Chapter XXXI (2)

In the great struggle with the councils the pope had come out victorious. He had successfully resisted all attempts to make any important changes in the administration of the church, or to introduce the reforms which were so loudly called for. Although the council at Basel had brought the conciliar idea into disrepute, there were many who still called for a general council as the only means of securing the reforms which were demanded. Pius II condemned and prohibited all such appeals.

The execrable and hitherto unknown abuse has grown up in our day, that certain persons, imbued with the spirit of rebellion, and not from a desire to secure a better judgment, but to escape the punishment of some offence which they have committed, presume to appeal from the pope to a future council, in spite of the fact that the pope is the vicar of Jesus Christ and to him, in the person of St. Peter, the following was said: "Feed my sheep" [John 21:16] and "Whatsoever thou shalt bind on earth shall be bound in heaven" [Matt. 16:18]. Wishing therefore to expel this pestiferous poison from the church of Christ and to care for the salvation of the flock entrusted to us, and to remove every cause of offence from the fold of our Saviour, with the advice and consent of our brothers, the cardinals of the holy Roman church, and of all the prelates, and of those who have been trained in the canon and civil law, who are at our court, and with our own sure knowledge, we condemn all such appeals and prohibit them as erroneous and detestable.

175. William III of Saxony Forbids Appeals to Foreign Courts, 1446.

Schilter, De libertate ecclesiarum Germaniæ, pp. 808 ff.

At this time secular rulers were everywhere growing in power, and centralizing the authority in their own hands, which led them to try to diminish the power of the clergy. This document shows the legal confusion which then existed, caused in part by the usurpations which the ecclesiastical courts practiced. Following the examples of the kings of England and France, William III, duke of Saxony, limited ecclesiastical courts to their proper jurisdiction and forbade the clergy to try secular cases. As a sovereign power he also forbade all appeals to foreign courts, which of course included the pope.

My country suffers dishonor, and great loss and injury, in that many of its inhabitants resort to foreign courts. Be it known that we have decreed that hereafter no inhabitant of our country shall summon or sue another before any foreign court, ecclesiastical or secular, for any matter whatsoever. If the case is ecclesiastical and legally comes under the jurisdiction of an ecclesiastical court, the plaintiff shall bring it before some ecclesiastical court in our country, and be content with the decision rendered there. There shall be no appeal to a foreign court. If the case is secular, it shall be brought and pleaded before the secular court where the defendant belongs. It shall be tried before that court under whose jurisdiction the case falls, and the plaintiff shall be content with the decision rendered. If any inhabitant of our land is not content with the decision, but appeals to a foreign court in any way, he shall be held to be an outlaw. He shall be banished for life and never be permitted to return to this country; and anyone may attack him and his property without any hindrance, because he is an outlaw.... We and our subjects have for a long time been annoyed and troubled beyond measure by the ecclesiastical judges who hear cases which do not belong under their jurisdiction. For although they are only ecclesiastical judges, they hear ecclesiastical and secular cases. And very often they render unjust decisions. The effect of this is the spread of unbelief among the people, who neglect and dishonor God and the holy church. The glory of God and the honor of the church demand that this abuse be stopped. We will therefore do all we can to have the princes and prelates who have jurisdiction in our land reform their ecclesiastical courts. For these ecclesiastical courts shall refuse to hear secular cases and try only ecclesiastical cases. We forbid all persons in our land to summon, sue, or denounce another on a secular charge before an ecclesiastical court....

176. Papal Charter for the Establishment of the University of Avignon, 1303.

Bullarium Romanum, III, ii, pp. 101 f.

It was regarded as the exclusive right of the pope to establish a university, or _studium generale_, as it was called. We give the document by which he established the University of Avignon as a sample of these numerous papal establishments. It contains a clear and interesting account of the examinations and the conferring of the Master's degree.

The city of Avignon for many reasons is eminently suited and fitted to become the seat of a university. Believing that it would be for the public good if those who cultivate wisdom were introduced into the city, and that they would in time bear rich fruit, by this document we grant that a university may be established there, in which Masters [_magistri_] may teach, and scholars freely study and hear lectures, in all faculties. And when those who study in the university attain a high degree of knowledge, and ask for the permission to teach others, we grant that they may be examined in the canon and civil law, and in medicine, and in the liberal arts, and that they may be decorated with the title of Master in those faculties. All who are to be promoted to this honor shall be presented to the bishop of Avignon. He shall call together all the Masters in the faculty concerned, and without any charge he shall examine the candidates to discover their learning, eloquence, manner of reading [lecturing], and the other things which are required in those who are to be made Doctors or Masters. He shall then consult the Masters about the examination and they shall vote on the question of granting the degree [that is, decide whether the candidate passed the examination or not]. But their vote shall be kept secret, and the bishop shall never tell how they voted on the question. Those whom he finds fit, he shall approve, and grant them the permission to teach others. But those whom he finds are not fit, he shall refuse without fear or favor. If the bishopric of Avignon is vacant, the candidates shall present themselves to the _præpositus_ of the church, who shall examine them and approve them in the way prescribed for the bishop.

Those who are examined and approved in Avignon and receive the license to teach, shall thereafter have the full and free right to read and teach everywhere, in that faculty in which they have been approved, without further examination or approval by anyone else.

In order that such examinations may be properly held, we command that all Masters who wish to read in the University of Avignon shall, before beginning their work there as teachers, take a public oath that they will come in person to all the examinations whenever called, and that they will, _gratis_ and without fear or favor, faithfully give the bishop their judgment about the examination, in order that those who are worthy may be approved, and those who are unworthy may be rejected. Those who refuse to take this oath shall not be permitted to read in the university, or to be present at the examinations, or to share in any of the advantages or benefits of the university.

In order that the Doctors [teachers] and scholars of the university may be able to devote themselves freely to their studies, and to make good progress in them, we grant that all who are in the university, whether teachers or scholars, shall have all the privileges, liberties, and immunities which are generally granted to teachers and scholars of other universities.

177. Popular Dissatisfaction that the Church had so much Wealth, _ca._ 1480.

Goldast's Reichssatzung, p. 280.

We give a brief passage from an unknown author to illustrate the growing dissatisfaction of the common people that the church had so much wealth. It betrays a dangerous temper of mind. In the light of this the suppression of monasteries and the seizure of ecclesiastical property which was carried out on so large a scale in the sixteenth century does not seem strange.

It is as clear as day that by means of smooth and crafty words the clergy have deprived us of our rightful possessions. For they blinded the eyes of our forefathers, and persuaded them to buy the kingdom of heaven with their lands and possessions. If you priests give the poor and the chosen children of God their paternal inheritance, which before God you owe them, God will perhaps grant you such grace that you will know yourselves. But so long as you spend your money on your dear harlots and profligates, instead of upon the children of God, you may be sure that God will reward you according to your merits. For you have angered and overburdened all the people of the empire. The time is coming when your possessions will be seized and divided as if they were the possessions of an enemy. As you have oppressed the people, they will rise up against you so that you will not know where to find a place to stay.

178. Complaints of the Germans against the Pope, 1510.

Gebhardt, Gravamina gegen den Römischen Hof, pp. 83 f.

This is a brief list of the complaints made by the Germans in 1510 and presented to Julius II. Most of them, it will be observed, are concerned with the financial burdens with which the Germans felt that they were overwhelmed.

(1) That popes do not feel bound to observe the bulls, agreements, privileges, and letters which have been issued by their predecessors, but often dispense with, suspend, and revoke them at the request of people even of low birth. (2) That the pope sometimes refuses to confirm the canonical election of bishops. (3) That the pope sometimes rejects the election of _præpositi_ [provosts], although made by chapters which have paid a high price for the right to elect. ... (4) That the better benefices and higher offices are reserved for the cardinals and the chief officials of the papal court. (5) That an unlimited number of expectancies are granted, and many are given for the same office to different persons. And many expectancies are sold to one and the same person. From this practice, lawsuits arise daily, which cause all concerned to incur heavy expenses. For if a man buys an expectancy, he will probably never get the office, but he will surely become involved in a lawsuit about it which will cost him a great deal of money. On this account the proverbial saying has arisen: "If anyone obtains an expectancy from Rome, let him lay aside one or two hundred gold coins, for he will need them in his lawsuit about it." (6) Even when a bishopric is several times within a few years made vacant by death, the pope without any mercy demands the prompt and full payment of the annates. And sometimes when the pope creates new offices and enlarges his court, more is demanded as annates than is just.... (7) Churches are given to members of the papal court, some of whom are better fitted to be mule drivers than pastors. (8) Old indulgences are revoked and new ones sold, merely to raise money, although the laymen are thereby made to murmur against their clergy. (9) Tithes are collected under the pretext that a war is to be made against the Turks, but nothing of the kind is ever done. (10) Cases which could easily be settled in Germany, since there are good and just judges there, are indiscriminately called before the papal court at Rome. St. Bernard, in writing to Eugene III, severely criticised this practice.

179. Abuses in the Sale of Indulgences, 1512.

Fr. Myconius, Geschichte der Reformation.

Several references have been made to the need of a reform in the matter of indulgences. Cardinal Raymond, papal legate in 1503, complained that the agents who sold indulgences were actuated only by the basest motives of gain and were thoroughly dishonest. Myconius (his German name was Mecum) was a Franciscan monk who became a Protestant.

We have thought it best to give first a statement of the doctrine of indulgences in order that the abuses in their sale may be more clearly apparent.

"It is the catholic doctrine that when a sin is forgiven its punishment is not necessarily at the same time remitted. Through the power of the keys the eternal punishment is remitted, but generally there remain temporal punishments which must be satisfied either in this world by means of good works, or in the next by enduring punishment in purgatory. The Bible, by examples as well as by statements, teaches that with the removal of the eternal guilt and punishment, the temporal punishment is not always remitted. Adam and Eve, after committing sin, repented and were justified by God, but they were driven out of Paradise and compelled to endure infinite misfortunes, and even death itself, as a punishment of their sin. We are taught the same by the example of the Israelites who were pardoned for their sin of murmuring through the prayers of Moses, but, as a punishment for their sin, were excluded from the promised land and perished in the wilderness.... From this it is seen that the Bible demands not only the conversion of the heart, but also that we render satisfaction by enduring temporal punishment for the sin....

"This satisfaction which we must render [_i.e._, this temporal punishment which we must endure] is a part of the sacrament of penance, and must be imposed on us by the minister of penance [_i.e._, the priest]. The doctrine of indulgences is inseparably connected with that of satisfaction. By indulgence is meant a remission of the temporal punishment made by a priest by means of the application of the treasure of the church. The treasure of the church is the whole sum of the merits of Jesus Christ ... in addition to all the good works or merits of all the saints.... In the church, as St. Thomas Aquinas well says, some have done greater penance than the measure of their sins demanded. Others have suffered with patience many unjust tribulations, with which they would have expiated the temporal punishments of many more sins than they have committed. [All such good works in excess of what they needed to make satisfaction for their own sins are called works of supererogation, and being meritorious, their merit is added to the treasure of the church and may, at the discretion of the church, be applied to the benefit of others who are lacking in such good works.] One of the ways in which the church distributes this common possession (treasure of merits) is by means of indulgences."--From the _Theologia Dommatica_ of Prof. Dati, vol. iii, Chap. XXIX, Florence, 1893.

Anno 1512. Tetzel gained by his preaching in Germany an immense sum of money which he sent to Rome. A very large sum was collected at the new mining works at St. Annaberg, where I heard him for two years. It is incredible what this ignorant and impudent monk used to say.... He declared that if they contributed readily and bought grace and indulgence, all the hills of St. Annaberg would become pure massive silver. Also, that, as soon as the coin clinked in the chest, the soul for whom the money was paid would go straight to heaven.... The indulgence was so highly prized that when the agent came to a city the bull was carried on a satin or gold cloth, and all the priests and monks, the town council, schoolmaster, scholars, men, women, girls, and children went out in procession to meet it with banners, candles, and songs. All the bells were rung and organs played. He was conducted into the church, a red cross was erected in the centre of the church, and the pope's banner displayed....

Anno 1517. It is incredible what this ignorant monk said and preached. He gave sealed letters stating that even the sins which a man was intending to commit would be forgiven. He said the pope had more power than all the apostles, all the angels and saints, even than the Virgin Mary herself. For these were all subject to Christ, but the pope was equal to Christ. After his ascension into heaven Christ had nothing more to do with the management of the church until the judgment day, but had committed all that to the pope as his vicar and vicegerent.

VI. FEUDALISM

Feudalism, as the prevailing order of society, socially, economically, and politically, makes its appearance toward the end of the tenth century. During the disorders consequent upon the disintegration of the empire of the Carolingians (see nos. 15-25) the government failed to supply protection and security, and ceased to act as a bond to hold men together. As a result, certain local, private elements of society, which were very generally diffused throughout that empire, were raised to the rank of public political institutions. It is our purpose to illustrate the origins and growth of feudalism, and the characteristic features of the feudal state. The elements which lay at the basis of the feudal system may be classified under three heads: (1) The personal dependence of one man upon another; (2) dependent tenure of land, in which the holder and user of the land was not the owner, but held it of or from another; (3) the possession by private persons or corporations of extensive sovereign rights over their lands and tenants. These elements were present in various degrees and forms in the German tribes before the migrations and in the later Roman empire, but it will be sufficient for our purpose to show the existence and the character of these elements in the tribal kingdoms and the Frankish kingdom under the Merovingians, for in these states the German and Roman people and institutions were united to form the society of the Middle Age. Then we shall attempt to illustrate the growth and development of these elements in the late Merovingian and in the Carolingian periods, and finally the characteristic features of society in the feudal age. The difficulty in illustrating the situation from public documents will be readily understood; it is due to the fact that these institutions were only partly legal or public, and to the fact that the makers of the laws took for granted a knowledge of the institutions and did not think it necessary to describe or explain them. It is hoped, however, that the notes to the passages translated will make clear their meaning and importance.

180-197. Origins.

180-183. Personal Dependence.

In the documents of the tribal kingdoms and Merovingian kingdom (_ca._ 500-700) there are many evidences of the importance for society of the dependence of one man upon another, and of the fact that this relation was superseding in importance the relation of the private man to the state. On the one hand, men became dependents and retainers of the king and the great officials and lords for mutual advantages, the superior gaining the prestige that came with the possession of a large following, and the dependents gaining employment under and connection with the great persons of the state. On the other hand, poor land-owners, or persons without lands of their own, commended themselves to landlords for the purpose of receiving protection and support. In both cases the personal dependence was connected with the holding of land, for the king or great lord frequently gave land to his followers, while the poor man who commended himself to another usually did it for the purpose of acquiring land to cultivate; this side of the relation, however, will be seen more clearly under the next section.

180. Form for the Creation of an Antrustio by the King.

Marculf's Formulæ, I, no. 18; M. G. LL. 4to, V, p. 55.

Most of the following documents are taken from books of formulæ; that is, collections of forms of documents made by various persons to serve as examples for the drawing up of charters, etc. They were probably made from actual documents by leaving out the names and inserting _ille_ (such an one) or similar expressions. The formulæ of Marculf were written at the end of the seventh century. We quote them from the edition in the _Monumenta Germaniæ_, Leges, vol. v, giving only the pages in that volume after the first reference.

It is right that those who have promised us unbroken faith should be rewarded by our aid and protection. Now since our faithful subject (name) with the will of God has come to our palace with his arms and has there sworn in our hands to keep his trust and fidelity to us, therefore we decree and command by the present writing that henceforth the said (name) is to be numbered among our _antrustiones_.{82} If anyone shall presume to slay him, let him know that he shall have to pay 600 solidi as a wergeld for him.

{82} The position of the _antrustio_ is explained in the note to the Salic law, XLI, no. 4. See also the reference to the _leudes_ in no. 189.

181. Form for the Suspending of Lawsuits.

Marculf, I, no. 23; p. 57.

One great advantage that the dependent possessed was the support and influence of his lord in judicial trials and other matters of the sort.

Know that we have ordered the apostolic man (name) [a bishop] or the illustrious man (name) [a secular official or lord] to go to a certain place, and we now command that as long as he is away all his lawsuits, and those of his clients and dependents and people that live within his jurisdiction, are to be suspended. Therefore we decree and order by the present writing that until he returns all his cases and those of his clients, both those who go with him and those who stay on his lands, and of his people who live within his jurisdiction, shall be suspended, and afterwards he shall do justice to everyone and receive justice from everyone.

182. Form for Commendation. Middle of Eighth Century.

Formulæ Turonenses, no. 43; p. 158.

Notice the reason given by the person who commends himself, the effects of commendation on both parties, and the binding nature of the agreement. The reason alleged (extreme poverty) is probably a mere form of speech, and was not present in each actual instance of commendation.

To my great lord, (name), I, (name). Since, as was well known, I had not wherewith to feed and clothe myself, I came to you and told you my wish, to commend myself to you and to put myself under your protection. I have now done so, on the condition that you shall supply me with food and clothing as far as I shall merit by my services, and that as long as I live I shall perform such services for you as are becoming to a freeman, and shall never have the right to withdraw from your power and protection, but shall remain under them all the days of my life. It is agreed that if either of us shall try to break this compact he shall pay -- solidi, and the compact shall still hold. It is also agreed that two copies of this letter shall be made and signed by us, which also has been done.

183. Form by which the King Allows a Powerful Person to Undertake the Cases of a Poor Person.

Marculf, i, no. 21; pp. 56 f.

Our faithful subject, (name), with the will of God has come to us and told us that he is not able on account of his weakness to defend or to prosecute his cases before the court. Therefore he has besought us to allow the illustrious man (name) to take up his cases for him, both in the local court and in the royal court, whether he prosecutes or is prosecuted, and he has commended his affairs to him in our presence by the staff. Therefore we command, in accordance with the desire of both parties, that the aforesaid man (name) may undertake the cases of the other (name), and that he shall do justice for him and for all his possessions, and get justice for him from others; this shall be so, as long as both desire it.

184-188. Dependent Tenure of Land.

Absolute ownership of land was giving place to possession of land owned by others than the holder. The greater landlords (the king, the church, and the great officials and lords) sought to acquire cultivators for their lands, while the poorer land-owners and the persons without lands of their own sought a means of livelihood or protection. The usual form was the benefice or the precarium. The benefice was the name applied generally in this time to land the use of which was granted by the owner to others for a term of years, for life, or in perpetuity. The _precarium_ was a form of the benefice, the name being technically applied to lands thus granted in response to a letter of request or prayer (_litteræ precariæ_). It will be seen from the documents that the lands were usually those that had been given originally by the poor land-holder to the greater landlord and then received back as benefice or _precarium_. The reason was undoubtedly in many cases the desire of the owner to come under the protection of the greater landlord. The king also gave land to his followers and officials, either to bind them to him or to reward them for services; it is probable, although not certain, that these lands, in part at least, were held only for life or a term of years, on condition of services or faithfulness, and so were in a sense benefices.

184. Form for the Gift of Land to a Church to be Received back by the Giver as a Benefice.

Marculf, II, no. 3; pp. 74 ff.

... I, (name), and my wife, (name), in the name of the Lord, give by this letter of gift, and transfer from our ownership to the ownership and authority of the monastery of (name), over which the venerable abbot (name) presides, and which was founded in the honor of (name) by (name) in the county of (name), the following villas{83} (name), situated in the county of (name), with all the lands, houses, buildings, tenants, slaves, vineyards, woods, fields, pastures, meadows, streams, and all other belongings and dependencies, and all things movable and immovable which are found in the said villas now or may be added later; in order that under the protection of Christ they may be used for the support and maintenance of the monks who dwell in the aforesaid monastery. We do this on the condition that as long as either of us shall live we may possess the aforesaid villas, without prejudice to the ownership of the monastery and without diminution of the value of them, except that we shall be allowed to emancipate any of the slaves that dwell on the lands for the salvation of our souls. After the death of both of us, the aforesaid villas with any additions or improvements which may have been made, shall return immediately to the possession of the said monastery and the said abbot and his successors, without undertaking any judicial process or obtaining the consent of the heirs.

{83} The term _villa_, as used in these documents, means a domain or estate with a group or village of dependent cultivators.

185. Form for a Precarial Letter.

Marculf, II, no. 5; pp. 77 f.

To our lord and father in Christ, the holy and apostolic bishop (name), I (name), and my wife (name). It is well known that we have given in the name of the Lord our villa of (name), situated in the county of (name), in its entirety and with all that we possessed there, by a letter of gift to the church of (name), founded in the honor of (name), and that you have received it on behalf of the said church. And in response to our petition you have granted that as long as we or either of us shall live we shall hold the said villa as a benefice with the right of usufruct,{84} with the understanding that we shall not diminish its value in any way or alienate anything that belongs to it, but shall hold it without prejudice to the ownership of the said church or bishop. Therefore we have written this precarial letter in witness that our possession shall not work any prejudice to your ownership or any injury to the said villa; but that we only have the use of it during our lives, and that after we are dead you shall immediately recover it with all the additions and improvements which we may have made, by virtue of this precarial letter, which shall be renewed every five years, and without requiring any judicial process or obtaining the consent of the heirs; and that thereafter you shall hold it forever, or do with it whatever may seem to you to be to the best interests of the said church.

{84} To hold land with the right of usufruct or to have the usufruct of land, means to hold, use, and enjoy the products of land the ownership of which belongs to another. Thus a benefice is a form of usufruct. It corresponds practically to modern long lease, which is sometimes expressed in our legal usage as lease for 99 years, etc.

186. Form of Precarial Letter.

Marculf, II, no. 39; pp. 98 f.

To our lord and father in Christ, the holy and apostolic bishop (name), I (name), and my wife (name). Since you have permitted us, as long as we or either of us shall live, to hold the land (name) belonging to your church (name), which (name) gave to the said church for the salvation of his soul, therefore for this permission and for the salvation of our souls we have given this other place (name), to belong to the said church and to you and your successors after we are both dead. This we have done on the condition that as long as we live we may possess the said places, both that which you have permitted us to use and the one which we have given you for the salvation of our souls, with the right of usufruct, without diminishing its value or prejudicing the rights of your church; and that after we are dead the said places shall immediately revert to your ownership by virtue of this precarial letter, without requiring any renewal of the letter, and in spite of any opposition from our heirs or from anyone else.

187. Form of Precarial Letter.

Formulæ Bituricenses, no. 2; p. 169.

To the lords (names), we (name), and (name). It is well known that our father lived on your lands and made a precarial letter to you for them, which we now renew and sign, humbly beseeching you to allow us to remain on the same lands.{85} In order that our possession of the lands may not prejudice the rights of you and your successors in them, we have deposited with you this precarial letter, agreeing that if we ever forget its terms, or ever refuse to obey you or your agents in anything which you command, or ever assert that this is not your land, we may be punished according to the severity of the law as wicked violators of your rights, and may be driven from the lands without judicial sentence.

{85} This and the following document are instances of a very common practice; the heirs of the holder of a precarium took it over on the same terms. The result was that the relation tended to become permanent, and a regular class of dependent land-holders grew up. Notice also the subjection of the holders of the precarium to the grantors, in this case secular lords.

188. Gift of Land to be Received back and Held in Perpetuity for a Fixed Rent.

Formulæ Augienses, B, no. 8; pp. 352 f.

The first part of the form, including the original gift of the land, is omitted in the original, but may be supplied from a preceding number.

I do this on the condition that as long as I live I may hold the said lands for the said rent, and that my children and their posterity may do the same forever.

189. Treaty of Andelot, 587.

M. G. LL. 4to, II, I, no. 6; Gregory of Tours, IX, ch. 20.

This is a treaty between two of the Merovingian kings, Gunthram of Burgundy and Childebert II of Austrasia. It forms an incident in the civil war begun between Sigebert and Chilperic; see no. 5, Gregory of Tours, IV, ch. 28, and note.

It illustrates the practice of the kings of giving land to their followers and officials. This was very important in the creation of a landed aristocracy. See the remarks above in regard to the nature of these gifts (introductory note to nos. 184-188).

In accordance with the treaties made between Gunthram and Sigebert of blessed memory, it is likewise agreed that those _leudes_,{86} who after the death of Chlothar I first gave their oaths to Gunthram and then later removed to other parts, are to be made to return from the places where they are now dwelling. It is also agreed that those who, after the death of Chlothar I, gave their oaths to Sigebert and then removed to other parts are in a similar manner to be made to return. Likewise whatever the aforesaid kings bestowed or with the consent of God wished to bestow upon churches or upon their faithful subjects, shall remain in the possession of the churches or subjects. And whatever shall be restored in this way to the subject of either king, legally and justly, shall be held by that person as his own.... And let each one possess in security whatever he has received through the munificence of preceding kings, to the time of the death of Chlothar I of blessed memory, and if anything has been taken from the faithful subjects since that time, it shall be restored to them from this moment.... Likewise it is agreed that neither of the kings shall entice away the _leudes_ of the other or receive them; but if some of the _leudes_ believe they are justified in leaving their king by reason of injuries done to them, they are to be compensated for their injuries, and made to return....

{86} The _leudes_ are evidently the personal dependents of the king, that is, _antrustiones_. They were probably given land by the king. Notice the other references in the treaty to persons holding land from the "munificence" of the king. The same thing is referred to in nos. 190, 193, 194.

190-194. Grants of Immunity.

In the feudal age practically every landlord exercised over his lands and tenants rights and authority which are now regarded as sovereign rights belonging to the state. This was due in the main to the practice of the Merovingian and Carolingian kings of granting immunity to the churches and the great landlords, a practice which naturally grew with the increasing weakness of the monarchy and the growth of the power of the nobles. A grant of immunity operated to exclude the public officials from lands, which were then in theory under the immediate control of the king. In the late Merovingian period the weakness of the kings and the disorganization of the public administration left the control of immunity domains really in the hands of the landlords. The holder of land covered by a grant of immunity thus came to represent the state to the people on his lands. He established courts for the trial of cases arising among his tenants or represented them before the public courts; he was also frequently given the right to collect the taxes, revenues, tolls, etc., from the lands of people, which would otherwise go to the royal treasury. Most of the grants of immunity which have come down to us are in favor of church lands, but they were also granted to secular lords. The churches preserved their documents better than secular persons did.

190. Precept of Chlothar II, 584-628.

M. G. LL. 4to, II, 1, no. 8.

Notice the references to immunity, to grants of land to "churches and powerful persons" (lords and officials), and the implied right of such landlords to appoint judges for trial of cases among their tenants (private jurisdiction).

11. We grant to the churches the taxes from the fields and pastures and the tithes of swine, so that no collector or titheman shall enter the lands of a church to gather such dues for the royal treasury. Public officials shall not demand any services from the churches of clergymen who have acquired immunity from our father or grandfather.

12. Whatever has been given to churches or to clergymen or to any person through the munificence of our aforesaid predecessors of blessed memory is to belong to them in all security.

14. The property of churches, priests, and of the poor who cannot protect themselves, shall be under the protection of public officials until their cases can be brought to the king and justice be done; only in so far, however, as it shall not infringe on the rights of immunity which have been granted by former kings to any church or powerful person or to anyone else, for the keeping of peace and the preservation of discipline.

19. Bishops and powerful persons who have possessions in various regions shall not appoint travelling judges or any judges except such as belong to the county in which they serve.

191. Grant of Immunity to a Monastery, 673.

M. G. DD. folio, I, pp. 30 f; Altmann und Bernheim, no. 112.

Childeric, king of the Franks, illustrious man.... We have commanded it to be made known to all that the venerable and pious abbot Berchar came to us and asked us to grant him a certain place in the forest of Vervo in Gascony, in which he might build a monastery, and to give him material and resources by which he might construct a monastery there and establish a congregation of monks. Now the request of this great man pleased us and we granted him what he asked. Then having built his monastery ... in the honor of Sts. Peter and Paul and the other saints, he besought us, in order to make secure the whole undertaking, to bestow complete immunity upon the monastery. Therefore, we, moved to this by the kindness which Heaven has shown to us, have hearkened to the prayer of this man ... and with the consent of our bishops and nobles do now concede entire immunity over the whole possessions of this monastery ... for the peace of our kingdom and for the reverence which we have for this religious place. We command that no public official of any authority shall presume to enter the lands of this monastery ... for the purpose of hearing cases, of seizing securities, of collecting taxes, of demanding entertainment, or of extorting tolls from cities or markets; nor shall he presume to exact any taxes or payments whatever, but the monks shall rule and possess, both in our time and in the future, all the property of this monastery in all places and lands, where they have possessions, as aforesaid, without being subject to the entrance of officials or to exactions on the part of the royal treasury....

192. Form of a Grant of Immunity to a Monastery.

Marculf, I, no. 3; pp. 43 f.

We believe that our reign will best be rendered memorable, if we bestow suitable benefits on churches (or whatever you wish to insert here), with pious purpose, and if we secure these benefits under the protection of God by putting them in writing. Therefore, be it known to you that we have granted the request of that apostolic man, the bishop of (name), for the salvation of our souls; namely, that no public official may enter the lands which his church holds now, by our gift or by the gift of anyone else, or which his church may receive in the future, for the purpose of trying cases, or collecting taxes; but that the said bishop and his successors shall hold the said lands in the name of the Lord with full immunity. We decree therefore that neither you nor any of your subordinates or successors, nor any other public official shall presume to enter the lands of the said church for the purpose of trying cases, of collecting taxes or revenues, or receiving entertainment or seizing supplies or securities. All the taxes and other revenues which the royal treasury has a right to demand from the people on the lands of the said church, whether they be freemen or slaves, Romans or barbarians, we now bestow on the said church for our future salvation, to be used by the officials of the church forever for the best interests of the church.

193. Form by which the King Granted Lands with Immunity to Secular Persons.

Marculf, I, no. 14; pp. 52 f; Altmann und Bernheim, no. 113.

Those who from their early youth have served us or our parents faithfully are justly rewarded by the gifts of our munificence. Know therefore that we have granted to that illustrious man (name), with greatest good will, the villa called (name), situated in the county of (name), with all its possessions and extent, in full as it was formerly held by him _or_ by our treasury. Therefore by the present charter which we command to be observed forever, we decree that the said (name) shall possess the villa of (name), as has been said, in its entirety, with lands, houses, buildings, inhabitants, slaves, woods, pastures, meadows, streams, mills, and all its appurtenances and belongings, and with all the subjects of the royal treasury who dwell on the lands, and he shall hold it forever with full immunity from the entrance of any public official for the purpose of exacting the royal portion of the fines from cases arising there; to the extent finally that he shall have, hold, and possess it in full ownership, no one having the right to expect its transfer, and with the right of leaving it to his successors or to anyone whom he desires, and to do with it whatever else he wishes.

194. Grant of Immunity to a Secular Person, 815.

Altmann und Bernheim, no. 114.

In the name of our Lord and Savior Jesus Christ. Ludwig, by divine providence emperor, Augustus. Be it known to all our subjects, present and future, that our faithful subject, John, has come to us and commended himself to us, and has besought us to confirm to him the possession of lands [described] which he and his sons and their men have cleared and occupied. He has shown us the charter which he received from our father Karl the Great. We have consented to do this and have done even more; we have given him certain villas [named] with their extent and dependencies ... granting that he and his sons and his posterity may hold them in peace and security. No count, _vicarius_, or their subordinates, or any other public official shall presume to judge or constrain any persons living on those lands, but John and his sons and their posterity shall judge and constrain them....

195-208. Growth of the Feudal Elements During the Late Merovingian and the Carolingian Period.

The elements which we have just described and illustrated were essentially private in their nature. They assumed, however, political importance in the threatened dissolution of society, due to the failure of the public government. In a period when the state was unable to give adequate protection to the common individual, that person naturally regarded his allegiance to his real protector, his lord or landlord, as of more importance to him than his relation to the state. The natural tendency of powerful persons to increase their power over their dependents and their independence of higher authority was given its opportunity by the weakness of the monarchy and the central government. The four centuries from 550-950 were in the main a period of disorder, interrupted, of course, by the period of Carolingian strength, including the reigns of Karl Martel, Pippin, and Karl the Great. During these four centuries the existing feudal elements developed and hardened into a system of society, and two new features were added: the feudalizing of offices, and the connection of land-holding with military service. These are so characteristic of the feudal age that their origin is illustrated here.

195-196. The Feudalizing of Public Offices.

By this is meant the practice of inheritance of office and the union in one person of the characteristics of an official and a great landlord. Thereby the local officials of the king, such as the counts, tended to form an hereditary landed nobility, the office being held usually by the great landed family of the county. It is obvious that this tendency would grow in a period when the monarchy and the central government was weak, the king either being unable to restrain the powerful local officials or else granting them these privileges in order to retain their support. It is obvious also that the local officials would strive to increase their private advantages--possession of land, and personal authority over the inhabitants of their lands or districts--at the expense of their public position as representatives of the king. So in the feudal period in France, Italy, and Germany (in the last named the development was much slower), the titles duke, margrave (marquis), count, etc., ceased to have an official significance and became the titles of a landed aristocracy.

195. Edict of Chlothar II, 614.

M. G. LL. 4to, II, 1, no. 9.

12. No one from another province or region shall be made judge [count] in any county; so that if a count has done injury to anyone he may be forced to make good the injury from his own possessions.

The count, like the _grafio_ of the Salic law, was originally a servant of the king sent into the county to look after the king's interests there. It appears from this document that the counts were now appointed from among the land-owners of the county.

196. Capitulary of Kiersy, 877.

M. G. LL. 4to, II, 2, no. 282.

The capitulary of Kiersy was published by Charles the Bald, just before he left France for Italy, and was intended to regulate the affairs of the kingdom, which was entrusted to his son during his absence. It shows how completely the practice of inheritance of land and office had developed during the Carolingian period. The office, position, and lands of counts, vassals of the king, and vassals of ecclesiastical and secular lords were regarded as hereditary by this time.

3. If a count whose son accompanies us shall die during our absence, our son with the advice of our faithful subjects shall appoint one of the near relatives of the deceased count to govern the county with the aid of the officials of the county and the bishop in whose diocese it is, until we are notified of the case and have an opportunity to give the son of the count his father's honors. But if the deceased count shall leave a minor son, that son shall govern the county with the aid of the officials and the bishop in whose diocese it is, until the death of the said count has been brought to our notice and we endow the son with his father's honors. But if the count shall not leave a son, our son with the advice of our faithful subjects shall appoint someone to govern the county with the aid of the officials of the county and the bishop, until our commands in respect to it are made known. And no one shall feel aggrieved, if we give the county to another than the one who governed it up to the time of our appointment. The same procedure shall be observed in regard to our vassals; and the bishops, abbots, and counts of our kingdom, and our other faithful subjects, shall do the same toward their men.

197-202. The Military Obligation of the Holder of Land.

The connection of military service with the holding of land and with noble character is one of the characteristic features of the feudal system. The feudal noble was regularly the holder of a fief on terms of allegiance and military service to his superior. In the Germanic tribes military service was obligatory on every freeman, but there was also a fighting élite, or aristocracy, composed of the chiefs and their followers (see no. 1, Tacitus, chapters 13 and 14). The military obligation of the freeman remained in theory during the Merovingian and Carolingian periods, but in practice it was connected rather with the possession of land and was performed largely by the lords and their followers. Towards the end of the Merovingian period, much of the land was in the possession of the church and was escaping from public burdens because of immunity. Karl Martel found it necessary to increase the military strength of the kingdom; the particular occasion is supposed to have been the need of horsemen to meet the Arab invasion. He accordingly forced the churches to give portions of their lands to secular persons who could perform military service, and the holders of these lands were required to bring a troop of mounted warriors to the army. Such lands were held on terms of military service to the state and as _precaria_ from the church. The same conditions were then attached to lands held from the king, and the term benefice--used in the earlier period of lands held from another in general--now came to be applied technically to lands held from the king or superior on condition of performing military service, usually on horseback. The number of mounted soldiers the holder of a benefice had to furnish of course varied with the size of his holding. The great lords raised the necessary troops by giving portions of their lands to their retainers on condition that the retainers should accompany them to war. So the obligation to perform military service was attached also to the small estates held not directly from the king, but from a great lord. We give here references to the appropriation of church lands, to the relation of the holder of the lands to the church and to the king, and to the extension of the name and practice to other than church lands.

197. Capitulary of Lestinnes, 743.

M. G. LL. 4to, II, 1, no. 11.

This is a capitulary of Carlmann, the brother of Pippin. It is the earliest case which has come down to us of appropriation of church lands for the purpose referred to.

2. Because of the threats of war and the attacks of certain tribes on our borders, we have determined, with the consent of God and by the advice of our clergy and people, to appropriate for a time part of the ecclesiastical property for the support of our army. The lands are to be held as _precaria_ for a fixed rent; one solidus, or twelve denarii, shall be paid annually to the church or monastery for each _casata_ [farm]. When the holder dies the whole possession shall return to the church. If, however, the exigency of the time makes it necessary, the prince may require the _precarium_ to be renewed and given out again. Care shall be taken, however, that the churches and monasteries do not incur suffering or poverty through the granting of _precaria_. If the poverty of the church makes it necessary, the whole possession shall be restored to the church.

The whole capitulary, of which paragraph 2 is translated, is concerned with ecclesiastical matters; accordingly only the interests of the church in the military benefice is explained here. The relation of the holder to the state comes out in other documents. Notice the express reason given for the appropriation, and the relation of the holder to the church from which the land was held.

198. Capitulary of Aquitaine, Pippin, 768.

M. G. LL. 4to, II, 1, no. 18.

5. Whoever holds a benefice from us shall be careful and diligent in its management; otherwise he shall lose the benefice, but retain his own property.

11. All secular persons who hold church lands shall hold them as _precaria_.

Paragraph 5 refers to lands held from the king. Notice the distinction made between such land and land held in full ownership. Paragraph 11 repeats the provision made in the preceding number, that lands held from the church as benefices are to be regarded as _precaria_; this is found in a number of capitularies of this period, suggesting that the holders were apt to forget their obligation to the church and to treat the land as their own property.

199. Capitulary of Heristal, 779.

M. G. LL. 4to, II, 1, no. 20.