Had, then, the main public authority disappeared? This is practically the contention of certain writers, who, like M. Sée, maintain that real property, the possession of a domain, conferred on the big landed proprietor all rights of taxation, command and coercion over the inhabitants of his domain, who, according to this view, were always serfs. But this is an exaggeration of the thesis upheld by old French authors, who saw in feudalism, though in a different sense, a confusion of property with sovereignty. It appears that in this state of political disintegration each part of the country which had a homogeneous character tended to form itself into a higher unit. In this unit there arose a powerful lord, generally a duke, a count, or a viscount, who sometimes came to be called the capitalis dominus. He was either a former official of the monarchy, whose function had become hereditary, or a usurper who had formed himself on this model. He laid claim to an authority other than that conferred by the possession of real property. He still claimed to exercise over the whole of his former district certain rights, which we see him sometimes surrendering for the benefit of churches or monasteries. His court of justice was held in the highest honour, and to it were referred the most important affairs. But in this district there were generally a number of more or less powerful lords, who as a rule had as yet no particular feudal title and are often given the name of principes. Often, but not always, they had commended themselves to this duke or count by doing homage.
On the other hand, the royal power continued to exist, being recognized by a considerable part of old Gaul, the regnum Francorum. But under the last of the Carolingians it had in fact become elective, as is shown by the elections The royal power. of Odo and Robert before that of Hugh Capet. The electors were the chief lords and prelates of the regnum Francorum. But following a clever policy, each king during his lifetime took as partner of his kingdom his eldest son and consecrated and crowned him in advance, so that the first of the Capetians revived the principle of heredity in favour of the eldest son, while establishing the hereditary indivisibility of the kingdom. This custom was recognized at the accession of Louis the Fat, but the authority of the king was very weak, being merely a vague allegiance. His only real authority lay where his own possessions were, or where there had not arisen a duke, a count, or lord of equal rank with them. He maintained, however, a general right of administering justice, a curia, the jurisdiction of which seems to have been universal. It is true that the parties in a suit had to submit themselves to it voluntarily, and could accept or reject the judgment given, but this was at that time the general rule. The king dispensed justice surrounded by the officers of his household (domestici), who thus formed his council; but these were not the only ones to assist him, whether in court or council. Periodically, at the great yearly festivals, he called together the chief lords and prelates of his kingdom, thus carrying on the tradition of the Carolingian placita or conventus; but little by little, with the appropriation of the honores, the character of the gathering changed; it was no longer an assembly of officials but of independent lords. This was now called the curia regis.
While the power of the State was almost disappearing, that of the Church, apart from the particular acts of violence of which she was often the victim, continued to grow. Her jurisdiction gained ground, since her procedure The Church. was reasonable and comparatively scientific (except that she admitted to a certain extent compurgation by oath and the judicia Dei, with the exception of trial by combat). Not only was the privilege of clergy, by which accused clerks were brought under her jurisdiction, almost absolute, but she had cognizance of a number of causes in which laymen only were concerned, marriage and everything nearly or remotely affecting it, wills, crimes and offences against religion; and even contracts, when the two parties wished it or when the agreement was made on oath, came within her competence. Such, then, were the ecclesiastical or Christian courts (cours d’église, course de chrétienté). The Church, moreover, remained in close connexion with the crown, the king preserving a quasi-ecclesiastical character, while the royal prerogatives with regard to the election of bishops were maintained more successfully than the rights of the crown, though in many of the great fiefs they none the less passed to the count or the duke. It was at this time too that the Church tried to break the last ties which still kept her more or less dependent on the civil power; this was the true import of the Investiture Contest (see [Investiture], and [Church History]), though this was not very acute in France.
The period of the true feudal monarchy is embraced by the 12th and 13th centuries, that is to say, it was at this time that the crown again assumed real strength and authority; The feudal monarchy. but so far it had no organs and instruments save those which were furnished by feudalism, now organized under a regular hierarchy, of which the king was the head, the “sovereign enfeoffer of the kingdom” (souverain fieffeux du royaume), as he came later on to be called. This new position of affairs was the result of three great factors: the revival of Roman Law, the final organization of feudalism and the rise of the privileged towns. The revival of Roman law began in France and Italy in the second half Roman law. of the 11th century, developing with extraordinary brilliance in the latter country at the university of Bologna, which was destined for a long time to dominate Europe. Roman law spread rapidly in the French schools and universities, except that of Paris, which was closed to it by the papacy; and the influence of this study was so great that it transformed society. On the one hand it contributed largely to the reconstitution of the royal power, modelling the rights of the king on those of the Roman emperor. On the other hand it wrought a no less profound change in private law. From this time dates the division of old France into the Pays de droit écrit, in which Roman law, under the form in which it was codified by Justinian, was received as the ordinary law; and the Pays de coutume, The customs. where it played only a secondary part, being generally valid only as ratio scripta and not as lex scripta. In this period the customs also took definitive form, and over and above the local customs properly so called there were formed customs known as general, which held good through a whole province or bailliage, and were based on the jurisprudence of the higher jurisdictions.
The final organization of feudalism resulted from the struggle for organization which was proceeding in each district where the more powerful lords compelled the others to do them homage and become their vassals; the capitalis dominus Final organization of feudalism. had beneath him a whole hierarchy, and was himself a part of the feudal system of France (see [Feudalism]). Doubtless in the case of lords like the dukes of Brittany and Burgundy, the king could not actually demand the strict fulfilment of the feudal obligations; but the principle was established. The question now arises, did free and absolute property, the allodium, entirely disappear in this process, and were all lands held as tenures? It continued to exist, by way of exception, in most districts, unchanged save in the burden of proof of ownership, with which, according to the customs, sometimes the lord and sometimes the holder of the land was held charged. In one respect, however, namely in the Feudal character of justice. administration of justice, the feudal hierarchy had absolute sway. Towards the end of the 13th century Beaumanoir clearly laid down this principle: “All secular jurisdiction in France is held from the king as a fief or an arrière-fief.” Henceforth it could also be said that “All justice emanates from the king.” The law concerning fiefs became settled also from another point of view, the fief becoming patrimonial; that is to say, not only hereditary, but freely alienable by the vassal, subject in both cases to certain rights of transfer due to the lord, which were at first fixed by agreement and later by custom. The most salient features of feudal succession were the right of primogeniture and the preference given to heirs-male; but from the 13th century onwards the right of primogeniture, which had at first involved the total exclusion of the younger members of a family, tended to be modified, except in the case of the chief lords, the eldest son obtaining the preponderant share or préciput. Non-noble (roturier) tenancies also became patrimonial in similar circumstances, except that in their case there was no right of primogeniture nor any privilege of males. The tenure of serfs did not become alienable, and only became hereditary by certain devices.
Feudal society next saw the rise of a new element within it: the privileged towns. At this time many towns acquired privileges, the movement beginning towards the end of the 11th century; they were sanctioned by a formal Rise of the privileged towns. concession from the lord to whom the town was subject, the concession being embodied in a charter or in a record of customs (coutume). Some towns won for themselves true political rights, for instance the right of self-administration, rights of justice over the inhabitants, the right of not being taxed except by their own consent, of maintaining an armed force, and of controlling it themselves. Others only obtained civil rights, e.g. guarantees against the arbitrary rights of justice and taxation of the lord or his provost. The chief forms of municipal organization at this time were the commune jurée of the north and east, and the consulat, which came from Italy and penetrated as far as Auvergne and Limousin. The towns with important privileges formed in feudal society as it were a new class of lordships; but their lords, that is to say their burgesses, were inspired by quite a new spirit. The crown courted their support, taking them under its protection, and championing the causes in which they were interested (see [Commune]). Finally, it is in this period, under Philip Augustus, that the great fiefs began to be effectually reannexed to the crown, a process which, continued by the kings up to the end of the ancien régime, refounded for their profit the territorial sovereignty of France.
The crown maintained the machinery of feudalism, the chief central instruments of which were the great officers of the crown, the seneschal, butler, constable and chancellor, who were to become irremovable officials, those at least Great officers of the crown and peers of France. who survived. But this period saw the rise of a special college of dignitaries, that of the Twelve Peers of France, consisting of six laymen and six ecclesiastics, which took definitive shape at the beginning of the 13th century. We cannot yet discern with any certainty by what process it was formed, why those six prelates and those six great feudatories in particular were selected rather than others equally eligible. But there is no doubt that we have here a result of that process of feudal organization mentioned above; the formation of a similar assembly of twelve peers occurs also in a certain number of the great fiefs. Besides the part which they played at the consecration of kings, the peers of France formed a court in which they judged one another under the presidency of the king, their overlord, according to feudal custom. But the cour des pairs in this sense was not separate from the curia regis, and later from the parlement of Paris, of which the peers of France were by right members. From this time, too, dates another important institution, that of the maîtres des requêtes.
The legislative power of the crown again began to be exercised during the 12th century, and in the 13th century had full authority over all the territories subject to the crown. Beaumanoir has a very interesting theory on this subject. Growth of the royal power. The right of war tends to regain its natural equilibrium, the royal power following the Church in the endeavour to check private wars. Hence arose the quarantaine le roi, due to Philip Augustus or Saint Louis, by which those relatives of the parties to a quarrel who had not been present at the quarrel were rendered immune from attack for forty days after it; and above all the assurements imposed by the king or lord; on these points too Beaumanoir has an interesting theory. The rule was, moreover, already in force by which private wars had to cease during the time that the king was engaged in a foreign war. But the most appreciable progress took place in the administrative and judicial institutions. Under Philip Augustus arose the royal baillis (see [Bailiff]: section Bailli), and seneschals (q.v.), who were the representatives of the king in the provinces, and superior judges. At the same time the form of the feudal courts tended to change, as they began more and more to be influenced by the Romano-canonical law. Saint Louis had striven to abolish trial by combat, and the Church had condemned other forms of ordeal, the purgatio vulgaris. In most parts of the country the feudal lords began to give place in the courts of law to the provosts (prévôts) and baillis of the lords or of the crown, who were the judges, having as their councillors the avocats (advocates) and procureurs (procurators) of the assize. The feudal courts, which were founded solely on the relations of homage and tenure, before which the vassals and tenants as such appeared, disappeared in part from the 13th century on. Of the seigniorial jurisdictions there soon remained only the hautes or basses justices (in the 14th century arose an intermediate grade, the moyenne justice), all of which were considered to be concessions of the royal power, and so delegations of the public authority. As a result of the application of Roman and canon law, there arose the appeal strictly so called, both in the class of royal and of seigniorial jurisdictions, the case in the latter instance going finally before a royal court, from which henceforth there was no appeal. In the 13th century too appeared the theory of crown cases (cas royaux), cases which the lords became incompetent to try and which were reserved for the royal court. Finally, the curia regis was gradually transformed into a regular court of justice, the Parlement (q.v.), as it was already called in the second half of the 13th century. At this time the king no longer appeared in it regularly, and before each session (for it was not yet a permanent body) a list of properly qualified men was drawn up in advance to form the parlement, only those whose names were on the list being capable of sitting in it. Its main function had come to be that of a final court of appeal. At the various sessions, which were regularly held at Paris, appeared the baillis and seneschals, who were called upon to answer for the cases they had judged and also for their administration. The accounts were received by members of the parlement at the Temple, and this was the origin of the Cour or Chambre des Comptes.
At the end of this period the nobility became an exclusive class. It became an established rule that a man had to be noble in order to be made a knight, and even in order to acquire a fief; but in this latter respect the king Nobles, commons and the Church in the 13th century. made exceptions in the case of roturiers, who were licensed to take up fiefs, subject to a payment known as the droits de franc-fief. The roturiers, or villeins who were not in a state of thraldom, were already a numerous class not only in the towns but in the country. The Church maintained her privileges; a few attempts only were made to restrain the abuse, not the extent, of her jurisdiction. This jurisdiction was, during the 12th century, to a certain extent regularized, the bishop nominating a special functionary to hold his court; this was the officialis (Fr. official), whence the name of officialité later applied in France to the ecclesiastical jurisdictions. On one point, however, her former rights were diminished. She preserved the right of freely acquiring personal and real property, but though she could still acquire feudal tenures she could not keep them; the customs decided that she must vider les mains, that is, alienate the property again within a year and a day. The reason for this new rule was that the Church, the ecclesiastical establishment, is a proprietor who does not die and in principle does not surrender her property; consequently, the lords had no longer the right of exacting the transfer duties on those tenures which she acquired. It was possible, however, to compromise and allow the Church to keep the tenure on condition of the consent not only of the lord directly concerned, but of all the higher lords up to the capitalis dominus; it goes without saying that this concession was only obtained by the payment of pecuniary compensations, the chief of which was the droit d’amortissement, paid to these different lords. In this period the form of the episcopal elections underwent a change, the electoral college coming to consist only of the canons composing the chapter of the cathedral church. But except for the official candidatures, which were abused by the kings and great lords, the elections were regular; the Pragmatic Sanction, attributed to Saint Louis, which implies the contrary, is nowadays considered apocryphal by the best critics.
Finally, it must be added that during the 13th century criminal law was profoundly modified. Under the influence of Roman law a system of arbitrary penalties replaced those laid down by the customs, which had usually been Changes in criminal law. fixed and cruel. The criminal procedure of the feudal courts had been based on the right of accusation vested only in the person wronged and his relations; for this was substituted the inquisitorial procedure (processus per inquisitionem), which had developed in the canon law at the very end of the 12th century, and was to become the procédure à l’extraordinaire of the ancien régime, which was conducted in secret and without free defence and debate. Of this procedure torture came to be an ordinary and regular part.