Feudal law

“ One innovation made by William upon the feudal law is very deserving of attention. By the leading principle of feuds, an oath of fealty was due from the vassal to the lord of whom he immediately held the land, and no other. The King of France long after this period had no feudal, and scarcely any royal, authority over the tenants of his own vassals ”

“ No longer are Crown and people united, in the name of law and order, against the baronage, standing for feudal disintegration. The mass of humble freemen and the Church are for the moment in league with the barons, in the name of law and order, against the Crown, recently become the chief law-breaker. ”

“ The first principles of the feudal system, which form the basis of the whole edifice, are: that the land is the property of the sovereign; that the inhabitants are his slaves, and can therefore possess no property, all that they have and all that they can obtain belonging to the sovereign, who allows them to keep it no longer than he chooses; and that the will of the prince is the supreme law. ”

“ By the feudal principles, upon which you say "all the grants which have been made of America, are founded, the constitutions of the Emperor, have the force of law." If our government be considered as merely feudatory, we are subject to the King's absolute will, and there is no authority of Parliament, as the sovereign authority of the British empire. ”

“ When the function of protection and local supervision could be resumed by the general government the feudal age ended. In nearly all the states of Europe this end was reached during, or by the close of, the 13th century.
At the moment, however, when feudalism was disappearing as the organization of society, it gave rise to results which in a sense continued it into after ages and even to our own day. One of these results was the system of law which it created. As feudalism passed from its age of supremacy into its age of decline, its customs tended to crystallize into fixed forms. ”

“ An execution of ejectment was then levied against his lordship. This he avoided for nine years, and it was only twelve years after negotiations had begun that the widow was able to obtain her dues.
A very brief glance at Continental feudalism and its influence upon statute law may now be given. It enables us to mark some of the differences between the English and the foreign systems, the one with its restrictions and the other all-powerful. In the eleventh century, all France and the German Empire were one vast feudal possession. ”

“ Should one confine one's studies of feudalism to the rules laid down by the feudal lawyers and the careful descriptions of the exact duties of the vassal which are to be found in the contracts of the period, one might conclude that everything had been so minutely and rigorously fixed as to render the feudal bond sufficient to maintain order and liberty. But one has only to read a chronicle of the time to discover that, in reality, brute force governed almost everything outside of the Church. ”

“ Habits and forms of the feudal arrangement remained troublesome in society, as they do in some measure to the present day; but feudalism as a system of social disorder and disintegration was by this time cleared away. We have noted in passing some of the undermining agencies by which it was destroyed: the crusading movements; the growth and enfranchisement of cities; the spread of commerce; the rise of a middle class; the study of Roman law; the consequent increase of royal authority in France,--all these were among the causes of its decline. ”

“ But, on the other hand, the charter, broadly speaking, illustrates, by the retrograde concessions it extorts, the cardinal factor in the long struggle between the feudal nobles and their lord the king, namely, their jealousy of that royal jurisdiction by which the Crown strove, and eventually with success, to break their semi-independent power, and to bring the whole realm into uniform subjection to the law. ”

“ In the judicial department, in England at least, one important class of courts, the popular county courts, was never seriously affected by feudalism, either in their organization or in the law which they interpreted. Any complete description of the feudal organization must be understood to be a description of tendencies rather than of a realized system. ”

“ Some of the kings behaved very ill in this, in making the heirs pay a great deal more than was just; and, if a baron died, and left a daughter only, she was obliged to marry any one the king chose, or he would not let her have her inheritance at all.
17. The feudal laws were therefore very bad, because they gave men the power of being tyrants to each other; for the nobles had the same power of oppressing their vassals that the king had of oppressing them. ”

“ Perhaps the most powerful cause at work was the revival of the Roman jurisprudence, which in the thirteenth century com212menced to undermine all the institutions of feudalism. Its theory of royal supremacy was most agreeable to sovereigns whose authority over powerful vassals was scarcely more than nominal; its perfection of equity between man and man could not fail to render it enticing to clear-minded jurists, wearied with the complicated and fantastic privileges of ecclesiastical, feudal, and customary law. ”

“ Here for a moment we seem to have a fairly clear announcement of what we call the simple feudal principle, unadulterated by any element of personal rank; still our text supposes that the lord in question is a great man, he has no mere manor but an honour or several honours. On the whole, our law seems for the time to be taking the shape that French law took. ”

“ His was a feudalism which, while giving the lords great personal power and influence, retained them still as the servants of the king, and totally prevented them from using their strength against the throne. In this [Pg 59] respect the feudal system in England never resembled that of Germany and France, or even that which the Norman barons established in Scotland. The Conqueror had no intention of allowing the owners of territory to supersede his own authority, and to be beyond the sovereign’s control. ”

“ It is therefore the sphere occupied in them by Contract which principally distinguishes the feudal institutions from the215 unadulterated usages of primitive races. The lord had many of the characteristics of a patriarchal chieftain, but his prerogative was limited by a variety of settled customs traceable to the express conditions which had been agreed upon when the infeudation took place. Hence flow the chief differences which forbid us to class the feudal societies with true archaic communities. They were much more durable and much more various ”

“ The wardships enjoyed by the feudal lords were equally absurd, one of their favourite methods of raising money being to arrange an unsuitable marriage, and on the refusal of the persons to carry out the contract, to claim the revenue of the wards’ estate as “forfeit.” The feudal lord could sell his vassals as he did his animals, and they were often bartered away with fields and houses. The value of a serf was roughly apprised as four times that of an ox, and he could also be used as “live money.” ”

“ But it was not quite so easy to do justice then; for, as long as the feudal laws lasted, the rich could always oppress the poor, and every great man had an army of his own vassals, who would do any thing he bade them, whether it was lawful or not. ”

“ Law in England during all this period was chiefly a system of oppression, proceeding stage by stage from the highest to the lowest. The revenues of the crown were obtained by extravagant rents, forfeits, taxes, reliefs, fines, aids, and other devices which show the amazing ingenuity of the extortioners. The result was that most tyrannical exactions were made in turn by the feudal lords, and the dependents groaned for six centuries under these lawless yet legalised oppressions. Personal property was at the mercy of the lords, who adopted the most cruel means to enforce their “rights.” ”

“ The more clearly we perceive that, when the Feudal institutions were in process of formation, there was no source in the world whence they could derive their elements but the Roman law of the provincials on the one hand and the archaic customs of the barbarians on the other, the more are we perplexed at first sight by our knowledge that neither Roman nor barbarian was accustomed to give any preference to the eldest son or his line in the succession to property. ”

“ They perceive the materials of the feudal institutions, but they miss the cement. The ideas and social forms which contributed to the formation of the system were unquestionably barbarian and archaic, but, as soon as Courts and lawyers were called in to interpret and define it, the principles of interpretation which they applied to it were those of the latest Roman jurisprudence, and were therefore excessively refined and matured. In a patriarchally governed society, the eldest son may succeed to the government of the Agnatic group, and to the absolute disposal of its property. ”

“ Here, in the economical order, the fact and the right are distinguishable, and the actual occupant may be required to show his title-deeds. Holding sovereignty to be a private estate, the feudal lawyers very properly distinguish between governments de facto and governments de jure, and argue very logically that violent dispossession of a prince does not invalidate his title. ”

“ In Germany the feudal system was seen at its strongest and its worst, and law was paralysed while the men of lust and blood were supreme in their own dominions. Austria has a similar story to tell of barbarity towards serfs, and the abrogation of law by powerful chieftains. But it is remarkable that in Russia, where the feudal spirit still most strongly survives, and is marked by many excesses utterly repugnant to the feeling and customs of the times, the earliest attempts to establish a feudal system were quelled by the princes. ”

“ All feudal rights as against the power of an over-lord were explained away by the civil jurist, either as pernicious abuses, or, at best, as favours granted in the past by the predecessors of the reigning monarch, which it was within his right to truncate or to abrogate at his will. ”

“ While he thus, on the one hand, was the national English sovereign, on the other he was the supreme landowner and feudal lord. Under this double influence, the tenure of land, following the universal tendency of Europe, became wholly feudal and military. But the other side of feudalism—with its isolation, the virtual independence of the feudatories (among whom the king was but the first among his peers) , and the suppression of national jurisdiction, which were the chief characteristics of French feudalism—was kept in careful restraint. ”

“ The Nobility had no longer the strength to resist the demands of the Crown for men and money, but it still retained exemption from taxes, the jurisdiction and police among its own peasants, and a multitude of feudal rights, which, often enough, degraded the peasant to the condition of a serf, and everywhere bound down agriculture in the most galling bonds. ”

“ After the subversion of the Roman power, the northern sovereigns, who had become the barbarous and ignorant oppressors of our species, introduced and established, among other political regulations, the feudal system, as it was called, by which all property in land was held by certain fiefs, whereby the king, or, as termed, lord of the soil, let certain portions of the land to his nobles, military officers, and other great persons, generally often on condition of certain services required to be performed, called knights’ service, and other military tenures ”

“ In order to secure the barriers of justice more effectually against the violence of power, so often superior to law in an imperfect state of society, it was provided in many of the charters, that no nobles should be permitted to acquire real property within the limits of the community; that no fortress or palace should be erected by them there; that such as might reside within its territory, should be subject to its jurisdiction; and that any violence, offered by them to its inhabitants, might be forcibly resisted with impunity. ”

“ They were appointed to their places by the king for services done to him, and as instruments of his policy. Neither Pope nor people had any share in their election. Their estates were granted them by the same titles, and with the same obligations as those of feudal barons; the king could withhold their temporalities, sequestrate their lands, confiscate their personal goods, and burden them with heavy fines; they lay absolutely at his mercy without appeal. Every tie of feudal duty, of official training, of prudent self-interest, forced them into subjection to the Crown. ”

“ Feudalism, established in Western Europe after the downfall of the Roman Empire, however modified by the Church and by reminiscences of Graeco-Roman civilization retained by the conquered, was a barbaric constitution. The feudal monarch, as far as he governed at all, governed as proprietor or landholder, not as the representative of the commonwealth. Under feudalism there are estates, but no state. The king governs as an estate, the nobles hold their power as an estate, and the commons are represented as an estate. The whole theory of power is, that it is an estate ”