 5.]

 

     The few ordinances enacted by kings of France in the twelfth and

thirteenth centuries were generally by the advice of their royal council, in

which probably they were solemnly declared as well as agreed upon.  But after

the gradual revolution of government, which took away from the feudal

aristocracy all control over the king's edicts, and substituted a new

magistracy for the ancient baronial court, these legislative ordinances were

commonly drawn up by the interior council, or what we may call the ministry.

They were in some instances promulgated by the king in parliament.  Others

were sent thither for registration or entry upon their records.  This

formality was by degrees, if not from the beginning, deemed essential to

render them authentic and notorious, and therefore indirectly gave them the

sanction and validity of a law. ^u Such, at least, appears to have been the

received doctrine before the end of the fourteenth century.  It has been

contended by Mably, among other writers, that at so early an epoch the

parliament of Paris did not enjoy, nor even claim to itself, that anomalous

right of judging the expediency of edicts proceeding from the king, which

afterwards so remarkably modified the absoluteness of his power.  In the

fifteenth century, however, it certainly manifested pretensions of this

nature: first, by registering ordinances in such a manner as to testify its

own unwillingness and disapprobation, of which one instance occurs as early as

1418, and another in 1443; and, afterwards, by remonstrating against and

delaying the registration of laws which it deemed inimical to the public

interest.  A conspicuous proof of this spirit was given in their opposition to

Louis XI. when repealing the Pragmatic Sanction of his father - an ordinance

essential, in their opinion, to the liberties of the Gallican church.  In this

instance they ultimately yielded; but at another time they persisted in a

refusal to enregister letters containing an alienation of the royal domain. ^v

 

[Footnote u: Encyclopedie, art. Parlement.]

 

[Footnote v: Mably, l. vi. c. 5, notes 19 and 21; Garnier, Hist. de France, t.

xvii. pp. 219, 380.]

 

     The counsellors of parliament were originally appointed by the king; and

they were even changed according to circumstances.  Charles V. made the first

alteration, by permitting them to fill up vacancies by election, which usage

continued during the next reign.  Charles VII. resumed the nomination of fresh

members upon vacancies.  Louis XI. even displaced actual counsellors.  But in

1468, from whatever motive, he published a most important ordinance, declaring

the presidents and counsellors of parliament immovable, except in case of

legal forfeiture. ^w This extraordinary measure of conferring independence on

a body which had already displayed a consciousness of its eminent privilege by

opposing the registration of his edicts, is perhaps to be deemed a proof of

that shortsightedness as to points of substantial interest so usually found in

crafty men.  But, be this as it may, there was formed in the parliament of

Paris an independent power not emanating from the royal will, nor liable,

except through force, to be destroyed by it; which, in later times, became

almost the sole depositary, if not of what we should call the love of freedom,

yet of public spirit and attachment to justice.  France, so fertile of great

men in the sixteenth and seventeenth centuries, might better spare, perhaps,

from her annals any class and description of them than her lawyers.  Doubtless

the parliament of Paris, with its prejudices and narrow views, its high

notions of loyal obedience so strangely mixed up with remonstrances and

resistance, its anomalous privilege of objecting to edicts, hardly approved by

the nation who did not participate in it, and overturned with facility by the

king whenever the thought fit to exert the sinews of his prerogative, but was

an inadequate substitute for that co-ordinate sovereignty, that equal

concurrence of national representatives in legislation, which has long been

the exclusive pride of our government, ^* and to which the States General of

France, in their best days, had never aspired.  No man of sane understanding

would desire to revive institutions both uncongenial to modern opinions and to

the natural order of society.  Yet the name of the parliament of Paris must

ever be respectable.  It exhibited upon various occasions virtues from which

human esteem is as inseparable as the shadow from the substance - a severe

adherence to principles, an unaccommodating sincerity, individual

disinterestedness and consistency.  Whether indeed these qualities have been

so generally characteristic of the French people as to afford no peculiar

commendation to the parliament of Paris, it is rather for the observer of the

present day than the historian of past times to decide. ^x

 

[Footnote w: Villaret, t. xiv. p. 231; Encyclopedie, art. Parlement.]

 

[Footnote *: The English government.]

 

[Footnote x: The province of Languedoc, with its dependencies of Quercy and

Rouergue, having belonged almost in full sovereignty to the counts of

Toulouse, was not perhaps subject to the feudal resort or appellant

jurisdiction of any tribunal at Paris.  Philip the Bold, after its reunion to

the crown, established the parliament of Toulouse, a tribunal without appeal,

in 1280.  This was, however, suspended from 1291 to 1443, during which

interval the parliament of Paris exercised an appellant jurisdiction over

Languedoc.  Vaissette, Hist. de Lang. t. iv. p. 60, 71, 524. Sovereign courts

or parliaments were established by Charles VII. at Grenoble for Dauphine, and

by Louis XI. at Bordeaux and Dijon for Guienne and Burgundy.  The parliament

of Rouen is not so ancient.  These institutions rather diminished the resort

of the parliament of Paris, which had extended over Burgundy, and, in time of

peace, over Guienne.

 

     A work has appeared within a few years which throws an abundant light on

the judicial system, and indeed on the whole civil polity of France, as well

as other countries, during the middle ages.  I allude to L'Esprit, Origine, et

Progres des Institutions judiciares des principaux Pays de l'Europe, by M.

Meyer, of Amsterdam; especially the first and third volumes.  It would have

been fortunate had its publication preceded that of the first edition of the

present work; as I might have rendered this chapter on the feudal system in

many respects more perspicuous and correct.  As it is, without availing myself

of M. Meyer's learning and acuteness to illustrate the obscurity of these

researches, or discussing the few questions upon which I might venture, with

deference, to adhere to another opinion, neither of which could conveniently

be done on the present occasion, I shall content myself with this general

reference to a performance of singular diligence and ability, which no student

of these antiquities should neglect.  In all essential points I am happy to

perceive that Mr. Meyer's view of the middle ages are not far different from

my own. - Note to the fourth edition.]

 

     The principal causes that operated in subverting the feudal system may be

comprehended under three distinct heads - the increasing power of the crown,

the elevation of the lower ranks, and the decay of the feudal principle.

 

     It has been my object in the last pages to point out the acquisitions of

power by the crown of France in respect of legislative and judicial authority.

The principal augmentations of its domain have been historically mentioned in

the last book, but the subject may here require further notice.  The French

kings naturally acted upon a system, in order to recover those possessions

which the improvidence or necessities of the Carlovingian race had suffered

almost to fall away from the monarchy. This course, pursued with tolerable

steadiness for two or three centuries, restored their effective power.  By

escheat or forfeiture, by bequest or purchase, by marriage or succession, a

number of fiefs were merged in their increasing domain. ^y It was part of

their policy to obtain possession of arriere-fiefs, and thus to become tenants

of their own barons.  In such cases the king was obliged by the feudal duties

to perform homage, by proxy, to his subjects, and engage himself to the

service of his fief.  But, for every political purpose, it is evident that the

lord could have no command over so formidable a vassal. ^z

 

[Footnote y: The word domain is calculated, by a seeming ambiguity, to perplex

the reader of French history.  In its primary sense, the domain or demesne

(dominicum) of any proprietor was confined to the lands in his immediate

occupation; excluding those of which his tenants, whether in fief or

villenage, whether for a certain estate or at will, had an actual possession,

or, in our law-language, pernancy of the profits.  Thus the compilers of

Domesday-Book distinguish, in every manor, the lands held by the lord in

demesne from those occupied by his villeins or other tenants. And in England

the word, if not technically, yet in use, is still confined to this sense.

But in a secondary acceptation, more usual in France, the domain comprehended

all lands for which rent was paid (censives), and which contributed to the

regular annual revenue of the proprietor.  The great distinction was between

lands in demesne and those in fief.  A grant of territory, whether by the king

or another lord, comprising as well domanial estates and tributary towns as

feudal superiorities, was expressed to convey "in dominico quod est in

dominico, et in feodo quod est in feodo." Since, therefore, fiefs, even those

of the vavassors or inferior tenantry, were not part of the lord's domain,

there is, as I said, an apparent ambiguity in the language of historians who

speak of the reunion of provinces to the royal domain.  This ambiguity,

however, is rather apparent than real.  When the Duchy of Normandy, for

example, is said to have been united by Philip Augustus to his domain, we are

not, of course, to suppose that the soil of that province became the private

estate of the crown.  It continued, as before, in the possession of the Norman

barons and their sub-vassals, who had held their estates of the dukes.  But it

is meant only that the King of France stood exactly in the place of the Duke

of Normandy, with the same rights of possession over lands absolutely in

demesne, of rents and customary payments from the burgesses of towns and

tenants in roture or villenage, and of feudal services from the military

vassals.  The immediate superiority, and the immediate resort, or

jurisdiction, over these devolved to the crown; and thus the duchy of

Normandy, considered as a fief, was reunited, or, more properly, merged in the

royal domain, though a very small part of the territory might become truly

domanial.]

 

[Footnote z: See a memorial on the acquisition of arriere-fiefs by the Kings

of France, in Mem. de l'Acad. des Inscript. t. i. by M. Dacier.]

 

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