Slike stranica
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litical organization.

The vill.

The hundred.

From the "Pactus Legis Salicæ," a collection of the customs of Frank law in the fifth century, can be obtained a reasonably clear idea of the system of political organization which prevailed among the Franks when the conquest of Gaul began. The unit of organization in the Frank system is the vill, the successor of the mark, which is capable of holding assemblies and making by-laws.2 The next largest division, and around which the whole system revolves, is that most important and enduring of all Teutonic institutions the hundred, in whose court justice is administered with the right of appeal to the king alone. An aggregation of hundreds constitutes a district or province, whose government is intrusted to a graf, an administrative officer appointed by royal authority.1 The king. The kingly office, which is distinctly recognized, is elective, with the right of election limited to a single royal house.5 The king, who is surrounded by a comitatus of personal followers, appoints not only the grafs to rule the provinces, but the magistrates in the vills: he is the ruler of the nation, the supreme judge of appeal. The supreme council of the naassembly. tion is the whole people in arms.

The province.

The

national

Feudalism par excel lence of

Frank origin.

This simple system of political life and law, which the Franks brought with them into Gaul, settled down by the side of Roman life and law, and a struggle for the mastery was the natural consequence. Under these circumstances that peculiar system of legal and political ideas which is generally known as feudalism, and which is distinctly of Frank origin, finds its historical development upon the soil of Gaul, where it matures, not unaffected by Roman influences. This system can only be clearly understood when it

ing in a very remarkable manner the
old German system in Salian and Mero-
vingian times."
Const. Hist., vol. i. p.
252.

tem

1 In this law can be found no trace of a feudal nobility or a "feudal sysof any kind. Cf. Waitz (Das alte Recht der Salischen Franken, p. 103), who says, "Das Salische Gesetz keunt keinen Adel; auch nicht die lei seste Spur desselben findet sich."

2 Waitz, D. V. G., ii. pp. 314, 353, 354; Das Alte Recht, pp. 124, 210, 228, 253; Stubbs, Const. Hist., vol. i. p. 54.

"The court consists of all the fully

qualified landowners, who bear, in their name of Rachimburgi, a title that shows their capacity for legal functions."- Stubbs, Const. Hist., vol. i. p. 54. Cf. Waitz, D. V. G., i. p. 334; ii. pp. 493-495.

Savigny, R. R., i. pp. 256, 265; Sohm, Fr. R. G. Verf., i. p. 83.

6 Waitz, Das Alte Recht., pp. 203214.

Stubbs, Const. Hist., vol. i. p. 55. 7 "The feudal system par excellence is always understood to mean that special form of feudalism which was developed on the soil of Gaul by the conquering Franks."— Sir J. H. Ram

is viewed in the two aspects in which it naturally presents itself, as a system of land tenure, and as a system of government. Feudalism was the result of the union of two Feudalism great elements; the feudal relation implied the union of two of y other relations. One element consisted of the personal tenure, lord and relation which grew up between lord and vassal, lord and man;

as a system

tion;

cium.

man, a relation which involved mutual service, responsibility, and protection, but which at first was not necessarily connected with the holding of land." By the practice of commendacommendation the inferior put himself under the personal care of a lord, without altering his title or divesting himself of • his right to his estate.3 Another element was represented the benefi by the beneficium, which was partly of Roman, partly of German, origin. A practice had arisen in the empire of granting out frontier lands to soldiers upon condition of their rendering military service in border warfare.1 But the holders of such lands stood in no personal relation to the emperor: they were not his men; their service was only due to him as the representative of the commonwealth. Roman custom naturally suggested to the Teutonic kings the plan of rewarding their followers out of their own estates with grants of land, benefices or fiefs, with a special undertaking to be faithful in consideration of the gift.5 The Frank beneficiary system originated in gifts of this character, and in the surrender of allodial estates made by the owners to lay or ecclesiastical potentates, to be received back and held by them as tenants by rent or service. Through the union or interpenetration of the beneficiary system and

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7

This

Digby, Law of Real Property, p. 30.
"Emphyteusis (upurevois, literally an
'implanting '), is a perpetual right in a
piece of land that is the property of
another," etc. -Smith's Dictionary of
Greek and Roman Antiquities, p. 400.
See, also, Inst. 3, 25, 3, Cooper's
notes.

5 Freeman, Norm. Conq., vol. i. p.
62. "Not a promise of definite ser-
vice, but a pledge to continue faithful
in the conduct in consideration of
which the reward is given."-Stubbs,
Const. Hist., vol. i. p. 253, note I.

6 Waitz, D. V. G., ii. pp. 226-258.
7 Maine, Ancient Law, p. 224,"Al-
lods and Fiefs."

of the ben

eficiary

that of com

Feudalism the system of commendation, the idea of feudal obligation the product of the union became complete, both being fostered by the growth of immunities.1 The system which thus originated spread system with rapidly, and all other tenures were soon assimilated to it. The mendation. beneficia finally receive the name of feuda, a word which does mot appear earlier than the close of the ninth century.2 As Benefices early as 877 Charles the Bald, by a clause in the Capitulary of Kiersi, recognized the hereditary character of all benefices. The hereditary usage, which for a long time had been growing up, had by that time no doubt become general, but by no means universal. With the Capitulary of Kiersi the growth of strictly feudal jurisprudence really begins.*

become hereditary.

Feudalism

of govern

ment.

The principle that benefices were hereditary was soon exas a system tended to the framework of government itself. The provincial magistracies, originally received by the dukes and counts through the king's appointment, and which tended from the Provincial first to become hereditary, actually became so, as soon as the cies become hereditary character of benefices was firmly established.5 hereditary. The local sovereignty of the official magistrate, who thus

magistra

immunities.

grew into a ruler by hereditary right, was greatly enhanced by grants of immunity, which were nothing less than sections of the national or royal right of judicature bestowed upon Growth of the receiver of a fief. Through grants of immunity the dwellers upon feudal estates were withdrawn from the jurisdiction of the national or royal tribunals, and placed under that of the lord upon whose land they dwelt. To the right of judicature the hereditary provincial ruler gradually added all the other attributes of actual sovereignty. Each lord not only judged, taxed, and commanded the class next below him, but he exercised also the rights of private war and private coinage. So intense did the idea of sovereignty in the pro

1 Waitz, D. V. G., ii. pp. 634-645; iv. pp. 243-273. The general statements in the text as to the origin of the feudal system embody the conclusions of Waitz, which are accepted both by Bishop Stubbs and Mr. Freeman.

2 Digby, Law of Real Property, p. 32. "Oddly enough, in modern use the word benefice has come to be used only of ecclesiastical benefices."- Freeman, Norm. Cong., vol. v. p. 87, note 3. See, also, Maine, Ancient Law, pp. 223,

224.

8 See Baluze, ii. p. 179; Roth, Beneficialwesen, p. 420.

Stubbs, Const. Hist., vol. i. p. 254, and note I.

5 "The official magistracy had in itself the tendency to become hereditary, and when the benefice was recog nized as heritable the provincial gov ernorship became so, too."- Stubbs, Const. Hist., vol. i. p. 255.

6 Waitz, D. V. G., ii. pp. 634–645.
7 Stubbs, Const. Hist., vol. i. p.

256.

.

vincial lord become, that the doctrine was finally asserted, Sovereignty of provinthat a man who pledged his faith to a lord, who was the man cial lords. of the king, was the man of that lord only, and not the man of the king himself. The process through which the provincial potentates gradually drew to themselves all of the real attributes of sovereignty ended at last in the only result possible, the complete attenuation of the central power. In theory the king remains the supreme lord, mediate or immediate, of every landowner, and to him great duties are due; but the royal power is reduced in fact to a mere The central shadow.2 With the destructive effects of Frank feudalism authority upon all central or national authority, William, as Duke of to a mere Normans, became thoroughly familiar. And as we shall see hereafter, he turned such knowledge to a good account. As king of the English, William was careful to devise such antifeudal legislation as would render the disruptive tendencies of feudalism in England impossible.

reduced

shadow.

ganization

4. If any records ever existed touching the details of the Internal orsettlement made by Rolf and his followers at Rouen, or of the Nortouching the legal and political institutions which they man duchy. planted in Gaul, they have utterly perished. There are no chronicles, no charters, to guide us; of the internal organization of the Norman duchy in the early days of its history we know absolutely nothing. It seems, however, to be clear that the express condition upon which the grant to Rolf was made was, that the new settlers should become members of the Christian and Frankish commonwealth of which Charles was overlord. And it also seems to be clear that the Nor- probably man dukes from the very beginning ruled, not as absolute the advice sovereigns, but with the advice of some kind of an assembly of a council or council of great men.5 There is no reason to believe that nates.

1 Cf. Freeman, Norm. Cong., vol. iv. p. 472, and note 1, in which reference is made to the refusal, at a somewhat later time, of John of Joinville, as the man of the Count of Champagne, to take any oath to St. Lewis; citing Mémoires, p. 37, ed. Michel, Paris, 1858.

2 For a summing up of the results of feudalism in France, see Stubbs, Const. Hist., vol. i. pp. 3, 4.

8 Not until William had crushed a great revolt of his barons could he consider himself master in his own

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Dukes

ruled with

of mag

there was any such systematic extermination or expulsion of the native race as attended the English conquest of Britain. Upon the contrary, it appears that the original Gallic population, which was no doubt deeply intermixed with Roman and Frankish elements, gradually sank down into a dependent yet spirited peasantry, which sometimes dared to revolt against their Norman masters.1 In the reign of the third duke, Richard the Fearless, the duchy, after fluctuating in its allegiance between the king at Laôn and the duke at Paris, permanently attached itself to the latter; and from that time the duchy rapidly grew more French, more Christian, and more feudal.2 It is in the reign of Richard that we and feudal. can first trace the beginnings of the Norman nobility whose

Duchy becomes French, Christian,

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members derive their status as nobles either from ancient Norse descent from the companions of Rolf, or through connections, legitimate or illegitimate, with the ducal house.3 The baronage which thus grew up held their lands of the duke upon terms of feudal obligation, and by his strong hand alone were they held in subjection. Over this turbulent baronage William the Bastard, while yet a minor, was called to rule; and his first important victory was won in crushing a widespread revolt headed by some of the greatest nobles in his own dukedom.

5. The first direct intercourse between Normandy and England occurred in the reign of Ethelred, who became involved in a quarrel with the third Norman duke, Richard the Fearless, on account of the friendly reception given in Norman ports to the Danish pirates who were then plundering the coasts of England. Through the mediation of the pope the quarrel was amicably adjusted, and an agreement entered

Palgrave holds a contrary view; he re-
gards William, the son of Rollo, as
absolute. "His was the law, his was
the state, his was the church." "He
spake the law, he gave the law, he made
the law, he executed the law."-Nor-
mandy and England, vol. ii. pp. 258,
259.

As to the peasant revolt (997), see
Freeman, Norm. Conq., vol. i. pp. 115,
172, 173.

2 Ibid., pp. 149, 169.

8 "The Norman counts were at the time of the Conquest, in most cases, younger branches of the ducal house, or

closely connected with it by affinity. — Stubbs, Const. Hist., vol. i. p. 249, note 3.

4 Richard the Fearless is regarded as the founder of Norman feudalism. Normandy and England, vol. ii. p. 534. See, also, Waitz, Göttingische Gelehrte Anzeigen, Nachrichten, February 14, 1866, pp. 95, 96.

5 Freeman, Norman Conq., vol. i. p. 192, and Appendix EE, in which is cited William of Malmesbury, ii. 165, 166. Cf. Palgrave, Normandy and England, vol. iii. p. 103; Lappenberg, vol. ii. p. 154, Thorpe.

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