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; but so far it had no organs and instruments save those which were furnished by feudalism, now organized The feudal monarchy. 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 of the 11th century, developing with extraordinary Roman law. 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
had beneath him a whole hierarchy, and was
Final organization
of feudalism.
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 concession from the lord to whom the town was subject, Rise of the privileged towns. 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 who survived. But this period saw the rise of a Great officers of the crown and peers of France. 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.
The right of war tends to regain its natural equilibrium,
Growth of the
royal power.
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
