The Historians' History of the World 08

The vassal who fulfilled his obligations fully and conscientiously was as nearly as possible master of his own fief. He could in turn enfeoff the whole or part of his domain, and become in turn the sovereign lord of vassals of a lower rank, or vavasseurs, holding towards him the same obligations as he to his own lord. Such was the fabric of the hierarchy.

If the vassal had his obligations, the lord also had his. He could not take back a fief arbitrarily or without a legitimate reason from his vassal. He must protect him if he were attacked, see that he received justice, etc.

Let us note that the feudal system in developing itself made a fief of everything. Every concession—for hunting in the forests, for ferrying across rivers, for acting as guides on the roads, for escorting merchants, for running communal ovens in the towns—every useful employment, in fact, conceded in return for fidelity and homage, became a fief.

Lords multiplied concessions of this kind in order to multiply the number of men owing them military service. But the fief itself, to which the rights of justice were attached, remained in general undivided and was handed down according to the laws of primogeniture.

FEUDAL JUSTICE

The obligation of the vassals to attend the courts of their lord has made it clear that the principle of feudal justice was trial by one’s peers, a principle which was entirely in the customs and even the institutions of the Germanic peoples, where freedmen were tried by an assembly of freedmen.

They called peers (pares, equals), vassals of the same lord settled around him on his domain, and holding fiefs of the same rank. The king himself had his peers who were those holding their estates directly from him, not only as feudal lord but as king. Each had the right to be judged by his peers before his lord. If the peers refused him justice or the vassal believed that it had been unfairly rendered, he made a complaint “in default of right,” and brought the matter to the attention of his lord’s suzerain. It was to this higher tribunal that it was necessary always to bring disputes which arose between a lord and his vassal.

But this right of appeal did not entirely satisfy the spirit of independence which animated this warlike society. The lords preserved with jealous care another right of appeal—that which is addressed to the power of arms; they preferred to obtain justice for themselves rather than receive it from the hands of others. So thoroughly was the custom enrooted in their manners that the king regulated the formalities which preceded this species of warfare and had for their object the warning of the party to be attacked and the giving of an opportunity to place himself in a state of defence. After all, our international wars proceed from the same principle and are no better. The lords waged their wars with their little armies as we with our greater ones. Only hostilities had a more individual character since the states were much smaller.i

Besides the Fehde or right of private warfare—an old Germanic custom—there was the “trial by combat,” which must not be confused with it. The true “judicial combat,” in which champions fight for a cause, or for the settlement of a quarrel, is a product of the Middle Ages, when faith in God was as strong as faith in the strength of the human arm. This custom became so universal a method of settlement of difficult questions that it was even used by Alfonso, the great Spanish lawgiver, to decide upon the introduction of new laws concerning inheritance. This much at least may be said in favour of it, that it was less of an evil than the torture which tended to supplant it in judicial proceedings in the later Middle Ages.a

Justice was not the prerogative of all the lords to the same extent. It was distinguished in France by three degrees, high, low, and middle justice. The first alone gave the right of life and death. In general it may be said it was the largest and most important fiefs that had powers of justice to the greatest extent. Still it was possible for a simple vavasseur to possess the functions of “high justice,” and in some places the lord who could dispense but “low justice” could punish with death the robber caught at his crime. Within these variable limits the lord alone dispensed justice on his fief, and when, later on, royalty usurped the right, there was a revolution.