Analysis of the Feudal System – Its local Extent – View of the different
Orders of Society during the Feudal Ages – Nobility – Their Ranks and
Privileges – Clergy – Freemen – Serfs or Villeins – Comparative State of
France and Germany – Privileges enjoyed by the French Vassals – Right of
Coining Money – And of private War – Immunity from Taxation – Historical View
of the Royal Revenue in France – Methods Adopted to Augment it by Depreciation
of the Coin, etc. – Legislative Power – Its State under the Merovingian Kings
and Charlemagne – His Councils – Suspension of any General Legislative
Authority during the Prevalence of Feudal Principles – The King’s Council -
Means adopted to supply the Want of a National Assembly – Gradual Progress of
the King’s Legislative Power – Philip IV. assembles the States-General – Their
Powers limited to Taxation – States under the Sons of Philip IV. – States of
1355 and 1356 – They nearly effect an entire Revolution – The Crown recovers
its Vigor – States of 1380, under Charles VI. – Subsequent Assemblies under
Charles VI. and Charles becomes more and more absolute – Louis XI. – States of
Tours in 1484 – Historical View of Jurisdiction in France – Its earliest Stage
under the first Race of Kings and Charlemagne – Territorial Jurisdiction -
Feudal Courts of Justice – Trial by Combat – Code of St. Louis – The
Territorial Jurisdictions give way – Progress of the Judicial Power of the
Crown – Parliament of Paris – Peers of France – Increased Authority of the
Parliament – Registration of Edicts – Causes of the Decline of the Feudal
System – Acquisitions of Domain by the Crown – Charters of Incorporation
granted to Towns – Their previous Condition – First Charters in the Twelfth
Century – Privileges contained in them – Military Service of Feudal Tenants
commuted for Money – Hired Troops – Change in the Military System of Europe -
General View of the Advantages and Disadvantages attending the Feudal System.
The advocates of a Roman origin for most of the institutions which we
find in the kingdoms erected on the ruins of the empire are naturally prone to
magnify the analogies to feudal tenure which Rome presents to us, and even to
deduce it either from the ancient relation of patron and client, and that of
personal commendation, which was its representative in a later age, or from
the frontier lands granted in the third century to the Laeti, or barbarian
soldiers, who held them, doubtless, subject to a condition of military
service. The usage of commendation especially, so frequent in the fifth
century, before the conquest of Gaul, as well as afterwards, does certainly
bear a strong analogy to vassalage, and I have already pointed it out as one
of its sources. It wanted, however, that definite relation to the tenure of
land which distinguished the latter. The royal Antrustio (whether the word
commendatus were applied to him or not) stood bound by gratitude and loyalty
to his sovereign, and in a very different degree from a common subject; but he
was not perhaps strictly a vassal till he had received a territorial benefice.
^a The complexity of subinfeudation could have no analogy in commendation.
[Footnote a: This word "vassal" is used very indefinitely; it means, in its
original sense, only a servant or dependant. But in the continental records of
histories we commonly find it applied to feudal tenants.]
The grants to veterans and to the Laeti are so far only analogous to
fiefs that they established the principle of holding lands on a condition of
military service. But this service was no more than what, both under
Charlemagne and in England, if not in other times and places, the allodial
freeholder was bound to render for the defence of the realm; it was more
commonly required, because the lands were on a barbarian frontier; but the
duty was not even very analogous to that of a feudal tenant. ^b The essence of
a fief seems to be, that its tenant owed fealty to a lord, and not to the
state or the sovereign; the lord might be the latter, but it was not, feudally
speaking, as a sovereign that he was obeyed. This is, therefore, sufficient
to warrant us in tracing the real theory of feuds no higher than the
Merovingian history in France; their full establishment, as has been seen, is
considerably later. But the preparatory steps in the constitutions of the
declining empire are of considerable importance, not merely as analogies, but
as predisposing circumstances, and even germs to be subsequently developed.
The beneficiary tenure of lands could not well be brought by the conquerors
from Germany; but the donatives of arms or precious metals bestowed by the
chiefs on their followers were also analogous to fiefs; and, as the Roman
institutions were one source of the law of tenure, so these were another.
[Footnote b: If Gothofred is right in his construction of the tenure of these
Laeti, they were not even generally liable to this part of our trinoda
necessitas, but only to conscription for the legions. Et ea tamen conditione
terras illis excolendas Laeti consequebantur, ut delectibus quoque ob noxii
essent et legionibus insererentur (Not. ad Cod. Theod. l. vii. tit. 20, c.
12). Sir Francis Palgrave, however, says, - "The duty of bearing arms was
inseparably connected with the property." (English Commonwealth, i. 354.) This
is too equivocal; but he certainly means more than Gothofred; he supposes a
permanent universal obligation to render service in all public warfare.]
It is of great importance to be on our guard against seeming analogies
which vanish when they are closely observed. We should speak inaccurately if
we were to use the word feudal for the service of the Irish or Highland clans
to their chieftain; their tie was that of imagined kindred and respect for
birth, not the spontaneous compact of vassalage. Much less can we extend the
name of feud, though it is sometimes strangely misapplied, to the polity of
Poland and Russia. All the Polish nobles were equal in rights, and
independent of each other; all who were less than noble were in servitude. No
government can be more opposite to the long gradations and mutual duties of
the feudal system. ^c
[Footnote c: In civil history many instances might be found of feudal
ceremonies in countries not regulated by the feudal law. Thus Selden has
published an infeudation of a vayvod of Moldavia by the King of Poland, A.D.
1485, in the regular forms, vol. iii. p. 514. But these political fiefs have
hardly any connection with the general system, and merely denote the
subordination of one prince or people to another.]
The regular machinery and systematic establishment of feuds, in fact, may
be considered as almost confined to the dominions of Charlemagne, and to those
countries which afterwards derived it from thence. In England it can hardly
be thought to have existed in a complete state before the Conquest. Scotland,
it is supposed, borrowed it soon after from her neighbor. The Lombards of
Benevento had introduced feudal customs into the Neapolitan provinces, which
the Norman conquerors afterwards perfected. Feudal tenures were so general in
the kingdom of Aragon, that I reckon it among the monarchies which were
founded upon that basis. ^d Charlemagne’s empire, it must be remembered,
extended as far as the Ebro. But in Castile ^e and Portugal they were very
rare, and certainly could produce no political effect. Benefices for life
were sometimes granted in the kingdoms of Denmark and Bohemia. ^f Neither of
these, however, nor Sweden, nor Hungary, come under the description of
countries influenced by the feudal system. ^g That system, however, after all
these limitations, was so extensively diffused, that it might produce
confusion as well as prolixity to pursue collateral branches of its history in
all the countries where it prevailed. But this embarrassment may be avoided
without any loss, I trust, of important information. The English constitution
will find its place in another portion of these volumes; and the political
condition of Italy, after the eleventh century, was not much affected, except
in the kingdom of Naples, by the laws of feudal tenure. I shall confine
myself, therefore, chiefly to France and Germany; and far more to the former
than the latter country. But it may be expedient first to contemplate the
state of society in its various classes during the prevalence of feudal
principles, before we trace their influence upon the national government.
[Footnote d: It is probable that feudal tenure was as ancient in the north of
Spain as in the contiguous provinces of France. But it seems to have chiefly
prevailed in Aragon about the twelfth and thirteenth centuries, when the Moors
south of the Ebro were subdued by the enterprise of private nobles, who, after
conquering estates for themselves, did homage for them to the king. James I.,
upon the reduction of Valencia, granted lands by way of fief, on condition of
defending that kingdom against the Moors, and residing personally upon the
estate. Many did not perform this engagement, and were deprived of the lands
in consequence. It appears by the testament of this monarch that feudal
tenures subsisted in every part of his dominions. - Martenne, Thesaurus
Anecdotorum, t. i. p. 1141, 1155. An edict of Peter II. in 1210 prohibits the
alienation of emphyteuses without the lord's consent. It is hard to say
whether regular fiefs are meant by this word. - De Marca, Marca Hispanica, p.
1396. This author says that there were no arriere-fiefs in Catalonia.
The Aragonese fiefs appear, however, to have differed from those of other
countries in some respects. Zurita mentions fiefs according to the custom of
Italy, which he explains to be such as were liable to the usual feudal aids
for marrying the lord's daughter, and other occasions. We may infer,
therefore, that these prestations were not customary in Aragon. - Anales de
Aragon, t. ii. p. 62.]
[Footnote e: What is said of vassalage in Alfonzo X.'s code, Las siete
partidas, is short and obscure; nor am I certain that it meant anything more
than voluntary commendation, the custom mentioned in the former part of this
chapter, from which the vassal might depart at pleasure. See, however, Du
Cange, v. Honor, where authorities are given for the existence of Castilian
fiefs; and I have met with occasional mention of them in history. I believe
that tenures of this kind were introduced in the fourteenth and fifteenth
centuries; but not to any great extent. - Marina, Teoria de las Cortes, t.
iii. p. 14. Tenures of a feudal nature, as I collect from Freirii Institut.
Juris Lusitani, tom. ii. t. 1 and 3, existed in Portugal, though the jealousy
of the crown prevented the system from being established. There were even
territorial jurisdictions in that kingdom, though not, at least originally, in
Castile.]
[Footnote f: Daniae regni politicus status. Elzevir, 1629. Stransky,
Respublica Bohemica, ib. In one of the oldest Danish historians, Sweno, I
have noticed this expression: Waldemarus, patris tunc potitus feodo. Langebek,
Scrip. Rerum Danic. t. i. p. 62. By this he means the duchy of Sleswic, not a
fief, but an honor or government possessed by Waldemar. Saxo Grammaticus calls
it more classically, paternae praefecturae dignitas. Sleswic was, in later
times, sometimes held as a fief; but this does not in the least imply that
lands in Denmark proper were feudal, of which I find no evidence.]
[Footnote g: Though there were no feudal tenures in Sweden, yet the nobility
and others were exempt from taxes on condition of serving the king with a
horse and arms at their own expense; and a distinction was taken between liber
and tributarius. But any one of the latter might become of the former class,
or vice versa. - Sueciae descriptio. Elzevir, 1631, p. 92.]
It has been laid down already was most probable that no proper
aristocracy, except that of wealth, was known under the early kings of France;
and it was hinted that hereditary benefices, or, in other words, fiefs, might
supply the link that was wanting between personal privileges and those of
descent. The possessors of beneficiary estates were usually the richest and
most conspicuous individuals in the state. They were immediately connected
with the crown, and partakers in the exercise of justice and royal counsels.
Their sons now came to inherit this eminence; and, as fiefs were either
inalienable, or at least not very frequently alienated, rich families were
kept long in sight; and, whether engaged in public affairs or living with
magnificence and hospitality at home, naturally drew to themselves popular
estimation. The dukes and counts, who had changed their quality of governors
into that of lords over the provinces intrusted to them, were at the head of
this noble class. And in imitation of them, their own vassals, as well as
those of the crown, and even rich allodialists, assumed titles from their
towns or castles, and thus arose a number of petty counts, barons, and
viscounts. This distinct class of nobility became coextensive with the feudal
tenures. ^h For the military tenant, however poor, was subject to no tribute;
no prestation, but service in the field; he was the companion of his lord in
the sports and feasting of his castle, the peer of his court; he fought on
horseback, he was clad in the coat of mail, while the commonalty, if summoned
at all to war, came on foot, and with no armor of defence. As everything in
the habits of society conspired with that prejudice which, in spite of moral
philosophers, will constantly raise the profession of arms above all others,
it was a natural consequence that a new species of aristocracy, founded upon
the mixed considerations of birth, tenure, and occupation, sprang out of the
feudal system. Every possessor of a fief was a gentleman, though he owned but
a few acres of land, and furnished his slender contribution towards the
equipment of a knight. In the Libri Feudorum, indeed, those who were three
degrees removed from the emperor in order to tenancy are considered as
ignoble; ^i but this is restrained to modern investitures; and in France,
where subinfeudation was carried the farthest, no such distinction has met my
observation. ^j
[Footnote h: M. Guerard observes that in the Chartulary of Chartres,
exhibiting the usages of the eleventh and beginning of the twelfth centuries,
"La noblesse s'y montre completement constitutee; c'est a dire, privilegiee et
hereditaire. Elle peut etre divisee en haute, moyenne, et basse." By the
first he understands those who held immediately of the crown; the middle
nobility were mediate vassals, but had rights of jurisdiction, which the lower
had not. (Prolegomenes a la Cartulaire de Chartres, p. 30.)]
[Footnote i: L. ii. t. 10.]
[Footnote j: The nobility of an allodial possession, in France, depended upon
its right to territorial jurisdiction. Hence there were franc-aleux nobles
and franc-aleux roturiers; the latter of which were subject to the
jurisdiction of the neighboring lord. Loiseau, Traite des Seigneuries, p. 76.
Denisart, Dictionnaire des Decisions, art. Franc-aleu.]
There still, however, wanted something to ascertain gentility of blood
where it was not marked by the actual tenure of land. This was supplied by
two innovations devised in the eleventh and twelfth centuries – the adoption
of surnames and of armorial bearings. The first are commonly referred to the
former age, when the nobility began to add the names of their estates to their
own, or, having any way acquired a distinctive appellation, transmitted it to
their posterity. ^k As to armorial bearings, there is no doubt that emblems
somewhat similar have been immemorially used both in war and peace. The
shields of ancient warriors, and devices upon coins or seals, bear no distant
resemblance to modern blazonry. But the general introduction of such
bearings, as hereditary distinctions, has been sometimes attributed to
tournaments, wherein the champions were distinguished by fanciful devices;
sometimes to the crusades, where a multitude of all nations and languages
stood in need of some visible token to denote the banners of their respective
chiefs. In fact, the peculiar symbols of heraldry point to both these sources,
and have been borrowed in part from each. ^l Hereditary arms were perhaps
scarcely used by private families before the beginning of the thirteenth
century. ^m From that time, however, they became very general, and have
contributed to elucidate that branch of history which regards the descent of
illustrious families.
[Footnote k: Mabillon, Traite de Diplomatique, l. ii. c. 7. The authors of
the Nouveau Traite de Diplomatique, t. ii. p. 563, trace the use of surnames
in a few instances even to the beginning of the tenth century; but they did