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 Ten


     The reunion of so many fiefs was attempted to be secured by a legal

principle, that the domain was inalienable and imprescriptible.  This became

at length a fundamental maxim in the law of France.  But it does not seem to

be much older than the reign of Philip V., who, in 1318, revoked the

alienations of his predecessors, nor was it thoroughly established, even in

theory, till the fifteenth century. ^a Alienations, however, were certainly

very repugnant to the policy of Philip Augustus and St. Louis.  But there was

one species of infeudation so consonant to ancient usage and prejudice that it

could not be avoided upon any suggestions of policy; this was the investiture

of younger princes of the blood with considerable territorial appanages.  It

is remarkable that the epoch of appanages on so great a scale was the reign of

St. Louis, whose efforts were constantly directed against feudal independence.

Yet he invested his brothers with the counties of Poitou, Anjou, and Artois,

and his sons with those of Clermont and Alencon.  This practice, in later

times, produced very mischievous consequences.


[Footnote a: Preface au 15me tome des Ordonnances, par M. Pastoret.]


     Under a second class of events that contributed to destroy the spirit of

the feudal system we may reckon the abolition of villenage, the increase of

commerce and consequent opulence of merchants and artisans, and especially the

institutions of free cities and boroughs.  This is one of the most important

and interesting steps in the progress of society during the middle ages, and

deserves particular consideration.


     The provincial cities under the Roman empire enjoyed, as is well known, a

municipal magistracy, and the right of internal regulation.  Nor was it

repugnant to the spirit of the Frank or Gothic conquerors to leave them in

possession of these privileges.  It was long believed, however, that little,

if any, satisfactory proof of their preservation, either in France or Italy,

could be found; or, at least, if they had ever existed, that they were wholly

swept away in the former country during the confusion of the ninth century,

which ended in the establishment of the feudal system.


     Every town, except within the royal domains, was subject to some lord.

In episcopal cities the bishop possessed a considerable authority; and in many

there was a class of resident nobility.  But this subject has been better

elucidated of late years; and it has been made to appear that instances of

municipal government were at least not rare, especially in the south of

France, throughout the long period between the fall of the western empire and

the beginning of the twelfth century, ^b though becoming far more common in

its latter part.


[Footnote b: [Note  XVIII.]]


     The earliest charters of community granted to towns in France have been

commonly referred to the time of Louis VI.  Noyon, St. Quentin, Laon, and

Amiens appear to have been the first that received emancipation at the hands

of this prince. ^c The chief towns in the royal domains were successively

admitted to the same privileges during the reigns of Louis VI., Louis VII.,

and Philip Augustus.  This example was gradually followed by the peers and

other barons; so that by the end of the thirteenth century the custom had

prevailed over all France.  It has been sometimes imagined that the crusades

had a material influence in promoting the erection of communities.  Those

expeditions would have repaid Europe for the prodigality of crimes and

miseries which attended them if this notion were founded in reality.  But I

confess that in this, as in most other respects, their beneficial consequences

appear to me very much exaggerated.  The cities of Italy obtained their

internal liberties by gradual encroachments, and by the concessions of the

Franconian emperors. Those upon the Rhine owed many of their privileges to the

same monarchs, whose cause they had espoused in the rebellions of Germany.  In

France the charters granted by Louis the Fat could hardly be connected with

the first crusade, in which the crown had taken no part, and were long prior

to the second.  It was not till fifty years afterwards that the barons seem to

have trod in his steps by granting charters to their vassals, and these do not

appear to have been particularly related in time to any of the crusades.

Still less can the corporations erected by Henry II. in England be ascribed to

these holy wars, in which England had hitherto taken no considerable share.


[Footnote c: Ordonnances des Rois, ubi supra, p. 7.  These charters are as old

as 1110, but the precise date is unknown.]


     The establishment of chartered towns in France has also been ascribed to

deliberate policy.  "Louis the Gross," says Robertson, "in order to create

some power that might counter-balance those potent vassals who controlled or

gave law to the crown, first adopted the plan of conferring new privileges on

the towns situated within his own domain." Yet one does not immediately

perceive what strength the king could acquire by granting these extensive

privileges within his own domains, if the great vassals were only weakened, as

he asserts afterwards, by following his example. In what sense, besides, can

it be meant that Noyon or Amiens, by obtaining certain franchises, became a

power that could counterbalance the Duke of Normandy or Count of Champagne?

It is more natural to impute this measure, both in the king and his barons, to

their pecuniary exigencies; for we could hardly doubt that their concessions

were sold at the highest price, even if the existing charters did not exhibit

the fullest proof of it. ^d It is obvious, however, that the coarser methods

of rapine must have grown obsolete, and the rights of the inhabitants of towns

to property established, before they could enter into any compact with their

lord for the purchase of liberty.  Guibert, abbot of St. Nogent, near Laon,

relates the establishment of a community in that city with circumstances that,

in the main, might probably occur in any other place. Continual acts of

violence and robbery having been committed, which there was no police adequate

to prevent, the clergy and principal inhabitants agreed to enfranchise the

populace for a sum of money, and to bind the whole society by regulations for

general security.  These conditions were gladly accepted; the money was paid,

and the leading men swore to maintain the privileges of the inferior freemen.

The bishop of Laon, who happened to be absent, at first opposed this new

institution, but was ultimately induced, by money, to take a similar oath; and

the community was confirmed by the king.  Unluckily for himself, the bishop

afterwards annulled the charter; when the inhabitants, in despair at seeing

themselves reduced to servitude, rose and murdered him.  This was in 1112; and

Guibert's narrative certainly does not support the opinion that charters of

community proceeded from the policy of government.  He seems to have looked

upon them with the jealousy of a feudal abbot, and blames the Bishop of Amiens

for consenting to such an establishment in his city, from which, according to

Guibert, many evils resulted.  In his sermons, we are told, this abbot used to

descant on "those execrable communities where serfs, against law and justice,

withdraw themselves from the power of their lords." ^e


[Footnote d: Ordonnances des Rois, t. xi. preface, p. 18 et 50.]


[Footnote e: Hist. Litteraire de la France, t. x. 448.  Du Cange, voc.



     In some cases they were indebted for success to their own courage and

love of liberty.  Oppressed by the exactions of their superiors, they had

recourse to arms, and united themselves in a common league, confirmed by oath,

for the sake of redress.  One of these associations took place at Mans as

early as 1067, and, though it did not produce any charter of privileges, is a

proof of the spirit to which ultimately the superior classes were obliged to

submit. ^f Several charters bear witness that this spirit of resistance was

justified by oppression.  Louis VII. frequently declares the tyranny exercised

over the towns to be his motive for enfranchising them.  Thus the charter of

Mantes, in 1150, is said to be given "pro nimia oppressione pauperum:" that of

Compiegne, in 1153, "propter enormitates clericorum:" that of Dourlens,

granted by the Count of Ponthieu in 1202, "propter injurias et molestias a

potentibus terrae burgensibus frequenter illatas." ^g


[Footnote f: Recueil des Historiens, t. xiv. preface p.66.]


[Footnote g: Ordonnances des Rois, t. xi. preface p. 17.]


     The privileges which these towns of France derived from their charters

were surprisingly extensive; especially if we do not suspect some of them to

be merely in confirmation of previous usages.  They were made capable of

possessing common property, and authorized to use a common seal as the symbol

of their incorporation.  The more oppressive and ignominious tokens of

subjection, such as the fine paid to the lord for permission to marry their

children, were abolished.  Their payments of rent or tribute were limited both

in amount and as to the occasions when they might be demanded; and these were

levied by assessors of their own electing.  Some obtained an exemption from

assisting their lord in war; others were only bound to follow him when he

personally commanded; and almost all limited their service to one, or, at the

utmost, very few days.  If they were persuaded to extend its duration, it was,

like that of feudal tenants, at the cost of their superior.  Their customs, as

to succession and other matters of private right, were reduced to certainty,

and, for the most part, laid down in the charter of incorporation.  And the

observation of these was secured by the most valuable privilege which the

chartered towns obtained - that of exemption from the jurisdiction, as well of

the royal as the territorial judges.  They were subject only to that of

magistrates, either wholly elected by themselves, or, in some places, with a

greater or less participation of choice in the lord.  They were empowered to

make special rules, or, as we call them, by-laws, so as not to contravene the

provisions of their charter, or the ordinances of the king. ^h


[Footnote h: Ibid., prefaces aux tomes xi. et xii.; Du Cange, voc. Communia,

Hostis; Carpentier, Suppl. ad Du Cange, v. Hostis; Mably, Observations sur

l'Hist. de France, l. iii. c. 7.]


     It was undoubtedly far from the intention of those barons who conferred

such immunities upon their subjects to relinquish their own superiority and

rights not expressly conceded.  But a remarkable change took place in the

beginning of the thirteenth century, which affected, in a high degree, the

feudal constitution of France.  Towns, distrustful of their lord's fidelity,

sometimes called in the king as guarantee of his engagements.  The first stage

of royal interference led to a more extensive measure.  Philip Augustus

granted letters of safeguard to communities dependent upon the barons,

assuring to them his own protection and patronage. ^i And this was followed up

so quickly by the court, if we believe some writers, that in the next reign

Louis VIII. pretended to the immediate sovereignty over all chartered towns,

in exclusion of their original lords. ^j Nothing, perhaps, had so decisive an

effect in subverting the feudal aristocracy.  The barons perceived, too late,

that, for a price long since lavished in prodigal magnificence or useless

warfare, they had suffered the source of their wealth to be diverted, and the

nerves of their strength to be severed.  The government prudently respected

the privileges secured by charter.  Philip the Long established an officer in

all large towns to preserve peace by an armed police; but though subject to

the orders of the crown, he was elected by the burgesses, and they took a

mutual oath of fidelity to each other.  Thus shielded under the king's mantle,

they ventured to encroach upon the neighboring lords, and to retaliate for the

long oppression of the commonalty. ^k Every citizen was bound by oath to stand

by the common cause against all aggressors, and this obligation was abundantly

fulfilled.  In order to swell their numbers, it became the practice to admit

all who came to reside within their walls to the rights of burghership, even

though they were villeins appurtenant to the soil of a master from whom they

had escaped. ^l Others, having obtained the same privileges, continued to

dwell in the country; but, upon any dispute with their lords, called in the

assistance of their community. Philip the Fair, erecting certain communes in

Languedoc, gave to any who would declare on oath that he was aggrieved by the

lord or his officers the right of being admitted a burgess of the next town,

upon paying one mark of silver to the king, and purchasing a tenement of a

definite value.  But the neglect of this condition and several other abuses

are enumerated in an instrument of Charles V., containing the complaints made

by the nobility and rich ecclesiastics of the neighborhood. ^m In his reign

the feudal independence had so completely yielded, that the court began to

give in to a new policy, which was ever after pursued: that of maintaining the

dignity and privileges of the noble class against those attacks which wealth

and liberty encouraged the plebeians to make upon them.


[Footnote i: Mably, Observations sur l'Hist. de France, l. iii. c. 7.]


[Footnote j: Reputabat civitates omens suas esse, in quibus communiae essent.

I mention this in deference to Du Cange, Mably, and others, who assume the

fact as incontrovertible; but the passage is only in a monkish chronicler,

whose authority, were it even more explicit, would not weigh much in a matter

of law.  Beaumanoir, however, sixty years afterwards, lays it down that no one

can erect a commune without the king's consent, c. 50, p. 268.  And this was

an unquestionable maxim in the fourteenth century. - Ordonnances, t. xi. p.



[Footnote k: In the charter of Philip Augustus to the town of Roye in Picardy,

we read, If any stranger, whether noble or villein, commits a wrong against

the town, the mayor shall summon him to answer for it, and if he does not obey

the summons the mayor and inhabitants may go and destroy his house, in which

we (the king) will lend them our assistance, if the house be too strong for

the burgesses to pull down: except the case of one of our vassals, whose house

shall not be destroyed; but he shall not be allowed to enter the town till he

has made amends at the discretion of the mayor and jurats.  Ordonnances des

Rois, t. xi. p. 228.  This summary process could only, as I conceive, be

employed if the house was situated within the jurisdiction of the commune.

See Charter of Crespy, id. p. 253.  In other cases the application for redress

was to be made in the first instance to the lord of the territory wherein the

delinquent resided.  But upon his failing to enforce satisfaction, the mayor

and jurats might satisfy themselves; liceat justitiam quaerere, prout

poterunt; that is, might pull down his house provided they could.  Mably

positively maintains the communes to have had the right of levying war, l.

iii. c. 7.  And Brequigny seems to coincide with him.  Ordonnances, preface,

p. 46; see also Hist. de Languedoc, t. iii. p. 115.  The territory of commune

was called Pax (p. 185); an expressive word.]


[Footnote l: One of the most remarkable privileges of chartered towns was that

of conferring freedom on runaway serfs, if they were not reclaimed by their

masters within a certain time.  This was a pretty general law.  Si quis

nativus quiete per unum annum et unum diem in aliqua villa privilegiata

manserit, ita quod in eorum communem gyldam tanquam civis receptus fuerit, eo

ipso a villenagio liberabitur.  Glanvil, 1. v. c. 5. The cities of Languedoc

had the same privilege.  Vaissette, t. iii. p. 528, 530.  And the editor of

the Ordonnances speaks of it as general, p. 44.  A similar custom was

established in Germany; but the term of prescription was, in some places at

least, much longer than a year and a day, Pfeffel, t. i. p. 294.]


[Footnote m: Martenne, Thesaur.  Anecd. t.i.p. 1515.]


     The maritime towns of the south of France entered into separate alliances

with foreign states; as Narbonne with Genoa in 1166, and Montpellier in the

next century.  At the death of Raymond VII., Avignon, Arles, and Marseilles

affected to set up republican governments; but they were soon brought into

subjection. ^n The independent character of maritime towns was not peculiar to

those of the southern provinces. Edward II. and Edward III. negotiated and

entered into alliances with the towns of Flanders, to which neither their

count nor the King of France were parties. ^o Even so late as the reign of

Louis XI. the Duke of Burgundy did not hesitate to address the citizens of

Rouen, in consequence of the capture of some ships, as if they had formed an

independent state. ^p This evidently arose out of the ancient customs of

private warfare, which, long after they were repressed by a stricter police at

home, continued with lawless violence on the ocean, and gave a character of

piracy to the commercial enterprise of the middle ages.


[Footnote n: Velly, t. iv. p. 446, t.v.p. 97.]


[Footnote o: Rymer, t. iv. passim.]


[Footnote p: Garnier, t. xvii. p. 396.]


     Notwithstanding the forces which in opposite directions assailed the

feudal system from the enhancement of royal prerogative, and the elevation of

the chartered towns, its resistance would have been much longer, but for an

intrinsic decay.  No political institution can endure which does not rivet

itself to the hearts of men by ancient prejudice or acknowledged interest.

The feudal compact had originally much of this character.  Its principle of

vitality was warm and active.  In fulfilling the obligations of mutual

assistance and fidelity by military service, the energies of friendship were

awakened, and the ties of moral sympathy superadded to those of positive

compact.  While private wars were at their height, the connection of lord and

vassal grew close and cordial, in proportion to the keenness of their enmity

towards others.  It was not the object of a baron to disgust and impoverish

his vavassors by enhancing the profits of seigniory; for there was no rent of

such price as blood, nor any labor so serviceable as that of the sword.


     But the nature of feudal obligation was far better adapted to the partial

quarrels of neighboring lords than to the wars of kingdoms. customs, founded

upon the poverty of the smaller gentry, had limited their martial duties to a

period never exceeding forty days, and diminished according to the

subdivisions of the fief.  They could undertake an expedition, but not a

campaign; they could burn an open town, but had seldom leisure to besiege a

fortress.  Hence, when the kings of France and England were engaged in wars

which, on our side ^* at least, might be termed national, the inefficiency of

the feudal militia became evident. It was not easy to employ the military

tenants of England upon the frontiers of Normandy and the Isle of France,

within the limits of their term of service.  When, under Henry II. and Richard

I., the scene of war was frequently transferred to the Garonne or the

Charente, this was still more impracticable.  The first remedy to which

sovereigns had recourse was to keep their vassals in service after the

expiration of their forty days, at a stipulated rate of pay. ^q But this was

frequently neither convenient to the tenant, anxious to return back to his

household, nor to the king, who could not readily defray the charges of an

army. ^r Something was to be devised more adequate to the exigency, though

less suitable to the feudal spirit.  By the feudal law the fief was, in

strictness, forfeited by neglect of attendance upon the lord's expedition.  A

milder usage introduced a fine, which, however, was generally rather heavy,

and assessed at discretion.  An instance of this kind has been noticed in an

earlier part of the present book, from the muster-roll of Philip the Bold's

expedition against the Count de Foix.  The first Norman kings of England made

these amercements very oppressive.  But when a pecuniary payment became the

regular course of redeeming personal service, which, under the name of

escuage, may be referred to the reign of Henry II., it was essential to

liberty that the military tenant should not lie at the mercy of the crown. ^s

Accordingly, one of the most important provisions contained in the Magna

Charta of John secures the assessment of escuage in parliament.  This is not

renewed in the charter of Henry III., but the practice during his reign was

conformable to its spirit.


[Footnote *: The English.]


[Footnote q: Du Cange, et Carpentier, voc. Hostis.]


[Footnote r: There are several instances where armies broke up, at the

expiration of their limited term of service, in consequence of disagreement

with the sovereign.  Thus, at the siege of Avignon in 1226, Theobald Count of

Champagne retired with his troops, that he might not promate the king's

designs upon Languedoc.  At that of Angers, in 1230, nearly the same thing

occurred. - M. Paris, p. 308.]


[Footnote s: Madox, Hist. of Exchequer, c. 16, conceives that escuage may have

been levied by Henry I.; the earliest mention of it, however, in a record, is

under Henry II. in 1159. - Lyttelton's Hist. of Henry II. vol. iv. p. 13.]


     The feudal military tenures had superseded that earlier system of public

defence which called upon every man, and especially every landholder, to

protect his country. ^t The relations of a vassal came in place of those of a

subject and a citizen.  This was the revolution of the ninth century.  In the

twelfth and thirteenth another innovation rather more gradually prevailed, and

marks the third period in the military history of Europe.  Mercenary troops

were substituted for the feudal militia.  Undoubtedly there could never have

been a time when valor was not to be purchased with money; nor could any

employment of surplus wealth be more natural either to the ambitious or the

weak.  But we cannot expect to find numerous testimonies of facts of this

description. ^u In public national history I am aware of no instance of what

may be called a regular army more ancient than the body-guards, or huscarles,

of Canute the Great. These select troops amounted to six thousand men, on whom

he probably relied to ensure the subjection of England.  A code of martial law

compiled for their regulation is extant in substance; and they are reported to

have displayed a military spirit of mutual union, of which their master stood

in awe. ^v Harold II. is also said to have had Danish soldiers in pay.  But

the most eminent example of a mercenary army is that by whose assistance

William achieved the conquest of England.  Historians concur in representing

this force to have consisted of sixty thousand men. He afterwards hired

soldiers from various regions to resist an invasion from Norway.  William

Rufus pursued the same course.  Hired troops did not, however, in general form

a considerable portion of armies till the wars of Henry II. and Philip

Augustus.  Each of these monarchs took into pay large bodies of mercenaries,

chiefly, as we may infer from their appellation of Brabancons, enlisted from

the Netherlands.  These were always disbanded on cessation of hostilities;

and, unfit for any habits but of idleness and license, oppressed the peasantry

and ravaged the country without control.  But their soldier-like principles of

indiscriminate obedience, still more than their courage and field-discipline,

rendered them dear to kings, who dreaded the free spirit of a feudal army.  It

was by such a foreign force that John saw himself on the point of abrogating

the Great Charter, and reduced his barons to the necessity of tendering his

kingdom to a prince of France. ^w


[Footnote t: Every citizen, however extensive may be his privileges, is

naturally bound to repel invasion.  A common rising of the people in arms,

though not always the most convenient mode of resistance, is one to which all

governments have a right to resort.  Volumus, says Charles the Bald, ut

cujuscunque nostrum homo, in cujuscunque regno sit, cum seniore suo in hostem,

vel aliis suis utilitatibus pergat; nisi talis regni invasio, quam Lantweri

dicunt (quod absit), acciderit ut omnis populus illius regni ad eam

repellendam communiter pergat.  Baluzii Capitularia, t. ii. p. 44. This very

ancient mention of the Landwehr, or insurrectional militia, so signally called

forth in the present age, will strike the reader.


     The obligation of bearing arms in defensive warfare was peculiarly

incumbent on the freeholder or allodialist.  It made part of the trinoda

necessitas, in England, erroneously confounded by some writers with a feudal

military tenure.  But when these latter tenures became nearly universal, the

original principles of public defence were almost obliterated, and I know not

how far allodial proprietors, where they existed, were called upon for

service.  Kings did not, however, always dispense with such aid as the lower

people could supply.  Louis the Fat called out the militia of towns and

parishes under their priests, who marched at their head, though they did not

actually command them in battle.  In the charters of incorporation which towns

received the number of troops required was usually expressed.  These formed

the infantry of the French armies, perhaps more numerous than formidable to an

enemy.  In the war of the same prince with the Emperor Henry V. all the

population of the frontier provinces was called out; for the militia of the

counties of Rheims and Chalons is said to have amounted to sixty thousand men.

Philip IV. summoned one foot-soldier for every twenty hearths hearts to take

the field after the battle of Courtrai.  (Daniel, Hist. de la Milice

Francaise; Velly, t. iii. p. 62, t. vii. p. 287.) Commissions of array, either

to call out the whole population, or, as was more common, to select the most

serviceable by forced impressement, occur in English records from the reign of

Edward I.  (Stuart's View of Society, p. 400); and there are even several

writs directed to the bishops, enjoining them to cause all ecclesiastical

persons to be arrayed and armed on account of an expected invasion. - Rymer,

t. vi. p. 726 (46 E. III.), t. vii. p. 162 (I R. II.), and t. viii. p. 270 (3

H. IV.).]


[Footnote u: The preface to the eleventh volume of Recueil des Historiens, p.

232, notices the word solidarii, for hired soldiers, as early as 1030. It was

probably unusual at that time; though in Roger Hoveden, Ordericus Vitalis, and

other writers of the twelfth century, it occurs not very unfrequently.  We may

perhaps conjecture the abbots, as both the richest and the most defenceless,

to have been the first to avail themselves of mercenary valor.]


[Footnote v: For these facts, of which I remember no mention in English

history, I am indebted to the Danish collection of Langebek, Scriptores Rerum

Danicarum Medii Aevi.  Though the Leges Castrensis Canuti Magni, published by

him, t. iii. p. 141, are not in their original statutory form, they proceed

from the pen of Sweno, the earliest Danish historian, who lived under Waldemar

I., less than a century and a half after Canute. I apply the word huscarle,

familiar in Anglo-Saxon documents, to these military retainers, on the

authority of Langebek, in another place, t. ii. p. 454.  The object of

Canute's Institutions was to produce an uniformity of discipline and conduct

among his soldiers, and thus to separate them more decidedly from the people.

They were distinguished by their dress and golden ornaments.  Their manners

towards each other were regulated; quarrels and abusive words subjected to a

penalty.  All disputes, even respecting lands, were settled among themselves

at their general parliament.  A singular story is told, which, if false, may

still illustrate the traditionary character of these guards: that, Canute

having killed one of their body in a fit of anger, it was debated whether the

king should incur the legal penalty of death; and this was only compromised by

his kneeling on a cushion before the assembly, and awaiting their permission

to rise.  T. iii. p. 150.]


[Footnote w: Matt.  Paris.]


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