Causes of The principal causes that operated in subverting the feudal system the decline may be comprehended under of the feu- three distinct heads; the indal system. creasing power of the crown, the elevation of the lower ranks, and the decay of the feudal principle. Acquisitions of power by It has been my object in the last pages to point out the acquisitions of power by the crown of France in respect of legislative and juthe crown. dicial authority. The principal augmentations of its domain have been Augmenta historically mentioned in the tion of the last chapter; but the subject domain. may here require further notice. The French kings naturally acted upon a system, in order to recover those possessions which the improvidence or necessities of the Carlovingian race had suffered almost to fall away from the monarchy. This course, pursued with tolerable steadiness for two or three centuries, restored their effective power. By escheat or forfeiture, by bequest or succession, a number of fiefs were merged in their increasing domain.* It was France, as well as other countries, during the middle ages. I allude to L'Esprit, Origine et Progrès des Institutions judiciaires des principaux Pays de l'Europe, by M. Meyer, of Amsterdam; especially the first and third volumes. It would have been fortunate had its publication preceded that of the first edition of the present work; as I might have rendered this chapter on the feudal system in many respects more perspicuous and correct. As it is, without availing myself of M. Meyer's learning and acuteness to illustrate the obscurity of these researches, or discussing the few questions upon which I might venture, with deference, to adhere to another opinion, neither of which could conveniently be done on the present occasion, I shall content myself with this general reference to a performance of singular diligence and ability, which no student of these antiquities should neglect. In all essential points I am happy not to perceive that M. Meyer's views of the middle ages are far different from my own.-Note to the fourth edit. The word domain is calculated, by a seeming ambiguity, to perplex the reader of French history. In its primary sense, the domain or demesne (dominicum) of any proprietor was confined to the lands in his immediate occupation; excluding those of which his tenants, whether in fief or villanage, whether for a certain estate or at will, had an actual possession, or, in our law-language, pernancy of the profits. Thus the compilers of Domesday-Book distinguish, in every manor, the lands held by the lord in demesne from those occupied by his villeins or other tenants. And in Eng. land, the word, if not technically, yet in use is still confined to this sense. But in a secondary acceptation, more usual in France, the domain comprehended all lands for which rent was paid (censives), and which contributed to the regular annual revenue of the proprietor. The great distinction was between lands in demesne and those in fief. A grant of territory, whether by the king or another ford, comprising as well domanial estates and tributary towns as feudal superiorities, was expressed part of their policy to obtain possession of arriere-fiefs, and thus to become tenants of their own barons. In such cases the king was obliged, by the feudal duties, to perform homage, by proxy, to his subjects, and engage himself to the service of his fief. But, for every political purpose, it is evident that the lord could have no command over so formidable a vassal.* The reunion of so many fiefs was attempted to be secured by a legal principle, that the domain was inalienable and imprescriptible. This became at length a fundamental maxim in the law of France. But it does not seem to be much older than the reign of Philip V., who, in 1318, revoked the alienations of his predecessors, nor was it thoroughly established, even in theory, till the fifteenth century.f Alienations, however, were certainly very repugnant to the policy of Philip Augustus and St. Louis. But there was one species of infeudation, so consonant to ancient usage and prejudice, that it could not be avoided upon any suggestions of policy; this was the investiture of younger princes of the blood with considerable territorial appanages. It is remarkable that the epoch of appanages on so great a scale was the reign of St. Louis, whose efforts were constantly directed against feudal independence. Yet he invested his brothers with the counties of Poitou, Anjou, and Artois, and his sons with those of Clermont and Alençon. It con to convey" in dominico quod est in dominico, et in feodo quod est in feodo." Since, therefore, fiefs, even those of the vavassors or inferior tenantry, were not part of the lord's domain, there is, as I said, an apparent ambiguity in the language of historians who speak of the reunion of provinces to the royal domain. This ambiguity, however, is rather apparent than real. When the dutchy of Normandy, for example, is said to have been united by Philip Augustus to his domain, we are not, of course, to suppose that the soil of that province became the private estate of the crown. tinued, as before, in the possession of the Norman barons and their sub-vassals, who had held their estates of the dukes. But it is meant only that the King of France stood exactly in the place of the Duke of Normandy, with the same rights of possession over lands absolutely in demesne, of rents and customary payments from the burgesses of towns and tenants in roture or villanage, and of feudal services from the military vassals. The immediate superiority, and the immediate resort or jurisdiction over these, devolved to the crown; and thus the dutchy of Normandy, considered as a fief, was reunited, or, more properly, merged in the royal domain, though a very small part of the territory might become truly domanial. *See a memorial on the acquisition of arrierefiefs by the kings of France, in Mém. de l'Acad. des Inscript., t. I, by M. Dacier. † Préface au 15me tome des Ordonnances, par M. de Pastoret. This practice, in later times, produced very mischievous consequences. Under a second class of events that contributed to destroy the spirit of the feudal system, we may reckon the abolition of villanage; the increase of commerce, and consequent opulence of merchants and artisans; and especially the institutions of free cities and boroughs. This is one of the most important and interesting steps in the progress of society during the middle ages, and deserves particular consideration. towns. The provincial cities under the Roman - Free and empire enjoyed, as is well known, chartered a municipal magistracy and the right of internal regulation. It would not have been repugnant, perhaps, to the spirit of the Frank and Gothic conquerors, to have left them in possession of these privileges. But there seems no satisfactory proof that they were preserved either in France or in Italy; or, if they existed at all, they were swept away, in the former country, during the confusion of the ninth century, which ended in the establishment of the feudal system. Every town, except within the royal domains, was subject to some lord. In episcopal cities the bishop possessed a considerable authority; and in many there was a class of resident nobility. It is probable that the proportion of freemen was always greater than in the country; some sort of retail trade, and even of manufacture, must have existed in the rudest of the middle ages, and consequently some little capital was required for their exercise. Nor was it so easy to oppress a collected body, as the scattered and dispirited cultivators of the soil. Probably therefore the condition of the towns was at all times by far the more tolerable servitude; and they might enjoy several immunities by usage, before the date of those charters which gave them sanction. In Provence, where the feudal star shone with a less powerful ray, the cities, though not independently governed, were more flourishing than the French. Marseilles, in the beginning of *M. de Bréquigny says that Lyons and Rheims can trace their own municipal government some centuries higher than the establishment of communes by Louis VI. The former city, which indeed was not French at that time, never had a charter of incorporation.-Ordonnances des Rois, t. xi., préface, p. 4. This preface contains an excellent account of the origin and privileges of chartered towns in France. †There were more freemen in Provence, says an historian of the country, than in any other part of France; and the revolutions of the monarchy being less felt than elsewhere, our towns naturally the twelfth age, was able to equip powerful navies, and to share in the wars of Genoa and Pisa against the Saracens of Sardinia. The earliest charters of community granted to towns in France have Earliest been commonly referred to the charters. time of Louis the Sixth; though it is not improbable that some cities in the south had a municipal government by custom, if not by grant, at an earlier period. Noyon, St. Quentin, Laon, and Amiens appeared to have been the first that received emancipation at the hands of this prince.† The preserved their municipal government. I have borrowed this quotation from Heeren, Essai sur l'Influence des Croisades, p. 122, to whom I am indebted for other assistance. Vaissette also thinks that the inhabitants of towns in Languedoc were personally free in the tenth century; though those of the country were in servitude.-Hist. de Languedoc, t. ii., p. 111. *Ordonnances des Rois, ubi supra, p. 7. These charters are as old as 1110, but the precise date is unknown. The Benedictine historians of Languedoc are of opinion that the city of Nismes had municipal magistrates even in the middle of the tenth century, t. ii., p. 111. However this may be, the citizens of Narbonne are expressly mentioned in 1080.-Appendix, p. 208. The burgesses of Carcassone appear by name in a charter of 1107, p. 515. In one of existed therefore previously, p. 409, and Appen1131, the consuls of Beziers are mentioned; they dix, p. 959. The magistrates of St. Antonin en Rouergue are named in 1136; those of Montpelier in 1142; of Narbonne in 1148; and of St. Gilles in 1149, pp. 515, 432, 442, 464. The capitouls of were in fact established by Alfonso, count of TouToulouse pretend to an extravagant antiquity; but louse, who died in 1148. In 1152, Raymond V. confirmed the regulations made by the common council of Toulouse, which became the foundation of the customs of that city, p. 472. If we may trust altogether to the Assises de Jérusalem in their present shape, the court of burgesses having jurisdiction over persons of that rank was instituted by Godfrey of Bouillon, who died lier than the charter of London, granted by Henry 1100.-Ass. de Jérus., c. 2. This would be even earI. Lord Lyttleton goes so far as to call it "certain, that in England many cities and towns were bodies corporate and communities long before the alteration introduced into France by the charters of But this position, as I shall more particularly show Louis le Gros."-Hist. of Henry II., vol. iv., p. 29. in another place, is not borne out by any good authority, if it extends to any internal jurisdiction, and management of their own police; whereof, except in the instance of London, we have no proof before the reign of Henry II. But the incorporation of communities seems to have been decidedly earlier in Spain than in any other country. Alfonso V., in 1020, granted a charter to Leon, which is said to mention the common council of that city in terms that show it to be an established institution. During the latter part of the eleventh century, as well as in subsequent times, such charters are very frequent.-Marina, Ensayo Historico-Critico sobre las siete partidas. In several instances, we find concessions of smaller privileges to towns without any political power. Thus Berenger, count of Barcelona, in 1025 con granting them not to be found in chief towns in the royal domains were successively admitted to the same privileges during the reigns of Louis VI., Louis VII., and Philip Augustus. This example was gradually followed by the peers and other barons; so that by the end of the thirteenth century, the custom had Causes of prevailed over all France. It has been sometimes imagined, that the crusades had a matethe crusades, rial influence in promoting the erection of communities. Those expeditions would have repaid Europe for the prodigality of crimes and miseries which attended them, if this notion were founded in reality. But I confess that in this, as in most other respects, their beneficial consequences appear to me very much exaggerated. The cities of Italy obtained their internal liberties by gradual encroachments, and by the concessions of the Franconian emperors. Those upon the Rhine owed many of their privileges to the same monarchs, whose cause they had espoused in the rebellions of Germany. In France, the charters granted by Louis the Fat could hardly be connected with the first crusade, in which the crown had taken no part, and were long prior to the second. It was not till fifty years afterward that the barons seem to have trod in his steps by granting charters to their vassals, and these do not appear to have been particularly related in time to any of the crusades. Still less can the corporations, erected by Henry II. in England, be ascribed to these holy wars, in which our country had hitherto taken no considerable share. The establishment of chartered towns nor in delib in France has also been ascribed to deliberate policy. "Louis the Gross," says Robertson, erate policy. "in order to create some power that might counterbalance those potent vassals who controlled or gave law to the crown, first adopted the plan of conferring new privileges on the towns situated within his own domain." Yet one does not immediately perceive what strength the king could acquire by granting these extensive privileges within his own domains, if the great vassals, were only weakened, as he asserts afterward, by following his example. In what sense, besides, can it be meant, that Noyon or Amiens, by obtaining certain franchises, became a power that could counterbalance the Duke of Normandy or Count of Champagne ? It is more natural to impute this measure, both in the king and his barons, to their pecuniary exigencies; for we could hardly doubt that their concessions were sold at the highest price, even if the existing charters did not exhibit the fullest proof of it.* It is obvious, however, that the coarser methods of rapine must have grown obsolete, and the rights of the inhabitants of towns to property established, before they could enter into any compact with their lord for the purchase of liberty. Guibert, abbot of St. No- Circumgent, near Laon, relates the estab- stances lishment of a community in that city with circumstances that, in the treaty of main, might probably occur in any other place. Continual acts of violence and robbery having been committed, which there was no police adequate to prevent, the clergy and principal inhabitants agreed to enfranchise the populace for a sum of money, and to bind the whole society by regulations for general security. These conditions were gladly accepted; the money was paid, and the leading men swore to maintain the priv attend ing the Laon. firms to the inhabitants of that city all the franchises which they already possess. These seem how-munes, or corporate towns, and boroughs (bourgeever to be confined to exemption from paying rent, oisies). The main difference was, that in the latand from any jurisdiction below that of an officer deter there was no elective government, the magisputed by the count.-De Marca, Marca Hispanica, p. 1038. Another grant occurs in the same volume, p. 909, from the Bishop of Barcelona in favour of a town of his diocess. By some inattention, Robertson has quoted these charters as granted to "two villages in the county of Rousillon."-Hist. Charles V., note 16. The charters of Tortosa and Lerida in 1149 do not contain any grant of jurisdiction, p. 1303. The corporate towns in France and England always enjoyed fuller privileges than these Catalonian charters impart. The essential characteristics of a commune, according to M. Bréquigny, were: an association confirmed by charter; a code of fixed sanctioned customs; and a set of privileges, always including municipal or elective government.-Ordonnances, ubi supra, p. 3. A distinction ought however to be pointed out, which is rather liable to elude observation, between com trates being appointed by the king or other superior. In the possession of fixed privileges and exemptions, in the personal liberty of their inhabitants, and in the certainty of their legal usages, there was no distinction between corporate towns and mere boroughs; and indeed it is agreed that every corporate town was a borough, though every borough was not a corporation. The French antiquary quoted above does not trace these inferior communities or boroughs higher than the charters of Louis VI. But we find the name, and a good deal of the substance, in England under William the Conqueror, as is manifest from Domesday-Book. * Ordonnances des Rois, t. xi., préface, p. 18 et 50. †The preface to the twelfth volume of Ordonnances des Rois contains a full account of bourgeoisies, as that to the eleventh does of communes. A great part of it, however, is applicable to both species, or rather to the genus and the species.-See too that to the fourteenth volume of Recueil des Historiens, p. 74. ignominious tokens of subjection, such as the fine paid to the lord for permission to marry their children, were abolished. Their payments of rent or tribute were limited both in amount and as to the occasions when they might be demanded: and these were levied by assessors of their own electing. Some obtained an exemption from assisting their lord in war; others were only bound to follow him when he personally commanded; and almost all limited their service to one, or at the utmost very few days. If they were persuaded to extend its duration, it was, like that of feudal tenants, at the cost of their superior. Their cus ileges of the inferior freemen. The Bishop of Laon, who happened to be absent, at first opposed this new institution, but was ultimately induced by money to take a similar oath; and the community was confirme by the king. Unluckily for himself, the bishop afterward annulled the charter; when the inhabitants, in despair at seeing themselves reduced to servitude, rose and murdered him. This was in 1112; and Guibert's narrative certainly does not support the opinion that charters of community proceeded from the policy of government. He seems to have looked upon them with the jealousy of a feudal abbot, and blames the Bishop of Amiens for consenting to such an es-toms, as to succession and other matters tablishment in his city, from which, according to Guibert, many evils resulted. In his sermons, we are told, this abbot used to descant on "those execrable communities, where serfs, against law and justice, withdraw themselves from the power of their lords."* In some cases they were indebted for success to their own courage and love of liberty. Oppressed by the exactions of their superiors, they had recourse to rms, and united themselves in a common league confirmed by oath, for the sake of redress. One of these associations took place at Mans as early as 1067, and, though it did not produce any charter of privileges, is a proof of the spirit to which ultimately the superior classes were obliged to submit.† Several charters bear witness that this spirit of resistance was justified by oppression. Louis VII. frequently declares the tyranny exercised over the towns to be his motive for enfranchising them. Thus the charter of Mantes in 1150 is said to be given pro nimiâ oppressione pauperum: that of Compiegne in 1153, propter enormitates clericorum: that of Dourlens, granted by the Count of Ponthieu in 1202, propter injurias et molestias a potentibus terræ burgensibus frequenter illatas. of private right, were reduced to certainty, and, for the most part, laid down in the charter of incorporation. And the observation of these was secured by the most valuable privilege which the chartered towns obtained: that of exemption from the jurisdiction, as well of the royal as the territorial judges. They were subject only to that of magistrates, either wholly elected by themselves, or in some places, with a greater or less participation of choice in the lord. They were empowered to make special rules, or, as we call them, by-laws, so as not to contravene the provisions of their charter or the ordinances of the king.* It was undoubtedly far from the intention of those barons who confer- Connexion red such immunities upon their of free subjects to relinquish their own towns with superiority and rights not ex- the king. pressly conceded. But a remarkable change took place in the beginning of the thirteenth century, which affected, in a high degree, the feudal constitution of France. Towns, distrustful of their lord's fidelity, sometimes called in the king as guarantee of his engagements. The first stage of royal interference led to a more extensive measure. Philip Augustus granted letters of safeguard to communities dependant upon the barons, assuring The privileges which these towns of to them his own protection and patronFrance derived from their char- age. And this was followed up so quickof their ters were surprisingly exten-ly by the court, if we believe some wriprivileges. sive; especially if we do not suspect some of them to be merely in confirmation of previous usages. They were made capable of possessing common property, and authorized to use a common seal as the symbol of their incorporation. The more oppressive and The extent *Hist. Littéraire de la France, t. x., 448. Du Cange, voc. Communia. + Recueil des Historiens, t. xiv., préface, p. 66. Ordonnances des Rois, t. xi., préface, p. 17. ters, that in the next reign, Louis VIII. et xii. Du Cange, voc. Communia, Hostis. Car- Reputabat civitates omnes suas esse, in quibus communiæ essent. I mention this in deference to Du Cange, Mably, and others, who assume the had so decisive an effect in subverting the feudal aristocracy. The barons perceived too late, that for a price long since lavished in prodigal magnificence or useless warfare, they had suffered the source of their wealth to be diverted, and the nerves of their strength to be severed. The government prudently respected the privileges secured by charter. Philip the Long established an officer in all large towns to preserve peace by an armed police; but, though subject to the orders of the crown, he was elected by the burgesses; and they took a mutual oath of fidelity to each other. Thus shielded under the king's mantle, they ventured to encroach upon the neighbouring lords, and to retaliate for the long oppression of the commonalty. Every citizen was bound by oath to stand by the common cause against all aggressors, and this obligation was abundantly fulfilled. In order to swell their numbers, it became the practice to admit all who came to reside within their walls to the rights of burghership, even though they were villeins, appertenant to the soil of a master, from whom they had escaped.† Others, havfact as incontrovertible; but the passage is only in a monkish chronicler, whose authority, were it even more explicit, would not weigh much in a matter of law. Beaumanoir, however, sixty years afterward, lays it down, that no one can erect a commune without the king's consent, c. 50, p. 268. And this was an unquestionable maxim in the fourteenth century.-Ordonnances, t. xi., p. 29. In the charter of Philip Augustus to the town of Roye in Picardy, we read: If any stranger, whether noble or villein, commits a wrong against the town, the mayor shall summon him to answer for it; and, if he does not obey the summons, the mayor and inhabitants may go and destroy his house, in which we (the king) will lend them our assistance, if the house be too strong for the burgesses to pull down: except the case of one of our vassals, whose house shall not be destroyed; but he shall not be allowed to enter the town, till he has made amends at the discretion of the mayor and jurats.-Ordonnances des Rois, t. xi., p. 228. This summary process could only, as I conceive, be employed, if the house was situated within the jurisdiction of the commune. See charter of Crespy, id., p. 253. In other cases, the application for redress was to be made in the first instance to the lord of the territory wherein the delinquent resided. But, upon his failing to enforce satisfaction, the mayor and jurats might satisfy themselves; liceat justitiam quærere, prout poterunt; that is, might pull down his house, provided they could. Mably positively maintains the communes to have had the right of levying war, l. iii., c. 7. And Bréquigny seems to coincide with him.-Ordonnances, préface, p. 46. See also Hist. de Languedoc, t. I, p. 115. The territory of a commune was called Pax (p. 185); an expressive word. † One of the most remarkable privileges of chartered towns was that of conferring freedom on runaway serfs, if they were not reclaimed by their masters within a certain time. This was a pretty general law. Si quis nativus quietè per unum an ing obtained the same privileges, continued to dwell in the country; but, upon any dispute with their lords, called in the assistance of their community. Philip the Fair, erecting certain communes in Languedoc, gave to any who would declare on oath that he was aggrieved by the lord or his officers, the right of being admitted a burgess of the next town, upon paying one mark of silver to the king, and purchasing a tenement of a definite value. But the neglect of this condition, and several other abuses, are enumerated in an instrument of Charles V., redressing the complaints made by the nobility and rich ecclesiastics of the neighbourhood.* In his reign the feudal independence had so completely yielded, that the court began to give in to a new policy, which was ever after pursued; that of maintaining the dignity and privileges of the noble class against those attacks which wealth and liberty encouraged the plebeians to make upon them. The maritime towns of the south of France entered into separate Maritime alliances with foreign states; towns pecuas Narbonne with Genoa in liarly independent. 1166, and Montpelier in the next century. At the death of Raymond VII., Avignon, Arles, and Marseilles affected to set up republican governments; but they were soon brought into subjection. The independent character of maritime towns was not peculiar to those of the southern provinces. Edward II. and Edward III. negotiated, and entered into alliances with the towns of Flanders, to which neither their count, nor the King of France were parties. Even so late as the reign of Louis XI., the Duke of Burgundy did not hesitate to address the citizens of Rouen, in consequence of the capture of some ships, as if they had formed an independent state. This evidently arose out of the ancient customs of private warfare, which, long after they were repressed by a stricter police at home, continued with lawless violence on the ocean, and gave a character of piracy to the commercial enterprise of the middle ages. num et unum diem in aliquâ villâ privilegiatâ manserit, ita quod in eorum communem gyldam tanquam civis receptus fuerit, eo ipso à villenagio liberabitur.-Glanvil., 1. v., c. 5. The cities of Languedoc had the same privilege.--Vaissette, t. iii., p. 528, 530. And the editor of the Ordonnances speaks of it as general, p. 44. A similar custom was established in Germany; but the term of prescription was, in some places at least, much longer than a year and a day.-Pfeffel, t. i., p. 294. * Martenne, Thesaur. Anecd., t. i., p. 1515. † Velly, t. iv., p. 446 ; t. v., p. 97. Rymer, t. iv., passim. Gamier, t. xvií., p. 396. |