$Unique_ID{bob00860} $Pretitle{} $Title{History Of Europe During The Middle Ages Notes To Book II: Part V} $Subtitle{} $Author{Hallam, Henry} $Affiliation{} $Subject{de la et les le dans des par que qui} $Date{} $Log{} Title: History Of Europe During The Middle Ages Book: Book II: The Feudal System Author: Hallam, Henry Notes To Book II: Part V Note XIII M. Guizot has declared it to be the most difficult of questions relating to the state of persons in the period from the fifth to the tenth century, whether there existed in the countries subdued by the Germans, and especially by the Franks, a numerous and important class of freemen, not vassals either of the king or any other proprietor, nor any way dependent upon them, and with no obligation except towards the state, its laws and magistrates. (Essais sur l'Hist. de France, p. 232.) And this question, contrary to almost all his predecessors, he inclines to decide negatively. It is, indeed, evident, and is confessed by M. Guizot, that in the ages nearest to the conquest such a class not only existed, but even comprised a large part of the nation. Such were the owners of sortes or of terra Salica, the allodialists of the early period. It is also agreed, as has been shown in another place, that, towards the tenth century, the number of these independent landholders was exceedingly diminished by territorial commendation; that is, the subjection of their lands to a feudal tenure. The last of these changes, however, cannot have become general under Charlemagne, on account of the numerous capitularies which distinguish those who held lands of their own, or allodia, from beneficiary tenants. The former, therefore, must still have been a large and important class. What proportion they bore to the whole nation at that or any other era it seems impossible to pronounce; and equally so to what extent the whole usage of personal commendation, contradistinguished from territorial, may have reached. Still allodial lands, as has been observed, were always very common in the south of France, to which Flanders might be added. The strength of the feudal tenures, as Thierry remarks, was between the Somme and the Loire. (Recits des T. M. i. 245.) These allodial proprietors were evidently freemen. In the law of France allodial lands were always noble, like fiefs, till the reformation of the Coutume de Paris in 1580, when "aleux roturiers" were for the first time recognized. I owe this fact, which appears to throw some light on the subject of this note, to Laferriere, Hist. du Droit Francais, p. 129. But, perhaps, this was not the case in Flanders, which was an allodial country: - "La maxime francaise, nulle terre sans seigneur, n'avait point lieu dans les Pays-Bas. On s'en tenait au principe de la liberte naturelle des biens, et par suite a la necessite d'en prouver la sujetion ou la servitude; aussi les biens allodiaux etaient tres nombreux, et rappelaient toujours l'esprit de liberte que les Belges ont aime et conserve tant a l'egard de leurs biens que de leurs personnes." (Mem. de l'Acad. de Bruxelles, vol. iii. p. 16.) It bears on this, that in all the customary law of the Netherlands no preference was given to sex or primogeniture in succession (p. 21.) But there were many other freemen in France, even in the tenth century, if we do not insist on the absolute and insulated independence which Guizot requires. "If we must understand," says M. Guerard (Cartulaire de Chartres, p. 34), "by freemen those who enjoyed a liberty without restriction, that is, who, owing no duties or service to any one, could go and settle wherever they pleased, they would not be found very numerous in our chartulary during the pure feudal regimen. But if, as we should, we comprehend under this name whoever is neither a noble nor a serf, the number of people in this intermediate condition was very considerable." And of these he specifies several varieties. This was in the eleventh century, and partly later, when the conversion of allodial property had been completed. Savigny was the first who proved the Arimanni of Lombardy to have been freemen, corresponding to the Rachimburgii of the Franks, and distinguished both from bondmen and from those to whom they owed obedience. Citizens are sometimes called Arimanni. The word occurs, though very rarely, out of Italy. (Vol. i. p. 176, English translation.) Guizot includes among the Arimanni the leudes or beneficiary vassals. See, too, Troja, v. 146, 148. There seems, indeed, no reason to doubt that vassals, and other commendati, would be counted as Arimanni. Neither feudal tenure nor personal commendation could possibly derogate from a free and honorable status. Note XIV These names, though in a general sense occupying similar positions in the social scale, denote different persons. The coloni were Romans, in the sense of the word then usual; that is, they were the cultivators of land under the empire, of whom we find abundant notice both in the Theodosian Code and that of Justinian. ^a An early instance of this use of the word occurs in the Historiae Augustae Scriptores. Trebellius Pollio says, after the great victory of Claudius over the Goths, where an immense number of prisoners was taken - "Factus miles barbarus ac colonus ex Gotho;" an expression not clear, and which perplexed Salmasius. But it may perhaps be rendered, the barbarians partly entered the legions, partly cultivated the ground, in the rank of coloni. It is thus understood by Troja (ii. 705). He conceives that a large proportion of the coloni, mentioned under the Christian emperors, were barbarian settlers (iii. 1074). They came in the place of praedial slaves, who, though not wholly unknown, grew less common after the establishment of Christianity. The Roman colonus was free; he could marry a free woman, and have legitimate children; he could serve in the army, and was capable of property; his peculium, unlike that of the absolute slave, could not be touched by his master. Nor could his fixed rent or duty be enhanced. He could even sue his master for any crime committed with respect to him, or for undue exaction. He was attached, on the other hand, to the soil, and might in certain cases receive corporal punishment. (Troja, iii. 1072.) He paid a capitation tax or census to the state, the frequent enhancement of which contributed to that decline of the agricultural population which preceded the barbarian conquest. Guizot, in whose thirty-seventh lecture on the civilization of France the subject is well treated, derives the origin of this state of society from that of Gaul before the Roman conquest. But since we find it in the whole empire, as is shown by many laws in the Code of Justinian, we may look on it perhaps rather as a modification of ancient slavery, unless we suppose all the coloni, ^b in this latter sense of the word, to have been originally barbarians, who had received lands on condition of remaining on them. But this, however frequent, seems a basis not quite wide enough for so extensive a tenure. Nor need we believe that the coloni were always raised from slavery; they might have descended into their own order, as well as risen to it. It appears by a passage in Salvian, about the middle of the fifth century, that many freemen had been compelled to fall into this condition; which confirms, by analogy, the supposition above mentioned of M. Naudet, as to a similar degradation of a part of the Franks themselves after the conquest. It was an inferior species of commendation or vassalage, or, more strictly, an analogous result of the state of society. [Footnote a: See Cod. Theod. l. v. tit. 9, with the copious Paratitlon of Gothofred. - Cod. Just. xi. tit. 47 et alibi.] [Footnote b: The colonus of Cato and other classical authors was a free tenant or farmer, as has been already mentioned.] The forms of Marculfus, and all the documents of the following ages, furnish abundant proofs of the continuance of the coloni in this middle state between entire freedom and servitude. And these were doubtless reckoned among the "tributarii" of the Salic law, whose composition was fixed at forty-five solidi; for a slave had no composition due to his kindred; he was his master's chattel, and to be paid for as such. But the tributary was not necessarily a colonus. All who possessed no lands were subjected by the imperial fisc to a personal capitation. And it has appeared to us that the Romans in Gaul continued regularly to pay this under the house of Clovis. To these Roman tributaries the barbarian lidi seem nearly to have corresponded. This was a class, as has been already said, not quite freeborn; so that "Francus ingenuus" was no tautology, as some have fancied, yet far from slaves; without political privileges or rights of administering justice in the country court, like the Rachimburgii, and so little favored, that, while the Frank accused of a theft, that is, I presume, taken in the fact, was to be brought before his peers, the lidus, under the name of "debilior persona," which probably included the Roman tributary, was to be hanged on the spot. Throughout the Salic and Ripuarian codes the ingenuus is opposed both to the lidus and to the servus; so that the threefold division is incontestable. It corresponds in a certain degree to the edelingi, frilingi, and lazzi, or the eorl, ceorl, and thrall of the northern nations (Grimm, Deutsche Rechts Alterthumer, p. 306 et alibi); though we do not find a strict proportion in the social state of the second order in every country. The "coloni partiarii," frequently mentioned in the Theodosian Code, were metayers; and M. Guerard says that lands were chiefly held by such in the age of Charlemagne and his family. (Cart. de Chartres, i. 109.) The demesne lands of the manor, however, were never occupied by coloni, but by serfs or domestic slaves. Note XV The poor early felt the necessity of selling themselves for subsistence in times of famine. "Subdiderunt se pauperes servitio," says Gregory of Tours, A.D. 585, "ut quantulumcunque de alimento porrigerent." (Lib. vii. c. 45.) This long continued to be the practice; and probably the remarkable number of famines which are recorded, especially in the ninth and eleventh centuries, swelled the sad list of those unhappy poor who were reduced to barter liberty for bread. Mr. Wright, in the thirtieth volume of the Archaeologia (p. 223), has extracted an entry from an Anglo-Saxon manuscript, where a lady, about the time of the Conquest, manumits some slaves, "whose heads," as it is simply and forcibly expressed, "she had taken for their meat in the evil days." Evil indeed were those days in France, when out of seventy-three years, the reigns of Hugh Capet and his two successors, forty-eight were years of famine. Evil were the days for five years from 1015, in the whole western world, when not a country could be named that was not destitute of bread. These were famines, as Radulfus Glaber and other contemporary writers tell us, in which mothers ate their children, and children their parents; and human flesh was sold, with some pretence of concealment, in the markets. It is probable that England suffered less than France; but so long and frequent a scarcity of necessary food must have affected, in the latter country, the whole organic frame of society. It has been a very general opinion that during the lawlessness of the ninth and tenth centuries, the aristocratic element of society continually gaining ground, the cultivators fell into a much worse condition, and either from freemen became villeins, or, if originally in the order of tributaries, became less and less capable of enjoying such personal rights as that state implied; that they fell, in short, almost into servitude. "Dans le commencement de la troiseme race," says Montesquieu, "presque tout le bas peuple etait serf." (Lib. xxviii. c. 45.) Sismondi, who never draws a favorable picture, not only descants repeatedly on this oppression of the commonalty, but traces it by the capitularies. "Les loix seules nous donnent quelque indication d'une revolution importante a laquelle la grande masse du peuple fut exposee a plusieurs reprises dans toute l'etendue des Gaules, - revolution qui, s'etant operee sans violence, n'a laisse aucune trace dans l'histoire, et qui doit cependant expliquer seule les alternatives de force et de faiblesse dans les etats du moyen age. C'est le passage des cultivateurs de la condition libre a la condition servile. L'esclavage etant une fois introduite et protegee par les loix, la consequence de la prosperite, de l'accroissement des richesses devait etre toujours la disparition de toutes les petites proprietes, la multiplication des esclaves, et la cessation absolue de tout travail qui ne serait pas fait par des mains serviles." (Hist. des Francais, vol. ii. p. 273). Nor should we have believed, from the general language of historical antiquaries, that any change for the better took place till a much later era. We know indeed from history that, about the year 1000, the Norman peasantry, excited by oppression, broke out into a general and well-organized revolt, quelled by the severest punishments. This is told at some length by Wace, in the "Roman de Rou." And every inference from the want of all law except what the lords exercised themselves, from the strength of their castles, from the fierceness of their characters, from the apparent inability of the peasants to make any resistance which should not end in greater sufferings, converges to the same result. It is not therefore without some surprise that, in a recent publication, we meet with a totally opposite hypothesis on this important portion of social history. The editor of the Cartulaire de Chartres maintains that the peasantry, at the beginning of the eleventh century, enjoyed rights of property and succession which had been denied to their ancestors; that the movement from the ninth century had been upwards; so that, during that period of anarchy which we presume to have been exceedingly unfavorable to their privileges, they had in reality, by force, usage, or concession, gained possession of them. They could not indeed leave their lands, but they occupied them subject to known conditions. The passage wherein M. Guerard, in a concise and perspicuous manner, has given his own theory as to the gradual decline of servitude deserves to be extracted; but I regret very much that he refers to another work, not by name, and unknown to me, for the full proof of what has the air of an historical paradox. With sufficient proof every paradox loses its name; and I have not the least right, from any deep researches of my own, to call in question the testimony which has convinced so learned and diligent an inquirer. "La servitude, comme je l'ai expose dans un autre travail, alla toujours chez nous en s'adoucissant jusqu'a ce qu'elle fut entierement abolie a la chute de l'ancien regime: d'abord c'est l'esclavage a-peupres pur, qui reduisait l'homme presque a l'etat de chose, et qui le mettait dans l'entiere dependance de son maitre. Cette periode peut etre prolongee jusqu'apres la conquete de l'empire d'Occident par les barbares. Depuis cette epoque jusques vers la fin du regne de Charles-le-Chauve, l'esclavage proprement dit est remplace par la servitude, dans laquelle la condition humaine est reconnue, respectee, protegee, si ce n'est encore d'une maniere suffisante, par les loix civiles, au moins plus efficacement par celles de l'eglise et par les moeurs sociales. Alors le pouvoir de l'homme sur son semblable est contenu generalement dans certains limites; un frein est mis d'ordinaire a la violence; la regle et la stabilite l'emportent sur l'arbitraire: bref, la liberte et la propriete penetrent par quelque endroit dans la cabane du serf. Enfin, pendant le desordre d'ou sortit triomphant le regime feodal, le serf soutient contre son maitre la lutte soutenue par le vassal contre son seigneur, et par les seigneurs contre le roi. Le succes fut le meme de part et d'autre; l'usurpation des tenures serviles accompagna celle. des tenures liberales, et l'appropriation territoriale ayant eu lieu partout, dans le bas comme dans le haut de la societe, il fut aussi difficile de deposseder un serf, de son manse qu'un seigneur de son benefice. Des ce moment la servitude fut transformee en servage; le serf, ayant retire sa personne et son champ des mains de son maitre, dut a celui-ci non plus son corps ni son bien, mais seulement une partie de son travail et de ses revenus. Des ce moment il a cesse de servir; il n'est plus en realite qu'un tributaire. "Cette grande revolution, qui tira de son etat abject la classe la plus nombreuse de la population, et qui l'investit de droits civils, lorsque auparavant elle ne pouvait guere invoquer en sa faveur que les droits de l'humanite, n'avait pas encore ete signalee dans notre histoire. Les faits qui la demonstrent ont ete developpe dans un autre travail que je ne puis reproduire ici; mais les traces seules qu'elle a laissees dans notre Cartulaire sont assez nombreuses et assez profondes pour la faire universellement reconnaitre. Elle etait depuis long-temps consommee, lorsque le moine redigeait, dans la seconde moitie du XIe. siecle, la premiere partie du present recueil, et lorsqu'il declarait que les anciens roles (ecrits au IXe.) conserves dans les archives de l'Abbaye, n'accordent aux paysans ni les usages ni les droits dont ils jouissant actuellement. Mais ses paroles meritent d'etre, repetees: - 'Lectori intimare curavi,' dit-il dans sa Preface, 'quod ea quae primo scripturus sum a praesenti usu admodum discrepare videntur, nam rolli conscripti ab antiquis et in armario nostro nunc reperti, habuisse minimi ostendunt illius temporis rusticos has consuetudines in reditibus quas moderni rustici in hoc tempore dinoscuntur habere, neque habent vocabula rerum quas tunc sermo habebat vulgaris.' Ainsi non seulement les choses, mais encore les noms, tout etait change." (Prolegomenes a la Cartulaire de Chartres. p. 40.) The characteristic of the villein, according to Beaumanoir, in the thirteenth century, that his obligations were fixed in kind and degree, would thus appear to have been as old as the eleventh. Many charters of the tenth and eleventh centuries are adduced by M. Guerard, wherein, as he informs us, "On s'efforce de se soustaire a la violence, et d'y substituer les conventions a l'arbitraire; la regle et la mesure tendent a s'introduire partout et jusques dans les extortions memes" (p. 109). But his principle of limited rent was also that of the Roman system with respect to the coloni before the conquest of Gaul by Clovis. Nor do we know that it was different afterwards. No law at least could have effected it; for the Roman law, by which the coloni were ruled, underwent no change. M. Guerard seems hardly to have taken a just view of the status of the Roman tributary or colonus. "Nous avons dit que les personnes de condition servile s'etaient appropries leurs benefices. Ce que vient encore nous confirmer dans cette opinion, c'est le changement qu'on observe generalement dans la condition des terres depuis le declin du xe siecle. La terre, apres avoir ete cultivee dans l'antiquite par l'esclave au profit de son maitre, le fut ensuite par un espece de fermier non libre qui partageait avec le proprietaire, ou qui faisait les fruits siens, moyennant certains cens et services, auxquels il etait oblige envers lui: c'est l'etat qui nous est represente par le Polyptyque d'Irminon, au temps de Charlemagne, et qui dura encore un siecle et demi environ apres la mort de ce grand prince. Puis commence une troiseme periode, pendant laquelle le proprietaire, n'est plus que seigneur, tandis que le tenancier est devenu lui-meme proprietaire, et paie, non plus de fermages, mais seulement des droits seigneuriaux. Ainsi, d'abord obligations d'un esclave envers un maitre ensuite obligations d'un termier non libre envers un proprietaire; enfin, obligations d'un proprietaire non libre envers un seigneur. C'est a la derniere periode que nous sommes parvenus dans notre Cartulaire. Les populations s'y montrent en jouissance du droit de propriete, et ne sont soumises, a raison des possessions, qu'a de simples charges feodales." It may be observed upon this, that the colonus was a free man, whether he divided the produce with his lord, like the metayer of modern times, or paid a certain rent; and, secondly, that, in what he calls the third period, the tenant, if he was a villein or homme de poote, could not possibly be called "lui-meme proprietaire;" nor were his liabilities feudal, but either a money-rent or personal service in labor; which cannot be denominated feudal without great impropriety. "Il est vrai," he proceeds, "que ces charges sont encore lourdes et souvent accablantes, et que les biens ne sont pas plus les personnes entierement francs et libres; ni suffisamment a l'abri de l'arbitraire et de la violence; mais la liberte, acquise de jour en jour a l'homme, se communiquait de plus en plus a la terre. Le paysan etant proprietaire, il ne lui restait qu'a degrever et affranchir la propriete. C'est a cet oeuvre qu'il travaillera desormais avec perseverance et de toutes ses forces jusqu'a ce qu'il ait enfin obtenu de ne supporter d'autres charges que celles qui conviennent a l'homme libre, et qui sont uniquement fondess sur l'utilite commune." In this passage the tenant is made much more to resemble the free socager of England than the villein or homo postatis of Pierre des Fontaines or Beaumanoir. This latter class, however, was certainly numerous in their age, and could hardly have been less so some centuries before. These were subject to so many onerous restrictions, independent of their compulsory residence on the land, and independently also of their want of ability to resist undue exactions, that they were always eager to purchase their own enfranchisement. Their marriages were not valid without the lord's consent, till Adrian IV., in the twelfth century, declared them indissoluble. A freeman marrying a serf became one himself, as did their children. They were liable to occasional as well as regular demands, that is, to tallages, sometimes in a very arbitrary manner. It was probably the less frequency of such demands, among other reasons, that rendered the condition of ecclesiastical tenants more eligible than that of others. Manumissions of serfs by the church were very common; and, indeed, the greater part that have been preserved, as may be expected, come from ecclesiastical repositories. It is observed in my text that the English clergy are said to have been slow in liberating their villeins. But a villein in England was real property; and I conceive that a monastery could not enfranchise him, at least without the consent of some superior authority, any more than it could alienate its lands. The church were not generally accounted harsh masters. Note XVI There would seem naturally little doubt that majorum can mean nothing but the higher classes of clergy and laity, exclusive of parish priests and ordinary freemen, were it not that a part of these very majores are afterwards designated by the name minores. Who, it may be asked, could be the majores clerici, except prelates and abbots? And of these, how could one be so inferior in degree to another as to be reckoned among minores? It may perhaps be answered that there was nevertheless a difference of importance, though not of rank. Guizot translates majores "les grands," and minores "les moins considerables." But upon this construction which certainly is what the words fairly bear, none but a class denominated majores, relatively to the rest of the nation, were members of the national council. I think, nevertheless, that Guizot, on any hypothesis, has too much depreciated the authority of these general meetings, wherein the capitularies of Charlemagne were enacted. Grant, against Mably, that they were not a democratic assembly; still were they not a legislature? "Lex consensu fit populi et constitutione regis." This is our own statute language; but does it make parliament of no avail? "En lui (Charlemagne) reside la volonte et l'impulsion; c'est de lui que toute emane pour revenir a lui." (Essais sur l'Hist. de France, p. 323.) This is only to say that he was a truly great man, and that his subjects were semi-barbarians, comparatively unfit to devise methods of ruling the empire. No one can doubt that he directed everything. But a weaker sovereign soon found these rude nobles an overmatch for him. It is, moreover, well pointed out by Sir F. Palgrave, that we find instances of petitions presented by the lay or spiritual members of these assemblies to Charlemagne, upon which capitularies or edicts were afterwards founded. (English Commonwealth, ii. 411.) It is to be inferred, from several texts in the capitularies of Charlemagne and his family, that a general consent was required to their legislative constitutions, and that without this a capitulary did not become a law. It is not, however, quite so clear in what method this was testified; or rather two methods appear to be indicated. One was that above described by Hincmar, when the determination of the seniores was referred to the minores for their confirmation: "interdum pariter tractandum, et non ex potestate sed ex proprio mentis intellectu vel sententia confirmandum. The point of divergence between two schools of constitutional antiquaries in France is on the words ex postestate. Mably, and others whom I have followed, say "not by compulsion," or words to that effect. But Guizot renders the words differently: "quelquefois on deliberait aussi, et les confirmaient, non par un consentement formal, mais par leur opinion, et l'adhesion de leur intelligence." The Latin idiom will, I conceive, bear either construction. But the context, as well as the analogy of other authorities, inclines me to the more popular interpretation, which, though the more popular, does not necessarily carry us beyond the word majores, taking that as descriptive of a numerous aristocracy. If, indeed, we are so much bound by the majorum in this passage of Hincmar as to take for merely loose phrases the continual mention of the populus in the capitularies, we could not establish any theory of popular consent in legislation from the general placita held almost every May by Charlemagne. They would be conventions of an aristocracy; numerous indeed, and probably comprehending by right all the vassals of the crown, but excluding the freemen or petty allodialists, not only from deliberating upon public laws, but from consenting to them. We find, however, several proofs of another method of obtaining the ratification of this class, that is of the Frank people. I do not allude to the important capitulary of Louis (though I cannot think that M. Guizot has given it sufficient weight), wherein the count is directed to bring twelve Scabini with him to the imperial placitum, because we are chiefly at present referring to the reign of Charlemagne; and yet this provision looks like one of his devising. The scheme to which I refer is different and less satisfactory. The capitulary determined upon by a national placitum was sent round to the counts, who were to read it in their own mallus to the people, and obtain their confirmation. Thus in 803, "Anno tertio clementissimi domini nostri Karoli Augusti, sub ipso anno haec facta capitula sunt, et consignata Stephano comiti, ut haec manifesta faceret in civitate Parisiis, mallo publico, et illa legere faceret coram Scabiniis, quod ita et fecit. Et omnes in uno consenserunt, quod ipsi voluissent omni tempore observare usque in posterum. Etiam omnes Scabinii, Episcopi, Abbates, Comites manu propria subter signaverunt." (Rec. des Hist. v. 663.) No text can be more perspicuous than this; but several other proofs might be given, extending to the subsequent reigns. Sir F. Palgrave is, perhaps, the first who has drawn attention to this scheme of local sanction by the people; though I must think that he has somewhat obscured the subject by supposing the malli, wherein the capitulary was confirmed, to have been those of separate nations constituting the Frank empire, instead of being determined by the territorial jurisdiction of each count. He gives a natural interpretation to the famous words, "Lex consensu populi fit, constitutione regis." The capitulary was a constitution of the king, though not without the advice of his great men; the law was its confirmation by the nation collectively, in the great placitum of the Field of March, or by separate consent and subscription in each county. We are not, however, to be confident that this assent of the people in their county courts was virtually more than nominal. A little consideration will show that it could not easily have been otherwise, except in the strongest cases of unpopular legislation. No Scabini or Rachimburgii in one county knew much of what passed at a distance; and dissatisfaction must have been universal before it could have found its organ in such assemblies. Before that time arrived rebellion was a more probable effect. One capitulary, of 823, does not even allude to consent: "In suis comitatibus coram nota fieri possit." But we cannot set this against the language of so many other capitularies, which imply a formal ratification.