The folk and its law. The period of the church Fathers, extending down to the sixth or seventh century, still belongs to antiquity. Despite the vast changes -social, economic, and political-which occurred in the first six Christian centuries, Seneca and St. Gregory were still both Romans. Both men lived within the circle of Roman political ideas; for both the Empire was the only significant political entity; both agreed substantially in their main conceptions of he state and of law.
Even the rise of the church into an autonomous social institution, and even the necessity which in Gregory’s time forced it to step into the place left vacant by the fall of the Empire, had not as yet been sufficient to break the continuity of the ancient world.
Between the sixth and the ninth centuries, however, the political fortunes of western Europe passed once for ail into the hands of the Germanic invaders whose impact upon the old imperial structure had at last broken it. Charlemagne might adopt the titles of Emperor and Augustus, writers both lay and clerical might picture his kingdom as a reincarnation of Rome, yet by no stretch of the imagination were Charlemagne and the men who conducted his government Romans.
The Roman Empire, withdrawn into the East, had left Rome itself, to say nothing of the western provinces, without even the shadow of the imperial power; the Roman Church, divided from the Church of Constantinople on the orthodoxy of image-worship, had become the church of western Europe; and because of the heretical Lombard power, the Bishop of Rome had cemented an alliance with the Frankish Kingdom which made the pope himself effectively the temporal ruler of central Italy.
The barbarian conquest itself, with its attendant social and economic changes, had made government on a large scale impossible. Both politically and intellectually western Europe was beginning to revolve around a center of its awn, instead of being merely the hinterland of a world whose center was the Mediterranean basin.
From the sixth to the ninth century the state of Europe was not such as to permit much philosophical or theoretical activity, nor were he Germanic barbarians as yet capable of grasping-not to say extending the remains of ancient learning at their disposal. The comparative orderliness of the age of Charlemagne, with its brief revival of scholarship, was an episode.
New barbarian invasions in the tenth and eleventh centuries–the Norsemen in the north and the Huns in the east-again threatened to reduce Europe to a state of anarchy. Not until the latter part of the eleventh century, when the great controversy between the spiritual an a temporal authorities began, was there again an active canvassing of political ideas.
Yet with this great and violent break in social and political history which divides the ancient from the medieval period, there was no conscious or intentional departure from the political conceptions which bore the sanction of Christian antiquity.
Reverence for Scripture, for the authority of the Fathers and the tradition of the church, even for ancient pagan writers like Cicero, remained unbounded. The validity of natural law and its binding authority over rulers and subjects, the obligation of kings to govern justly and in accordance with law, the sanctity of constituted authority both in church and state, and the unity of Christendom under the parallel powers of imperium and sacerdotium were matters of complete and universal agreement.
Nevertheless, allowance must be made for the appearance in the early Middle Ages of ideas about law and government which had none existed in antiquity and which yet, by their gradual incorporation into common modes of thought, had an important influence upon the political philosophy of western Europe.
Some of these ideas may have beer in some peculiar sense Germanic; at least they belonged to the Germanic peoples. But it is not necessary to adopt the myth that Germanic thought had an aura of its own. The ideas of the Germanic peoples about law were broadly similar to those of other barbarous peoples with a tribal organization and a semi-nomadic habit of life.
They developed in contact with the vestiges of Roman law and under the stress of political and economic circumstances which were much alike in all parts of western Europe. It is the purpose of this chapter to describe briefly some of these new conceptions that made their way into political thought in the early Middle Ages and which, like the ancient tradition that came through the Fathers of the church, became matters of common acceptance.
The Omnipresent Law:-
The most, significant of the new ideas about law may be summed up by saying that the Germanic peoples conceived the law as belonging to the folk, or the people, or the tribe, almost as if it were an attribute of the group or a common possession by which the group was held together. Each member lived within the people’s peace, and the law provided especially the regulations necessary to prevent that peace or being broken.
Outlawry, the primitive punishment for crime, put a man outside the people’s peace; and injury to a particular person oy family, the primitive equivalent of tort, put him outside the peace of the injured party, and the law provided the composition by which feud could be prevented and the peace restored.
Germanic law in this early state was never written but consisted of customs perpetuated by word of mouth and constituting, as it were, the wisdom by which the peace, full life of the tribe was carried on. The law was, of course, in every case the law of the tribe or folk which it rules, and attaches to every member of the tribe by virtue of his membership. This was a natural consequence of the fact that the people to whom the law belonged were as yet but lightly attached to the soil, a nomadic habit of life being not far in the past and agriculture being as yet of comparatively minor importance.
Thus it happened that the barbarian peoples who made their way into the Roman Empire brought their law with them and it remained the personal possession of each member, even though he might settle down among persons governed by Roman law. This is the state of affairs which existed when the Germanic laws were first committed to writing, in Latin and not in the Germanic tongues, between the sixth and the eighth centuries.
Such barbarian codes were formulated in the kingdoms of the Ostrogoths, the Lombards, the Burgundians, the Visigoths, and for various branches of the Franks, and contained not only an attempt to reduce Germanic custom to writing for their Germanic inhabitants, but frequently a formulation of Roman law for the Roman habitats. Between Romans some remnant of Roman law was still administered; between persons of Germanic origin the appropriate form of Germanic law was still binding.
In the course of time, since in many localities there were frequent conflicts of law, elaborate rules were developed for dealing with eases in which the parties were of different laws, much as modern law includes rules for dealing with transactions that in one way or another involve the law of several states. The idea that law is an incident to membership in a folk or a tribe persisted long after the folk had ceased to be a united group distinct from other groups and occupying a place of its own.
As the amalgamation of Roman and Germanic peoples progressed, however, this conception that law is a personal attribute gradually gave way to the conception that law fallows the locality or the territory. The advantages of the latter conception for orderly and unified administration are obvious, and the speed with which the idea gained ground probably depended upon the success of the kings in gathering administration into their own hands. Relatively early, about the middle of the seventh century, there was a code of common law for hath Roman and Gothic subjects of the Visigothic kingdom in Spain.
In the Frankish empire, where the diversity of laws was great, the process was slower and very irregular. The king’s law was always territorial (though not always uniform for the whole territory) and no doubt, on the whole, it was better law than the older (personal) folk law, and also better administered.
By the beginning of the ninth century the punishment of crimes by the law of the locality where they were committed had begun, in some parts of the Frankish empire, to displace the personal law. In some divisions of the law in which the church was especially interested, such for instance as that of marriage, the influence of the church also was against the diversity of laws.
The processes by which the change took place are often impossible to trace, but in the course of time law was transformed, as it always tends to be in a settled community, into local custom, the principle of its applicability being territorial rather than tribal. Such local custom, however, was not identical with the king’s law or with common law for a whole kingdom.
The diversity of law, and especially of private law, persisted more or less everywhere, depending again upon the king’s success in extending the jurisdiction of his own courts. In France, for example, private law remained largely local until after the Revolution, though the administrative law had long been unified; in England on the other hand, largely by reason of the greater strength of the Norman kings, the law had become substantially common by the end of the twelfth century.
Throughout the changes which transformed law from tribal practice to personal attribute, and from the latter to local custom, the conception in some way persisted that the law belongs essentially to a people or a folk. This idea did not connote, however, that law was the creature of a people, dependent upon their will and capable of being made or changed by their volition.
The order of ideas was rather reversed the folk as a Communal body was perhaps more truly conceived to be made by their law, much as a living body might be identified with its principle of organization. The law, indeed, was not supposed to be made by anyone, either an individual or a people.
It was imagined to be as permanent and as unchangeable as anything in nature, a Brooding omnipresence in the sky,as Justice Holmes said in one of his celebrated opinions. Only, the law as it was popularly conceived in the Middle Ages was by no means in the sky alone. It was rather like a circumferential atmosphere which extended from the sky to the earth and penetrated every nook and cranny of human relationship.
It is true, as was said above, that everyone in the Middle Ages, whether a professional lawyer or a layman, believed in the reality of natural law, but this belief by means exhausted the extraordinary reverence in which law was held. Literally all law was felt to be eternally valid and in some degree sacred, as the providence of God was conceived to be universally present fores which touched men’s lives even In their most trifling details.
The custom which was rooted in the folkways was in no sense set off from natural law but rather was felt to be a twig of the great tree of the law, which grew from earth to heaven and in whose shade all human life was lived. It was true both of the civilians and the canoeists, when there came to be again a legal profession, that law was identified with right and equity and that human and divine law were conceived to be ail of a piece. But the theory was only a learned restatement of what everyone unquestioningly took for granted.
Finding and Declaring Law:-
This ramification of law through all the relations of life, as if it were a permanent structure within which all human affairs go on, is a conception not easy to recapture in an age when legislation takes place daily and by processes which the most optimistic would hesitate to identify with the providence of God.
Nevertheless it was not unnatural in a society where legislation in the sense of enactment could hardly be said to take place at all. A society simple in its social and economic structure changes comparatively slowly, and it appears to its members to change more slowly than it often does immemorial custom is conceived to cover all questions that need to be adjudicated, and over considerable periods of time this may be almost true.
When it ceases to be true, the natural explanation is not that new law needs to be made but rather that it is necessary to find out what the old law really means. Reciprocally, the fact that any state of affairs has existed for a considerable time creates the presumption that it is lawful and right.
This, as Professor Munroe Smith has pointed out, was the underlying assumption of the whole procedure of inquest which was so largely used in Frankish and Norman Jaw and which in time produced the English jury. From this point of view it is appropriate to say that law is “found” rather than made, while it would be definitely inappropriate to say that any body of men exists whose business it is to make law.
When by inquest or otherwise it has been found out what the law is on an important point, the king or some other appropriate authority may set forth the discovery in a statute or an assize, in order that it may be known and generally followed, but this would not imply, for a person whose mind moved in this circle of ideas, that the statute enacted something which had not previously been valid.
The powerful hold of custom upon legal ideas in the Middle Ages is shown by the fact that, even after the revival of the study of the Roman law, some lawyers believed that custom “founds, abrogates, and interprets” the written law, though others of course held the contrary.
The decrees or capitulates of the Frankish kings, therefore, were not legislation in any modern sense of the word. They might instruct the king’s commissioners how to deal with certain classes of cases, either for the whole kingdom or for some part of it, but they did not, in any contemporary understanding of the matter, enact the law. They told what, in the wisdom of the king’s council and in the light of prevailing practice, the law had been found to be.
Such a declaration of the law was naturally made in the name e of the whole people, or at least in the name of someone who was felt to be competent to speak for the whole people. Since the law belonged to the folk and had existed time out of mind, the folk were entitled to be consulted when an important statement of its provisions was to be made.
Thus the capitulates of the Merovingian kings as early as the sixth century contain, apparently as a matter of course, the assertion that the decree has been issued after consultation with our chief men, or with the bishops and nobles,” or that the decision has been made by our whole people.
In the ninth century similar assertions are continually found, so frequently in fact that law seems regularly to have been issued in the name of the whole people definitely with the sense that their consent is an important factor in its validity. The term consent, however, probably referred less to an act of will than to an acknowledgment that the law is really as stated.
Thus, to cite a single illustration, Charlemagne used the following enacting formula: Charles the Emperor together with the bishops, abbots, counts, dukes, and all the faithful subjects of the Christian Church, and with their consent and counsel, has decreed the following in order that each loyal subject, who has himself confirmed these decrees with his own hand, may do justice and in order that all his loyal subjects may desire to uphold the law. In a well-known phrase an edict of 864 states the principle in general terms: Because the law is made with the consent of the people and by the declaration (constitution) of the king.
The following is a random illustration from English history in the twelfth century: This is the assize of lord Henry the King, the son of Matilda, in England, concerning the forest and his venison, by the advice and assent of the archbishops, bishops and barons, earls and nobles of England, at Woodstock.
A practically unlimited number of illustrations might be given, drawn from either the earlier or the later Middle Ages, of this conviction that the law belongs to the people whom it governs and is evidenced by their observance of it or, in case of doubt, by the statement of some body properly constituted to determine what the law is.
Two illustrations, however, will suffice. One is the story which John of Ibelin, writing in the thirteenth century, tells of the making of the Assizes of Jerusalem some two centuries before. He says that Duke Godfrey caused wise men to inquire from the people of different countries who were there in Jerusalem the customs of their countries. Then, with the advice and consent of the Patriarch and of the princes and barons, he selected the practices that seemed good to him and made assizes and customs to be observed and followed in the Kingdom of Jerusalem.
As history this is no doubt worthless, but it shows admirably what the author believed to be the process of formulating a body of law. After the prevailing practice has been ascertained by consulting those who know, and after the men learned in the Jaw have found the practices that ought to be binding, the result is reduced to writing and promulgated by the king, in order that there may be no further doubt about it. There was no thought in John’s mind of Godfrey’s having made the law or indeed of anyone having made it. And in order to ascertain the law, those who have it must of course be consulted.
The second illustration comes from England and has a certain interest because it belongs to a date when the medieval constitution was upon the eve of taking shape. After the Battle of Lewes (1264), which led directly to the calling of the Model Parliament, a follower of Simon de Montfort celebrated the victory in a curious poem wherein the rebels view of law was stated.
Therefore let the community of the kingdom advise, and let it be known what the generality thinks, to whom their own laws are best known. Nor are all those of the country so ignorant that they do not know better than strangers the customs of their own kingdom which have been handed down to them by their ancestors.
The custom of the country is assumed to be binding, and the purpose of the parliament was to make certain what this custom really was and to give it effect.
The belief that law belongs to the people and is applied or modified with their approval and consent was therefore universally accepted. The belief was, however, very vague, so far as concerned the procedure of government. It implied no definite apparatus of representation and was in fact centuries old before medieval constitutionalism took form in such bodies as the parliaments that appeared in the twelfth and thirteenth centuries.
There was, and indeed is, nothing essentially incongruous in the idea that a locality, a borough, or even a whole people, might make decisions, present their grievances, be called to account for their negligence, and give their approval to policies for which they had to provide money or soldiers. It is a modern convention that all this is done by elected representatives, but everyone knows that the convention often is not true.
Effectively a community expresses its mind through a few persons who, for one reason or another, really count in crystallizing the vague thing called public opinion. So long as a community is so organized that these few persons are pretty clearly designated, and so long as the issues are relatively few and not subject to too rapid change, representation may be effective enough without much apparatus.
Historically the apparatus was later than the idea that the people was a corporate body which expressed its corporate mind through its magistrates and natural leaders. Just who these leaders were or how they were designated leaders, or indeed who exactly “the people” severally were whom they represented, only became matters of primary importance when the making of devices to implement representation was undertaken. The older idea, in the form of a legal fiction, may perhaps still be seen in Blackstene’s theory that English laws are not promulgated because every Englishman is conceived to be present in Parliament.
The King under the Law:-
The belief that the law belongs to the folk, and that their recognition of it has an important part in determining what it is, implies that the king is only one factor in making or declaring it. For this reason it was commonly believed that the king himself is obliged to obeys the law quite as his subjects are.
It was of course obvious that kings, like all other mortals, are subject to the laws of God and of nature, but this was not all that was meant nor the really important point. As has already been said, the discrimination of the several kinds of law, divine and human, did not mean that they were radically distinct.
The law, conceived as a pervasive medium, penetrated and controlled all kinds of human relationship, and that of subject and ruler among others. Accordingly the king was felt to be obliged not only to rule justly rather than tyrannous, but also to administer the law of the kingdom as it actually was and as it could be ascertained to be by consulting immemorial practice.
The king could not lawfully set aside rights which Custom guaranteed to his subjects or which his predecessors had declared to be the law of the land. Thus a ninth-century writer, Archbishop Hincmar of Rheims, says:
Kings and ministers of state have their laws by which they aught to govern those who live in every province; they have the capitulates of Christian Kings and of their ancestors, which they have lawfully promulgated with the general consent of their loyal subjects.
And the capillaries abound in promises made by kings to give to their loyal subjects such law as your ancestors had in the time of our ancestors, and not to oppress any of them contrary to law and justice. The latter phrase was certainly not intended to mean justice in the abstract but justice as defined by the expectations created in settled practice. Such promises were often given by a king at his coronation and embodied in his oath.
Not-infrequently they were extorted by the forcible measures of his loyal subjects when, without having the requisite power, the king showed himself too disregardful of their established rights and privileges. That such measures were justifiable upon suitable provocation was a settled belief, in spite of the strong statements of Gregory about passive obedience mentioned in the preceding chapter.
For none in principle doubted that a man was entitled, by the law both of God and man, to the treatment and the status which he and his ancestors had long enjoyed or which had been guaranteed to him by the act of some previous ruler. The law created a tie binding upon , the whole people and upon every man in the station to which he had been called; reciprocally it guaranteed to every man the privileges and rights and immunities proper to that station. The king was no exception to this general rule. Since he ruled by the law he was subject to it.
But while the king was thought to be subject to the law, it would not be accurate to say that he was subject in precisely the same way as other men. The point of the conception was not equality before the law. It was rather that every man was entitled to enjoy the Jaw according to his rank and order. The firmly fixed idea of status made almost any amount of inequality justifiable. No one denied that the king’s position was in many important respects unique.
By virtue of his office he had a large responsibility for the well-being of his people, a considerable discretion in adopting measures to foster it, and indefeasible rights within the sphere of duties imposed by his position. In accordance with what has already been said about the vagueness of constitutional conceptions, it is not to be expected that the modes in which the king could exercise unique powers within the law would be accurately defined.
Even with modern constitutional devices the powers of government can be almost indefinitely stretched to meet an emergency by methods which the courts will hold to be lawful. And in the Middle Ages there was almost no means of defining accurately any constitutional authority. Thus it could be held at once that the king was bound by law and yet that no writ would run against him.
No one doubted that there were limits somewhere which he could not exceed without violating both law and morals; on the other hand no one doubted that he ought to have powers not equaled by those of any subject. The king was singulis maior universis minor.
Consequently there was a fundamental difference between the conception of the king implied in the capitulates and that embodied in the Roman law. It is true that the constitutional theory of the Roman lawyers regarded the emperor’s legal authority as derived from the Roman people. In the famous dictum of Ulpian this was given as the ground for the emperor’s legislative power.
But the lawyer’s theory regarded the cession of power as made once for all; after the emperor ha: been invested with his authority. The medieval theory, on the other hand, assumes a continuous co-operation between the king and his subjects, both being, so to speak, organs of the realm to which the law belongs. The difference is in part explainable by the enormous differences between the societies in which the two conceptions of law grew up.
The tradition of the Roman law was that of a highly centralized administration in which conscious legislation by imperial edicts, senatorial decrees, and the opinions of expert jurisdictions was a matter of common experience, and in which also the law its had been brought to a high level of scientific systematization.
A medieval kingdom was not centralized either in theory or in practice, and nothing perhaps is more recalcitrant to logical systematization than local custom. The realm or the folk was vaguely felt as a unit organized under its law and including the king along with other officials and persons who were its appropriate spokesmen and agents, but there was as yet no precise definition of the powers and duties of these agencies and no consciousness that they needed to be strictly co-ordinates in such a way that authority flowed from a single source.
The conception of delegated power was continually crossed by the conception that authority resides also in position or status and is therefore inherent in persons who, in other respects, might be regarded as agents of the king. Even in the seventeenth century Sir Edward Coke could still think of the crown, the parliament, and the courts of common law as enjoying inherent powers under the law of the realm.
The king was not the head of the state, as he became in the era of absolute monarchy at the opening of the modern period, Still less were men aware of the state as an artificial person, such as analytic jurists have consciously created in order to give unity of operation to the functions of government.
The Choice of a King:-
The relation of king and people under the law of the folk, and the political conceptions which this relation engendered, are further clarified by considering how the king was believed to be invested with his authority and what constituted the lawful claim to his office.
Medieval ideas on the subject throw light upon the prevailing notions both of the people’s consent and of the king’s subjection to law, and also illustrate excellently the lack of precise legal ideas about the title to authority. According to the political ideas of the present day a ruler may be elected or he may inherit his office but he can hardly do both at once.
The striking fact about many medieval kings is that, according to the prevailing ideas of their time, they not only inherited and were elected but ruled also by the grace of God, the three titles being not alternative but expressing three facts about the same state of affairs.
This vague state of mind can best be made clear by taking an actual case. When Louis the Pious in the year 817 wished to provide for the succession of his sons, he set forth his decision and the grounds for it as follows. He first recited how the holy assembly and totality of our people had met according to custom, and how suddenly by divine inspiration his loyal subjects advised him that the succession of the kingdom should be settled while God granted peace. After three days of fasting and prayer, it was brought about.
by the will of Almighty God, as we believe, that our own wishes and those of our whole people agreed in the election of our beloved Lothair, our eldest son. Therefore it seemed good to us and to all our people that he, being thus indicated by divine direction, after being solemnly crowned with the imperial diadem, should by the common desire be made our consort and successor in the empire, if God shall so will.
Certain provisions were then made for the younger sons and the decisions reached were “written down and confirmed with our hands, se that, with the help of God, as they were made by the common will of all, they might be kept inviolate through the common devotion of all.
In this choice of a ruler it will be noted that three grounds were assigned for the validity of the choice. First, Lothair was in fact the emperor’s eldest son, though this was not emphasized. Second, he was elected and this election was said to be an act of the whole people done by the common will of all.
And third, the choice was believed to be made under the direct inspiration of God. Lothair’s claim to the crown evidently rested, in the mind of Louis, upon all three facts in combination. The idea doubtless was that, subject to the will of God, the king’s son was a normal candidate to succeed him, but the actual choice required some sort of ratification or acceptance of the candidate in the name of the people.
These factors were exactly similar to those supposed to conspire in the issuing of an assize: the validity of the law was ultimately divine put it was enunciated by the king and it had behind it the consent of the people expressed through the magnates of the realm.
It is of course true that the machinery of such an election was as vague as that for enunciating law; no one could possibly have told what exactly were the qualifications of electors. The conjunction of the three factors in everyone’s mind, moreover, helps to explain the idea that the king, once elected, was still subject to law.
Inheritance was not the king’s indefeasible right, while the suffrage of the magnates who chose him was cast by virtue of the rights inherent in their stations rather than because they were electors in a strict constitutional sense. This view was expressed in a highly characteristic way in a letter written in 879 to Lewis If by Archbishop Hincmar.
You have not chosen me to be a prelate of the Church, but ! and my colleagues, with the other loyal subjects of God and yous ancestors, have chosen you to rule the kingdom on the condition that you shall keep the law.
In the earlier Middle Ages, then, three sorts of claim to royal power were combined the king inherited his throne; he was elected by his people; and he ruled of course by the grace of God. Election and hereditary right became more clearly distinguished as constitutional practices became more regular and more clearly defined.
The two most characteristic medieval monarchies, the empire and the papacy, though efforts were made more than once to make them perquisites of a family, became definitely elective. In constitution-making the papacy led the way by the establishment in the second half of the eleventh Century of an orderly process of election by the clergy, to replace the older informal kind of election which often made a papal election the plaything of the petty Roman nobility or of imperial politics.
It was not until 1356 that the Golden Bull of Charles IV crystallized the practice of imperial elections, thus giving to the empire a constitutional document which fixed the number and identity of the electors and established Majority rule. In the kingdoms of France and England, on the other hand, the principle of primogeniture prevailed, perhaps on the analogy Of the usual rule of feudal succession.
There is no doubt that under fedulism hereditary monarchy had the better chance of becoming strong. But even in the kingdoms the feeling that the king was in some sense the choice of the people persisted for a long time. Thus the succession of King John in 1199, which was not in fact strictly in accord with primogeniture, was described by the chronicler Matthew of Paris, in a speech attributed to Archbishop Hubert of Canterbury, as the result of an election.
Perhaps the idea of election never wholly disappeared from popular feeling, even after the legal right of inheritance was settled. Thus in France in the sixteenth century, when it became important to fix responsibility in the king, men could argue that monarchy is always in principle elective.
Whether the king succeeded to his office by election or by heredity, he still ruled by the grace of God. That secular role was of divine origin, that the king was the vicar of God, and that those who resisted him unlawfully were subjects of the Devil and the enemies of God was doubted by no one.
At the same time expressions such as these had no such precise meaning as divine right came to have in the sixteenth century. In particular, they were not thought to imply an obligation on the subject’s part to render passive obedience irrespective of the justice or the tyranny of the king’s commands.
In the absence of strict hereditary succession the conception that the king’s authority was divine could not issue in a theory of dynastic legitimacy such as the expression divine right implied between the sixteenth and the eighteenth centuries; and in the absence of a strongly coordinated monarchy with the king at its head the duty of passive obedience could not take on the ethical importance which it attained in later political philosophy.
Since the king was himself conceived to be bound by the law of the land, the propriety of resistance under some not very strictly defined circumstances, when the fundamental Jaw was believed to have been invaded, was looked upon as both a moral and a legal right. But this was not regarded as violating the Christian duty of subjection to constituted authority, and St. Gregory’s pronouncements in favor of passive obedience were sure to be quoted agains mentors of disorder.
Lord and Vassal:-
The idea that law belongs to the folk and regulates all the relations of men with one another from the top to the bottom of society carried with it the germs of certain constitutional conceptions, such as the corporate nature of the realm, representation, and the legal authority of the crown. In the early Middle Ages, however, these ideas lacked precise definition and also any definite institutional embodiment in a constitutional apparatus.
The latter was developed from the social and economic arrangements and the rather vague mass of ideas known as feudalism. As Vinograd off has said, feudal institutions dominated the middle Ages as completely as the city-state dominated antiquity.
Unfortunately it is impossible to define feudalism, both because it connotes a great variety of institutions and also because it was very unequally developed in different times and places. For the latter reason dates are notoriously undependable.
In some places characteristic feudal arrangements, like serfdom, existed as early as the fifth century, but feudalism was most fully developed after the breaking up of the Frankish empire, and produced its fullest effects on social and political institutions in the eleventh and twelfth centuries.
No general description that can be given will fit the facts, though behind this variety there were certain arrangements and certain ideas that were pretty well exemplified in most parts of western Europe. Some of these had important theoretical implications and for this reason must be examined, though their history in different countries is too complicated even to be mentioned.
The key to feudal arrangements lay in the fact that, in a period of disorder often approaching anarchy, large political and economic units were impossible. Governments tended, therefore, to be restricted to a size, small by modern or Roman standards, which was viable in the circumstances.
The essential economic fact was a condition of agriculture which made the village community, with its dependent farm lands, an almost self-sufficing unit. The end of the era began with the rise of the trading cities in the twelfth century, though many of the most important political effects of feudalism appeared after that date.
Since land was the only important form of wealth, every class, from king to fighting man, was dependent directly upon the products of the soil. The control of land was in the hands of this small community with its Customary regulations, and minor police functions were the duty of the village.
The organization of society and of government was fundamentally local. Upon this foundation the typical feudal organization was built. In a state of continual disorder and with the most primitive means of communication, a central government could not perform even such elementary duties as safeguarding life and property.
In such a situation the small landowner or the man of small power had but one recourse, he must become the dependent of someone strong enough to aid him. The relation thus formed had two sides; it was at once a Personal relation and a property relation. The small man obligated himself to render services to the great man in return for protection, and he surrendered the ownership of his land and became a tenant upon the Condition of paying a rent in services or goods.
The property and power of the great man were thus augmented, while the small man had be hind him a powerful patron whose interest as Well as duty its was to protect him. A similar result was reached when the process worked from the top down. A king or an abbot could put his land to use only by granting it to a tenant who would make a return in services or rent.
The whole system may be regarded as a system by which all the land of the realm was drawn into the service of the realm, or as a system by which those who render service to the community receive, in the form of the yield or produce of land payment or salary for their services.
Feudalism, then, in its legal principles, was a system of land-tenure in which ownership was displaced by something like leasehold. Or as a modern jurist has expressed it:
Practical ownership consists of a life interest, inalienable in most cases, and of a reversion or remainder which again, when vested, is simply another life interest.
Now this system of vested interests must be conceived to run through the community from top to bottom and to touch all the principal functions of government. Thus, if the land-system were logically worked out, the king would be the sole landowner.
His barons would be tenants upon lands granted to them for specified services, and the barons would in turn have tenants under them, until the bottom is reached in the serfs, upon whose labor the whole system rests. Since military service was the typical form of return for a barony, the army of the kingdom would be a feudal army.
That is, each tenant would be obligated to produce a specified number of men, armed in specified ways, and each baron would command his own men. The revenues of the kingdom (aside from those coming directly to the king from his own domain) would arise less from general taxation than from dues of reliefs, which the king’s tenants were obligated to pay upon fixed occasions.
Last and most important of all, the grant to the tenant might carry with it the right to administer justice in his own barony with an immunity from interference by the king’s officers. The theory of feudal law is expressed in the saying that the man’s man is not the lord’s man.
For obvious reasons kings were slow to grant such immunities if they could avoid it. Thus the relatively powerful Norman kings of England required the insertion into oaths of fealty of the qualifying Clause, saving the faith that owe to our lord the King.
Consequently feudalism affected in the most important way the three great instruments of political power, the army, the revenues, and the courts, In all three cases, the king might be able to deal with the great mass of his subjects only at second or third hand. The feudal relation of lord and vassal was fundamentally different from that conceived to hold between sovereign and subject in a modern state.
Th personal side of the relationship, with its stress upon the loyalty an reverence which a vassal invariably owed to his superior, had elements not unlike those of political subordination, though it often operated to withdraw the loyalty of men in the lower ranks from the king to their more immediate overlords.
On the other hand, the property relation was more like a contract in which the two parties retained each his private interest and co-operated because it was mutually advantageous to do so, though the king’s ownership of the land might work in the long run to increase his power. The greatest prudence needs to be used in drawing conclusions as to the way in which the system actually worked, for it had in fact diverse tendencies.
In the first place, the obligation between a lord and his vassals was always mutual. It was not exactly equal, since the vassal owed general duties of loyalty and obedience which the lord did not share. He owed also more specific duties, such as military service, attendance upon the lord’s court, and various payments to be made on stated occasions, such as the succession of an heir into the tenancy.
It was characteristic of these specific duties that they were limited. The amount and kind of military service, for instance, was fixed, and beyond this the vassal’s obligation strictly speaking did not go. On the other hand, the lord was obligated to give aid and protection to his vassals and also to abide by the customs or the charter which defined the vassal’s rights and immunities.
In theory, at least, the vassal could always surrender his tenancy and renounce his subjection-in practice a rather speculative remedy-or he might keep his land and disavow his obligations if the lord denied him the rights to which he wa3 entitled.
Consequently the promise of a king to give his subjects the law which their ancestors enjoyed in the time of his ancestors was merely a recognition of an arrangement conceived as existing and as having a right to exist. In this feudal arrangement there was an aspect of mutuality, of voluntary performance, and of implied contract which has almost wholly vanished from modern political relationships.
It was Somewhat as if a citizen might refuse to pay taxes beyond a certain amount, decline military service beyond a stipulated period, or perhaps refuse both until his liberties were recognized. In this respect the position of the king was weak in theory and often doubly weak in Practice, and the feudal monarchy appears by comparison with a modern state to be highly decentralized.
On the other hand, however,the feudal system of land-tenure, sometimes permitted a king, or more particularly a family, to increase its power by lawful feudal means, such for instance as escheat. The early growth of the power of the Capetian dynasty in France took place largely by the operation of feudal law itself.
In the second place, the relation of lord and vassal differed from that of sovereign and subject because it tended to obscure the distinction between private rights and public duties. Though a feudal holding was typically land, it was not necessarily so.
Any object of value might be so held: the right to operate a mill, to collect a toll, or hold an office of government. The whole system of public administration tended to follow the prevailing form of land-tenure and public office tended to become, like land, a heritable interest. In this way office became vested in perpetuity in a man and his heirs.
The vassal’s right to his property implied a public service of some specified kind but, on the other hand, the obligation to public service was incidental to the property right. This led to the result that a public official held his place not as an agent of the king but because he had a prescriptive right to be there.
His authority was not delegated but owned; obviously the king’s power depended largely upon his ability to limit this tendency. But the tendency goes far to explain the apparently informal character of feudal institutions. The men about the king owe him court-service as part of their feudal duty. So long as their status was sufficiently clear, questions as to whom precisely they represent or who is entitled to be consulted need not arise. They are not so much public servants as men discharging a contractual obligation.
The Feudal Court:-
The court of a lord and his vassals was the typical feudal institution. It was essentially a council of the lord and his men for the settlement of disputes arising among them relative to the arrangements on which their feudal relations depend. The striking fact is that both the lord and the vassal had precisely the same remedy in case either believed that his right had been invaded, he could appeal to the decision of the other members of the court.
The notion that the king or lord should decide out of his own plenary power and according to his own will was quite foreign at least to the theory of the proceedings. The charters or customary rights of the parties were supposed to be strictly maintained. A decision of Henry II of England in a trial before his court 1154) will illustrate the point, The trial concerned the title to land clarioned alike by the Abbot of St. Martin and Gilbert de Ballion.
Abbot offered a charter to prove his claim and Gilbert, whose claim was weak, introduced a quibble about its lacking a seal. By the eyes of cod, said King Henry, if you can prove this charter false, It will be worth a thousand pounds to me in England. But Gilbert had no evidence. Whereupon the king decided the case:
If the monks by means of a similar charter and confirmation were able to show that they had a right of this sort to the present place, to wit, Clarendon, which chiefly love, there would be no just reply for me to make to save me from entirely surrendering it to them.
In theory, then, the feudal court guaranteed to every vassal a trial by his peers, in accordance with the law of the land and the specific agreements or charters at issue. The court’s decision was enforceable by the united power of its members, and in the extreme case enforcement was conceived to run even against the king. The sixty-first section of Magna Charta, empowering a committee of twenty-five of King John’s barons to enforce the charter, was an effort thus to legalize constraint applied to the king.
Those twenty-five barons, with the whole land in common shall distrain and oppress us in every way in their power. amends shall have been made according to their judgment.
Similarly the right of vassals to coerce the lord in defense of their just liberties as determined by the court was secured by the Assizes of Jerusalem. Under a typical feudal organization the king was primus inter fares, and the court itself, or the king and the court together, exercised a joint rule, which included all that, in a modern state, would be disguised as legislative, executive, and judicial functions of government.
At the same time the essentially contractual relation between the members of the court, including the king, tended to prevent the concetration of authority anywhere. The probability that such a team would issue, pretty frequently, in something like legalized rebellion is too obvious to need comment.
Feudalism and the Commonwealth:-
While a state of affairs such as has been described often existed, It probably did not represent, either in theory or in practice, quite the whole truth about a medieval monarchy. Aside from the intolerable,inconvenience of legalized rebellion, a definitely contractual relation between the king and his vassals by no means exhausted the medieval theory of kingship.
Both theory and practice united with this conception ideas of a quite different sort. The reverence and obedience which a vassal owed to his lord were elements of feudal homage itself that conceded to the king a unique position in his realm.
Moreover, no one doubted that the king was the anointed of God and that resistance, except in unusual cases, was unlawful. The authority of St. Paul in the thirteenth chapter of Romans and the strong statements of St. Gregory on the duty of obedience would never have been denied in principle.
Finally, the tendency of feudalism to subvert public authority and to substitute for it a network of private relations never wholly swallowed up the ancient tradition of the res publica which came to the Middle Ages through Cicero, the Roman law, and the Fathers of the church. The conception that a people makes up a commonwealth, organized under its law and capable of exerting through its rulers a public authority, crossed and mingled with the feudal bent toward particularism. Between the ninth and the twelfth centuries this ancient tradition was perpetuated mainly through ecclesiastical writers.
Its existence in the ninth century is witnessed by Hincmar of Rheims, and its perpetuation is witnessed by the fact that, in the twelfth century, it produced in the Policraticus of john of Salisbury the first elaborate medieval treatise on politics. The latter work, though produced at a time when feudalism was perhaps at its height, was in its main outlines distinctively in the ancient mode
In the long run the king was very definitely the beneficiary of this conception of a commonwealth, since he remained the titular representative of the public interest and in some degree the repository of public authority. It was this fact that made the feudal king the starting-point for the development of national monarchy.
The mingling of two ideas-that which conceived the king as party to a contractual relation with his vassals and that which regarded him as the head of the commonwealth–may be illustrated from the theories of the feudal lawyers about the royal power. The king was universally regarded as created by the law and subject to it, and yet, on the other hand, it was commonly admitted that no writ will run against the king and that accordingly he cannot be coerced by the ordinary processes of his own courts. The passages so often quoted front Bracton’s De legibus et consuetudinibus Angliae show the crossing of the two ideas:
The king ought to have no equal in his realm, because this would nullify the rule that an equal cannot have authority over his equals. Still fess ought he to have a superior or anyone more powerful than he, for he would then be below his own subjects, and it is impossible that inferiors should be equal to those who fave greater powers. But the king himself ought not to be subject to any man, but he ought to be subject to God and the law, since law makes the king. Therefore let the king render to the law what the law has rendered to the king, viz., dominion and power, for there is no king where will rules and not the law
As the vicar of God, the king ought to do justice and accept the ruling of the law in his own cases, even as the least in his kingdom, if he will not, he becomes the minister of the Devil, but his subjects have no recourse. except to leave him to the judgment of God. Yet Bracton was willing to entertain the idea that perhaps can and ought to correct the evil in the king’s court. And in a remarkable passage, now agreed to be a contemporary interpolation, the propriety of coercing an “unbridled” king is flatly asserted.
But the king has a superior, namely God. Likewise the law, by which he was made king. And likewise his court, to wit, the counts and barons, for the counts are called, as it were, the king’s associates, and he who has an associate has a master. Thus if the king should be without a bridle, that is, without the law, they ought to put a bridle on him.
In these passages both the king and the court evidently appear in a twofold capacity. In the one the king is the chief landowner of the realm and the court comprises his tenants; as an institution the court exists to dispose of the difficulties which arise between them in this contractual relation. in the other the king stands as the chief bearer of a public authority inherent in the realm or the folk, which however he shares in some not very definite way with his court to the first relationship the king may be proceeded against like others of the court; in the second capacity no writ will run against him and his responsibility to the law rests ultimately on his own conscience.
The one view represents a typical tendency of feudalism to submerge public authority in private relationships; the other represents the continuing tradition of a commonwealth in which the king is the chief magistrate. Perhaps it was just the meeting and mingling of the two conceptions Which made the feudal court the matrix from which the constitutional principles and institutions of the later Middle Ages developed.
By a process of differentiation a variety of governing bodies-such as the king’s councils, law-courts taking cognizance of differing kinds of cases, and finally parliament-came to carry on distinct branches of pubic business. As late as the civil wars of the seventeenth century, as Professor McClain has amply shown, Englishmen still thought of parliament as court rather than as a legislature.
Through this development the conception of public authority emerged into greater clearness, but that authority never centered itself exclusively in the person of the king, When the king became absolute, this was a development of modern rather than of medieval states. The medieval king had still to act through his council, and the court or some of its branches retained some vestiges of its feudal right to be consulted.
From this beginning constitutional ideas, such as representation, taxation and legislation by assemblies, supervision of expenditures, and petition for the redress of grievances, could emerge. In England, at least, the right to legislate could be settled ultimately not in the king, but in the king in parliament.