Page:EB1911 - Volume 10.djvu/311

Rh institution was rapid; 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.

When this stage was reached the formative age of feudalism may be considered at an end. When the government of the state had entered into feudalism, and the king was as much senior as king; when the vassal relationship was recognized as a proper and legal foundation of public duties; when the two separate sides of early feudalism were united as the almost universal rule, so that a man received a fief because he owed a vassal’s duties, or looked at in the other and finally prevailing way, that he owed a vassal’s duties because he had received a fief; and finally, when the old idea of the temporary character of the precarium tenure was lost sight of, and the right of the