The reunion of so many fiefs was attempted to be secured by a legal
principle, that the domain was inalienable and imprescriptible. This became
at length a fundamental maxim in the law of France. But it does not seem to
be much older than the reign of Philip V., who, in 1318, revoked the
alienations of his predecessors, nor was it thoroughly established, even in
theory, till the fifteenth century. ^a Alienations, however, were certainly
very repugnant to the policy of Philip Augustus and St. Louis. But there was
one species of infeudation so consonant to ancient usage and prejudice that it
could not be avoided upon any suggestions of policy; this was the investiture
of younger princes of the blood with considerable territorial appanages. It
is remarkable that the epoch of appanages on so great a scale was the reign of
St. Louis, whose efforts were constantly directed against feudal independence.
Yet he invested his brothers with the counties of Poitou, Anjou, and Artois,
and his sons with those of Clermont and Alencon. This practice, in later
times, produced very mischievous consequences.
[Footnote a: Preface au 15me tome des Ordonnances, par M. Pastoret.]
Under a second class of events that contributed to destroy the spirit of
the feudal system we may reckon the abolition of villenage, the increase of
commerce and consequent opulence of merchants and artisans, and especially the
institutions of free cities and boroughs. This is one of the most important
and interesting steps in the progress of society during the middle ages, and
deserves particular consideration.
The provincial cities under the Roman empire enjoyed, as is well known, a
municipal magistracy, and the right of internal regulation. Nor was it
repugnant to the spirit of the Frank or Gothic conquerors to leave them in
possession of these privileges. It was long believed, however, that little,
if any, satisfactory proof of their preservation, either in France or Italy,
could be found; or, at least, if they had ever existed, that they were wholly
swept away in the former country during the confusion of the ninth century,
which ended in the establishment of the feudal system.
Every town, except within the royal domains, was subject to some lord.
In episcopal cities the bishop possessed a considerable authority; and in many
there was a class of resident nobility. But this subject has been better
elucidated of late years; and it has been made to appear that instances of
municipal government were at least not rare, especially in the south of
France, throughout the long period between the fall of the western empire and
the beginning of the twelfth century, ^b though becoming far more common in
its latter part.
[Footnote b: [Note XVIII.]]
The earliest charters of community granted to towns in France have been
commonly referred to the time of Louis VI. Noyon, St. Quentin, Laon, and
Amiens appear to have been the first that received emancipation at the hands
of this prince. ^c The chief towns in the royal domains were successively
admitted to the same privileges during the reigns of Louis VI., Louis VII.,
and Philip Augustus. This example was gradually followed by the peers and
other barons; so that by the end of the thirteenth century the custom had
prevailed over all France. It has been sometimes imagined that the crusades
had a material influence in promoting the erection of communities. Those
expeditions would have repaid Europe for the prodigality of crimes and
miseries which attended them if this notion were founded in reality. But I
confess that in this, as in most other respects, their beneficial consequences
appear to me very much exaggerated. The cities of Italy obtained their
internal liberties by gradual encroachments, and by the concessions of the
Franconian emperors. Those upon the Rhine owed many of their privileges to the
same monarchs, whose cause they had espoused in the rebellions of Germany. In
France the charters granted by Louis the Fat could hardly be connected with
the first crusade, in which the crown had taken no part, and were long prior
to the second. It was not till fifty years afterwards that the barons seem to
have trod in his steps by granting charters to their vassals, and these do not
appear to have been particularly related in time to any of the crusades.
Still less can the corporations erected by Henry II. in England be ascribed to
these holy wars, in which England had hitherto taken no considerable share.
[Footnote c: Ordonnances des Rois, ubi supra, p. 7. These charters are as old
as 1110, but the precise date is unknown.]
The establishment of chartered towns in France has also been ascribed to
deliberate policy. “Louis the Gross,” says Robertson, “in order to create
some power that might counter-balance those potent vassals who controlled or
gave law to the crown, first adopted the plan of conferring new privileges on
the towns situated within his own domain.” Yet one does not immediately
perceive what strength the king could acquire by granting these extensive
privileges within his own domains, if the great vassals were only weakened, as
he asserts afterwards, by following his example. In what sense, besides, can
it be meant that Noyon or Amiens, by obtaining certain franchises, became a
power that could counterbalance the Duke of Normandy or Count of Champagne?
It is more natural to impute this measure, both in the king and his barons, to
their pecuniary exigencies; for we could hardly doubt that their concessions
were sold at the highest price, even if the existing charters did not exhibit
the fullest proof of it. ^d It is obvious, however, that the coarser methods
of rapine must have grown obsolete, and the rights of the inhabitants of towns
to property established, before they could enter into any compact with their
lord for the purchase of liberty. Guibert, abbot of St. Nogent, near Laon,
relates the establishment of a community in that city with circumstances that,
in the main, might probably occur in any other place. Continual acts of
violence and robbery having been committed, which there was no police adequate
to prevent, the clergy and principal inhabitants agreed to enfranchise the
populace for a sum of money, and to bind the whole society by regulations for
general security. These conditions were gladly accepted; the money was paid,
and the leading men swore to maintain the privileges of the inferior freemen.
The bishop of Laon, who happened to be absent, at first opposed this new
institution, but was ultimately induced, by money, to take a similar oath; and
the community was confirmed by the king. Unluckily for himself, the bishop
afterwards annulled the charter; when the inhabitants, in despair at seeing
themselves reduced to servitude, rose and murdered him. This was in 1112; and
Guibert’s narrative certainly does not support the opinion that charters of
community proceeded from the policy of government. He seems to have looked
upon them with the jealousy of a feudal abbot, and blames the Bishop of Amiens
for consenting to such an establishment in his city, from which, according to
Guibert, many evils resulted. In his sermons, we are told, this abbot used to
descant on “those execrable communities where serfs, against law and justice,
withdraw themselves from the power of their lords.” ^e
[Footnote d: Ordonnances des Rois, t. xi. preface, p. 18 et 50.]
[Footnote e: Hist. Litteraire de la France, t. x. 448. Du Cange, voc.
Communia.]
In some cases they were indebted for success to their own courage and
love of liberty. Oppressed by the exactions of their superiors, they had
recourse to arms, and united themselves in a common league, confirmed by oath,
for the sake of redress. One of these associations took place at Mans as
early as 1067, and, though it did not produce any charter of privileges, is a
proof of the spirit to which ultimately the superior classes were obliged to
submit. ^f Several charters bear witness that this spirit of resistance was
justified by oppression. Louis VII. frequently declares the tyranny exercised
over the towns to be his motive for enfranchising them. Thus the charter of
Mantes, in 1150, is said to be given “pro nimia oppressione pauperum:” that of
Compiegne, in 1153, “propter enormitates clericorum:” that of Dourlens,
granted by the Count of Ponthieu in 1202, “propter injurias et molestias a
potentibus terrae burgensibus frequenter illatas.” ^g
[Footnote f: Recueil des Historiens, t. xiv. preface p.66.]
[Footnote g: Ordonnances des Rois, t. xi. preface p. 17.]
The privileges which these towns of France derived from their charters
were surprisingly extensive; especially if we do not suspect some of them to
be merely in confirmation of previous usages. They were made capable of
possessing common property, and authorized to use a common seal as the symbol
of their incorporation. The more oppressive and ignominious tokens of
subjection, such as the fine paid to the lord for permission to marry their
children, were abolished. Their payments of rent or tribute were limited both
in amount and as to the occasions when they might be demanded; and these were
levied by assessors of their own electing. Some obtained an exemption from
assisting their lord in war; others were only bound to follow him when he
personally commanded; and almost all limited their service to one, or, at the
utmost, very few days. If they were persuaded to extend its duration, it was,
like that of feudal tenants, at the cost of their superior. Their customs, as
to succession and other matters of private right, were reduced to certainty,
and, for the most part, laid down in the charter of incorporation. And the
observation of these was secured by the most valuable privilege which the
chartered towns obtained – that of exemption from the jurisdiction, as well of
the royal as the territorial judges. They were subject only to that of
magistrates, either wholly elected by themselves, or, in some places, with a
greater or less participation of choice in the lord. They were empowered to
make special rules, or, as we call them, by-laws, so as not to contravene the
provisions of their charter, or the ordinances of the king. ^h
[Footnote h: Ibid., prefaces aux tomes xi. et xii.; Du Cange, voc. Communia,
Hostis; Carpentier, Suppl. ad Du Cange, v. Hostis; Mably, Observations sur
l'Hist. de France, l. iii. c. 7.]
It was undoubtedly far from the intention of those barons who conferred
such immunities upon their subjects to relinquish their own superiority and
rights not expressly conceded. But a remarkable change took place in the
beginning of the thirteenth century, which affected, in a high degree, the
feudal constitution of France. Towns, distrustful of their lord’s fidelity,
sometimes called in the king as guarantee of his engagements. The first stage
of royal interference led to a more extensive measure. Philip Augustus
granted letters of safeguard to communities dependent upon the barons,
assuring to them his own protection and patronage. ^i And this was followed up
so quickly by the court, if we believe some writers, that in the next reign
Louis VIII. pretended to the immediate sovereignty over all chartered towns,
in exclusion of their original lords. ^j Nothing, perhaps, had so decisive an
effect in subverting the feudal aristocracy. The barons perceived, too late,
that, for a price long since lavished in prodigal magnificence or useless
warfare, they had suffered the source of their wealth to be diverted, and the
nerves of their strength to be severed. The government prudently respected
the privileges secured by charter. Philip the Long established an officer in
all large towns to preserve peace by an armed police; but though subject to
the orders of the crown, he was elected by the burgesses, and they took a
mutual oath of fidelity to each other. Thus shielded under the king’s mantle,
they ventured to encroach upon the neighboring lords, and to retaliate for the
long oppression of the commonalty. ^k Every citizen was bound by oath to stand
by the common cause against all aggressors, and this obligation was abundantly
fulfilled. In order to swell their numbers, it became the practice to admit
all who came to reside within their walls to the rights of burghership, even
though they were villeins appurtenant to the soil of a master from whom they
had escaped. ^l Others, having obtained the same privileges, continued to
dwell in the country; but, upon any dispute with their lords, called in the
assistance of their community. Philip the Fair, erecting certain communes in
Languedoc, gave to any who would declare on oath that he was aggrieved by the
lord or his officers the right of being admitted a burgess of the next town,
upon paying one mark of silver to the king, and purchasing a tenement of a
definite value. But the neglect of this condition and several other abuses
are enumerated in an instrument of Charles V., containing the complaints made
by the nobility and rich ecclesiastics of the neighborhood. ^m In his reign
the feudal independence had so completely yielded, that the court began to
give in to a new policy, which was ever after pursued: that of maintaining the
dignity and privileges of the noble class against those attacks which wealth
and liberty encouraged the plebeians to make upon them.
[Footnote i: Mably, Observations sur l'Hist. de France, l. iii. c. 7.]
[Footnote j: Reputabat civitates omens suas esse, in quibus communiae essent.
I mention this in deference to Du Cange, Mably, and others, who assume the
fact as incontrovertible; but the passage is only in a monkish chronicler,
whose authority, were it even more explicit, would not weigh much in a matter
of law. Beaumanoir, however, sixty years afterwards, lays it down that no one
can erect a commune without the king's consent, c. 50, p. 268. And this was
an unquestionable maxim in the fourteenth century. - Ordonnances, t. xi. p.
29.]
[Footnote k: In the charter of Philip Augustus to the town of Roye in Picardy,
we read, If any stranger, whether noble or villein, commits a wrong against
the town, the mayor shall summon him to answer for it, and if he does not obey
the summons the mayor and inhabitants may go and destroy his house, in which
we (the king) will lend them our assistance, if the house be too strong for
the burgesses to pull down: except the case of one of our vassals, whose house
shall not be destroyed; but he shall not be allowed to enter the town till he
has made amends at the discretion of the mayor and jurats. Ordonnances des
Rois, t. xi. p. 228. This summary process could only, as I conceive, be
employed if the house was situated within the jurisdiction of the commune.
See Charter of Crespy, id. p. 253. In other cases the application for redress
was to be made in the first instance to the lord of the territory wherein the
delinquent resided. But upon his failing to enforce satisfaction, the mayor
and jurats might satisfy themselves; liceat justitiam quaerere, prout
poterunt; that is, might pull down his house provided they could. Mably
positively maintains the communes to have had the right of levying war, l.
iii. c. 7. And Brequigny seems to coincide with him. Ordonnances, preface,
p. 46; see also Hist. de Languedoc, t. iii. p. 115. The territory of commune
was called Pax (p. 185); an expressive word.]
[Footnote l: One of the most remarkable privileges of chartered towns was that
of conferring freedom on runaway serfs, if they were not reclaimed by their
masters within a certain time. This was a pretty general law. Si quis
nativus quiete per unum annum et unum diem in aliqua villa privilegiata
manserit, ita quod in eorum communem gyldam tanquam civis receptus fuerit, eo
ipso a villenagio liberabitur. Glanvil, 1. v. c. 5. The cities of Languedoc
had the same privilege. Vaissette, t. iii. p. 528, 530. And the editor of
the Ordonnances speaks of it as general, p. 44. A similar custom was
established in Germany; but the term of prescription was, in some places at