FOOTNOTE:
[2] Cf. Coutenson, Theologia Mentis et Cordis, iii. 388-389, Paris, 1875; and Billnart, De Justitia, i. 123-124, Liège, 1746.
CHAPTER V
THE LAWYERS
Besides the Schoolmen, by whom the problems of life were viewed in the refracted light of theology and philosophy, there was another important class in mediaeval times which exercised itself over the same social questions, but visaged them from an entirely different angle. This was the great brotherhood of the law, which, whether as civil or canonical, had its own theories of the rights of private ownership. It must be remembered, too, that just as the theologians supported their views by an appeal to what were considered historic facts in the origin of property, so, too, the legalists depended for the material of their judgment on circumstances which the common opinion of the time admitted as authentic.
When the West drifted out from the clouds of barbaric invasion, and had come into calm waters, society was found to be organised on a basis of what has been called feudalism. That is to say, the natural and universal result of an era of conquest by a wandering people is that the new settlers hold their possessions from the conqueror on terms essentially contractual. The actual agreements have varied constantly in detail, but the main principle has always been one of reciprocal rights and duties. So at the early dawn of the Middle Ages, after the period picturesquely styled the Wanderings of the Nations, we find the subjugating races have encamped in Europe, and hold it by a series of fiefs. The action, for example, of William the Norman, as plainly shown in Domesday Book, is typical of what had for some three or four centuries been happening here and on the Continent. Large tracts of land were parcelled out among the invading host, and handed over to individual barons to hold from the King on definite terms of furnishing him with men in times of war, of administering justice within their domains, and of assisting at his Council Board when he should stand in need of their advice. The barons, to suit their own convenience, divided up these territories among their own retainers on terms similar to those by which they held their own. And thus the whole organisation of the country was graduated from the King through the greater barons to tenants who held their possessions, whether a castle, or a farm, or a single hut, from another to whom they owed suit and service.
This roughly (constantly varying, and never actually quite so absolutely carried out) is the leading principle of feudalism. It is clearly based upon a contract between each man and his immediate lord; but, and this is of importance in the consideration of the feudal theory of private property, whatever rights and duties held good were not public, but private. There was not at the first, and in the days of what we may call "pure feudalism," any concept of a national law or natural right, but only a bundle of individual rights. Appeal from injustice was not made at a supreme law-court, but only to the courts of the barons to whom both litigants owed allegiance. The action of the King was quite naturally always directed towards breaking open this enclosed sphere of influence, and endeavouring to multiply the occasions on which his officials might interfere in the courts of his subjects. Thus the idea gradually grew up (and its growth is perhaps the most important matter of remark in mediaeval history), by which the King's law and the King's rights were looked upon as dominating those of individuals or groups. The courts baron and customary, and the sokes of privileged townships were steadily emptied of their more serious cases, and shorn of their primitive powers. This, too, was undoubtedly the reason for the royal interference in the courts Christian (the feudal name for the clerical criminal court). The King looked on the Church, as he looked on his barons and his exempted townships, as outside his royal supremacy, and, in consequence, quarrelled over investiture and criminous clerks, and every other point in which he had not as yet secured that his writs and judgments should prevail. There was a whole series of courts of law which were absolutely independent of his officers and his decision. His restless energy throughout this period had, therefore, no other aim than to bring all these into a line with his own, and either to capture them for himself, or to reduce them to sheer impotence. But at the beginning there was little notion of a royal judge who should have power to determine cases in which barons not immediately holding their fiefs of the King were implicated. The concern of each was only with the lord next above him. And the whole conception of legal rights was, therefore, considered simply as private rights.
The growth of royal power consequently acted most curiously on contemporary thinkers. It meant centralisation, the setting up of a definite force which should control the whole kingdom. It resulted in absolutism increasing, with an ever-widening sphere of royal control. It culminated in the Reformation, which added religion to the other departments of State in which royal interference held predominance. Till then the Papacy, as in some sort "a foreign power," world-wide and many-weaponed, could treat on more than equal terms with any European monarch, and secure independence for the clergy. With the lopping off of the national churches from the parent stem, this energising force from a distant centre of life ceased. Each separate clerical organisation could now depend only on its own intrinsic efficiency. For most this meant absolute surrender.
The civil law therefore which supplanted feudalism entailed two seemingly contradicting principles which are of importance in considering the ownership of land. On the one hand, the supremacy of the King was assured. The people became more and more heavily taxed, their lands were subjected to closer inspection, their criminal actions were viewed less as offences against individuals than as against the peace of the King. It is an era in which, therefore, as we have already stated, the power of the individual sinks gradually more and more into insignificance in comparison with the rising force of the King's dominion. Private rights are superseded by public rights.