Encyclopaedia Britannica, 11th Edition, "Fenton, Edward" to "Finistere" / Volume 10, Slice 3

by Various

The other institution, relating to land, was that known to the Roman law as the precarium, a name derived from one of its essential features through all its history, the prayer of the suppliant by which the relationship was begun. The precarium was a form of renting land not intended primarily for income, but for use when the lease was made from friendship for example, or as a reward, or to secure a debt. Legally its characteristic feature was that the lessee had no right of any kind against the grantor. The owner could call in his land and terminate the relation at any time, for any reason, or for none at all. Even a definite understanding at the outset that the lease might be enjoyed to a specified date was no protection.[1] It followed of course that the heir had no right in the land which his father held in this way, nor was the heir of the donor bound by his father’s act. The legal character of this transaction is summed up in a well-known passage in the Digest:—Interdictum de precariis merito introductum est, quia nulla eo nomine juris civilis actio esset, magis enim ad donationes et beneficii causam, quam ad negotii contracti spectat precarii conditio.[2] This may be paraphrased as follows:—The precarium tenant may employ the interdict against a third party, because he cannot use the ordinary civil action, his holding being not a matter of business but rather of favour and kindness. It should be noted that from its very beginning the land relationship of feudalism was not created primarily for the grantor’s income, but that it emphasized in the most striking way his continued ownership.

As used for protection in later Roman days the precarium gave rise to what was called the commendation of lands, patrocinium fundorum. The poor landowner, likely to lose all that he had from one kind of oppression or another, went to the great landowner, his neighbour, whose position gave him immunity from attack or the power to prevent official abuses, and begged to be protected. The rich man answered, I can only protect my own. Of necessity the poor man must surrender to his powerful neighbour the ownership of his lands, which he then received back as a precarium—gaining protection during his lifetime at the cost of his children, who were left without legal claim and compelled to make the best terms they could.[3] Applied to this use the precarium found extensive employment in the last age of the empire. The government looked on the practice with great disfavour, because it transferred large areas from the easy access of the state to an ownership beyond its reach. The laws repeatedly forbade it under increasing penalties, but clearly it could not be stopped. The motive was too strong on both sides—the need of protection on one side, the natural desire to increase large possessions and means of self-defence on the other.

These practices the Frankish conquerors of Gaul found in full possession of society when they entered into that province. They seem to have understood them at once, and, like much else Roman, to have made them their own without Frankish development. material change. The patrocinium they were made ready to understand by the existence of a somewhat similar institution among themselves, the comitatus, described by Tacitus. In this institution the chief of the tribe, or of some plainly marked division of the tribe, gathered about himself a band of chosen warriors, who formed a kind of private military force and body-guard. The special features of the institution were the strong tie of faith and service which bound the man, the support and rewards given by the lord, and the pride of both in the relationship. The patrocinium might well seem to the German only a form of the comitatus, but it was a form which presented certain advantages in his actual situation. The chief of these was perhaps the fact that it was not confined to king or tribal chief, but that every noble was able in the Roman practice to surround himself with his organized private army. Probably this fact, together with the more general fact of the absorption in most things of the German in the Roman, accounts for the substitution of the patrocinium for the comitatus which took place under the Merovingians.

This change did not occur, however, without some modification of the Roman customs. The comitatus made contributions of its own to future feudalism, to some extent to its institutional side, largely to the ideas and spirit which ruled in it. Probably the ceremony which grew into feudal homage, and the oath of fealty, certainly the honourable position of the vassal and his pride in the relationship, the strong tie which bound lord and man together, and the idea that faith and service were due on both sides in equal measure, we may trace to German sources. But we must not forget that the origin of the vassal relationship, as an institution, is to be found on Roman and not on German soil. The comitatus developed and modified, it did not originate. Nor was the feudal system established in any sense by the settlement of the comitatus group on the conquered land. The uniting of the personal and the land sides of feudalism came long after the conquest, and in a different way.

To the precarium German institutions offered no close parallel. The advantages, however, which it afforded were obvious, and this side of feudalism developed as rapidly after the conquest as the personal. The new German noble was as eager to extend the size of his lands and to increase the numbers of his dependants as the Roman had been. The new German government furnished no better protection from local violence, nor was it able any more effectively to check the practices which were creating feudalism; indeed for a long time it made no attempt to do so. Precarium and patrocinium easily passed from the Roman empire to the Frankish kingdom, and became as firmly rooted in the new society as they had ever been in the old. Up to this point we have seen only the small landowner and the landless man entering into these relations. Feudalism could not be established, however, until the great of the land had adopted them for themselves, and had begun to enter the clientage of others and to hold lands by the precarium tenure. The first step towards this result was easily and quickly taken. The same class continued to furnish the king’s men, and to form his household and body-guard whether the relation was that of the patrocinium or the comitatus, and to be made noble by entering into it. It was later that they became clients of one another, and in part at least as a result of their adoption of the precarium tenure. In this latter step the influence of the Church rather than of the king seems to have been effective. The large estates which pious intentions had bestowed on the Church it was not allowed to alienate. It could most easily make them useful to gain the influence and support which it needed, and to provide for the public functions which fell to its share, by employing the precarium tenure. On the other side, the great men coveted the wide estates of bishop and abbot, and were ready without persuasion to annex portions of them to their own on the easy terms of this tenure, not always indeed observed by the holder, or able to be enforced by the Church. The employment of the precarium by the Church seems to have been one of the surest means by which this form of landholding was carried over from the Romans to the Frankish period and developed into new forms. It came to be made by degrees the subject of written contract, by which the rights of the holder were more definitely defined and protected than had been the case in Roman law. The length of time for which the holding should last came to be specified, at first for a term of years and then for life, and some payment to the grantor was provided for, not pretending to represent the economic value of the land, but only to serve as a mark of his continued ownership.

These changes characterize the Merovingian age of Frankish history. That period had practically ended, however, before these two institutions showed any tendency to join together as they were joined in later feudalism. Nor had the king up to that time exerted any apparent influence on the processes that were going forward. Grants of land of the Merovingian kings had carried with them ownership and not a limited right, and the king’s patrocinium had not widened in extent in the direction of the later vassal relation. It was the advent of the Carolingian princes and the difficulties which they had to overcome that carried these institutions a stage further forward. Making their way up from a position among the nobility to be the rulers of the land, and finally to supplant the kings, the Carolingians had especial need of resources from which to purchase and reward faithful support. This need was greatly increased when the Arab attack on southern Gaul forced them to transform a large part of the old Frankish foot army into cavalry.[4] The fundamental principle of the Frankish military system, that the man served at his own expense, was still unchanged. It had indeed begun to break down under the strain of frequent and distant campaigns, but it was long before it was changed as the recognized rule of medieval service. If now, in addition to his own expenses, the soldier must provide a horse and its keeping, the system was likely to break down altogether. It was this problem which led to the next step. To solve it the early Carolingian princes, especially Charles Martel, who found the royal domains exhausted and their own inadequate, grasped at the land of the Church. Here was enough to endow an army, if some means could be devised to permit its use. This means was found in the precarium tenure. Keeping alive, as it did, the fact of the grantor’s ownership, it did not in form deprive the Church of the land. Recognizing that ownership by a small payment only, not corresponding to the value of the land, it left the larger part of the income to meet the need which had arisen. At the same time undoubtedly the new holder of the land, if not already the vassal of the prince, was obliged to become so and to assume an obligation of service with a mounted force when called upon.[5] This expedient seems to have solved the problem. It gave rise to the numerous precariae verbo regis, of the Church records, and to the condemnation of Charles Martel in the visions of the clergy to worse difficulties in the future life than he had overcome in this. The most important consequences of the expedient, however, were not intended or perceived at the time. It brought together the two sides of feudalism, vassalage and benefice, as they were now commonly called, and from this age their union into what is really a single institution was rapid;[6] it emphasized military service as an essential obligation of the vassal; and it spread the vassal relation between individual proprietors and the sovereign widely over the state.

In the period that followed, the reign of Charlemagne and the later Carolingian age, continued necessities, military and civil, forced the kings to recognize these new institutions more fully, even when standing in a position between the government and the subject, intercepting the public duties of the latter. The incipient feudal baron had not been slow to take advantage of the break-down of the old German military system. As in the last days of the Roman empire the poor landowner had found his only refuge from the exactions of the government in the protection of the senator, who could in some way obtain exemptions, so the poor Frank could escape the ruinous demands of military service only by submitting himself and his lands to the count, who did not hesitate on his side to force such submission. Charlemagne legislated with vigour against this tendency, trying to make it easier for the poor freeman to fulfil his military duties directly to the state, and to forbid the misuse of power by the rich, but he was not more successful than the Roman government had been in a like attempt. Finally the king found himself compelled to recognize existing facts, to lay upon the lord the duty of producing his men in the field and to allow him to appear as their commander. This solved the difficulty of military service apparently, but with decisive consequences. It completed the transformation of the army into a vassal army; it completed the recognition of feudalism by the state, as a legitimate relation between different ranks of the people; and it recognized the transformation in a great number of cases of a public duty into a private obligation.

In the meantime another institution had grown up in this Franco-Roman society, which probably began and certainly assisted in another transformation of the same kind. This is the immunity. Suggested probably by Roman practices, possibly developed directly from them, it received a great extension in the Merovingian period, at first and especially in the interest of the Church, but soon of lay land-holders. By the grant of an immunity to a proprietor the royal officers, the count and his representatives, were forbidden to enter his lands to exercise any public function there. The duties which the count should perform passed to the proprietor, who now represented the government for all his tenants free and unfree. Apparently no modification of the royal rights was intended by this arrangement, but the beginning of a great change had really been made. The king might still receive the same revenues and the same services from the district held by the lord as formerly, but for their payment a private person in his capacity as overlord was now responsible. In the course of a long period characterized by a weak central government, it was not difficult to enlarge the rights which the lord thus obtained, to exclude even the king’s personal authority from the immunity, and to translate the duties and payments which the tenant had once owed to the state into obligations which he owed to his lord, even finally into incidents of his tenure. The most important public function whose transformation into a private possession was assisted by the growth of the immunity was the judicial. This process had probably already begun in a small way in the growth of institutions which belong to the economic side of feudalism, the organization of agriculture on the great estates. Even in Roman days the proprietor had exercised a jurisdiction over the disputes of his unfree tenants. Whether this could by its own growth have been extended over his free tenants and carried so far as to absorb a local court, like that of the hundred, into private possession, is not certain. It seems probable that it could. But in any case, the immunity easily carried the development of private jurisdiction through these stages. The lord’s court took the place of the public court in civil, and even by degrees in criminal cases. The plaintiff, even if he were under another lord, was obliged to sue in the court of the defendant’s lord, and the portion of the fine for a breach of the peace which should have gone to the state went in the end to the lord.

The transfer of the judicial process, and of the financial and administrative sides of the government as well, into private possession, was not, however, accomplished entirely by the road of the immunity. As government weakened after the strong days of Charlemagne, and disorder, invasion, and the difficulty of intercommunication tended to throw the locality more and more upon its own resources, the officer who had once been the means of centralization, the count, found success in the effort for independence which even Charlemagne had scarcely overcome. He was able to throw off responsibility to any central authority, and to exercise the powers which had been committed to him as an agent of the king, as if they were his own private possession. Nor was the king’s aid lacking to this method of dividing up the royal authority, any more than to the immunity, for it became a frequent practice to make the administrative office into a fief, and to grant it to be held in that form of property by the count. In this way the feudal county, or duchy, formed itself, corresponding in most cases only roughly to the old administrative divisions of the state, for within the bounds of the county there had often formed private feudal possessions too powerful to be forced into dependence upon the count, sometimes the vice-comes had followed the count’s example, and often, on the other hand, the count had attached to his county like private possessions of his own lying outside its boundaries. In time the private lord, who had never been an officer of the state, assumed the old administrative titles and called himself count or viscount, and perhaps with some sort of right, for his position in his territories, through the development of the immunity, did not differ from that now held by the man who had been originally a count.

In these two ways then the feudal system was formed, and took possession of the state territorially, and of its functions in government. Its earliest stage of growth was that of the private possession only. Under a government too weak to preserve order, the great landowner formed his estate into a little territory which could defend itself. His smaller neighbours who needed protection came to him for it. He forced them to become his dependants in return under a great variety of forms, but especially developing thereby the precarium land tenure and the patrocinium personal service, and organizing a private jurisdiction over his tenants, and a private army for defence. Finally he secured from the king an immunity which excluded the royal officers from his lands and made him a quasi-representative of the state. In the meantime his neighbour the count had been following a similar process, and in addition he had enjoyed considerable advantages of his own. His right to exact military, financial and judicial duties for the state he had used to force men to become his dependants, and then he had stood between them and the state, freeing them from burdens which he threw with increased weight upon those who still stood outside his personal protection. In ignorance of their danger, and later in despair of getting public services adequately performed in any other way, the kings first adopted for themselves some of the forms and practices which had thus grown up, and by degrees recognized them as legally proper for all classes. It proved to be easier to hold the lord responsible for the public duties of all his dependants because he was the king’s vassal and by attaching them as conditions to the benefices which he held, than to enforce them directly upon every subject.