News Intelligence Analysis
Feudalism
by Paul Vinogradoff
1924
Cambridge
Medieval History, volume 3, pp. 458-484
The feudal organisation of state and society is the dominant
fact of medieval history on its institutional side quite as much
as the city-state is the dominant fact of ancient history from
the institutional point of view. Such dominant facts cannot be
restricted chronologically to a definite period; they arise gradually
and give way slowly to new conditions. But it may be said in
a general way that the epoch when feudalism formed most characteristically
the centre of political and social arrangements comprised the
eleventh and twelfth centuries. From the thirteenth century onwards
feudal law continued to be appealed to and feudal principles
were sometimes formulated even more sharply than before, but
the modern State was beginning to assert itself in most European
countries in an unmistakable manner and its influence began to
modify the fundamental conceptions of feudalism. In our survey
of feudal society we shall therefore look for illustrations mainly
to the period between the years 1000 and 1200, though sometimes
we may have to draw on the materials presented by thirteenth
century documents.
The essential relations of feudalism are as unfamiliar to us
as the conception of the city-state. In one sense it may be defined
as an arrangement of society on the basis of contract. Contracts
play an important part in the business life of our time, but
we do not think of the commonwealth as based on leases; we do
not consider a nation primarily as a number of lords and tenants;
we do not take the status of every single person to be determined
by obligations as to land; we do not assume that the notions
of sovereignty and of citizenship depend on the stipulations
of an express or implied contract. In the medieval period under
consideration, on the other hand, it would be easy to deduce
all forms of political organisation and of social intercourse
from feudal contract. The status of a person depended in every
way on his position on the land, and on the other hand, land-tenure
determined political rights and duties. The public organisation
of England, for example, was derived from the fact that all the
land in the country was held by a certain number of tenants-in-chief,
including ecclesiastical incorporations and boroughs, from the
king, while all the rest of the population consisted either of
under-tenants or of persons settled on the land of some tenant
and amenable to jurisdiction through the latter. In other West-European
countries the distribution of the people was more intricate and
confused because there had been no wholesale conquest capable
of reducing conditions to uniformity, but the fundamental facts
were the same. Every West-European country was arranged on the
basis of feudal land-tenure.
The Feudal Contract
The acts constituting the feudal contract were called homagium
and investitures. The tenant had to appear in person before
the lord surrounded by his court, to kneel before him and to
put his folded bands into the hand of the lord, saying: "I
swear to be faithful and attached to you as a man should be to
his lord." He added sometimes: "I will do so as long
as I am your man and as I hold your land" (Saxon Lehnrecht,
ch. 3). To this act of homage corresponded the "investiture"
by the lord, who delivered to his vassal a flag, a staff, a charter
or some other symbol of the property conceded. There were many
variations according to localities and, of course, the ceremony
differed in the case of a person of base status. Yet even a villein
received his yard-land or ox-gang from the steward of a lord
after swearing an oath of fealty and in the form of an "admittance"
by the staff, of which a record was kept in the rolls of the
manorial court: hence the copyhold tenure of English law.
Feudal Tenure
Tenure conditioned by service was called the feudum, fief, Lehn,
but sometimes these terms were restricted to the better class
of such estates, those held by military service, while the lands
for which rents and labour-services were rendered were described
as censivae, in England socagia. The holdings of villeins or
rustics (Bauern, roturiers) were deemed in law to be at the will
of the lord, but in practice were protected by the local custom
and generally subjected to quasi-legal rules of possession and
inheritance. Although feudal tenure was certainly the most common
mode of holding land, it was not the only one. In France and
Germany there were still many survivals of allodial right, that
is of complete ownership, not subject to any conditions of service
or payment. In fact, while in northern France there obtained
the rule nulle terre sans seigneur, that is, the doctrine
that all estates were held by feudal law under lords, in southern
France, the territory of written law based on Roman books, the
contrary was expressed in the words nul seigneur sans titre:
no lordship was recognised unless proof of title were forthcoming.
Many documents shew the constant spread of feudal tenure at the
expense of the allodial: the process of feudalisation is, e.g.,
forcibly illustrated by the inquest as to land-tenures made in
1272 and 1273 by order of King Edward I in Aquitaine: it testified
to all sorts of variations in the mode of holding land in these
parts; claims to allodial rights are often recorded. But the
tendency of the inquest is to impose the burden of services as
widely as possible. The circumstances in which the process of
feudalisation was going on may be illustrated by the following
tale of a Flemish chronicle (Lambert d'Ardres, quoted by Luchaire,
Manuel, 151). In the beginning of the eleventh century two brothers,
Herred and Hacket, possessed considerable allodial estates in
Poperinghe, but were persecuted by the Count of Guines and the
Count of Boulogne, powerful neighbours, each of whom wanted to
obtain feudal suzerainty over these lands. The elder Herred,
in order to put an end to these vexations, surrendered his estates
to the Bishop of Terouanne and received them back as a hereditary
fief (perpetuum et hereditarium recepit in feodum), while
the junior brother effected a similar release of his part of
the estates to the Count of Boulogne.
The dangers of keeping outside the feudal nexus were self-evident:
in a time of fierce struggles for bare existence it was necessary
for everyone to look about for support, and the protection of
the central authority in the State was, even at its best, not
sufficient to provide for the needs of individuals. Even in England,
where the Conquest had given rise to a royal power possessed
of very real authority, and the "king's peace" was
by no means a mere word, the maintenance afforded by powerful
lords was an important factor in obtaining security.
In any case the feudal nexus originated by such conditions involved
reciprocity. The vassal expected gifts and at least efficient
protection, and sometimes the duty of the suzerain in this respect
is insisted on in as many words; as the French jurist Beaumanoir
has it, "the lord is quite as much bound to be faithful
to his man as the latter is bound in regard to the lord"
(Coutumes de Beauvaisis, 58). If the tenant thought that he was
not treated properly, feudal theory allowed him to sever the
connexion. He might leave the estate (deguerpissement)
without any further claim on the part of the lord, but according
to French notions he might even do more, namely disavow the subjection
to the lord while retaining the estate (desaveu). The
Assizes of Jerusalem are careful to state the cases of denial
of right, in which a vassal may rightfully renounce his obligations
in regard to his immediate lord with the natural consequence
that henceforth such duties are transferred to the overlord of
the one at fault (Assises de Jerusalem, "gager le fief").
This implied a proof on his part that the lord had not fulfil1ed
his part of the agreement. Though as a matter of fact such a
desaveu led more often to war than to a judicial process, it
was derived from a juridical conception, and expressed the view
that the man, vassal or tenant, had definite rights as against
his lord. Some of the famous assertions of feudal independence
on the part of barons opposed to royal lords are based on this
very doctrine of desaveu for breach of agreement. Thus the barons
of Aragon swore to their king that they would obey and serve
him if he maintained the rights, customs and laws of the kingdom,
and if not, not. The peers of the Kings of Jerusalem, according
to the Assizes, might in case of infringement of their rights
lawfully refuse allegiance and offer resistance. The clause of
the Great Charter stipulating that a committee of twenty-five
barons should watch King John's actions, and in case of his breaking
his solemn pledges should make war on him and call on all his
subjects to do the same, proceeds from the same fundamental assumption.
This view was readily extended from the notion of a breach of
agreement between the lord and his tenants to a conception of
infringement of laws in general. In this way the feudal view
could be made a starting-point for the development of a constitutional
doctrine. We may notice this in the case of Bracton. In his treatise
on the laws of England, written at the time of Simon de Montfort's
supremacy, the English judge, instead of urging with the Roman
jurists and with his predecessor Glanvill that the sovereign's
will has the force of law, states that kings are not above the
law, although they have no single human superior (f. 5 v.), and
that they ought to be restrained by their peers from breaking
the law (f. 34).(1*)
Obligation of Fealty, Faithful Obedience
The other side of the medal is presented by the duties of vassals
in regard to the lord. Close analysis shews that these duties
proceed from different sources. There is to begin with a general
obligation of fealty, faithful obedience (fidelitas) which
is owed by all subjects of the lord without distinction of rank,
the rustic subjects (villani) being especially concerned. This
obligation evidently had its roots in the relation between sovereign
and subject, and in so far represented rather the gradual decay
of sovereign power than the purely contractual side of feudalism;
but in so much as fealty became a relation between private lords
and their subjects, it was related to the feudal nexus and combined
in various ways with the kindred notions of homage and investiture.
Homage again, which is distinctly contractual, arises essentially
from a contract of service. It proceeds directly from the bond
created by free agreement between a leader and a follower, the
lord (hlaford) and his man. But this contract of service
gradually assumed a peculiar form: the personal duties of the
servant-retainer are asserted only occasionally, e.g. at a coronation
ceremony, when great feudatories are made to present dishes and
cups, to lead horses, to superintend the arrangements of the
bedroom.
Military Service
As a rule, the central duty of the vassal comes to be his military
service, regulated according to a certain number of days, generally
forty, or a scutage payment in redemption of the latter. Knight
service of this kind shades off almost imperceptibly into so-called
military serjeanties, that is, services of archers, of garrison
soldiers, etc. These again are not easily divided from petty
serjeanties, in which the menial services are still regarded
as characteristic of the bond. In the lists of serjeanties drawn
up in the reign of Edward I (published in the volumes of Feudal
Aids and in the Testa de Nevill) we find mentions of cooks, falconers,
foresters, etc. In German feudal custom the ministeriales correspond
to the servientes of England and France, but there is a peculiar
trait about their condition, namely, that they are distinctly
unfree in origin. Some of the greatest warriors of German medieval
history came from such unfree stock -- Marquard of Anweiler,
for instance, who received the March of Ancona as a fief from
Emperor Frederick II, was a ministerialis, an unfree retainer
of the Emperor. As homage creates a relation between man and
man, it is not intrinsically bound up with landholding, and a
good many of the personal followers and servants of medieval
magnates must certainly have lived in the castles of their lords,
receiving equipment and arms from them: they saw in the good
cheer of the court and in occasional gifts a reward for their
personal attendance.(2*) But such personal relations tended naturally
to strike root in land.
Permanent Source of Income
If the retainer was at all useful and efficient he expected
to be remunerated by a permanent source of income, and such an
outfit could only take the shape of a grant of land. On the other
hand, when a small landowner sought protection from a magnate,
he had generally to throw his tenement into the balance and reassume
it as a fief. Thus homage and investiture, although historically
and institutionally distinct, grow, as it were, together, and
form the normal foundation of feudal contract.
Ownership and Dominion
Besides the political colouring of this contract, it assumes
a peculiar aspect from the point of view of land law. It gives
rise to a significant distinction of two elements in the notion
of ownership (dominium). Roman property (dominium)
was characterised during the best period by uncompromising unity.
A person having dominium over a thing, including an estate
in land, had it alone and excluded everyone else. Medieval lawyers,
on the other hand, came to deal with plots of land which had
normally two owners, a superior and an inferior, one having the
direct ownership (dominium directum, dominium eminens), the other
having the useful ownership, the right to exploit the land (dominium
utile). In England the splitting of the notion of dominium was
avoided by opposing the tenure in domain to the tenure of service
(tenere in dominio-in servicio, see, e.g., Notebook of Bracton,
case 1436), but the necessity for reckoning with two kinds of
right in respect of every holding contributed indirectly to weaken
the notion of absolute property in land. Contentions as to land
were made to turn principally on seisin, protected possession,
while the proof of title, which had played an important part
in later Anglo-Saxon times, receded, as it were, into the background.
Instead of trying to ascertain who the person was who ought to
exercise the absolute right of ownership, English courts came
to concern themselves with the practical question which of the
two litigants had relatively the better right (ius merum) in
regard to an estate or tenement.
Under-Tenants Fulfilled Military
Obligations
From the feudal point of view an estate held as a fief could
be freely parcelled out to under-tenants who would become the
vassals of the man holding directly of the lord, provided the
obligations of that intermediate tenant were not lessened by
such a process. Indeed it was not uncommon for tenants to pass
on the onerous duties with which the tenement was charged to
these under-tenants, who in such a case were called upon to "defend"
the land in regard to the superior lord in order that the mesne
(medius, middle) lord should be able to enjoy his tenure in peace.
Various complications arose from such subinfeudation in connexion
with customary requirements, and it was clearly in the interest
of the overlords to restrict such parcelling of fees as much
as possible. The English Crown cut short the practice by the
statute Quia Emptores, which provided that in future the
creation of any new fief would involve not subinfeudation but
the recognition by the new tenant of immediate dependence on
the overlord: thus the grantee of a new fief was placed on the
same level as the grantor instead of being subordinated to him.
The incidents arising out of the double claims to land were manifested
in a striking manner in cases when the personnel of the contracting
parties was changed, more especially when in consequence of the
death of the tenant a new representative of the dominium utile
had to come in. While in the case of a Thronfall, as the Germans
said, that is, of the demise of the lord, homage and fealty had
to be merely renewed, a Lehnfall, the demise of the vassal, brought
about a temporary resumption of the fief by the direct owner,
i.e. by the lord: as a rule he was bound to regrant the fief
to the right heir, but such a reinvestiture was accompanied by
a relief, a more or less heavy payment.
The struggle of English barons for reasonable reliefs called
forth well-known stipulations of the charters of Henry I and
of John. In the case of so-called base holding the relief had
its analogy in the heriot, the surrender to the lord of the best
horse or the best ox, and there can be no doubt that this due,
which had grown from the custom of surrendering the outfit provided
by the lord to his dependent, was originally used quite as much
in military fiefs as in villein or socage tenements. In feudal
practice, however, the military heriot was absorbed by the relief,
while it kept its ground in regard to base tenure.
Church and State Struggles
The resumption of tenancies connected with ecclesiastical offices
led, as is well known, to protracted struggles as to rights of
investiture between the Church and State. Even when reinvestiture
was made dependent on canonical elections, the fiscal interests
of the secular power had to be satisfied by the diversion of
ecclesiastical revenues for a year or a similar customary period
for the benefit of the Crown or of other secular patrons. There
were other occasional rights connected with a breach of the continuity
of possession, which would not arise out of vacancies in ecclesiastical
institutions; such were wardship and marriage, which accrued
to the lords in cases when fiefs descended to minors or to unmarried
females. These eventualities gave rise to very lucrative rights,
and it is a matter of common knowledge to what extent such opportunities
were liable to be misused. The English Charters contained provisions
against these abuses, but even in their mitigated form these
practices were likely to produce much hardship. Special classes
of misdeeds arose in connexion with them: we hear of judicial
proceedings taken on account of ravishment (kidnapping) of wards
and of ravishment of heiresses in order to get the profits, even
when the corresponding right belonged to some one else or was
contested. From such exactions ecclesiastical tenements were
free, and this alone would have sufficed to make the passage
of landed property into the hands of the churches undesirable
from the feudal point of view. No wonder powerful kings tried
to restrict the passage of estates into the "dead hand"
(manus mortua) of the Church. This was among other things
the aim of Edward I's Statute De religiosis.
Although these reassertions of the dominium directum forcibly
shewed that the proprietary rights of the lord were by no means
a dead letter, the "useful domain" was protected from
wanton interruption by clearly established customs. The beneficia,
which preceded fiefs in historical evolution, were assumed to
be granted for life, but when fiefs developed out of them they
nearly always became hereditary. The only exception of any importance
is presented by the beneficia militaria of French Navarre.
Numerous Political Bodies
As political subjection was regarded as a matter of contract,
the feudal nexus tended towards a disruption of sovereignty,
and often led in practice to the formation of numerous political
bodies within the boundaries of historical States. This was especially
the case in France, Germany and Italy. An authoritative jurist
like Beaumanoir summarised the position in the saying, "chaque
baron est souverain dans sa baronie"; and the mottoes
chosen by some of the French magnates gave expression to an unmeasured
feeling of self-sufficiency. The Rohans of Brittany boasted:
"prince ne daigne, roi ne puis, Rohan je suis."
The seigneur of Coucy, a barony which gave great trouble to the
early Capetian kings, disguised his pride by mock humility: "je
ne Suis ni comte, ni marquis, je suis le sire de Coucy."
In Germany the dismemberment of sovereignty was finally recognised
by express law in Charles IV's Golden Bull of 1356 in favour
of the seven Electors, but it had already been acknowledged in
regard to princes in general by Frederick II, and had been acted
upon more or less all through the eleventh and twelfth centuries
in the course of the protracted feuds between Frankish and Swabian
Emperors, on the one hand, and their various vassals on the other.
When Frederick Barbarossa went down on his knees, according to
tradition, when imploring Henry the Lion of Saxony and Bavaria
to stand by him against the rebel Italians, it would have been
difficult to say that the Emperor was the sovereign and the duke
a mere subject.
Private Wars
A most important consequence of this acknowledgment of sovereign
rights on the part of vassals of the Crown lay in the fact that
the latter could resort to actual war, when asserting claims
or defending infringed interests. The endeavours, which were
made by the Church, by royal suzerains and by the barons themselves
to restrict and suppress private warfare, are in themselves characteristic
of what we should call the anarchy of the times. The end of the
tenth century witnessed many attempts to put an end to private
wars in France. In consequence of terrible epidemics and bad
harvests, which were regarded as signs of divine wrath and incitements
to repentance, the magnates of central and northern France
met, agreed to renounce private war, and confirmed this resolve
by solemn oaths. Gerard, Bishop of Cambrai, objected. to this
as political; he was much abused by the other members of the
congress for holding aloof, and yet, as the chronicler remarks,
events proved that he was right, "vix enim paucissimi
crimen perjurii evaserunt."
It soon became evident that it was impossible to suppress the
pernicious custom entirely. The Truce of God, treuga Dei,
made its appearance in completion of the Peace of God.(3*) The
time from Thursday night to Monday morning was considered a time
of truce on account of the memories of the Lord's sufferings
and resurrection. Churches and churchyards were naturally considered
as hallowed and therefore neutral territory. In the South, olive-trees
were declared to be exempt from destruction by reason of their
vital importance in the economy of the country. The movement
for "truce" attained material results under the guidance
of the Church in the eleventh and twelfth centuries, and it became
even more effective in the thirteenth, when political potentates
took it up. Still, even St Louis did not insist on a complete
abandonment of the practice of private war by his vassals: he
only enforced from all those, who resorted to the last argument
of war, submission to certain rules as to its declaration, the
beginning of hostilities, their course and so on; the quarantaine
le Roi was a code as to usage in private war.
To Germany some order was brought by powerful leagues between
princes and knights on the one hand, cities on the other. Such
leagues were offensive and defensive alliances, and ultimately
had recourse to force of arms in order to maintain their position.
But as all extensive armaments are apt to do, they prevented
the danger and disorder of petty collisions. It was only towards
the end of the Middle Ages that something like a peace of the
Empire was recognised and to a certain extent secured by the
reforms of Maximilian's age. In England the "franchise"
or right of private war was suppressed at a very early time.
It did not tally with the social order inaugurated by the Norman
Conquest, and the king's peace became one of the mainstays of
early Common Law. The only period when the real disruption of
sovereignty through private war seemed to prevail was the interregnum
when Stephen of Boulogne and the Plantagenets struggled for the
Crown. But this lapse into anarchy was short, and from the time
when Henry II restored order, private war ceased to be recognised
as a legal outcome of disputes. Yet the conditions of military
contract remained the foundation of government, and this made
it possible for opposition to wrong to take the form of armed
resistance. The revolt against John, the barons' war against
Henry III, the risings of Mortimer and Bolingbroke, the Wars
of the Roses, have as their necessary background a society
ruled by groups of knights, who considered themselves not merely
as subjects, but as peers of the king.
The Disruption of Sovereignty
One of the most important consequences of the disruption of sovereignty
lay in the alienation of rights of jurisdiction by the central
government. As early as the ninth and tenth centuries we observe
everywhere the growth of franchises and immunities which break
up the ordinary sub-divisions of countries in respect of the
administration of justice. The English shires and hundreds, the
continental counties and Grafschaften are riddled with districts
in which the place of the ordinary judges of the land is taken
by secular or ecclesiastical magnates or their representatives,
among whom the secular judges of ecclesiastical corporations,
the advocati (avoues, Vogte), are the most conspicuous.
The Sac and Soc grants of Anglo-Saxon kings, as well as the various
privileges of immunity conferred by Carolingian, Franconian and
Saxon monarchs, present different steps in the process of political
dismemberment. The central authorities merely strove to retain
their hold on the most important varieties of jurisdiction, especially
judgments as to great crimes, the Ungerichte, as they
were termed in Germany, for which a man may lose his head and
his hand (Haupt und Hand), while jurisdiction in minor cases,
when a person would only be chastised in skin or hair (in Haut
oder Haar), were left to local potentates. From similar considerations
early English kings tried as much as possible to retain in their
hand the great forfeitures. This led eventually to a classification
of feudal tribunals according to the amount of jurisdiction acquired
by them, some claiming high and some low justice (haute or basse
justice).(4*)
Quo Warranto Proceedings
The proceedings of Quo Warranto instituted by Edward
I after his victory over the baronial opposition shew a most
exuberant growth of prescriptive rights in regard to the use
of gallows, pillory, tumbrel, etc. by English noblemen and ecclesiastical
magnates. The institution of the advocaria (avouerie, Vogtei),
on the contrary, never attained to much importance in England,
while it flourished greatly in Germany, France and Flanders.
It sprang from the delegation of public power within the territory
of an ecclesiastical franchise to a layman, who thereby came
to be a kind of policemaster as well as a judge. The ordinary
judges, the counts and their subordinates were forbidden to enter
the enfranchised district. On the other hand the bishop or abbot
at the head of it abstained from the shedding of blood and did
not meddle with criminal justice or deal with cases of public
coercion: he appointed an advocate who had to arrest criminals,
to conduct them before the proper courts, to execute those found
guilty, to assist the ecclesiastical lord in cases when force
had to be employed for the collection of rents or the taking
of distress. These powers ripened in the course of the feudal
age to an independent jurisdiction which greatly hampered the
freedom of action of the ecclesiastical lord and encroached on
his interests. Besides, churches and monasteries often availed
themselves of the advocaria in order to obtain protection
from a powerful neighbour: the surrender of certain rights and
sources of income was the price paid for support in those troubled
times.
Uses of Torture
No wonder that in the eleventh and twelfth centuries the advocates
often became local tyrants at whose hands their clients had to
suffer a great deal. This is how, for instance, the Cartulary
of St Mihiel in Flanders describes the conduct of a certain Count
Raynald, an advocate of the monastery in question: "Count
Raynald was the first to commit robberies in our estates under
the customary term of talliatae; he also put our men into
prison and forced them to give up their own by means of torture
-- he bequeathed this tyranny to his son, the present Raynald.
The latter exceeded the malice of his father to such an extent
that our men cannot put up any longer with such oppression and
leave our estates. They are either unable or do not care to acquit
themselves of outstanding rents: he is the only person they are
afraid of."(5*)
The conflicts between ecclesiastical potentates and their secular
"advocates" often led to regular treaties, the so-called
reglements d'avouerie. The Vogt of the Abbey of Prum is
forbidden to "clip" (tondere-clip the hair as for convicts)
or to flog anyone except those who are guilty of murder, brigandage
or battery, nor has he any part in the wer-geld of a man unless
he has helped to capture and to judge him. In Echternach the
Vogt is excluded from participating in civil trials. In houses
appertaining to the garden and the cellar, the laundry and the
kitchen of the monks, he is forbidden to hold any pleas or to
exact any services, except pro monomachia (trial by battle)
et sanguinea percussura (cf. A.S. blodwite) et scabinis
constituendis (the appointment of popular assessors of the
tribunals).(6*) The long-standing rivalry between ecclesiastical
institutions and their advocates was ultimately composed by the
intervention of the Crown when the latter grew strong. If we
turn to consider the relations between the lord and his vassals,
we shall naturally find that they differ greatly from the relations
established at the present time between the sovereign and his
subjects. In the case of the privileged holders of fiefs, however
small, the tie which united them with their suzerain being one
not of general subordination but of limited obligation, the
view that the general will has to prevail over the particular
and can impose rules of conduct upon it did not hold good.
Noble vassals, ecclesiastics possessed of fiefs, and townsmen
as members of municipal corporate bodies were as regards their
lords bound to abstain from certain acts and to perform certain
duties. A systematic treatment of this kind of contractual relation
may be found in a letter of Bishop Fulbert of Chartres to the
Duke of Aquitaine (eleventh century).(7*) The duties which he
enumerates are derived more especially from the oath of fealty,
which accompanied the homage ceremony and was distinct from the
fealty of the base and non-privileged population to be mentioned
later on.
The negative duties of the faithful vassal are indicated by the
following terms: incolume, tutum, honestum, utile, facile,
possibile. The Benedictine editors of Fulbert's work have
explained these expressions to mean that the vassal undertakes
not to assail his lord, not to reveal his secret, not to endanger
the safety of his castles, not to wrong him in his judicial power,
honours and possessions or to put obstacles in his way which
would render what he undertakes difficult or impossible.
On the positive side the vassal is bound to give his lord advice
and aid (consilium, auxilium). From the positive obligations
of consilium and auxilium various concrete duties
are derived.
The principal form of advice (consilium) tendered to the lord
by his men consists in their obligation to attend his court.
Every lord had a court of his own, but not every court of this
kind was competent to judge all cases. A feudal distinction has
to be drawn in this respect between cases arising from the feudal
nexus and cases of delegated public jurisdiction. These latter
comprised chiefly criminal cases classified, as already pointed
out, under the heads of high and low justice. The privilege of
giving sentence in them and of exercising the fiscal exactions
connected with them accrued only to those among the feudal lords
who had obtained the corresponding franchises through express
grant or by force. They were called seigneurs justiciers
in France. The more numerous class of ordinary lords held courts
if they had tenants of fiefs, and vassals and villein subjects
under them. These feudal courts took cognizance of all processes
as to land distributed by the lord to his dependents, but also
to a great extent as to pleas concerning the persons of the vassals.
The first group of pleas stands out so clearly that there is
no special necessity to dwell on its range.
It need only be noticed that the proceedings concerning unfree
tenures were substantially of the same kind as those affecting
free or noble tenancies. A dispute as to the possession of a
villenagium followed on the same lines as a trial in which a
free tenement was the object in dispute, although the latter
was naturally much more complex. From the technical point of
view, in the first case the trial took place before the peers
of the contending parties, who as suitors of the court were its
judges, while in the second case the lord or his steward was
the only judge and such assessors as were called up had only
advisory powers. But as a matter of fact the verdicts of the
court were regarded as the expression of legal custom in the
secon d case, and the reservation that the lord might override
the customary rules was due to his exceptional position, and
not to the ordinary working of manorial courts. A body of legal
tradition and of conceptions of equity grew up in the lower social
stratum as well as in the upper. This is especially noticeable
in the case of English manorial courts, in the composition of
which free and unfree elements are generally intermixed in such
a way that it is difficult to distinguish between verdicts laid
down by the free tenants and those contributed by the villeins.
The one really important difference lay in the fact that the
villeins had to look for justice to the manorial court in all
cases, not only tenurial, but also personal, such as cases of
battery, defamation, adultery and the like, while free men and
specially men of noble birth were either directly amenable to
justice by the medium of the royal tribunals or could, if they
appeared before a feudal court, insist on a very strict maintenance
of their privileges in view of the supervision of royal courts.
In a sense the circle of tenants constituting the peers' court
was a most complete expression of the principle of equality as
between allied sovereigns. The decision was formulated strictly
by the peers of the contending parties, and this led, in regard
to criminal accusations, to the famous doctrine of the Great
Charter: "nullus liber homo capiatur vel imprisonetur
nisi per judicium parium suorum vel per legem terrae"
(sect. 39). The decision of a court of peers was final. An appeal
was impossible from the feudal point of view, because it would
have meant a revision of the judgment by higher authority, and
feudal litigants submitted not to higher authority but to a convention
in which they had taken part.
There were, however, two cases in which a vassal might seek
redress from a source of law superior to the court of peers presided
over by his suzerain. If justice was denied to him by this tribunal
he could ask the overlord, that is, the suzerain of his immediate
lord, to see that justice should be done. This was, however,
no appeal as to law or facts, but only an attempt to set the
machinery of feudal jurisdiction in motion. The second eventuaLity
occurred when one of the parties to a suit actually contested
the justice of a particular decision or sentence. He could in
French feudal law attaint or falsify the verdict by pronouncing
the formula, "je vous appelle de faux jugement."
This meant that he challenged the fairness and honour of the
judges, and the result was single combat between the protesting
party and one or several of the judges, not a satisfactory solution
of the difficulties from our point of view, nor, probably, from
that of many judges concerned.
There were devices which rendered such attaint hazardous in some
cases: the members of the tribunal could pronounce the decision
in corpore, and in this case the option for the dissatisfied
party was to fight them all. In any case this mode of appeal
was directed towards the revision of the judgment by God rather
than by man, and at bottom did not subvert the principle that
a man ought to be judged by his peers and by his peers only.
It is hardly necessary to add that the falsifying of judgments
has been described here in conformity to strict rules of feudal
theory. In practice all sorts of compromises took place.
In England, for example, the revision of judgments by higher
courts was brought about at a very early stage by the intervention
of the king's court, though not without opposition from the barons.
An instructive case occurred, for example, in the reign of William
the Conqueror. In a trial as to land between Bishop Gundulf of
Rochester and Picot, the Sheriff of Cambridgeshire, the county
pronounced in favour of the latter, but through the intervention
of Odo of Bayeux twelve representatives of the shire were called
up to confirm the verdict by oath in the king's court, and ultimately,
after a declaration by a monk who had been steward of the estate
in question, the unlucky doomsmen were driven either to go though
the ordeal of redhot iron or to recant. The indirect way in which
the prejudiced intervention of the higher powers took effect
in this case is characteristic of the traditional difficulties
which stood in the way of downright revision. As on many other
occasions, there are threads connecting feudal theory with recent
or actual practice, and we may not unreasonably see in the doctrine
as to the finality of jury verdicts a modernised offshoot of
the older doctrine of the judgment by peers. Of course the differentiation
between questions of fact and questions of law has made it possible
to concede to juries the highly privileged position which they
generally enjoy, but the germ of the corresponding rules is historically
connected with the immunity from outside influence which formed
one of the most characteristic traits of the feudal judgment
by peers.(8*)
Legislation
Similar phenomena meet our eye when we come to consider the processes
of legislation obtaining in the feudal world. It is evident in
theory that a baron, being a sovereign, could not be subjected
to any will but his own, and that therefore such common arrangements
as had to be made in medieval society had to be effected on the
same lines as modern international conventions. And indeed we
find this idea at the root of the feudal doctrine of legislation;
in the custom of Touraine-Anjou it was expressed in the following
way: "The baron has all manner of justice in his territory,
and the king cannot proclaim his command in the land of the baron
without the latter's consent; nor can the baron proclaim his
command in the land of his tenant without the consent of the
tenant".(9*)
In consequence of this general principle, all feudal legislation
ranging outside the immediate demesne of the single baron takes
the shape of a stabilimentum (etablissement) or of an
assize enacted in the court of a superior lord with the express
or implied consent of his vassals. An ordinance of the Viscount
of Thouars (A.D. 1099), for example, instituting a certain annual
charge to be paid by the tenants, refers at the close to "the
authority and will of the barons of my land" (quoted by
Luchaire, Manuel des institutions francaises, p. 253). The same
notion reappears in ordinances made by much greater potentates,
such as the dukes of Normandy, e.g. by William the Conqueror,
in 1064 (on public peace), by counts of Flanders (Baldwin of
Constantinople, in 1199, on usury), by dukes of Brittany (in
l185, On succession to fiefs), even by kings of France and kings
of England; Henry II's Assize of the Forest, for instance, begins
in the following manner: "This is the assize of the Lord
King Henry, the son of Maud, in England, about forest and hunting,
by the advice and consent (per consilium et assensum) of the
archbishops, bishops and barons, earls (comitum) and noblemen
of England at Woodstock" (Stubbs, Select Ch. 157).
Theoretically, the individual consent of each member of the gathering
to any decision was needed if it were to bind him, but historically,
the legislative assemblies were not merely the outcome of feudal
meetings, they were also survivals of more ancient popular assemblies,
while, as a matter of practice, the authority of the superior
lord and the influence of leading magnates asserted themselves
in a much greater degree than would have been allowed from a
purely individual point of view. It thus depended very much on
circumstances whether centripetal or centrifugal tendencies got
the upper hand. The majority principle had not been evolved either,
at least during the eleventh, twelfth and thirteenth centuries.
As the French historian Luchaire has expressed it, voices were
rather weighed than counted. But the idea of a convention made
itself felt in a very definite manner, and this point must be
noticed as very important in view of subsequent development.
The early doctrine of medieval estates is clearly connected with
these -- the side both of legislation and taxation. The view
that feudal views on the nation is not bound to pay a tax to
the imposition of which it has not consented through its representatives
(the constitutional rule on which the development of Parliament
depended later on) certainly has its roots in the feudal maxim
that no baron was bound by ordinances in the "establishment"
of which he had not taken a part. It is also not alien to our
purpose to notice that the distinction between greater and smaller
barons suggested by the far-reaching differences, in regard to
the appropriation of public power, afforded a germ for the subsequent
rise of aristocratic "Second Chambers." The House of
Lords, as a court, is a house of peers, and it is not only in
England that the prominence of the magnates secured for them
a special personal standing in legislative organisation: a curious
parallel, all the more instructive because it is supplied by
a microscopic state, is presented by the history of Bearn in
the Pyrenees. In that vicomte, an aristocratic council of twelve
hereditary jurati, drawn from the most powerful houses of local
nobility, appears as the cour majour and acts as a standing committee
of the full court (cour pleuiere). It had to settle disputes
between the viscounts and their vassals and in general to control
the current administration of law.(10*)
A survey of medieval society from the one point of view of contractual
relations would, however, be incomplete, one-sided and artificial.
In order to be correct it ought to be matched by an examination
of the constituent elements combining to form the feudal organisation.
Such an examination would have to take each feudal unit singly
and to describe the rule of the lord over his subjects as well
as the work. of these subjects.
The most characteristic type of such a feudal unit is certainly
the English manor, and I should like to turn now to a study of
it which will afford a key to the understanding of similar phenomena
in other countries of Western Europe. The manor is a necessary
outcome of so-called natural husbandry, providing for the requirements
of life by work carried out on the spot, without much exchanging
and buying. It is the connecting link in the social life of classes,
some of which are primarily occupied with the rough work of feeding,
clothing and housing society, while others specialise in defending
it and providing for its secular and spiritual government. It
presents the lowest and most efficient unit of medieval organisation,
and local justice, administration and police are all more or
less dependent on its arrangements. Let us look at the different
elements of which this historical group is composed.
Economic Element
First of all there is the economic element. The manor afforded
the most convenient, and even the necessary, arrangements of
work and profit in those times. It would be quite wrong to assume
that the interests and rights of the many were simply sacrificed
to the interests and rights of a few rulers, that the manor was
nothing but an estate, cultivated and exploited for the sake
of the lord and managed at discretion by his will and the will
of his servants. On the contrary, one of the best established
facts in the economic life of the manor was its double mechanism,
if one may say so. It consisted, as a rule, of a village community
with wide though peculiar self-government and of a manorial administration
superimposed on it, influencing and modifying the life of the
community but not creating it. This double aim and double mechanism
of the manor must be noticed at the outset as a very characteristic
feature; it places the manor in a sharp contrast both to the
plantations of slaves of the ancient world and to the commercial
husbandry of a modern estate struggling for profit as best it
may.
Manorial husbandry was all along striving towards two intimately
connected aims, providing the villagers with means of existence
and providing the lord with profits. Hence a dual machinery to
attain these aims, both a village community and the lord's demesne.
The village community lay at the basis of the whole.(11*) It
gave rise to a very peculiar system of holding and using land,
not to be confused either with the case of the tribal community
in which rights are graduated according to the pedigree of a
person, or with that of the communalism of the Russian mir or
of some Hindu settlements, in which land is allotted and redivided
according to the requirements and the economic strength of the
settlers.
The peculiar bent of the English rural community would perhaps
be best indicated by the expression "shareholding arrangement"
or "community of shareholders." Each of the households
settled in the village had a fixed and constant share, or maybe
half a share, or a quarter, or the eighth part of a share assigned
to it. It stood in scot and in lot with the village as a hide
or two virgates or one virgate or a bovate, according to the
size of the share. By the standard of this hereditary share all
rights and duties were apportioned. By the side of the shareholders
there generally lived in the village smaller tenants (cottagers,
crofters) but they were merely an adjunct to the main body of
the tenantry and may be left out of reckoning in our general
survey.
The system of communal shareholding was very strikingly illustrated
by the treatment of waste and pasture in the medieval village.
It was not divided among the tenants, and, though later in legal
theory it belonged to the lord, it was everywhere considered
by custom as a "common" for the use of the villagers.
In most cases it had to be stinted to some extent: rules were
formulated as to the species and number of beasts to be sent
to pasture, as to seasons, and as to precautions against abuses;
and these rules can generally be traced to the main principle,
that every household has to use the common according to the size
of its share, so that, for instance, a virgater had the right
to send two cows and eight sheep to the pasture, while the owner
of a bovate could only send one cow and four sheep, and so on.
The use of wood for building purposes, of hedges for fuel, of
turf, and other profits drawn from the common and undivided fund
of the village, were regulated. by rules or by-laws of the same
kind. In regard to meadows, which were scarce and highly valued,
the communalism of the village found a suitable expression in
the division of these meadows into a certain number of strips
according to the number of households taking part in the community:
these strips were then allotted to one after the other of the
households in a customary order or by casting lots. The arable
did not change hands in the same way. As a rule, the strips of
the arable were owned by each household in hereditary succession,
each generation entering into the rights of the preceding generation
in this respect. But, even in the case of the arable, there were
many facts to shew that it was considered dependent on the community,
though held to a certain extent in severalty by the households.
To begin with, the holding in severalty existed on the land only
for one part of the year. The tenant had a particular right to
it while it was under crop, that is, when it had been ploughed
up and sown, and while the harvest had not yet removed the proceeds
of the individual labour and care which the tiller had bestowed
upon it. As most fields were cultivated in medieval England on
the three-field or on the two-field system, the households of
shareowners obtained private rights over their arable strips
while winter corn or spring corn grew on the soil, and these
separate rights were marked off by narrow lines of turf between
the strips, called balks, while the whole of the sown field was
protected from the inroads of cattle by a temporary hedge.
But after harvest had been gathered the hedges fell, and the
whole field returned to the condition of waste to be used for
pasture as a common: a condition which took up the whole of every
third year in a three-field and the whole of every second year
in a two-field husbandry, besides a considerable part of the
years when the field received seed. Private occupation of the
strips emerged in this way from time to time from the open common
field, an arrangement which not only kept up the principle that
the arable was, after all, the property of the village as a whole,
but had direct practical consequences in hampering private industry
and the use of private capital in cultivation: it rendered, for
instance, manuring a very complicated and rather exceptional
process. Nor is this all: the householder did not only cease
to cultivate his plot as soon as harvest was over, but he had.
even before then, to conform in the plan and methods of cultivation
to the customs and arrangements of his neighbours. The arable
of his holding was generally composed of a certain number of
strips in proportion to the importance of his share, and these
strips lay intermixed with the strips of other villagers so that
every one came to own patches of land, acres and half-acres in
all the "shots and furlongs of the village," as the
fields were called, and had to wander about in all directions
to look after his own.
Such an arrangement would be the height of absurdity in any
state of society where individual ownership prevails, and this
point by itself would be sufficient to shew that what was meant
was not a division of claims according to the simple rules of
private ownership, so familiar to us, but a communal cultivation
in which the arable was divided between the shareholders with
as much proportionate fairness as possible. In keeping with this
principle, the plan of cultivation. the reclaiming of land, the
sequence of seasons for its use for wheat, barley, oats, peas,
the time of its lying fallow, for setting up of hedges and their
removal, the rules as to sending cattle on to the stubble, and
the like, were worked out and put in practice, not by the industry
of every single householder, but by the decision of the village
as a whole. We may even discover traces of re-divisions, by which
the shares of the householders were partitioned anew according
to the standard of proportionate importance, though such instances
are very exceptional and mostly connected with cases where some
confusion had occurred to break up the proper relations of the
holdings. If we look at the open-field system as a whole, we
must insist upon the fact that the key to its arrangement lies
in the principle of shareholding, every household being admitted
to a certain proportion of rights according to its share in the
community, and being held to corresponding duties.
The village community has, as a rule, a demesne farm superimposed
on it, and the connexion between the two is very close and intimate.
To begin with, the lord's demesne farm draws rents in money and
in kind from the plots of the tenants, and it serves as a counting-house
for the discharge of these rents. By the side of the counting-house
stand barns and stores, where the multifarious proceeds of natural
husbandry are gathered as they come in from the holdings. In
some manors the dues are arranged to form a complete outfit for
the consumption of the lord's household, a farm of one night,
of a week, of a fortnight, as the case may be. The manors of
the Abbey of Ramsey were bound to render as a fortnight's farm
12 quarters of flour, 2000 loaves of bread, 24 gallons of beer,
48 gallons of malt, 2 sesters of honey, 10 flitches of bacon,
10 rounds of cheese, 10 very best sucking pigs, 14 lambs, 14
geese, 120 chickens, 2000 eggs, 2 tubs of butter, 24 gallons
of audit ale. In Lent the bacon and the cheese were struck off
and. money paid in their stead.
By the help of these accumulated stores, and of funds drawn from
money rents and of small leases, the lord keeps a number of servants,
and hires some labourers for the cultivation of the home farm,
of the orchard and the arable set apart for it, as well as for
looking after the buildings, the implements, etc. But the peculiar
feature of the manorial arrangement insists in the fact that
the demesne farm does not live independently of the village community
adjoined to it, does not merely draw profits from it in the way
of rents, but actually gets its labour from this village community
and thereby builds up its husbandry.
The most important of these services is the week work performed
by the peasantry. Every virgater or holder of a bovate has to
send a labourer to do work on the lord's farm for about half
the number of days in the week. Three days is indeed the most
common standard for service of this kind, though four or even
five occur sometimes, as well as two. It must be borne in mind
in the case of heavy charges, such as four or five days' week
work, that only one labourer from the whole holding is meant,
while generally there were several men living on every holding;
otherwise the service of five days would be impossible to perform.
In the course of these three days, or whatever the number was,
many requirements of the demesne had to be met. The principal
of these was ploughing the fields belonging to the lord, and
for such ploughing the peasant had not only to appear personally
as a labourer, but to bring his oxen and plough or rather to
join with his oxen and plough in the work imposed on the village:
the heavy plough with a team of eight oxen had usually to be
made up by several peasants contributing their beasts and implements
towards its composition. In the same way the villagers had to
go through the work of harrowing with their harrows, and of carrying
the harvest in their wains and carts. Carrying duties, in carts
and on horseback, were also apportioned according to the time
they took as a part of the week work.
Then came innumerable varieties of manual work for the erection
and keeping up of hedges, the preservation of dykes, canals,
and ditches, the threshing and garnering of corn, the tending
and shearing of sheep and so forth. All this hand-work was reckoned
according to customary standards as day work and week work. But
alongside of all these services into which the regular week work
of the peasantry was distributed stood some additional duties.
The ploughing for the lord, for instance, was not only imposed
in the shape of a certain number of days in the week, but also
took the shape of a certain number of acres which the village
had to plough and to sow for the lord irrespective of the amount
of time it took to do so. This was sometimes termed gafolearth.
Then again exceedingly burdensome services were required, in
the seasons when farming processes are, as it were, at their
height, at times of mowing and reaping when every day is of special
value and the working power of the farm-hands is strained to
the utmost. At that time it was the custom to call up the whole
able-bodied population of the manor, with the exception of the
housewives, for two, three or more days of mowing and reaping
on the lord's fields. To these boonworks the peasantry was asked
or invited by special summons, and their value was so far appreciated
that the villagers were usually treated to meals in cases where
they were again and again called off from their own fields to
the demesne. The liberality of the lord actually went so far
in exceptionally hard straits, as to serve some ale to the labourers
to keep them in good humour. In this way the demesne farm throve
as a kind of huge parasitical growth by drawing on the strength
of the tenantry.
Let us now turn to the second constitutive element of the manor,
to what we have called its social aspect in distinction to the
economic and to the political aspects. From the social point
of view the manor is a combination of classes, and the three
main classes are to be found On its soil: the villeins,
or as they are sometimes called the customary tenants, the freeholders
or free tenants, and the officials and servants of the lord.
The Villeins
The villeins are in the majority. They come from people
whose position was by no means uniform. Some of them are the
offspring of slaves, some of free men who have lapsed into serfdom
through crime or inability to provide the means of existence.
Some claim to descend from the ceorls of Saxon times, a class
of free peasants who were gradually crushed down to rural servitude.
Be that as it may, the distinctive features of villeinage are
derived from all its original sources and are blended to form
a condition which is neither slavery nor self-incurred serfdom
nor the subjection of free peasants to their rulers. Three main
traits seem especially characteristic of manorial villeinage:
the performance of rural services, the inability to claim and
defend civil rights against the lord, and the recognition of
villeins as free men in all matters concerning the political
and criminal law of the realm. Each of these traits deserves
some special notice.
The villein is primarily a man obliged to perform rural
work for his lord. Every person in the medieval social scheme
is bound to perform some kind of work, every one holds by some
kind of service or appears as a follower of one who holds by
some service. The Church holds some of her lands in return for
her obligation to pray and to minister to spiritual needs. The
knights and serjeants hold theirs by military service of different
kinds. The burgesses and socagers hold in the main by paying
rents, by rent service. The villein has to perform agricultural
services to his lord. Some such agricultural services may be
linked to the tenure of other classes, to the tenure of socagers,
burgesses, and even military tenants, but the characteristic
week work was primarily imposed on the villeins, and though they
sometimes succeeded in getting rid of it by commuting it for
money payments, these modifications of their status were considered
as secondary and exceptional, and generally some traces of the
original obligations of agricultural service were left: even
privileged villeins had to serve their lord as reeves or rural
stewards, had to send their sheep to the lord's fold, had to
appear at the bidding of manorial officers to perform one or
the other kind of work in the field. The villein was emphatically
a man who held by the fork and the flail.
In the early days of feudalism agricultural service must have
decided the fate of many people who had good claims to rank as
free. In a rough way the really important distinction was this:
on one side stood people who were bound to feed the rest and
were therefore bound to the glebe, on the other those who were
free to go wherever they pleased, provided they performed their
military or ecclesiastical duties, and paid their rents. But
when once the main social cleavage had taken place, the lawyers
had to face a vast number of personal claims and disputes, and
they gradually worked out a principle which itself became a basis
for social distinctions. namely that the villein, the peasant
holding by rural work, had no civil claims against his lord.
It was convenient to assume that everything a villein possessed
was derived from a grant of his lord and liable to be resumed
by him, and though this may by no means be true in point of historical
fact, it became as good as true because the king's courts declined
to examine and decide civil suits of villeins against their lord.
Villeins were left unprotected, and this lack of protection gave
birth to a series of customary exactions quite apart from the
many instances when a lord simply ill-treated the peasants. A
villein had to pay a fine on the marriage of his daughter because
she was considered the property of the lord, and this fine was
materially increased when she married out of the lordship, as
the lord lost his bond-woman and her offspring by such a marriage.
On the death of a villein his heir could not enter his inheritance
without surrendering a valuable horse or ox in recognition of
the claims of the lord to the agricultural outfit of the holding.
As a matter of fact the civil disability of villeins did not
amount to a general insecurity of their rights of possession.
On the contrary, the custom of the manor was elaborately constant
and provided for most contingencies of rural life with as much
accuracy and nicety of distinction as the law administered in
the royal courts. But all these provisions were merely customary
rules drawn from facts; they were not binding on the lord, and
in one very important respect, the amount and kind of work to
be exacted from the peasant, changes and increases occasionally
occurred. There was one class of the English peasantry which
enjoyed a much better. condition, namely the villeins on the
so-called ancient demesne of the Crown. In manors which had belonged
to the kings before the Conquest and had been granted to subjects
after the Conquest, the lords had no right to oust the villagers
from their holdings and to increase their services at pleasure,
but were bound to follow the customs which held good at the time
of the transfer of the estates from the Crown. In such manors
a recourse to the rural courts was admitted and the peasants
were treated as free people in regard to their tenements and
services; their tenure became a species of lease or contract,
though burdened with base services. This valuable privilege only
emphasised with greater sharpness the rightless condition of
the rest of the peasantry.
This rightlessness was, however, restricted to the relations
of the villeins with their Lord. In regard to all third persons
and in regard to the requirements of the State they were considered
to be free. This is the third marked feature of their condition.
Let us remember that the slave of Roman and Saxon times was a
thing, an animal at best, that he was supposed to act merely
on behalf of his master, that if he committed a theft or slew
somebody his master was held responsible for his crime, and that
he was not admitted as a warrior to the host and did not pay
any taxes to grasping fiscal authorities, though he was estimated
at his worth and more than his worth when his master had to pay.
All these traits of slavery gradually disappeared when slaves
and ceorls were blended in the mould of villeinage. The villein
was recognised as having a soul and a will of his own not only
in the eyes of the Christian Church but in those of the feudal
State. He could enter into agreements, and acquire property in
spite of the fact that some authoritative lawyers maintained
that he could acquire nothing for himself and that all he had
belonged to his lord. He was set in the stocks or hanged for
crimes, and the lord had to be content with the loss of his man,
as he had not to pay for his felonies. Villeins were grouped
in frithborgs or tithings of frankpledge in order that the peace
of the realm and its police might be better enforced. They were
not merely taxed by their lords and through their lords, but
also had to pay hidage and geld from their own land and fifteenths
and twentieths from their own chattels. Altogether the government
looked upon them as its direct subjects and did not fail to impose
duties on them, though it declined to protect their customary
rights against the lord.
The celebrated enactments of Magna Charta as to personal security
and rights of property applied primarily to free men and to free
tenements, and of such there were a good many in the manor. Indeed
a manor was deemed incomplete without them. Besides the knights
and squires or serjeants who held of the lord by military service,
there were numerous tenants who stood to him in a relation of
definite agreement, paying certain fixed rents or performing
certain specified services which, however burdensome, did not
amount to the general obligation of rural labour incumbent on
the villeins. Many were the tenants, who, without appealing to
a charter or a specified agreement to prove their contractual
relation to the lord, held their tenements from father to son
as if there were a specific agreement between them and the lord,
performing certain services and paying certain rents; and this
class was the most important of all. These were the freeholders
properly so termed or, as they were called in many ancient manors,
the sokemen. Without going into the question of their origin
and history, we must emphatically lay down the principle of their
tenure in feudal society: it was tenure by contract and therefore
free. Such was its essence, although in many, perhaps in most
cases, the formation of the contract was hidden by lapse of time
unto which memory does not run, and indeed hardly amounted to
more than a legal presumption. The clear distinction, drawn by
the Courts between tenants in a relation of contract with their
Lord and tenants in a relation of customary subjection, divided
sharply the classes of freeholders and villeins and moulded all
the details of their personal position. It was not always easy
to make out in particular cases to which of the two great subdivisions
a person and a holding belonged, and, as a matter of history,
the process of pressing the people into the hard and fast lines
of this classification was achieved by disregarding previous
and more organic arrangements, but undoubtedly this distinction
created a mould, which not only worked powerfully to bring some
order into feudal society, but set a definite aim before the
very class which was depressed by it; to obtain freedom the villeins
must aspire to contractual relations with their lords.
We are now concerned with the period when these aspirations were
only more or less indefinite ferments of social progress, and
the legal distinction still acted as a firm rule. The freeholders
sought and obtained protection for their rights in the royal
courts and thereby not only acquired a privileged position in
regard to holdings, dues and services, but in a sense, obtained
an entirely different footing from the villein and were able
to step out of the manorial arrangement, to seek their law outside
it. This was undoubtedly the case, and the countless records
of law suits between lords and tenants tell us of all the possibilities
which such a position opened to the freeholders. But it is necessary
to realise the other side of the matter, which we may be apt
to disregard if we lay too much stress on the legal standing
of freeholders in the King's Courts.
In all that touched the life and arrangements of the village
community underlying the manor, the freeholders were in scot
and in lot with the township and therefore on an equal footing
with the villeins. In speaking of the management of open field
and waste, of the distribution of arable and meadows, of the
practices of enclosure and pasture, etc., we did not make any
difference between villeins and freeholders, indeed we have not
even mentioned the terms. We have spoken of tenants, of members
of the community, of shareholders, and now that we have learnt
to fathom the deep legal chasm between the two sections of the
tenantry, we still must insist on the fact that both sections
were at one in regard to all the rights and duties derived from
their agrarian association, appertaining to them as tillers of
the soil and as husbands of their homes. Both sections joined
to frame the by-laws and to declare the customs which ruled the
life of the village and its intricate economic practices.
And the freeholders had not only to take part in the management
of the community but, of course, to conform to its decisions.
They were not free in the sense of being able to use their plots
as they liked, to manage their arable and pasture in severalty,
to keep up a separate and independent husbandry. If they transgressed
against the rules laid down by the community, they were liable
to pay fines, to get their cattle impounded, to have their property
distrained upon. Of course, the processes of customary law were
greatly hampered and even modified by the fact that the freeholders
had access to the royal courts, and so could challenge the verdicts
of the manorial jurisdiction and the decisions of the township
in the royal courts. And undoubtedly the firm footing obtained
by freeholders in this respect enabled them on many occasions
to thwart the petty jurisdiction of their neighbours, and to
set up claims which were not in keeping with a subjection to
by-laws made by the manorial community. But this clashing of
definitions and attributes, though unavoidable in view of the
ambiguous position of freeholders, must not prevent us from recognising
the second principle of their condition as well as the first;
they were not merely tenants by contract but also members of
a village community and subjected to its by-laws.
The Lord Was A Monarch
After what has been said of the position of the tenants, we need
not dwell very long on the standing of the lord and of his immediate
helpers. The lord was a monarch in the manor, but a monarch fettered
by a customary constitution and by contractual rights. He was
often strong enough to break through these customs and agreements,
to act in an arbitrary way, to indulge in cruelty and violence.
But in the great majority of cases feelings and caprice gave
way to reasonable considerations. A reasonable lord could not
afford to disregard the standards of fairness and justice which
were set up by immemorial custom, and a knowledge of the actual
conditions of life.
A mean line had to be struck between the claims of the rulers
and the interests of the subjects, and along this mean line by-laws
were framed and customs grew up which protected the tenantry
even though it was forsaken by the king's judges. This unwritten
constitution was safeguarded not only by the apprehension that
its infringement might scatter the rustic population on whose
labour the well-being of the lord and his retainers after all
depended, but also by the necessity of keeping within bounds
the power of the manorial staff of which the lord had to avail
himself. This staff comprised the stewards and seneschals who
had to act as overseers of the whole, to preside in the manorial
courts, to keep accounts, to represent the lord on all occasions;
the reeves who, though chosen by the villagers, acted as a kind
of middlemen between them and the lord and had to take the lead
in the organisation of all the rural services; the beadles and
radknights or radmen who had to serve summonses and to carry
orders; the various warders, such as the hayward, who had to
superintend hedges, the woodward for pastures and wood, the sower
and the thresher; the graves of moors and dykes who had to look
after canals, ditches and drainage; the ploughmen and herdsmen,
employed for the use of the domanial plough-teams and herds.
All these ministri had to be kept in check by a well-advised
landlord, and one of the most efficient checks on them was provided
by the formation of manorial custom. It was in the interest of
the lord himself to strengthen the customary order which prevented
grasping stewards and serjeants from ruining the peasantry by
extortions and arbitrary rule. This led to the great enrolments
of custom as to holdings and services, of which many have come
down to us from the twelfth, thirteenth and fourteenth centuries;
they were a safeguard for the interests both of the tenants and
of the lord.
The complex machinery of the manor as the centre of economic
affairs and of social relations demanded by itself a suitable
organisation. But besides this the manor was the local centre
for purposes of police and justice; it had to enforce the king's
commands and the law of the realm in its locality. It would be
more correct to say that the manor and the village community
or township underlying it were regarded as local centres of justice
and police, because in these political matters the double aspect
of the manor, the fact of its being composed of an upper and
a lower half, came quite as plainly to the fore as in its economic
working. Indeed, for purposes of justice, taxation, supervision
of vagabonds, catching and watching thieves, keeping in order
roads, and the like, the government did not recognise as the
direct local unit the manor, but the vill, the village community
or town, as the old English term went. The vill had to look after
the formation of frankpledge, to keep ward, to watch over prisoners
and to conduct them to gaol, to make presentments to justices
and to appear at the sheriff's turn. This fact is a momentous
piece of historical evidence as to the growth of manorial jurisdiction,
but, apart from that, it has to be noticed as a feature of the
actual administration of justice and police during the feudal
period. It may be said that when the central power appealed directly
to the population either for help or for responsibility, it did
so through the medium not of the manors, but of the ancient towns
or townships merged in them.
But there were many affairs delegated to the care of the manor,
in which the central power intervened only indirectly. There
was the whole domain of petty jurisdiction over villeins, as
subjects of the lord, there were the numberless cases arising
from agrarian transgressions and disputes, there were disputes
between tenants of the same lord in regard to land held from
him, there were the franchises, that is, the powers surrendered
by special grants of the government or by immemorial encroachment
of the lords in regard to tolls, market rights, the assize of
bread and ale and other matters of commercial police, to the
trying of thieves, poachers, and the like. In all these respects
the manorial lord was called upon to act according to his standing
and warranted privileges. But in no case could he act alone and
by himself: he acted in bis court and through his court. Originally
this court, the halimote, the hall meeting, as we may translate
the term, dealt with all sorts of affairs: it tried the cases
where villeins were concerned, transacted the conveyancing business,
enforced the jurisdiction of the franchises. Its suitors were
freeholders and villeins alike, and if they did not always act
jointly, we have at least no means of distinguishing between
the different parts they played. Gradually, however, a differentiation
took place, and three main types of courts came into being, the
Customary Court, the Court Baron and the Court Leet; but we need
not here concern ourselves with the technical distinctions involved
by this differentiation of courts.
All these details have a simple and reasonable meaning when we
consider them from the point of view of an all-round arrangement
of each locality for the settlement of all its affairs, administrative,
fiscal, jurisdictional, as well as economic and civil. This confusing
variety has to be explained by the fact that, notwithstanding
all strivings to make the manor complete and self-sufficient
in this petty local sphere, it could not cut itself off from
the general fabric of the kingdom. Through the channels which
connected it with the central authorities came disturbing elements;
the privileges of free tenants, the control over the use of franchises,
the interference of royal courts and royal officers. All these
factors rendered manorial arrangements more complex and less
compact than they might otherwise have been; but, of course,
these very elements insured its further development towards more
perfect forms of organisation and prevented it from degenerating
into despotism or into caste.
The manor is peculiarly an English institution, although it may
serve to illustrate Western European society in general. Feudalism,
natural husbandry, the sway of the military class, the crystallisation
of powers and rights in local centres, are phenomena which took
place all over Western Europe and which led in France, in Germany,
in Italy and Spain to similar though not identical results. It
is interesting to watch how in these bygone times and far-off
customs some of the historical traits which even now divide England
from its neighbours are forming themselves at the very time when
the close relationship between the European countries is clearly
visible.
The disruption of the nation into local organisms is more
complete in France and in Germany than in England, which, through
the fact of the Norman Conquest and the early rise of Norman
royalty and Norman aristocracy, was welded into a national whole
at a period when its southern neighbours were nearly oblivious
of national union. Even so, the English manor was more systematically
arranged and more powerfully united than the French Seigneurie
or the German Grundherrschaft. The French baron ruled in an arbitrary
manner over his serfs and was almost powerless in regard to his
free vassaux, while the German Grundherr had a most confusing
complex of social groups to deal with, a complex more akin to
the classes of England which existed on the day when King Edward
the Confessor was "alive and dead" than to the England
of Henry II and Edward I.
The social distinction between the military class and the
rural labouring class, the natural husbandry, which dispensed
to a great extent with commercial intercourse and money dealings,
produced in all western countries the subjection of villeins
and the super-imposition of a lord's demesne on the holdings
of the working-class. But instead of assuming the form of a union
between the lord's demesne and a firmly organised village community,
the central economy of the lord had to deal in France with loose
clusters of separate settlements, while in Germany the communal
element combined with the domanial in all sorts of chance ways,
which, though very advantageous in some cases, did not develop
without difficulty into a firmly established and generally recognised
body of rural custom.
In England things were different. There can be hardly any doubt
that through the strong constitution, rooted in custom, of its
manor England, in its social development, got quite as much start
of its neighbours, as it obtained precedence over them politically
through the early growth of parliamentary institutions.
NOTES:
1. "Rex autem habet superiorem, id est Deum, item
legem, per quam factus est Rex. Item curiam suam, videlicet comites,
barones, quia comites dicuntur quasi socii regis, et qui habet
socium, habet magistrum, et ideo si rex fuerit siue freno, i.e.,
sine lege, debent ei frenum ponere."
2. Red Book of the Exchequer, 283: Hugh de Lacy's report as
to his knights" "Ricardus Brito et ipsi qui post
ipsum sunt nominati tenent de domino Hugone sine servitio aliquo
quod eis statum est. Quidam de eis sunt mecum residentes et invenio
eis necessaria. Et quidam sunt in domibus meis in Wallia et invenio
eis necessaria."
3. See also Chapter XII, pp. 281-2 and Chapter XVII, p. 457.
4. The medium justice (moyenne justice) was a later development
and was not generally accepted.
5. Cartulary of St. Mihiel quoted by Flach, Origines de
l'ancienne France, i. p. 442.
6. Quoted by Pergameni, L'avouerie ecclesiastique belge,
Ghent 1907, pp. 83, 84.
7. Quoted by Luchaire, Manuel des institutions francaises,
p. 185.
8. Bigelow, Placita Anglo-normannica, p. 34.
9. Coutume de Touraine-Anjou, p. 17: Bers si a toutes en
sa terre, ne li rois ne puet mettre ban en la tere au baron,
sanz son assentement, ne li bers ne puet mettre ban en la terre
au vavasor, sanz l'assentement au vavasor; (received in the
Etablissement de St Louis, I, p. 26. See P. Viollet, Etablissements
de St Louis, II, p. 36).
10. Cadier, Les Etats du Rearn, quoted by Luchaire, Manuel,
p.254.
11. In parts of the country settled on the system of scattered
farms, arable and meadows came naturally to be divided among
separate households, but even then a great deal of communalism
remained in the management of pasture and wood.
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