Feudalism,  A general Overview

Author:     Stubbs, William

 Feudalism: Its Frankish Birth And English Development

 

Part Eight

 

     I have been obliged to advert, in another place, to the memorable

resistance made by the States-General of 1355 and 1356 to the royal authority,

on account of its inseparable connection with the civil history of France. ^m

In the present chapter the assumption of political influence by those

assemblies deserves particular notice.  Not that they pretended to restore the

ancient constitution of the northern nations, still flourishing in Spain and

England, the participation of legislative power with the crown.  Five hundred

years of anarchy and ignorance had swept away all remembrance of those general diets in which the capitularies of the Carlovingian dynasty had been

established by common consent. Charlemagne himself was hardly known to the

French of the fourteenth century, except as the hero of some silly romance or

ballad.  The States-General remonstrated, indeed, against abuses, and

especially the most flagrant of all, the adulteration of money; but the

ordinance granting redress emanated altogether from the king, and without the

least reference to their consent, which sometimes appears to be studiously

omitted. ^n But the privilege upon which the States under John solely relied

for securing the redress of grievances was that of granting money, and of

regulating its collection.  The latter, indeed, though for convenience it may

be devolved upon the executive government, appears to be incident to every

assembly in which the right of taxation resides.  That, accordingly, which met

in 1355 nominated a committee chosen out of the three orders, which was to sit

after their separation, and which the king bound himself to consult, not only

as to the internal arrangements of his administration, but upon every

proposition of peace or armistice with England.  Deputies were despatched into

each district to superintend the collection and receive the produce of the

subsidy granted by the States. ^o These assumptions of power would not long,

we may be certain, have left the sole authority of legislation in the king,

and might, perhaps, be censured as usurpation, if the peculiar emergency in

which France was then placed did not furnish their defence.  But, if it be

true that the kingdom was reduced to the utmost danger and exhaustion, as much

by malversation of its government as by the armies of Edward III., who shall

deny to its representatives the right of ultimate sovereignty, and of

suspending at least the royal prerogatives, by the abuse of which they were

falling into destruction? ^p I confess that it is exceedingly difficult, or

perhaps impracticable, with such information as we possess, to decide upon the

motives and conduct of the States-General in their several meetings before and

after the battle of Poitiers.  Arbitrary power prevailed; and its opponents

became, of course, the theme of obloquy with modern historians. Froissart,

however, does not seem to impute any fault to these famous assemblies of the

States-General; and still less a more contemporary historian, the anonymous

continuator of Nangis.  Their notices, however, are very slight; and our chief

knowledge of the parliamentary history of France, if I may employ the

expression, must be collected from the royal ordinances made upon these

occasions, or from unpublished accounts of their transactions.  Some of these,

which are quoted by the later historians, are, of course, inaccessible to a

writer in this country.  But a manuscript in the British Museum, containing

the early proceedings of that assembly which met in October, 1356, immediately

after the battle of Poitiers, by no means leads to an unfavorable estimate of

its intentions. ^q The tone of their representations to the Duke of Normandy

(Charles V., not then called Dauphin) is full of loyal respect; their

complaints of bad administration, though bold and pointed, not outrageous;

their offers of subsidy liberal.  The necessity of restoring the coin is

strongly represented as the grand condition upon which they consented to tax

the people, who had been long defrauded by the base money of Philip the Fair

and his successors. ^r

 

[Footnote m: Book I., p. 55.]

 

[Footnote n: The proceedings of States-General held under Philip IV.  and his

sons have left no trace in the French statute-book.  Two ordonnances alone,

out of some hundred enacted by Philip of Valois, appear to have been founded

upon their suggestions.

 

     It is absolutely certain that the States-General of France had at no

period, and in no instance, a coordinate legislative authority with the crown,

or even a consenting voice.  Mably, Boulainvilliers, and Montlosier are as

decisive on this subject as the most courtly writers of that country.  It

follows as a just consequence that France never possessed a free constitution;

nor had the monarchy any limitations in respect of enacting laws, save those

which, until the reign of Philip the Fair, the feudal principles had imposed.]

 

[Footnote o: Ordonnances des Rois, t. iii. p. 21 and preface, p. 42.  This

preface by M. Secousse, the editor, gives a very clear view of the general and

provincial assemblies held in the reign of John.  Boulainvilliers, Hist. de

l'Ancien Gouvernement de France, t. ii., or Villaret, t. ix., may be perused

with advantage.]

 

[Footnote p: The second continuator of Nangis in the Spicilegium dwells on the

heavy taxes, diminution of money, and general oppressiveness of government in

this age: t. iii. p. 108.]

 

[Footnote q: Cotton MSS. Titus, t. xii. fol. 58-74.  This manuscript is

noticed, as an important document, in the preface to the third volume of

Ordonnances, p. 48, by M. Secousse, who had found it mentioned in the

Bibliotheque Historique of Le Long. No. 11,242.  No French antiquary appears,

at least before that time, to have seen it; but Boulainvilliers conjectured

that it related to the assembly of States in February, 1356 (1357), and M.

Secousse supposed it rather to be the original journal of the preceding

meeting in October, 1356, from which a copy, found among the manuscripts of

Dupuy, and frequently referred to by Secousse himself in his preface, had been

taken.  M. Secousse was perfectly right in supposing the manuscript in

question to relate to the proceedings of October, and not of February; but it

is not an original instrument.  It forms part of a small volume written on

vellum, and containing several other treatises. It seems, however, as far as I

can judge, to be another copy of the account which Dupuy possessed, and which

Secousse so often quotes, under the name of Proces-verbal.

 

     It is singular that Sismondi says (x. 479), with Secousse before his

eyes, that the proces-verbaux of the States-General, in 1356, are not extant.]

 

[Footnote r: Et estoit et est l'entente de ceulx qui a la ditte convocation

estoient, que quelconque ottroy ou ayde qu'ils feissent, ils eussent bonne

monnoye et estable selon l'advis des trois estats; et que les chartres et

lettres faites pour les reformations du royaume par le roy Philippe le Bel, et

toutes celles qui furent faites par le roy notre seigneur qui est a present,

fussent confirmees, enterinees, tenues, et gardees de point en point; et

toutes les aides quelconques qui faites soient fussent recues et distribuees

par ceulx qui soient a ce commis par les trois estats, et autorisees par M. le

Duc, et sur certaines autres conditions et modifications justes et

raissonables prouffitables, et semble que ceste aide eust ete moult grant et

moult prouffitable, et trop plus que aides de fait de monnoye.  Car elle se

feroit de volonte du peuple et consentement commun selon Dieu et selon

conscience: Et le prouffit que on prent et veult on prendre sur le fait de la

monnoye du quel on veult faire le fait de la guerre, et ce soit a la

destruction, et a este au temps passe, du roy et du royaume et des subjets: Et

si se destruit le billon tant par fontures et blanchis comme autrement, ne le

fait ne peust durer longuement qu'il ne vienne a destruction si on continue

longuement; Et si est tout certain que les gens d'armes ne vouldroient estre

contens de leurs gaiges par foible monnoye, &c.]

 

     But whatever opportunity might now be afforded for establishing a just

and free constitution in France was entirely lost. Charles, inexperienced and

surrounded by evil counsellors, thought the States-General inclined to

encroach upon his rights, of which, in the best part of his life, he was

always abundantly careful.  He dismissed, therefore, the assembly, and had

recourse to the easy but ruinous expedient of debasing the coin.  This led to

seditions at Paris, by which his authority, and even his life, were

endangered.  In February, 1357, three months after the last meeting had been

dissolved, he was obliged to convoke the States again, and to enact an

ordinance conformable to the petitions tendered by the former assembly. ^s

This contained many excellent provisions, both for the redress of abuses and

the vigorous prosecution of the war against Edward; and it is difficult to

conceive that men who advised measures so conducive to the public weal could

have been the blind instruments of the King of Navarre.  But this, as I have

already observed, is a problem in history that we cannot hope to resolve. It

appears, however, that, in a few weeks after the promulgation of this

ordinance, the proceedings of the reformers fell into discredit, and their

commission of thirty-six, to whom the collection of the new subsidy, the

redress of grievances, and, in fact, the whole administration of government

had been intrusted, became unpopular.  The subsidy produced much less than

they had led the people to expect: briefly, the usual consequence of

democratical emotions in a monarchy took place. Disappointed by the failure of

hopes unreasonably entertained and improvidently encouraged, and disgusted by

the excesses of the violent demagogues, the nation, especially its privileged

classes, who seem to have concurred in the original proceedings of the

States-General, attached themselves to the party of Charles, and enabled him

to quell opposition by force. ^t Marcel, provost of the traders, a municipal

magistrate of Paris, detected in the overt execution of a traitorous

conspiracy with the King of Navarre, was put to death by a private hand.

Whatever there had been of real patriotism in the States-General, artfully

confounded, according to the practice of courts, with these schemes of

disaffected men, shared in the common obloquy; whatever substantial reforms

had been projected the government threw aside as seditious innovations.

Charles, who had assumed the title of regent, found in the States-General

assembled at Paris, in 1359, a very different disposition from that which

their predecessors had displayed, and publicly restored all counsellors whom

in the former troubles he had been compelled to discard.  Thus the monarchy

resettled itself on its ancient basis, or, more properly, acquired additional

stability. ^u

 

[Footnote s: Ordonnances des Rois, t. iii. p. 121.]

 

[Footnote t: Discordia mota, illi tres status ab incepto proposito

cessaverunt.  Ex tunc enim regni negotia male ire, &c.  Continuator Gul. de

Nangis in Spicilegio, t. iii. p. 115.]

 

[Footnote u: A very full account of these transactions is given by Secousse,

in his History of Charles the Bad, p. 107, and in his preface to the third

volume of the Ordonnances des Rois.  The reader must make allowance for the

usual partialities of a French historian, where an opposition to the reigning

prince is his subject.  A contrary bias is manifested by Boulainvilliers and

Mably, whom, however, it is well worth while to hear.]

 

     Both John, after the peace of Bretigni, and Charles V. imposed taxes

without consent of the States-General. ^v The latter, indeed, hardly ever

convoked that assembly.  Upon his death the contention between the crown and

representative body was renewed; and, in the first meeting held after the

accession of Charles VI., the government was compelled to revoke all taxes

illegally imposed since the reign of Philip IV.  [A.D. 1380.] This is the most

remedial ordinance, perhaps, in the history of French legislation.  "We will,

ordain, and grant," says the king, "that the aids, subsidies, and impositions,

of whatever kind, and however imposed, that have had course in the realm since

the reign of our predecessor, Philip the Fair, shall be repealed and

abolished; and we will and decree that, by the course which the said

impositions have had, we or our successors shall not have acquired any right,

nor shall any prejudice be wrought to our people, nor to their privileges and

liberties, which shall be reestablished in as full a manner as they enjoyed

them in the reign of Philip the Fair, or at any time since; and we will and

decree that, if anything has been done contrary to them since that time to the

present hour, neither we nor our successors shall take any advantage

therefrom." ^w If circumstances had turned out favorably for the cause of

liberty, this ordinance might have been the basis of a free constitution, in

respect, at least, of immunity from arbitrary taxation.  But the coercive

measures of the court and tumultuous spirit of the Parisians produced an open

quarrel, in which the popular party met with a decisive failure.

 

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

 

[Footnote w: Ordonnances des Rois, t. vi. p. 564.  The ordinance is long,

containing frequent repetitions, and a great redundance of words, intended to

give more force, or at least solemnity.]

 

     It seems, indeed, impossible that a number of deputies, elected merely

for the purpose of granting money, can possess that weight, or be invested in

the eyes of their constituents with that awfulness of station, which is

required to withstand the royal authority.  The States-General had no right of

redressing abuses, except by petition; no share in the exercise of

sovereignty, which is inseparable from the legislative power. Hence, even in

their proper department of imposing taxes, they were supposed incapable of

binding their constituents without their special assent.  Whether it were the

timidity of the deputies, or false notions of freedom, which produced this

doctrine, it was evidently repugnant to the stability and dignity of a

representative assembly.  Nor was it less ruinous in practice than mistaken in

theory.  For as the necessary subsidies, after being provisionally granted by

the States, were often rejected by their electors, the king found a reasonable

pretence for dispensing with the concurrence of his subjects when he levied

contributions upon them.

 

     The States-General were convoked but rarely under Charles VI. and VII.,

both of whom levied money without their concurrence.  Yet there are remarkable

testimonies under the latter of these princes that the sanction of national

representatives was still esteemed strictly requisite to any ordinance

imposing a general tax, however the emergency of circumstances might excuse a

more arbitrary procedure.  Thus Charles VII., in 1436, declares that he has

set up again the aids which had been previously abolished by the consent of

the three estates. ^x And in the important edict establishing the companies of

ordonnance, which is recited to be done by the advice and counsel of the

States-General assembled at Orleans, the forty-first section appears to bear a

necessary construction that no tallage could lawfully be imposed without such

consent. ^y It is maintained, indeed, by some writers, that the perpetual

taille established about the same time was actually granted by these States of

1439, though it does not so appear upon the face of any ordinance. ^z And

certainly this is consonant to the real and recognized constitution of that

age.

 

[Footnote x: Ordonnances des Rois, t. xiii. p. 211.]

 

[Footnote y: lb. p. 312.  Boulainvilliers mentions other instances where the

States granted money during this reign: t. iii. p. 70.]

 

[Footnote z: Brequigny, preface au treizieme tome des Ordonnances.

Boulainvilliers, t. iii. p. 108.]

 

     But the crafty advisers of courts in the fifteenth century, enlightened

by experience of past dangers, were averse to encountering these great

political masses, from which there were, even in peaceful times, some

disquieting interferences, some testimonies of public spirit, and

recollections of liberty to apprehend.  The kings of France, indeed, had a

resource, which generally enabled them to avoid a convocation of the

States-General, without violating the national franchises.  From provincial

assemblies, composed of the three orders, they usually obtained more money

than they could have extracted from the common representatives of the nation,

and heard less of remonstrance and demand. ^a Languedoc in particular had her

own assembly of states, and was rarely called upon to send deputies to the

general body, or representatives of what was called the Languedoil.  But

Auvergne, Normandy, and other provinces belonging to the latter division, had

frequent convocations of their respective estates during the intervals of the

States-General - intervals which by this means were protracted far beyond that

duration to which the exigencies of the crown would otherwise have confined

them. ^b This was one of the essential differences between the constitutions

of France and England, and arose out of the original disease of the former

monarchy - the distraction and want of unity consequent upon the decline of

Charlemagne's family, which separated the different provinces, in respect of

their interests and domestic government, from each other.

 

[Footnote a: Villaret, t. xi. p. 270.]

 

[Footnote b: Ordonnances des Rois, t. iii. preface.]

 

     But the formality of consent, whether by general or provincial states,

now ceased to be reckoned indispensable.  The lawyers had rarely seconded any

efforts to restrain arbitrary power: in their hatred of feudal principles,

especially those of territorial jurisdiction, every generous sentiment of

freedom was proscribed; or, if they admitted that absolute prerogative might

require some checks, it was such only as themselves, not the national

representatives, should impose.  Charles VII. levied money by his own

authority.  Louis XI. carried this encroachment to the highest pitch of

exaction.  It was the boast of courtiers that he first released the kings of

France from dependence (hors de page); or, in other words, that he effectually

demolished those barriers which, however imperfect and ill-placed, had imposed

some impediment to the establishment of despotism. ^c

 

[Footnote c: The preface to the sixteenth volume of Ordonnances, before

quoted, displays a lamentable picture of the internal situation of France in

consequence of excessive taxation and other abuses.  These evils, in a less

aggravated degree, continued ever since to retard the improvement and diminish

the intrinsic prosperity of a country so extraordinarily endowed with natural

advantages.  Philip de Comines was forcibly struck with the different

situation of England and the Netherlands.  And Sir John Fortescue has a

remarkable passage on the poverty and servitude of the French commons,

contrasted with English freemen. - Difference of Limited and Absolute

Monarchy, p. 17.]

 

     The exactions of Louis, however, though borne with patience, did not pass

for legal with those upon whom they pressed.  Men still remembered their

ancient privileges, which they might see with mortification well preserved in

England.  "There is no monarch or lord upon earth (says Philip de Comines,

himself bred in courts) who can raise a farthing upon his subjects, beyond his

own domains, without their free concession, except through tyranny and

violence.  It may be objected that in some cases there may not be time to

assemble them, and that war will bear no delay; but I reply (he proceeds) that

such haste ought not to be made, and there will be time enough; and I tell you

that princes are more powerful, and more dreaded by their enemies, when they

undertake anything with the consent of their subjects." ^d

 

[Footnote d: Mem. de Comines, l. iv. c. 19.]

 

     The States-General met but twice during the reign of Louis XI., and on

neither occasion for the purpose of granting money.  But an assembly in the

first year of Charles VIII., the States of Tours in 1484, is too important to

be overlooked, as it marks the last struggle of the French nation by its legal

representatives for immunity from arbitrary taxation.

 

     A warm contention arose for the regency upon the accession of Charles

VIII., between his aunt, Anne de Beaujeu, whom the late king had appointed by

testament, and the princes of the blood, at the head of whom stood the Duke of

Orleans, afterwards Louis XII.  The latter combined to demand a convocation of

the States-General, which accordingly took place.  The king's minority and the

factions at court seemed no unfavorable omens for liberty.  But a scheme was

artfully contrived which had the most direct tendency to break the force of a

popular assembly.  The deputies were classed in six nations, who debated in

separate chambers, and consulted each other only upon the result of their

respective deliberations.  It was easy for the court to foment the jealousies

natural to such a partition. Two nations, the Norman and Burgundian, asserted

that the right of providing for the regency devolved, in the king's minority,

upon the States-General; a claim of great boldness, and certainly not much

founded upon precedents.  In virtue of this, they proposed to form a council,

not only of the princes, but of certain deputies to be elected by the six

nations who composed the States.  But the other four, those of Paris,

Aquitaine, Languedoc, and Languedoil (which last comprised the central

provinces), rejected this plan, from which the two former ultimately desisted,

and the choice of councilors was left to the princes.

 

     A firmer and more unanimous spirit was displayed upon the subject of

public reformation.  The tyranny of Louis XI. had been so unbounded, that all

ranks agreed in calling for redress, and the new governors were desirous, at

least by punishing his favorites, to show their inclination towards a change

of system.  They were very far, however, from approving the propositions of

the States-General.  These went to points which no court can bear to feel

touched, though there is seldom any other mode of redressing public abuses;

the profuse expense of the royal household, the number of pensions and

improvident grants, the excessive establishment of troops.  The States

explicitly demanded that the taille and all other arbitrary imposts should be

abolished; and that from thenceforward, "according to the natural liberty of

France," no tax should be levied in the kingdom without the consent of the

States.  It was with great difficulty, and through the skilful management of

the court, that they consented to the collection of the taxes payable in the

time of Charles VII., with the addition of one-fourth as a gift to the king

upon his accession.  This subsidy they declare to be granted "by way of gift

and concession, and not otherwise, and so as no one should from thenceforward

call it a tax, but a gift and concession." And this was only to be in force

for two years, after which they stipulated that another meeting should be

convoked.  But it was little likely that the government would encounter such a

risk; and the princes, whose factious views the States had by no means

seconded, felt no temptation to urge again their convocation.  No assembly in

the annals of France seems, notwithstanding some party selfishness arising out

of the division into nations, to have conducted itself with so much public

spirit and moderation; nor had that country perhaps ever so fair a prospect of

establishing a legitimate constitution. ^e

 

[Footnote e: I am altogether indebted to Garnier for the proceedings of the

States of Tours.  His account (Hist. de France, t. xviii. p. 154-348) is

extremely copious, and derived from a manuscript journal.  Comines alludes to

them sometimes, but with little particularity.  The above-mentioned

manuscript was published in 1835, among the Documens Inedits sur l'Histoire de

France.]

 

     5. The right of jurisdiction has undergone changes in France and in the

adjacent countries still more remarkable than those of the legislative power;

and passed through three very distinct stages as the popular, aristocratic, or

regal influence predominated in the political system. The Franks, Lombards,

and Saxons seem alike to have been jealous of judicial authority, and averse

to surrendering what concerned every man's private right out of the hands of

his neighbors and his equals.  Every ten families are supposed to have had a

magistrate of their own election: the tithingman of England, the decanus of

France and Lombardy. ^f Next in order was the Centenarius or Hundredary, whose

name expresses the extent of his jurisdiction, and who, like the Decanus, was

chosen by those subject to it. ^g But the authority of these petty magistrates

was gradually confined to the less important subjects of legal inquiry.  No

man, by a capitulary of Charlemagne, could be impleaded for his life, or

liberty, or lands, or servants, in the hundred court. ^h In such weighty

matters, or by way of appeal from the lower jurisdictions, the count of the

district was judge.  He indeed was appointed by the sovereign; but his power

was checked by the assessors, called Scabini, who held their office by the

election, or at least the concurrence, of the people. ^i An ultimate appeal

seems to have lain to the Count Palatine, an officer of the royal household;

and sometimes causes were decided by the sovereign himself. ^j Such was the

original model of judicature; but as complaints of injustice and neglect were

frequently made against the counts, Charlemagne, desirous on every account to

control them, appointed special judges, called Missi Regii, who held assises

from place to place, inquired into abuses and maladministration of justice,

enforced its execution, and expelled inferior judges from their offices for

misconduct. ^k

 

[Footnote f: The Decanus is mentioned by a writer of the ninth age as the

lowest species of judge, immediately under the Centenarius.  The latter is

compared to the Plebanus, or priest, of a church where baptism was performed,

and the former to an inferior presbyter.  Du Cange, v. Decanus; and Muratori,

Antiq. Ital. Dissert. 10.]

 

[Footnote g: It is evident from the Capitularies of Charlemagne (Baluze, t. i.

p. 426, 466) that the Centenarii were elected by the people; that is, I

suppose, the freeholders.]

 

[Footnote h: Ut nullus homo in placito centenarii neque ad mortem, neque ad

libertatem suam amittendam, aut ad res reddendas vel mancipia judicetur.  Sed

ista aut in presentia comitis vel missorum nostrorum judicentur.  Capit. A.D.

812; Baluz. p. 497.]

 

[Footnote i: Baluzii Capitularia, p. 466; Muratori, Dissert. 10; Du Cange, v.

Scabini.  These Scabini may be traced by the light of charters down to the

eleventh century.  Recueil des Historiens, t. vi. preface, p. 186. There is,

in particular, a decisive proof of their existence in 918, in a record which I

have already had occasion to quote.  Vaissette, Hist. de Languedoc, t. ii.

Appendix, p. 56.  Du Cange, Baluze, and other antiquaries have confounded the

Scabini with the Rachimburgii, of whom we read in the oldest laws.  But

Savigny and Guizot have proved the latter were landowners, acting in the

county courts as judges under the presidency of the count, but wholly

independent of him.  The Scabini in Charlemagne's age superseded them. -

Essais sur l'Histoire de France, pp.259,272.]

 

[Footnote j: Du Cange, Dissertation 14, sur Joinville; and Glossary, v.

Comites Palatini; Mem.  de l'Acad. des Inscript. t. xxx. p. 590.  Louis the

Debonair gave one day in every week for hearing causes; but his subjects were

required not to have recourse to him, unless where the Missi or the counts had

not done justice.  Baluze, t. i. p. 668.  Charles the Bald expressly reserves

an appeal to himself from the inferior tribunals. Capit. 869, t. ii. p. 215.

In his reign there was at least a claim to sovereignty preserved.]

 

[Footnote k: For the jurisdiction of the Missi Regii, besides the Capitularies

themselves, see Muratori's eighth Dissertation.  They went their circuits four

times a year.  Capitul. A.D. 812; A.D.  823.  A vestige of this institution

long continued in the province of Auvergne, under the name of Grands Jours

d'Auvergne; which Louis XI. revived in 1479.  Garnier, Hist. de France, t.

xviii. p. 458.]

 

     This judicial system was gradually superseded by one founded upon totally

opposite principles, those of feudal privilege.  It is difficult to ascertain

the progress of territorial jurisdiction.  In many early charters of the

French kings, beginning with one of Dagobert I. in 630, we find inserted in

their grants of land an immunity from the entrance of the ordinary judges,

either to hear causes, or to exact certain dues accruing to the king and to

themselves. ^l These charters indeed relate to church lands, which, as it

seems implied by a law of Charlemagne, universally possessed an exemption from

ordinary jurisdiction.  A precedent, however, in Marculfus leads us to infer a

similar immunity to have been usual in gifts to private persons. ^m These

rights of justice in the beneficiary tenants of the crown are attested in

several passages of the capitularies. And a charter of Louis I. to a private

individual contains a full and exclusive concession of jurisdiction over all

persons resident within the territory, though subject to the appellant control

of the royal tribunals. ^n It is obvious, indeed, that an exemption from the

regular judicial authorities implied or naturally led to a right of

administering justice in their place.  But this could at first hardly extend

beyond the tributaries or villeins who cultivated their master's soil, or, at

most, to free persons without property, resident in the territory.  To

determine their quarrels, or chastise their offences, was wa no very

illustrious privilege.  An allodial freeholder could own no jurisdiction but

that of the king.  It was the general prevalence of subinfeudation which gave

importance to the territorial jurisdictions of the nobility.  For now the

military tenants, instead of repairing to the county-court, sought justice in

that of their immediate lord; or rather the count himself, become the suzerain

instead of the governor of his district, altered the form of his tribunal upon

the feudal model. ^o A system of procedure so congenial to the spirit of the

age spread universally over France and Germany.  The tribunals of the king

were forgotten like his laws; the one retaining as little authority to

correct, as the other to regulate, the decisions of a territorial judge.  The

rules of evidence were superseded by that monstrous birth of ferocity and

superstition, the judicial combat, and the maxims of law reduced to a few

capricious customs, which varied in almost every barony.

 

[Footnote l: If a charter of Clovis to a monastery called Reomaense, dated

496, is genuine, the same words of exemption occurring in it, we must refer

territorial jurisdiction to the very infancy of the French monarchy. And M.

Lehuerou! (Inst. Caroling. p. 225 et post) has strongly contended for the

right of lords to exercise jurisdiction in virtue of their ownership of the

soil, and without regard to the personal law of those coming within its scope

by residence.  This territorial right he deduces from the earliest times; it

was an enlargement of the ancient mundium, or protection, among the Germans;

which must have been solely personal before the establishment of separate

property in land, but became local after the settlement in Gaul, to which that

great civil revolution was due.  The authority of M. Lehuerou is entitled to

much respect; yet his theory seems to involve a more extensive development of

the feudal system in the Merovingian period than we generally admit.]

 

[Footnote m: Marculfi formulae, 1. i. c. 17.]

 

[Footnote n: Et nullus comes, nec vicarius, nec juniores eorum, nec illus

judex publicus illorum, homines qui super illorum aprisione habitant, aut in

illorum proprio, distringere nec judicare praesumant; sed Johannes et filii

sui, et posteritas illorum, illi eos judicent et distringant.  Et quicquid per

legem judicaverint, stabilis permaneat.  Et si extra legem fecerint, per legem

emendent.  Baluzii Capitularia, t. ii. p. 1405.

 

     This appellant control was preserved by the capitulary of Charles the

Bald, quoted already, over the territorial as well as royal tribunals.  Si

aliquis episcopus, vel comes ac vassus noster suc homini contra rectum et

justitiam fecerit, et si inde ad nos reclamaverit, sciat quia, sicut ratio et

lex est, hoc emendare faciemus.]

 

[Footnote o: We may perhaps infer, from a capitulary of Charlemagne in 809,

that the feudal tenants were already employed as assessors in the

administration of justice, concurrently with the Scabini mentioned above. Ut

nullus ad placitum venire rogatur, nisi qui causum habet ad quaerendum,

exceptis scabinis et vassallis comitum.  Baluzii Capitularia, t. i. p. 465.]

 

     These rights of administering justice were possessed by the owners of

fiefs in very different degrees; and, in France, were divided into the high,

the middle, and the low jurisdiction. ^p The first species alone (la haute

justice) conveyed the power of life and death; it was inherent in the baron

and the chatelain, and sometimes enjoyed by the simple vavassor. The lower

jurisdictions were not competent to judge in capital cases, and consequently

forced to send such criminals to the court of the superior. But in some

places, a thief taken in the fact might be punished with death by a lord who

had only the low jurisdiction.  In England this privilege was known by the

uncouth terms of Infangthef and Outfangthef.  The high jurisdiction, however,

was not very common in England, except in the chartered towns. ^q

 

[Footnote p: Velly, t. vi. p. 131; Denistart, Houard, and other law-books.]

 

[Footnote q: A strangely cruel privilege was possessed in Aragon by the lords

who had not the higher jurisdiction, and consequently could not publicly

execute a criminal: that of starving him to death in prison. This was

established by law in 1247.  Si vassallus domini non habentis merum nec mixtum

imperium, in loco occideret vassallum, dominus loci potest eum occidere fame,

frigore et siti.  Et quilibet dominus loci habet hanc jurisdictionum necandi

fame, frigore et siti in suo loco, licet nullam aliam jurisdictionem

criminalem habeat.  Du Cange, voc. Fame necare.

 

     It is remarkable that the Neapolitan barons had no criminal jurisdiction,

at least of the higher kind, till the reign of Alfonso, in 1443, who sold this

destructive privilege, at a time when it was almost abolished in other

kingdoms.  Giannone, l. xxii. c. 5, and l. xxvi. c. 6.]

 

     Several customs rendered these rights of jurisdiction far less

instrumental to tyranny than we might infer from their extent.  While the

counts were yet officers of the crown, they frequently appointed a deputy, or

viscount, to administer justice.  Ecclesiastical lords, who were prohibited by

the canons from inflicting capital punishment, and supposed to be unacquainted

with the law followed in civil courts, or unable to enforce it, had an officer

by name of advocate, or vidame, whose tenure was often feudal and hereditary.

The viguiers (vicarii), bailiffs, provosts, and seneschals of lay lords were

similar ministers, though not in general of so permanent a right in their

offices, or of such eminent station, as the advocates of monasteries.  It

seems to have been an established maxim, at least in later times, that the

lord could not sit personally in judgment, but must intrust that function to

his bailiff and vassals. ^r According to the feudal rules, the lord's vassals

or peers of his court were to assist at all its proceedings.  "There are some

places," says Beaumanoir, "where the bailiff decides in judgment, and others

where the vassals of the lord decide.  But even where the bailiff is the

judge, he ought to advise with the most prudent, and determine by their

advice; since thus he shall be most secure if an appeal is made from his

judgment." ^s And indeed the presence of these assessors was so essential to

all territorial jurisdiction, that no lord, to whatever rights of justice his

fief might entitle him, was qualified to exercise them, unless he had at least

two vassals to sit as peers in his court. ^t

 

[Footnote r: Boutillier, in his Somme Rurale, written near the end of the

fourteenth century, asserts this positively.  Il convient quilz facent jugier

par aultre que par eulx, cest a savoir par leurs hommes feudaulx a leur

semonce et conjure [?] ou de leur bailiff ou lieutenant, et ont ressort a leur

souverain. Fol. 3.]

 

[Footnote s: Coutumes de Beauvoisis, p. II.]

 

[Footnote t: It was lawful, in such case, to borrow the vassals of the

superior lord.  Thaumassiere sur Beaumanoir, p. 375.  See Du Cange, v. Pares,

an excellent article; and Placitum.