nothing obliged him to convoke all, to convoke one rather than another. Arbitrary will thus pervaded the compositior of the feudal court, and those who attended it were most frequently drawn there either by some personal interest, or merely by the desire to please their suzerain. Here, as you see, there were no veritable guarantees, and that which did scem to result from the judgment by peers was rendered inefficacious by the social state. Other means were accordingly sought. The feudal courts, judgment by peers, all that system of jurisdiction which 1 have just described, evidently imposed no confidence on feudal society, was not of easy and frequent application there. The possessors of fiefs decided their disputes by other means. Every one has met in his readings with the judicial combat, private wars, and is aware that these two facts occupied a prominent position in the feudal period, and characterise it. They have, in general, been represented as the result of the brutality of manners, the violence of passions, of disorder, and general degradation. Doubtless, these causes greatly contributed to it. They are, however, not the only causes; the brutality of manners was not the only reason which so long maintained these two facts, and made them the habitual state, the legal state of feudal society. It was because the system of judicial guarantees was vicious and powerless, because no one had faith therein, and cared not to have recourse to them; in a word, it was in default of something better that men did themselves justice, that they protected themselves. What, then, was judicial combat and private warfare? It was the individual protecting himself and doing himself justice. He called his adversary to combat because peaceful guarantees inspired no confidence; he made war upon his enemy, because he did not believe in any public power capable of repressing him. There was, doubtless, an inclination, a taste, a passion, if you will, for this method of proceeding; but there was also a necessity for it. ingly, private warfare and judicial combat became established institutions, institutions regulated according to fixed principles, and with minutely determined forms; principles far more fixed, forms far more determinate, than were those of the peaceful process. We find in the feudal monuments far more details, precautions, directions as to judicial duels 2 Accord than upon processes properly so called; upon private wars, than upon legal prosecutions. What does this indicate, except that judicial combat and private war were the only guarantee in which confidence was placed, and that men instituted them, regulated them with care, because they more frequently had recourse to them? I shall quote some texts from the Coutume of Beauvaisis; it was written, as you are aware, towards the end of the thirteenth century, after all the efforts of Philip-Augustus and of Saint Louis to abolish private wars. You will there see how deep were the roots of this fact, how completely it was still the true feudal institution : "War may be commenced in several ways, either by deed or by word; it is commenced by word when the one party menaces the other, that he will insult or injure his body, or when he simply defies him and his; and it is commenced by deed when a mêlée takes place, without previous notice, between the gentlemen on either side. It is to be known, that when warfare commences by deed, those who are engaged in the skirmish commence the war forthwith, but the kinsmen on either side do not commence warfare until forty days afterwards; and if war is commenced by menace or defiance, he who is defied or menaced commences the war from that time forth. But seeing that great inconvenience might arise from either party premeditately making an attack upon the other, without previous notice by menace or defiance, and then, after this sudden assault, sending a menace or defiance as above set forth, he shall not be excused from the consequences of opening the war by deed on account of such subsequent defiance or menace. The gentleman who so menaces or defies, must therefore make no complaint that the party defied forthwith takes measures for guarding and protecting himself.' "Whoever declares war by word of mouth, must not make use of vague or ambiguous terms, but of words so clear and distinct that he to whom the words are said or sent may know that it behoves him to put himself on his guard; to do otherwise were treason. "2 Of a surety, these are most provident and precise formalities; and the fact to which they apply should not be con. Beaumanoir, c. 59, p. 300 2 lbid. p. 301, sidered as the mere explosion of brutality and violence of manners. Here are other texts still more remarkable: When war arose between two possessors of fiefs, their kinsmen were engaged in it, but upon certain conditions and within certain limits, which great care was taken to regulate. "War may not take place between two brothers, born of one father and of one mother, on no cause or dispute whatever; not even if the one have beaten or wounded the other, for neither has kinsmen who are not as nearly related to the other as to himself, and none may take part in a war who are as closely allied to the one of the principals as to the other. Therefore, if two brothers have a dispute together, or if the one wrongs the other, the wrong doer may not appeal to the right of war; nor may any of his kinsmen aid him against his brother, although they may like him better than his brothe Therefore, when such disputes arise, the seigneurs mu punish the wrong doer and decide the dispute justly.1 "But though war may not take place between two brothers sons of one father and of one mother, if they be brothers only on the father's side, and not by one mother, there may by the custom be war between them; for each has kinsmen that do not belong to the other, and so the kinsmen on the mother's side may aid each in war against the other." 2 Are not these singular legal precautions? You will, perhaps, have been tempted to believe that in interdicting war between brother and brother, they rendered homage to a moral principle, to a natural sentiment: not so. of the law was, that if there was war between two brothers, The reason they would not be able to carry it on because they had the same relations. I might cite a thousand details, a thousand passages of this kind, which prove to what a degree private wars were an institution of which men had foreseen all the necessities, all the difficulties, and which they applied themselves to regulate. It was the same with judicial combat. We find scarcely anything in the feudal monuments concerning the progress of peaceful procedure; but when judicial combat is the matter in hand, the details are abundant; the formalities which were 1 Beaumanoir, c. 59, p. 299. 2 Ibid., p. 300. to precede the combat are minutely described; every precaution is taken in order that honour and justice may preside over it. If, for example, it happened that in the midst of the combat any incidert occurred to suspend it, the marshals of the lists and the heralds at arms present in the arena were called upon attentively to examine the position of the two adversaries at the moment of the suspension, in order that they might be obliged to resume it when the combat again commenced. Men at this period had recourse to force; it was force which was to decide the question; but they desired to introduce into its judgment as much regularity, as much equity, as it would allow of. The more you examine the documents, the more clearly will you see that judicial combat and private war, that is to Bay, the appeal to force, the right of each to do justice to himself, was the true system of guarantee of the feudal society, and that the judicial guarantees by peaceful procedure, of which I have attempted to give you an idea, really occupied little space in the feudal system. We have confined ourselves within the most simple feudal society. We have studied there, on the one hand, the system of the reciprocal rights and duties of the possessors of fiefs; on the other, the system of guarantees which were to protect those rights. We have now to consider the feudal society in all its extent and complexity; we have to investigate the past and examine the influence of the foreign elements which became joined to it. But I would first completely sum up the principles of the feudal organization, properly so called. by estimating its merits and its defects, in fine, foreshow you, in itself and in its proper nature, the causes of its destiny. I shall endeavour to do this in our next lecture. ELEVENTH LECTURE. General character of the feudal society-Its good principles: 1. Necessity cf individual consent for the formation of the society; 2. Simplicity and notoriety of the conditions of the association; 3. No new charges or conditions without the consent of the individual; 4. Intervention of society in judgments; 5. Right of resistance formally recognised; 6. Right of breaking through the association; its limits-Vices of the feudal society-Twofold element of every society-Weakness of the social principle in feudalism-Excessive predominance of individuality --From what causes-Consequences of these vices-Progress of the in. equality of force among the possessors of fiefs-Progress of the inequality of rights-Decline of the intervention of society in judgments -Origin of provosts and bailiffs-Formation of a certain number of petty royalties-Conclusion. WE are acquainted with the organization of feudal society. We know what relations united the possessors of fiefs among themselves, whether suzerain and vassal, or vassals of the same suzerain. We know what was the system of their reciprocal rights and duties, and also the system of guarantees, which insured the accomplishment of rights, the maintenance of rights, and the redress of wrongs. Before examining what effect it produced upon the foreign elements which were mixed with the society so constituted-before seeking how feudalism, royalty, and the commons were combined, and what results were progressively developed, whether by their amalgamation, or by their struggle, let us still dwell upon the feudal society itself; let us give an exact account of its organization, and of the principles which presided over it; let us endeavour to catch a glimpse of what it was to become, in virtue of its proper nature, its proper tendency, independently of all complex influence, of every foreign element. It is important to know what part of the destiny of feudalism |