Lords multiplied concessions of this kind in order to multiply the number of men owing them military service. But the fief itself, to which the rights of justice were attached, remained in general undivided and was handed down according to the laws of primogeniture.
FEUDAL JUSTICE
The obligation of the vassals to attend the courts of their lord has made it clear that the principle of feudal justice was trial by one’s peers, a principle which was entirely in the customs and even the institutions of the Germanic peoples, where freedmen were tried by an assembly of freedmen.
They called peers (pares, equals), vassals of the same lord settled around him on his domain, and holding fiefs of the same rank. The king himself had his peers who were those holding their estates directly from him, not only as feudal lord but as king. Each had the right to be judged by his peers before his lord. If the peers refused him justice or the vassal believed that it had been unfairly rendered, he made a complaint “in default of right,” and brought the matter to the attention of his lord’s suzerain. It was to this higher tribunal that it was necessary always to bring disputes which arose between a lord and his vassal.
But this right of appeal did not entirely satisfy the spirit of independence which animated this warlike society. The lords preserved with jealous care another right of appeal—that which is addressed to the power of arms; they preferred to obtain justice for themselves rather than receive it from the hands of others. So thoroughly was the custom enrooted in their manners that the king regulated the formalities which preceded this species of warfare and had for their object the warning of the party to be attacked and the giving of an opportunity to place himself in a state of defence. After all, our international wars proceed from the same principle and are no better. The lords waged their wars with their little armies as we with our greater ones. Only hostilities had a more individual character since the states were much smaller.[i]
Besides the Fehde or right of private warfare—an old Germanic custom—there was the “trial by combat,” which must not be confused with it. The true “judicial combat,” in which champions fight for a cause, or for the settlement of a quarrel, is a product of the Middle Ages, when faith in God was as strong as faith in the strength of the human arm. This custom became so universal a method of settlement of difficult questions that it was even used by Alfonso, the great Spanish lawgiver, to decide upon the introduction of new laws concerning inheritance. This much at least may be said in favour of it, that it was less of an evil than the torture which tended to supplant it in judicial proceedings in the later Middle Ages.[a]
Justice was not the prerogative of all the lords to the same extent. It was distinguished in France by three degrees, high, low, and middle justice. The first alone gave the right of life and death. In general it may be said it was the largest and most important fiefs that had powers of justice to the greatest extent. Still it was possible for a simple vavasseur to possess the functions of “high justice,” and in some places the lord who could dispense but “low justice” could punish with death the robber caught at his crime. Within these variable limits the lord alone dispensed justice on his fief, and when, later on, royalty usurped the right, there was a revolution.
To complete the enumeration of rights inherent in the sovereignty of the lords it is necessary to mention two: first, that of recognising throughout the whole extent of the fief no higher legislative power. We find in the last collection of laws made in the ninth century by Charles the Simple the final manifestation of law-bearing public power. After that, there were no laws, civil or political, to be applied generally, but only local customs, isolated, independent, and differing one from the other, in fact possessing a territorial character in distinction from those of the barbaric nations, which were entirely personal.
Second, the right to coin money, which was always a sign of lordship. Before Charlemagne it seems that some private individuals, who doubtless possessed the privilege, coined money. After him this was one of the prerogatives of the lords, and at the advent of Hugh Capet there were no less than 150 who exercised this right.
Every political régime may be characterised by the place where the exercise of power is bestowed. Ancient republics had their agora and fora. The great monarchy of Louis XIV had its palace of Versailles. The feudal lords had their castles. They were, as a usual thing, enormous edifices, situated on high places, massive, round, or square, without architecture or ornamentation, the walls pierced by a few loopholes for the discharge of arrows. There was a single entrance giving on a great moat which could only be passed by a drawbridge. The castle was crowned with parapets and battlements, from which rocks, molten pitch, and lead could be thrown down on the heads of too venturesome assailants at the foot of the walls. To-day the gaping gray masses are but nests for crows, crumbled and eaten away by time. Seen from afar they quite eclipse the small and light habitation of modern days—these monuments at once of legitimate defence and oppression. But they could have been nothing less than they were to provide shelter from the northern incursions and the feudal wars. Everyone sought refuge in them. Those who had not the right to live within the castle, who were neither lords nor warriors, settled around its great walls, under their powerful protection. This was the nucleus of many towns.