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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 Twelve
"The existence," says Savigny, "of an original nobility, as a particular patrician order, and not as a class indefinitely distinguished by their wealth and nobility, cannot be questioned. It is difficult to say from what origin distinction may have proceeded; whether it was connected with the services of religion, or with the possession of the heritable offices of counts. We may affirm, however, with certainty, that the honor enjoyed was merely personal, and conferred no preponderance in the political or judicial systems." (Ch. iv. p. 172, English translation.) This admits all the theory to which I have inclined in the text, namely, the non-existence of a privileged order, though antiquity of family was in high respect. The eorl of Anglo-Saxon law was, it may be said, distinguished by certain privileges from the ceorl. Why could not the same have been the case with the Franks? We may answer that it is by the laws and records of those times that we prove the former distinction in England, and it is by the absence of all such proof that the non-existence of such a distinction in France has been presumed. But if the lidi, of whom we so often read, were Franks by origin, and moreover personally free, which, to a certain extent, we need not deny, they will be the corresponding rank to the Anglo-Saxon ceorl, superior, as, from whatever circumstances, the latter may have been in his social degree. All the Franci ingenui will thus have constituted a class of nobility; in no other sense, however, than all men of white race constitute such a class in those of the United States where slavery is abolished, which is not what we usually mean by the word. In some German nations we have, indeed, a distinct nobility of blood. The Bavarians had vive families, for the death of a member of whom a double composition was paid. They had one, the Agilolfungi, whose composition was fourfold. Troja also finds proof of two classes among the Alemanns (v. 168). But we are speaking only of the Franks, a cognate people, indeed, to the Saxons and Alemanns, but not the same, and whose origin is not that of a pure single tribe. The Franks were collectively like a new people in comparison with some others of Teutonic blood. It does not, therefore, appear to me so unquestionable as to Savigny that a considerable number of families formed a patrician order in the French monarchy, without reference to hereditary possessions or hereditary office.
A writer of considerable learning and ingenuity, but not always attentive to the strict meaning of what he quotes, has found a proof of family precedence among the Franks in the words crinosus and crinitus, employed in the Salic law and in an edict of Childebert. (Meyer, Institut. Judiciaires, vol. i. p. 104.) This privilege of wearing long hair he supposes peculiar to certain families, and observes that crinosus is opposed to tonsoratus. But why should we not believe that all superior freemen, that is, all Franks, whose composition was of two hundred solidi, wore this long hair, though it might be an honor denied to the lidi? Gibert, in a memoir on the Merovingians (Acad. des Inscript. xxx. 538), quotes a passage of Tacitus, concerning the manner in which the nation of the Suevi wore their hair, from whom the Franks are supposed by him to be descended. And there is at least something remarkable in the language of Tacitus, which indicates a distinction between the royal family and other freemen, as well as between these and the servile class. The words have not been, I think, often quoted: - "Nunc de Suevis dicendum est, quorum non una ut Cattorum Tencterorumque gens; majorem enim Germaniae partem obtinent, propriis adhuc nationibus discreti quamquam in communi Suevi dicuntur. Insigne gentis obliquare crinem, nodoque substringere. Sic Suevi a caeteris Germanis, sic Suevorum ingenui a servis separantur. In aliis gentibus seu cognatione aliqua Suevorum, seu, quod accidit, imitatione, rarum et intra juventae spatium, apud Suevos usque ad canitiem, horentum capillum retro sequuntur ac saepe in ipso solo vertice religant; principes et ornatiorem habent." (De Mor. German. c. 38.) This last expression may account for the word crinitus being sometimes applied to the royal family, as it were exclusively, sometimes to the Frank nation or its freemen. ^a The references of M. Meyer are so far from sustaining his theory that they rather lead me to an opposite conclusion.
[Footnote a: The royal family seems also to have worn longer hair than the others. Childebert proposed to Clotaire, as we read in Gregory of Tours (iii. 18), that the children of their brother Clodimer should be either cropped or put to death: "quid de his fieri debeat; et utrum incisa caesarie, ut reliqua plebs habeantur, an certe his interfectis regnum germani nostri inter nosmetipsos aequalitate habita dividatur."]
M. Naudet (in Memoires de l'Academie des Inscriptions, Nouvelle Serie, vol. viii. p. 502) enters upon an elaborate discussion of the state of persons under the first dynasty. He distinguishes, of course, the ingenui from the lidi. But among the former he conceives that there were two classes: the former, absolutely free as to their persons, valued in their weregild at 200 solidi, meeting in the county mallus, and sometimes in the national assembly, - in a word, the populus of the Frank monarchy; the latter, valued, as he supposes, at 100 solidi, living under the protection or mundeburde of some rich man, and though still free, and said to be ingenuili ordine servientes, not very distinguishable at present from the lidi. I do not know that this theory has been countenanced by other writers. But even if we admit it, the higher class could not properly be denominated an hereditary nobility; their privileges would be those of better fortune, which had rescued them from the dependence into which, from one cause or another, their fellow-citizens had fallen. The Franks in general are called by Guizot une noblesse en decadence; the leudes one en progres. But he maintains that from the fifth to the eleventh age there existed no real nobility of birth. In this, however, he goes much further than Mably, who does not scruple to admit an hereditary nobility in the time of Charlemagne, and probably further than can be reasonably allowed, especially if the eleventh century is to be understood inclusively. In that century we shall see that the nobles formed a distinct order; and I am much inclined to believe that this was the case as soon as feudal tenure became general, which was at least as early as the tenth.
M. Lehuerou denis any hereditary nobility during the Merovingian period, at least, of French history: "Il n'existait donc point de noblesee dans le sens moderne du mot, puisqu'il n'y avait point d'heredite, et puisque l'heredite, si elle se produisait quelquefois, etait purement accidentelle; mais il y avait une aristocratie mobile, changeante, variable au gre des accidents et des caprices de la vie barbare, et neanmoins en possession de veritables privileges qu'il faut se garder de meconnaitre. Cette aristocratie etait plutot celle des titres, des places, et des honneurs, que celle de la naissance, quoique celle-ci n'y fut pas etrangere. Elle etait plus dans le present, et moins dans le passe; elle empruntait plus a la puissance actuelle qu'a celle des souvenirs; mais elle ne s'en detachait pas moins nettement des couches inferieures de la population, et notamment de la foule de ceux dont la noblesse ne consistait que dans leur ingenuite." (Inst. Caroling. p. 452.)
Note IX
The nature of benefices has been very well discussed, like everything else, by M. Guizot, in his Essai sur l'Hist. de France, p. 120. He agrees with me in the two main positions - that benefices, considered generally, never passed through the supposed stage of grants revocable at pleasure, and that they were sometimes granted in inheritance from the sixth century downwards. This, however, was rather the exception, he supposes, than the rule. "We cannot doubt that under Charlemagne, most benefices were granted only for life" (p. 140). Louis the Debonair endeavored to act on the same policy, but his efforts were unsuccessful. Hereditary grants became the rule, as is proved by many charters of his own and Charles the Bald. Finally, he tells us, the latter prince, in 877, empowered his fideles to dispose of their benefices as they thought fit, provided it were to persons capable of serving the estate. But this is too largely expressed; the power given is to those vassals who might desire to take up their abode in a cloister; and it could only be exercised in favor of a son or other kinsman. ^a But the right of inheritance had probably been established before. Still, so deeply was the notion of a personal relation to the grantor implanted in the minds of men, that it was common, notwithstanding the largest terms of inheritance in a grant, for the new tenant to obtain a confirmation from the crown. This might also be for the sake of security. And is precisely the renewal of homage and fealty on a change of tenancy, which belonged to the more matured stage of the feudal polity.
[Footnote a: Si aliquis ex fidelibus nostris post obitum nostrum, Dei et nostro amore compunctus, saeculo renuntiare voluerit, et filium vel talem propinquum habuerit qui reipublicae prodesse valeat, suos honores prout melius voluerit ei valeat piscitare. - Script. Rer. Gall. vii. 701.]
Mr. Allen observes, with respect to the formula of Marculfus quoted in my note, p. 130: - "Some authors have considered this as a precedent for the grant of an hereditary benefice. But it is only necessary to read with attention the act itself to perceive that what it creates is not an hereditary benefice, but an allodial estate. It is viewed in this light in his (Bignon's) notes on a subsequent formula (sect. 17), confirmatory of what had been done under the preceding one, and it is only from inadvertence that it could have been considered in a different point of view." (Inquiry into Royal Prerogative, Appendix, p. 47.) But Bignon took for granted that benefices were only for term of life, and consequently that words of inheritance, in the age of Marculfus, implied an allodial grant. The question is, What constituted a benefice? Was it not a grant by favor of the king or other lord? If the words used in the formula of Marculfus are inconsistent with a beneficiary property, we must give up the inference from the treaty of Andely, and from all other phrases which have seemed to convey hereditary benefices. It is true that the formula in Marculfus gives a larger power of alienation than belonged afterwards to fiefs; but did it put an end to the peculiar obligation of the holder of the benefice towards the crown? It does not appear to me unreasonable to suppose an estate so conferred to have been strictly a benefice, according to the notions of the seventh century.
Subinfeudation could hardly exist to any considerable degree until benefices became hereditary. But as soon as that change took place, the principle was very natural and sure to suggest itself. It prodigiously strengthened the aristocracy, of which they could not but be aware; and they had acquired such extensive possessions out of the royal domain that they could well afford to take a rent for them in iron instead of silver. Charlemagne, as Guizot justly conceives, strove to counteract the growing feudal spirit by drawing closer the bonds between the sovereign and the subject. He demanded an oath of allegiance, as William afterwards did in England, from the vassals of mesne lords. But after his death, and after the complete establishment of an hereditary right in the grants of the crown, it was utterly impossible to prevent the general usage of subinfeudation.
Mably distinguishes the lands granted by Charles Martel to his German followers from the benefices of the early kings, reserving to the former the name of fiefs. These he conceives to have been granted only for life, and to have involved, for the first time, the obligation of military service. (Observations sur l'Hist. de France, vol. i. p. 32.) But as they were not styled fiefs so early, but only benefices, this distinction seems likely to deceive the reader; and the oath of fidelity taken by the Antrustion, which, though personal, could not be a weaker obligation after he had acquired a benefice, carries a very strong presumption that military service, at least in defensive wars, not always distinguishable from wars to revenge a wrong, as most are presumed to be, was demanded by the usages and moral sentiments of the society. We have not a great deal of testimony as to the grants of Charles Martel; but in the capitularies of Charlemagne it is evident that all holders of benefices were bound to follow the sovereign to the field.
M. Guerard (Cartulaire de Chartres, i. 23) is of opinion that, though benefices were ultimately fiefs, in the first stage of the monarchy they were only usufructs; and the word will not be clearly found in the restrained sense during that period. "Cette difference entre deux institutions nees l'une de l'autre, quoique assez delicate, etait essentielle. Elle ne pourrait etre meconnue que par ceux qui considereraient seulement, les benefices a la fin, et les fiefs au commencement de leur existence; alors en effet les uns et les autres se confondaient." That they were not mere usufructs, even at first, appears to me more probable.
Note X
Somner says that he has not found the word feudum anterior to the year 1000; and that Muratori, a still greater authority, doubts whether it was used so early. I have, however, observed the words feum and fevum, which are manifestly corruptions of feudum, in several charters about 960. (Vaissette, Hist. de Languedoc, t. ii. Appendix, p. 107, 128, et alibi.) Some of these fiefs appears not to have been hereditary. But independently of positive instances, can it be doubted that some word of barbarous original must have answered, in the vernacular languages, to the Latin beneficium? See Du Cange, v. Feudum. Sir F. Palgrave answers this by producing the word lehn. (English Commonwealth, ii. 208.) And though M. Thierry asserts (Recits des Temps Merovingiens, i. 245) that this is modern German, he seems to be altogether mistaken. (Palgrave, ibid.) But when Sir F. Palgrave proceeds to say - "The essential and fundamental principle of a territorial fief or feud is, that the land is held by a limited or conditional estate - the property being in the lord, and the usufruct in the tenant," we must think this not a very exact definition of feuds in their mature state, however it might apply to the early benefices for life. The property, by feudal law, was, I conceive, strictly in the tenant; what else do we mean by fee-simple? Military service in most cases, and always fealty, were due to the lord, and an abandonment of the latter might cause forfeiture of the land; but the tenant was not less the owner, and might destroy it or render it unprofitable if he pleased.
Feudum Sir F. Palgrave boldly derives from emphyteusis; and, in fact, by processes familiar to etymologists, that is, cutting off the head and legs, and extracting the back-bone, it may thence be exhibited in the old form, feum, or fevum. M. Thierry, however, thinks feh, that is, fee or pay, and odh, property, to be the true root. (Lettres sur l'Hist. de France, Lettre x.) Guizot inclines to the same derivation; and it is, in fact, given by Du Cange and others. The derivation of alod from all and odh seems to be analogous; and the word udaller, for the freeholder of the Shetland and Orkney Isles, strongly confirms this derivation, being only the two radical elements reversed, as I remember to have seen observed in Gilbert Stuart's View of Society. A charter of Charles the Fat is suspected on account of the word feudum, which is at least of very rare occurrence till late in the tenth century. The great objection to emphyteusis is, that a fief is a different thing. Sir F. Palgrave, indeed, contends that an "emphyteusis" is often called a "precaria," and that the word "precaria" was a synonym of "beneficium," as beneficium was of "feudum." But does it appear from the ancient use of the words "precaria" and "beneficium" that they were convertible, as the former is said, by Muratori and Lehuerou, to have been with emphyteusis? (Murat. Antiq. Ital. Diss. xxxvi. Lehuerou, Inst. Caroling. p. 183.) The tenant by emphyteusis, whom we find in the Codes of Theodosius and Justinian, was little more than a colonus, a demi-serf attached to the soil, though incapable of being dispossessed. Is this like the holder of a benefice, the progenitor of the great feudal aristocracy? How can we compare emphyteusis with beneficium without remembering that one was commonly a grant for a fixed return in value, answering to the "terrae censuales" of later times, and the latter, as the word implies, a free donation with no
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