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.
14. (Lombard form.) Laymen who hold lands from churches as benefices by
the command of the king, are to continue to hold them unless the king
orders them restored to the churches.
200. General Capitulary to the Missi, 802.
M. G. LL. 4to, II, 1, no. 33.
Part of this capitulary is also translated as no. 9. This and the
following document illustrate the holding of royal benefices, and the
difficulty in making the holders perform their duties. It was part of
the duty of the _missi_ to look after the royal benefices.
6. No man shall lay waste a benefice in order to improve his own
property.
201. Capitulary to the Missi, 806.
M. G. LL. 4to II, 1, no. 46.
6. We have heard that counts and other men who hold benefices from us
have improved their own property at the expense of the benefices, and
have made the serfs on the benefices labor on their own land, so that
our benefices are waste and those dwelling on them in many places suffer
great evils.
7. We have heard that some sell the benefices which they hold from us to
other men in full ownership, and then, having received the price in the
public court, they buy back the lands as allodial lands. This must not
be done, for those who do this break the faith which they promised us.
202. Capitulary Concerning Various Matters, 807.
M. G. LL. 4to, II, 1, no. 49.
3. Concerning the Frisians, we command that our counts and vassals who
hold benefices, and all horsemen in general, shall come to our assembly
prepared for war.
203-208. Effect of the Carolingian Organization on the Growth of
Feudalism.
Karl the Great succeeded in reducing the great dukes to subjection (see
no. 7, Einhard, ch. 5 and 11, and notes), and enforcing obedience to law
in general throughout his empire, but he did not interfere with the
immunity rights of churches and lords over the inhabitants of their
lands or with dependence of vassals and tenants on the great
land-owners. Indeed, his attempt to reduce everything to law and system
resulted in completing and fixing these relations. The following
passages illustrate the increased dependence of the lower orders and the
greater and more complete authority of the powerful persons in the
state.
203. General Capitulary to the Missi, 805.
M. G. LL. 4to, II, 1, no. 44.
16. Concerning the oppression of poor freemen: that they are not to be
unjustly oppressed by more powerful persons on any pretext, and forced
to sell or give up their property.
204. Capitulary of 811.
M. G. LL. 4to, II, 1, no. 73.
This and the preceding document illustrate the attempts of the great
lords to round out their domains and increase the number of their
dependent tenants by forcing poor free land-owners to give up their
lands and become tenants.
2. Poor men complain that they are despoiled of their property, and they
make this complaint equally against bishops and abbots and their agents,
and against counts and their subordinates.
205. Capitulary of Worms, 829.
M. G. LL. 4to, II, 2, no. 193.
6. Freemen who have no lands of their own, but live on the land of a
lord, are not to be received as witnesses, because they hold land of
another; but they are to be accepted as compurgators, because they are
free. Those who have land of their own, and yet live on the land of a
lord, are not to be rejected as witnesses because they live on the land
of a lord, but their testimony shall be accepted, because they have land
of their own.
Notice the effect that dependent tenure of land is having on the legal
status of freemen.
206. Capitulary of Aachen, 801-813.
M. G. LL. 4to, II, 1, no. 77.
16. No one shall leave his senior, after he has received from him the
value of a solidus, unless his senior attempts to kill him, to beat him
with a club, to violate his wife or his daughter, or to take his
hereditary possession from him.
207. Agreement of Lothar, Ludwig, and Charles, 847.
M. G. LL. 4to, II, 2, no. 204.
2. We decree that every freeman shall accept whatever senior he wishes
in our kingdom, from among us and our faithful subjects.
3. We command that no man shall leave his senior without good cause, and
that no lord shall receive a man who has left his senior, unless it be
in accordance with the customs of our predecessors.
4. Every subject of each one of us shall go to war or other necessary
expedition with his senior, unless the kingdom is invaded and all the
subjects are called out in mass to repel it, which is called _landwehr_.
208. Capitulary of Bologna, 811.
M. G. LL. 4to, II, 1, no. 74.
5. If any man who holds a benefice of the king shall release his subject
from going to war with him or shall refuse to allow him to go and fight
with him, he shall lose his benefice.
7. Concerning the vassals of the emperor who serve him in the palace,
and have benefices. It is decreed that those who remain at home with the
emperor shall not keep their tenants with them, but shall let them go to
war with the count of the county.
The name senior is used in Carolingian documents for the lord who has
authority over dependent tenants and vassals. Notice in the two
documents preceding that the subjects of a lord are bound to him by law,
and that they go to war, not with the general levy under command of
public officials, but with their fellows of the same lands under command
of the senior.
209-228. The Feudal System in its Definite Form.
The elements already described became the system of society and
government in the states which in the ninth and tenth centuries
developed from the empire on its dissolution. The system gradually
became settled and organized, the feudal kingship developed to give it a
head, and it took the form recognized as the feudal system.
The features to be noticed are the relation of the vassal to his lord,
the position of the king, and the economic organization of the land and
the obligations of the cultivators to the landlords. The origin and
growth of these features in the earlier age have been shown in nos.
180-208; it only remains to show how they were organized in the feudal
age.
The vassal was bound to the lord of whom he held a benefice or fief by
the oath of fidelity and homage. He also owed his lord certain services
of noble character, the chief of which was military service. This was
not perpetual service, but was limited by law or custom, usually
consisting of 40 days' active service, and a certain amount of guard in
the castle of the lord or in the castle which the vassal held as a fief
of the lord. Aids or money payments were also paid by vassals on certain
occasions, such as the marriage of the lord's oldest daughter, the
knighting of the lord's oldest son, and the captivity of the lord. The
lord had also certain rights over his vassals, which were frequently
commuted for money: wardship, the right of guardianship of minor heirs,
and the management and use of the fiefs during the minority; marriage,
the right to choose or be consulted in the choice of a husband for
female holders of fiefs; relief, the right to exact a certain payment
from the heir when he succeeded to a fief; escheat, the right of taking
back the fief into his own possession upon the failure of heirs, etc.
These rights and payments have their origin in the personal dependence
of the vassal upon the lord. They were occasional and did not form a
part of the regular income of the lord, although they might be worth
considerable at times. The regular income of the lord came from his
domain lands, the lands which were not let out in fief, but which were
cultivated by tenants or serfs, and which supplied the lord with money,
resources, and services.
The authority of the king in the feudal state was very limited. This was
due chiefly to the fact that each lord exercised practically sovereign
rights over his lands and dependents. The feudal king was in origin one
of the great feudal lords (cf. in France, Hugh Capet, duke of Francia;
and in Germany, Henry I, duke of Saxony), who was chosen by the great
lords and became their overlord. He had the same rights on his own
domains as any feudal lord, but had only the authority of an overlord
over his great vassals. He had no direct control over the vassal of his
vassal, but could reach such an one only indirectly through that
person's immediate superior. The holders of great domains exercised not
only jurisdiction over the tenants on their lands, but possessed also
other sovereign rights, such as the right of coinage, of collecting
tolls and taxes, etc.
The basis of the economic life of the feudal age was the cultivation of
land. Commerce, trade, and organized industry did of course exist during
the Middle Age, but they were non-feudal in spirit and grew up outside
of and in spite of feudalism. Land was organized in domains or estates,
containing each a group of cultivators forming a community or little
village. These cultivators held their land from the landlord on very
complex terms of rent and services. Rents were paid in money or in a
portion of the produce of the land. In each village the lord had a
house, and a farm (manor-farm or head farm) which was worked by personal
serfs and by the services owed by tenants. Aside from rents and services
the lord possessed certain rights over his tenants, which were a source
of revenue. The chief of these were: justice, the right to hold courts
on his lands for the trial of cases arising among the tenants, and to
levy and collect the fines; banalities (banvin, etc.); the right to sell
his own wine, grain, etc., a certain number of days before the tenants
could sell theirs (this he frequently released for a certain tax); the
rights of market, mill, bake-oven, etc., which were owned by the lord,
and from which he received tolls (these were frequently let out to other
persons for an annual rent). A great lord, as a count or duke, would own
a great many such domains, and would have a house or castle and farm in
each one, and an agent or representative to care for his interests in
the domain. Nobles of the lowest rank, as the knight or chatelain, might
own only two or three, or even a single domain.
209-217. Homage, Investiture, Aids, etc.
209. Homage.
Boutillier, Somme rurale, I, 18.
These documents illustrate the form of feudal practices after the system
had become fairly well fixed. Most of the passages are from
_Coutumiers_, codes or digests of feudal law and practice, of which
there were a great many in the Middle Age. Some of the famous ones are:
in England, those of Bracton and Littleton; in France, the
_Établissements de St. Louis_, _Coutumes de Beauvaisis_, by Beaumanoir,
and several provincial customs, as the _Coutumes_ of Normandy, of Anjou,
etc. Most of the references were taken from Du Cange, Glossarium,
_Hominium_. See no. 180, for an early form of homage.
The man should put his hands together as a sign of humility, and place
them between the two hands of his lord as a token that he vows
everything to him and promises faith to him; and the lord should receive
him and promise to keep faith with him. Then the man should say: "Sir, I
enter your homage and faith and become your man by mouth and hands
[_i.e._, by taking the oath and placing his hands between those of the
lord], and I swear and promise to keep faith and loyalty to you against
all others, and to guard your rights with all my strength."
210. Homage.
Coutume de la Marche, art. 189.
The manner of doing homage to another is as follows: The man who wishes
to enter the homage and fealty of a lord should humbly request the lord
to receive him into his faith; his head should be uncovered, and the
lord may be seated if he wishes; the vassal should take off his belt and
sword, and should kneel and say the words of homage, etc.
211. Homage.
Ancienne coutume de Normandie, art. 107.
The form of homage is as follows: The vassal who holds by noble tenure
reaches out his hands and places them between the hands of his lord and
says, etc.
212. Homage.
Bracton, De legibus et consuetudinibus Angliæ, II, 35.
The tenant [vassal] should place his clasped hands between the hands of
the lord; by this is signified, on the part of the lord, protection,
defense, and guarantee; on the part of the vassal, reverence and
subjection.
213. Homage.
Tabularium Campaniæ, cited by Du Cange, Glossarium, _Ligius_.
I, John of Toul, make known that I am the liege man of the lady
Beatrice, countess of Troyes, and of her son, Theobald, count of
Champagne, against every creature, living or dead, saving my allegiance
to lord Enjorand of Coucy, lord John of Arcis, and the count of
Grandpré. If it should happen that the count of Grandpré should be at
war with the countess and count of Champagne on his own quarrel, I will
aid the count of Grandpré in my own person, and will send to the count
and the countess of Champagne the knights whose service I owe to them
for the fief which I hold of them. But if the count of Grandpré shall
make war on the countess and the count of Champagne on behalf of his
friends and not in his own quarrel, I will aid in my own person the
countess and count of Champagne, and will send one knight to the count
of Grandpré for the service which I owe him for the fief which I hold of
him, but I will not go myself into the territory of the count of
Grandpré to make war on him.{87}
{87} This is a good illustration of the confusion of the feudal
relation in practice. The vassal held land in this case from four lords,
to all of whom he did homage and owed allegiance and military service.
It was the usual practice for the vassal to do _liege_ homage to one of
the lords, who was his chief or liege lord, and to whom he owed service
first of all. Notice the compromise arrived at in this case. For
distinction between liege homage and simple homage see also no. 214, and
no. 218, introductory note.
214. Homage of Edward III of England to Philip V of France, 1329.
Froissart, Chronicle, I, ch. 24. (Lettenhove's edition, II, pp. 227
ff.)
The king of England was received by the king of France with great honor,
and he and his company remained there at Amiens fifteen days, during
which many conferences were held and many ordinances drawn up. It seems
to me that on that occasion king Edward did homage in words, but did not
place his hands in the hands of the king of France, nor did any of his
princes, prelates or representatives do so for him. By the advice of his
council king Edward refused to proceed further until he had returned to
England and had examined the ancient charters in order to determine the
manner in which the kings of England had done homage to the kings of
France.... At last the king of England wrote letters patent, sealed with
his great seal, in which he acknowledged the sort of homage that he
ought to pay to the king of France. This is the form of that letter:
Edward, by the grace of God king of England, lord of Ireland, and duke
of Aquitaine, etc. Know that when we did homage to our beloved lord and
cousin, Philip, king of France, at Amiens, he insisted that we should
acknowledge that our homage was liege homage, and that in it we should
expressly promise to be faithful and true to him. We would not agree to
this at the time, because we did not know whether we owed him liege
homage or not. Accordingly we did homage in general terms, saying that
we entered into his homage in the same manner as our predecessors, the
dukes of Guienne, had formerly entered into the homage of the kings of
France. But now having found what that manner was, we acknowledge by the
present letter that the homage which we paid to the king of France at
Amiens was, is, and ought to be held to be liege homage; and that we owe
him loyalty and fidelity as duke of Aquitaine, peer of France, count of
Ponthieu, and count of Montreuil; and we hereby promise him such loyalty
and fidelity. In order that similar disputes may not occur in the
future, we promise for ourselves and for future dukes of Aquitaine that
homage shall be performed in the following manner: The king of England
as duke of Aquitaine shall put his hands within the hands of the king of
France, and the person who speaks for the king of France shall say to
the king of England as duke of Aquitaine: "You become the liege man of
my lord the king of France as duke of Aquitaine, and peer of France, and
you promise to keep faith and loyalty to him? Say yea." And the king of
England, or the duke of Guienne, or their successor, shall say "Yea."
Then the king of France shall receive the king of England, as duke of
Guienne, by mouth and hands [see no. 209], saving their other rights.
Moreover, when the said king of England does homage to the king of
France for the counties of Ponthieu and Montreuil, he shall put his
hands in the hands of the king of France for those counties, and the
person who speaks for the king of France shall say, etc....
215. Feudal Aids.
Ancienne coutume de Normandie, I, 3, ch. 25.
The chief aids of Normandy are so called because they are rendered to
chief lords [_i.e._, to lords who receive liege homage]. It is the
custom in Normandy to pay three aids ... first, for the knighting of the
lord's oldest son; second, for the marriage of the lord's oldest
daughter; third, for the ransom of the lord.
216. Feudal Aids.
MS. of the Chamber of Accounts, Paris; cited from Du Cange, Glossarium,
_Hominium_.
In the chatelainerie [territory dependent on a castle] of Poitou and
that region, according to the custom of the land, those who hold fiefs
pay five aids to the lord: for the knighting of the lord's son, for the
marriage of the lord's oldest daughter, for the rachat{88} of the lord's
fief, for the crusade, and for the ransom of the lord from the hands of
the Saracens.
{88} Rachat, see no. 228, Troyes, note 2.
217. Feudal Aids, etc.
From Magna Charta, 1215.
In the first part of Magna Charta, John promises to give up the abuses
of feudal law which he had practiced. Thus he had exacted exorbitant
payments from heirs for inheritance of fiefs (reliefs); he had forced
widows and female heirs under his wardship to marry his favorites and
supporters, or had exacted heavy fines if they refused; he had levied
unjust aids and services, and a heavy scutage, or payment for exemption
from military service.
2. If one of our knights or barons or other tenants-in-chief [_i.e._,
direct vassals] who hold by military service shall die and shall leave
an heir who is of age, the heir shall receive his father's fiefs by
paying only the ancient relief; namely, the heir or heirs of an earl
shall pay 100 pounds for the whole earldom; the heir or heirs of a
knight shall pay 100 solidi for the whole fief of the knight; and those
who inherit smaller holdings shall pay smaller reliefs according to the
ancient custom.
3. But if the heir of any of our tenants-in-chief is under age and is
under our ward, he shall have his fiefs when he comes of age without
relief or fine.
8. No widow shall be forced to marry unless she wishes to; but she must
give security that she will not marry without our consent, if she holds
of us, or without the consent of her lord, if she holds of another.
12. No scutage or aid shall be exacted in our kingdom, unless by the
common consent of the realm, except for the ransom of our body, the
knighting of our oldest son, and the marriage of our oldest daughter;
and these shall be levied at reasonable rates.
218-228. The Feudal System in Practice, Illustrated by the County of
Champagne.
Actual conditions under the feudal system will, it is thought, be best
illustrated by showing in some detail the workings of the system in a
single important case. The following documents are taken from the great
French collection of documents called "Documents inédits sur l'histoire
de France"; two volumes are devoted to the county of Champagne and
contain all the important documents relating to the growth and formation
of the feudal territory of Champagne, the relation of the counts to
their overlords on the one hand, and to their vassals on the other, and
the organization of the lands retained by the counts as domain lands,
_i.e._, cultivated by tenants for the count and not let out in fief. The
county of Champagne is chosen because it is one of the best examples of
the formation of a great feudal territory, and because the two volumes
referred to form the most complete as well as most accessible collection
of illustrative material for the feudal _régime_ in its practical
working.
218-225. Homages Paid by the Count of Champagne.
218. Homage to the Duke of Burgundy, 1143.
Documents inédits. Champagne, I, p. 466.
The count of Champagne held his lands from several overlords; the ones
mentioned in the following documents are: the king of France, the duke
of Burgundy, the bishops of Langres and Châlons, and the abbot of St.
Denis; he also held parts of his lands from the emperor, the archbishops
of Sens and Rheims, and the bishops of Auxerre and Autun. This plurality
of superiors is characteristic of most of the great domains. The great
fiefs came under the control of one lord by various means, inheritance,
marriage, purchase, subinfeudation, etc. The great lord endeavored to
complete his control of a whole region by becoming the feudal holder of
all the land in the region. Since holding by feudal tenure, including
homage, etc., was the regular method of acquiring land in the feudal
system, it was used as a form of contract, and the personal subjection
and dependence was in many cases a mere form. In cases like that of the
count of Champagne the holder did homage to all the lords from whom he
held lands, but could not of course observe complete allegiance to each
one. So one of the superiors was recognized as his chief and liege lord,
and to him the holder did _liege homage_ (see no. 213, note). Notice
that the count of Champagne pays _liege_ homage to the king of France,
who is his chief lord.
Be it known to all men, present and future, that count Theobald of
Blois{89} did homage to Odo, duke of Burgundy, at Augustines, and
acknowledged that he held the abbey of St. Germain at Auxerre, Chaourse,
the castle of Maligny with all its dependencies, the castle of Ervy with
all its dependencies, the county of Troyes, the city of Troyes, and
Château-Villain, as fiefs from the duke.
{89} The territory of the count of Champagne included the counties of
Blois, Troyes, Champagne, and Brie, and the holder was called by these
different titles at various times.
219. Homage to Philip II of France, 1198.
Documents inédits, Champagne, I, pp. 467 f.
Philip, by the grace of God king of France. Be it known to all men,
present and future, that we have received our beloved nephew, Theobald,
count of Troyes, as our liege man, against every creature, living or
dead, for all the lands which his father, count Henry, our uncle, held
from our father, and which count Henry, the brother of Theobald, held
from us. Count Theobald has sworn to us on the most holy body of the
Lord and on the holy gospel that he will aid us in good faith, as his
liege lord, against every creature, living or dead; at his command the
following persons have sworn to us that they approve of this and will
support and aid him in keeping this oath: Guy of Dampierre, Gualcher of
Châtillon, Geoffroy, marshal of Champagne, etc. [vassals of the count of
Champagne]. If count Theobald fails in his duty to us and does not make
amends within a month from the time when they learn of it, they will
surrender themselves to us at Paris, to be held as prisoners until he
makes amends; and this shall be done every time that he fails in his
duty to us. We have sworn with our own hand that we will aid count
Theobald against every creature, living or dead; at our command the
following men have sworn that they approve of this and will support and
aid us in keeping this oath: Pierre, count of Nevers, Drogo of Mello,
William of Galande, etc. [vassals of the king]. If we fail in our duty
to count Theobald, and do not make amends within a month from the time
when they learn of it, they will surrender themselves to him at Troyes
to be held as prisoners there until we make amends; and they shall do
this every time that we fail in our duty to him.... We have also agreed
that our beloved uncle, William, archbishop of Rheims, and the bishops
of Châlons and Meaux, may place those of our lands that are in their
dioceses under interdict, as often as we fail in our duty to count
Theobald, unless we make amends within a month from the time when they
learn of it; and count Theobald has agreed that the same archbishop and
bishops may place his lands under an interdict as often as he fails in
his duty to us, unless he makes amends within a month from the time when
they learn of it.{90}
{90} Notice the securities given by each party; a suggestion that the
oath alone was not always sufficiently binding.
220. Homage to the Duke of Burgundy, 1200.
Documents inédits, Champagne, I, p. 468.
We, Odo, duke of Burgundy, make known to all men, present and future,
that we have received our relative and faithful subject, Theobald, count
of Troyes, as our man for the land which his father, count Henry, held
of our father, Hugo, duke of Burgundy, just as his father, count Henry,
was the man of our father. We have promised count Theobald that we and
our heirs will guarantee that land to him and his heirs against every
creature, living or dead, and will aid him and them in good faith with
all our power to hold that land in peace and quiet.
221, 222. Agreement between Blanche of Champagne and Philip II, 1201.
221. Letter of Blanche.
Documents inédits, Champagne, I, p. 469.
Notice the rights of wardship and marriage exercised by the lord in this
case. The counts of Champagne claimed to be hereditary counts palatine
of France (see nos. 223 and 225); notice, however, that the king of
France does not use the title in speaking of the countess.
I, Blanche, countess palatine of Troyes. Be it known to all, present and
future, that I have voluntarily sworn to my lord, Philip, king of
France, to keep the agreements contained in this charter....
I have voluntarily sworn that I will never take a husband without the
advice, consent, and wish of my lord, Philip, king of France, and that I
will place under his guardianship my daughter and any child of whom I
may be pregnant from my late husband, count Theobald. In addition, I
will turn over to him the fortresses of Bray and Montereau, and give him
control of all the men who dwell there and all the knights who hold
fiefs of the castles, so that if I break my promise to keep these
agreements, all the aforesaid men shall hold directly of my lord,
Philip, king of France; and they shall all swear to aid him even against
men and against every other man or woman. The lord of Marolles shall put
himself and his castle also under the control of the king, and similarly
all the knights who hold fiefs of Provins, and all the men of Provins,
and all the men of Lagny and Meaux, and all the knights who hold fiefs
of these places.... I will do liege homage to my lord, Philip, king of
France, and I will keep faith with him against all creatures, living or
dead.
222. Letter of the King.
Documents inédits. Champagne, I, p. 470.
In the name of the holy and undivided Trinity, amen. Philip, by the
grace of God king of France. Be it known to all, present and future,
that we have received Blanche, countess of Troyes, as our liege woman,
for the fief which our beloved nephew and faithful subject, Theobald,
former count of Troyes, held from us.... We have sworn to her that we
will keep the agreements written in this charter in good faith, as to
our liege woman; namely, that we will protect and nourish her daughter
whom she has placed in our ward, in good faith and without deceit, and
that we will not give her in marriage until she reaches the age of
twelve years. After she has reached that age, we will provide her with a
husband in accordance with the desires and advice of ourself, our
mother, the lady Blanche, and the barons whose names are written here,
or of the persons who hold their fiefs, if they have died. These are the
barons: William, archbishop of Rheims; Odo, duke of Burgundy; Guy of
Dampierre; Gualcher of Châtillon, etc.
223. Homage to the Bishop of Langres, 1214.
Documents inédits. Champagne, I, p. 472.
I, Blanche, countess palatine of Troyes, make known to all who see these
presents that while my beloved lord, William, bishop of Langres, was at
Troyes on certain business, I besought him, if he was willing, to
receive there the homage of my beloved son, count Theobald. He replied
that the homage ought to be made only at Langres, but that, as a favor
to me and out of love to my son, he would receive it at Troyes, in order
that I might be spared the journey, saving his rights and the rights of
the church of Langres, and the rights of my son. Accordingly he received
the homage of my son at Troyes, and I conceded and concede that this
shall work no prejudice to the rights of the church of Langres, or the
bishop, but that the rights of the bishop and of my son shall remain
unimpaired.
224. Homage to the Bishop of Châlons, 1214.
Documents inédits, Champagne, I, p. 474.
Gerard, by the grace of God bishop of Châlons, to all who see these
presents, greeting and sincere love in the Lord. Know that when our
beloved son and faithful subject, Theobald, count of Champagne, came to
us at Cherville, we were ill, and so he did homage at St. Memmie. Now in
order that this may not work prejudice to future counts of Champagne, we
acknowledge and bear witness that homage ought to be done at Cherville
or elsewhere in the march [_i.e._, frontier], where the bishops of
Châlons and the counts of Champagne are wont to come together for
conference and the transaction of business.
225. Homage to the Abbot of St. Denis, 1226.
Documents inédits, Champagne, I, p. 476.
Peter, by the grace of God abbot of St. Denis, to all who see these
presents, greeting in the Lord. Know that the noble man, Theobald, count
palatine of Champagne and Blois, did homage to us for the castle of
Nogent-sur-Seine and its dependencies, in the same manner as Milo of
Châlons, former lord of that castle, who held it as a fief from the
church of St. Denis. With the advice and consent of our chapter we have
granted that the said count shall be bound to appear only in our court
in matters pertaining to that fief.
226. List of the Fiefs of Champagne, about 1172.
Documents inédits. Champagne, I, pp. 22 ff.
These documents illustrate the relation of his vassals to the count of
Champagne. They are taken from a register of the fiefs and vassals of
the count of Champagne, drawn up about 1172. There are many instances of
such registers or inventories in the feudal age; the relations of lord
and vassals were apt to become confused and subject to dispute. The
particular purpose of the register in this case was to determine the
number of knights owing military service to the count of Champagne, and
the amount of service owed by each one.
OF CHÂTILLON AND FISMES.
Count of Rethel, liege homage.
Count of Grandpré, liege homage.
Count of Roucy, liege homage.
Count of Chiny.
Roger of Rozoy, for the fief of Chaourse. Roger of Rozoy, his son
[did homage].{91}
Lord of Montmort, liege homage. Guy of Montmort [did homage]. He
holds in fief the rights of the forest of Vassy and many other
fiefs.
Hugo of Oisy, a year's guard.
Gaulcher of Châtillon, guard and liege homage.
The sons of Guy of Châtillon, a year's guard and liege homage,
etc., etc.
OF CHÂTEAU-THIERRY.
Count of Soisson. His fief is thirty pounds of the tolls and taxes
of Château-Thierry.{92}
Lord of Pierrefonds.
Lord of Nesles, Fresnes, and Roiglise.
Lord of Braisne.
Lord of Bazoches is liege man of the count after the bishop of
Soissons,{93} and owes three months' guard. For Coulonges and the
forest as far as Ste. Gemme [his fief].
André de Ferté, liege homage and a year's guard.
Bartholomé de Thury, liege homage and a year's guard. His fief is at
Thury, Coulombs, and Chacrise, etc., etc.
OF MEAUX.
Count of Vermandois.
Count of Beaumont.
Bishop of Beauvais, for the fief of Savignies.
Bochard of Montmorency. His fief is at Marly and Ferrières.
Lord of Crécy-en-Brie. For Crécy and many other fiefs.
Lord of Montjay.
Viscount of La Ferté, liege homage and guard. For his holdings at
Gandelus, Fresnes, La Ferté-Gaucher, La Ferté-sous-Jouarre, and
Lizy, and their dependencies, except the fief which he holds of the
bishop of Meaux and the abbot of St. Faron.
Theobald of Crespy. For Bouillancy, etc., etc.
{91} This expression means apparently that the person named did the
homage and performed the services for the holder of the fief, as his
representative.
{92} Here is a case where the fief of a vassal is a portion of the
revenues of the lord. As already noted, holding by feudal tenure was the
regular form of contract in the feudal age; it was used not only in
regard to the holding of land, but also for the acquisition of other
possessions, as a sum of money, etc.
{93} The bishop of Soissons is the liege lord of the lord of Bazoches.
227. Sum of the Knights [who owe Service to the Count of Champagne].
Documents inédits, Champagne, I, pp. 73 f.
This table occurs at the end of the register of the fiefs of the count
of Champagne of which the preceding number is a part. It is the sum of
the knights who owe regular military service to the count, and is also
therefore the number of knights whom the count should bring in answer to
royal summons to war.
From La Ferté 58
Bar-sur-Aube 117
Rosnay 79
Saint-Florentin 42
Ervy 39
Villemaur 27
Vitry and dependencies 159
Bussy-le-Château 25
Mareuil-en-Brie 84
Montfélix 24
Épernay 40
Châtillon and Fismes 160
Oulchy 62
Château-Thierry 86
Meaux 149
Coulommiers 68
Montereau 29
Chantemerle 34
Bray-sur-Seine 83
Provins 265
Payns 42
Pont-sur-Seine 42
Sézanne and Lachy 85
Vertus 61
Troyes and Isle-Aumont 135
Méry-sur-Seine 21
The great fiefs 20
------
Whole sum of the knights 2,030
------
[Correct total 2,036]
228. Extent of the Lands of the County of Champagne and Brie, about
1215.
Documents inédits, Champagne, II, pp. 9 ff.
This is an inventory of the domain lands of the count of Champagne, made
to determine the revenues, possessions, and rights of the count, and the
obligations and dues of the tenants and serfs. They were determined by
the examination of certain trustworthy inhabitants of each domain or
village. The result was arranged according to bailiwicks (large
administrative districts), and domains or villages. Thus the cases given
here are taken from the four villages of Troyes, Nogent, Pont, and
Séant, in the bailiwick of Troyes. The student should notice the rights
of the lord (justice, banvin, rachat, mainmort, markets, tolls, etc.);
the revenues from the lands; the position of the prévôt (the lord's
agent in the village), whose services are paid by allowing him to
collect and keep part of the revenues. Note also that in this age many
of the rights of the lord are commuted for money or let out to others
for an annual rent; this was a common tendency of the later feudal age,
when the lord came more and more to appreciate the advantages of ready
money over services and rents in produce.
BAILIWICK OF TROYES.
1. Troyes.
The count has at Troyes pure and mixed justice in Troyes and all
jurisdiction over all persons,{94} except the men who have charters of
privilege and the men who live on the lands of churches which have
jurisdiction over their men by charter or long usage.
Fines in cases coming under the high justice are levied at the will of
the count according to the character of the crimes and the custom of the
city. They are not estimated here. Escheat and confiscation of goods for
the great crimes, such as killing, theft, rapine, heresy, etc., belong
to the high justice. The prévôt has 20 solidi of the fines which are
levied, and 60 solidi of the escheats. Besides these the prévôt has no
share in these fines, but they go to the count.
Fines for cases coming under the low justice are levied according to the
custom of Troyes....
The count also has the right of mainmort by which he takes all the goods
of men who die without children or heirs who should succeed, and all the
goods of low-born men who die without children....
The count also has within the district of Troyes the right of
rachat,{95} which the widows of noble holders of fiefs must pay if they
wish to marry again. The rate of the rachat has been decided to be equal
to the income of the fief for a year. The prévôt has no share in the
rachat.
The count also has the markets of St. John, which begin on the first
Tuesday two weeks after the day of St. John the Baptist and end about
the day of the Nativity of the Blessed Virgin. They are now estimated to
be worth 1,000 pounds,{96} besides the fiefs of the holders of the
markets which are worth 13 pounds. This market is called the
"hot-weather fair" (_la foire chaude_).
He also has the markets of St. Rémy, called the "cold-weather fair" (_la
foire froide_). They begin on the day after All Saints' day and last
until a week before Christmas. They are estimated to be worth now about
700 pounds....
The count also has the house of the German merchants where cloth is
sold.... It is sold or rented out at the fairs of St. John and St. Rémy,
and is estimated to be worth 400 pounds a year, deducting the expenses.
The count also has the stalls of the butchers ... which are held from
the count for an annual rental, paid half on the day of St. Rémy, and
half on the day of the Purification of the Blessed Virgin. The count
also has jurisdiction in cases arising in regard to the stalls of the
butchers.
He also has the hall of the cordwainers [shoemakers], where shoes are
sold on Saturday; it is situated next to the stalls of the butchers. It
is held from the count for an annual rental, paid at the above-mentioned
times.
The count and Nicholas of Bar-le-Duc have undivided shares in a house
back of the dwelling of the prévôt, which contains 18 rooms, large and
small. The rooms are rented for an undivided rent of 125 solidi, of
which half goes to the said Nicholas....
The count and the said Nicholas have undivided shares in seventeen
stalls for the sale of bread and fishes. They are now rented for 18
pounds and 18 solidi....
{94} Justice was divided into high and low, or into high, middle, and
low justice. These distinctions were not everywhere the same, but in
general high justice meant jurisdiction over cases the penalty for which
was death or mutilation, and low justice, or middle and low justice, the
jurisdiction over less serious crimes. The same general difference was
understood by pure and mixed justice. When the lord is said to have "all
the justice, high and low," or "pure and mixed justice," it is meant
that he has complete jurisdiction over his subjects in all cases.
{95} Rachat is the sum paid by the new holder of a fief at the time of
his entrance into the fief; it is about the same as the relief (see no.
217, § 2, and introductory note to nos. 209-228). Here it refers to the
sum which the widow of a vassal of the count must pay when she
remarries, not for the privilege of remarrying, but for the right to
take the fief with her to her new husband.
{96} Note the great value of the markets to the count. Troyes was not a
small village, but a city of some importance, and the market rights were
worth a good deal. This is a good illustration of the seignorial or
feudal control of cities, against which the citizens continually
struggled. (See nos. 308, 309.)
4. Nogent-sur-Seine.
The count has a house there and the orchard that goes with it, which the
count retains for himself [_i.e._, has not let out in fief].
According to the statement under oath of Pierre of Pampeluna [etc.], the
count has also all the justice, except that which is held by others by
charter or long usage....
Escheat and confiscation of goods come under the high justice, and the
prévôt has the same rights in fines and escheats as in the case of
Troyes [see above]. The smaller fines from cases belonging to the high
justice are estimated as belonging to the office of the prévôt.
The count also has the market hall and the toll from the markets and the
village, every day in the week. They are estimated at 80 pounds.
He also has the banvin, which lasts a whole month, beginning on the day
after Easter. It is valued at 30 pounds.
The count also has the right over the streams of Noe and Vileure....
5. Extent of the domain of Pont-sur-Seine, determined by the statements
of Pierre Molventre, Th. Coichard, and Robert of Besançon, who were
sworn to speak the truth.
The count has a house there, and has all the justice in the village and
the chatelainerie, except that which is held by others by charter or
long usage. The high and low justice is exercised as described in the
chapter on Troyes. The jurisdiction exercised by the prévôt is estimated
to be worth 100 pounds a year, the jurisdiction over the fiefs at 14
pounds, 10 solidi, and the jurisdiction over the clergy at 26 solidi, 8
denarii.
These are the dues collected by the prévôt:
Taxes and toll from the market, and 18 solidi of the ancient small tax.
Also the _lods et ventes_,{97} which are now estimated at 42 pounds.
The banvin, which lasts for 15 days, beginning about the day of St. Mary
of Magdala, when the count wishes to exercise it; it is worth about 60
solidi when the count wishes to sell it. The monks of St. Étienne have
the same banvin, but they are not allowed to sell it unless the count
sells his.
The rents from the inhabitants of Villeneuve, now worth 60 solidi. The
prévôt takes half, and the other half goes to the canons of the church
of Provins. Each farm also pays 12 denarii and a measure of oats, half
to the count (the prévôt does not take this) and half to the said
canons....
The count also has the following rents and _lods et ventes_:
_Lods et ventes_ from the house of Robert of Besançon, and 12 solidi
rent; the same from the house of Claude and 10 solidi rent; the same
from the house of Ordinetus the serf, and 25 solidi rent....
He also has from Saint-Martin-de-Bossenay 5 solidi of the small tax,
_lods et ventes_, three hens a year, and 15 measures of oats....
The count also has from Le Châtelot, near Villeneuve, seven hens a year,
and five measures of oats to be paid on Christmas, and they belong to
the office of the prévôt....
Hugo of Villeneuve, clergyman, Renerius, his brother, the prévôt of the
village, Pierre Florie, Pierre Fromerit, former prévôt, and Hugo
Florion, say on their oath that the count has the right of escheat from
all who die in the village without heirs....
{97} _Lods et ventes_ were payments made to the lord when the farm
changed hands. The holder in these cases had the right to sell or rent
his holding subject to the payment of _lods et ventes_. It may be
compared to rachat or relief in the case of fiefs.
6. Extent of Séant, determined by the statements of Theobald the bailly,
Ithari le Paalier, Felicité Huilliet, Guillot le Convert, and Milauti
Veitu, sworn to speak the truth.
They said on their oaths that Henry, king of Navarre of blessed memory,
bought the village of Séant, with its men, lands, woods, domains, and
appurtenances, from the lord of Montmorency, with the dowry of lady
Blanche his wife, now the wife of lord Edmund, son of the king of
England, paying for it 6,500 pounds Tours.{98} The said lady Blanche has
a house there and all the justice, high and low, within the boundaries
of Séant....
The lord of Montmorency had and the lady Blanche has 20 _journata_{99}
of land in the place known as the clearing of Forni, 10 _journata_ in
the clearing of John of Pont, 10 _journata_ in the clearing of Pierre
Courbe, and 5 _journata_ in the clearing of Val de Laroi. In all, 45
journata, which are equal to about 42 arpents.
The lady also has the land tax from all the clearings; these are in
meadows and contain about 250 arpents.
The lady also has the land taxes from the great field of Séant; this tax
is divided into twelve parts, of which the abbeys of Valle Lucenti,
Pontigny, and Dillo have five parts, and the lady the other seven....
The lady also has rents, customs, and taxes from the following men:
Theobald the bailly is the man of the lady Blanche and holds of her in
fief five of the eight parts of the bake-oven of Séant;{100} the other
three parts are held by Adelicia and her children. The said Theobald
also has a farm from the countess, for which he pays 5 solidi, 1
denarius rent, and a measure of wine, a hen, a loaf of bread, and three
measures of oats.
The children of Bertelon are men of the countess and hold land of her at
a rent of 11 measures of oats and the taille.{101}
The children of Baudonnet are men of the countess and hold land of her
at a rent of 12 denarii and a measure of oats, and the taille....
{98} An illustration of the acquisition of a fief by purchase. All the
rights of the former holder went with the land to the new holder.
{99} _Journatum_ is a measure of land, literally the amount which could
be cultivated in a day. Probably in this case the lord had allowed some
of his tenants to clear and reduce to cultivation part of his waste
lands, on condition that he be given a portion of the cleared land from
each tenant as payment for the permission.
{100} Note that the village bake-oven, which the lord originally erected
and from which he collected tolls, has been let out as a fief and is now
in the possession of two families of tenants.
{101} The _taille_, poll tax.
229, 230. The Attempt of the King to Control the Feudal Nobles.
229. The Feudal Law of Conrad II, 1037.
M. G. LL. 4to, IV, 1, no. 45; Doeberl, III, no. 1.
The feudal king naturally was not content with his restricted authority
under the feudal régime and attempted to assert his right as head of the
state to enforce general laws for the whole realm. When the king was
strong and able, he could do this to some extent, but when he was weak,
his commands received little attention. In the reigns of Conrad II and
Frederick I, in Germany, the monarch was able to control his great
vassals and enforce obedience to his laws. But the triumph of the
papacy, allied with the great nobles of Germany, over the emperor was
fatal to the development of a strong monarchy, and after the death of
Frederick II the feudal lords became independent princes. See the
progressive concessions to princes, nos. 136, 139, 153, 160. In France
the monarchy became absolute by acquiring, in accordance with feudal
law, actual possession of all the great fiefs. In England, the conflict
between the king and the feudal lords gave opportunity for the rise of a
representative system of government, which was used sometimes by the
king to control the lords (as in the cases of Henry I and Henry II),
sometimes by the great lords to control the king (John and Henry III).
Thus the feudal system, under different conditions, resulted in France
in an absolute monarchy, in England in a constitutional monarchy, and in
Germany in a weak central government and a kingdom composed of many
practically independent principalities.
In the name of the holy and undivided Trinity. Conrad, by the grace of
God emperor of the Romans, Augustus.
(1) Know ... that we have ordained and established that no knight of a
bishop, abbot, margrave, count, or of anyone else, who holds a benefice
from the royal or from church lands, shall be deprived of his benefice
unless he has been convicted of a crime by his peers, according to the
laws of our ancestors. This applies to both our great vassals and their
knights.
(2) If a conflict shall have arisen between a great vassal and his
knight, and the peers shall have judged that the knight should lose his
benefice, and if the knight alleges that he was condemned unjustly, he
shall keep his benefice until both parties have come into our presence,
where the case shall be settled justly. But if the great vassal is not
able to get the peers of the accused to give judgment, the accused shall
hold his benefice until he and his overlord and the peers shall have
come before us. In such cases, the party who appeals shall notify the
other party to the suit, six weeks before he sets out to the royal
court. This applies to our great vassals as well.{102}
(3) But cases between lower vassals shall be tried before their lords or
before our missi.
(4) We ordain also that when any knight, either of a great vassal or of
a rear-vassal, dies, his son shall have his benefice. If he does not
leave a son, but a son of his son survives, this grandson shall receive
his benefice, observing the custom of great vassals by giving horses and
arms to his lord.{103} But if the knight leaves neither son nor
grandson, but a brother or a half-brother on the father's side, that one
shall have the benefice, if he is willing to become the knight of the
lord of that benefice.
(5) Moreover, we forbid that any lord should trade the benefice which
his knight holds, or dispose of it in any way without the knight's
consent. And no one shall dare to take from his knight the lands which
he holds by proprietary right or as a libellum or precarium.{104}
(6) The _fodrum_ from the castles which was paid to our ancestors shall
be paid to us, but we will not require any which was not paid to them.
{102} Note the right of the vassal to be tried by a court of his peers,
_i.e._, a court composed of the other vassals of the same lord; and also
the right of appeal claimed for the court of the king.
{103} This is an old form of relief.
{104} Feudal tenure of land was not the only form known in the Middle
Age. Other more ancient forms still existed in exceptional cases; as
here: land held by proprietary right, that is, allodial possessions that
had never been feudalized; land held as libellum or precarium, which are
about the same. A libellum was a piece of land held by one person from
another for a term of years, for life, or with the right of inheritance,
for a fixed rent, the _libellus_ being the charter or grant. _Libellum_,
_precarium_, usufruct, and _emphyteusis_, are forms of land-holding
known to the later Roman law, and differing one from the other only very
slightly.
230. The Feudal Law of Frederick I for Italy, 1158.
Ragewin, Gesta, IV, ch. 10; M. G. LL. folio, II, pp. 113 f; Doeberl, IV,
no. 37 c.
Frederick, by the grace of God emperor of the Romans, Augustus, to all
the faithful subjects of our empire....
At the diet of Roncaglia, where we held a court of justice, as was the
custom of our ancestors, the princes of Italy, the rulers of the church,
and other faithful subjects made complaint that their vassals were in
the habit of pawning or selling the fiefs and benefices which they held
of them without their consent. Thereby the princes were deprived of the
services due them from these fiefs and the dignity and the revenues of
the empire were diminished. Having taken counsel with the bishops,
dukes, margraves, counts, palatines, and other nobles, we therefore
decree by this edict that no one henceforth shall sell or pawn or devise
by will or in any way dispose of his fief or any part of it without the
consent of the lord from whom he holds it. The emperor Lothar commanded
under similar circumstances that such things should not be done in the
future; we, however, hereby declare void not only future alienations of
this sort, but also all illegal alienations that have already been made;
the purchaser of the fief in such cases shall have an action at law
against the seller for the recovery of the price, without regard to the
length of time that has elapsed since the transaction. And as some
resort to fraudulent sales and transfers under the form of free
investiture after receiving the purchase price, we declare that such
fictitious sales are void and condemn both seller and purchaser to the
loss of the fief, which shall revert to the lord. Any lawyer who draws
up such a contract knowingly shall be deprived of his office and lose
his hand and be stigmatized with infamy. If any person over fourteen
years of age, who has inherited a fief, fails through his own negligence
to seek investiture for it from his lord within a year and a day, he
shall lose the fief and it shall revert to the lord. If any vassal
refuses to obey the summons of his lord to accompany him on an imperial
expedition, or fails to come at the time set, or to send a suitable
person in his place or to give half the revenue of the fief [as
compensation for his service], he shall lose the fief and it shall
revert to the lord.{105}
Duchies, marks, and counties may not be divided.{106} Any other fief may
be divided if the co-heirs desire, but on the following conditions:
Everyone who holds a part of the fief shall swear fidelity to the
overlord; no vassal shall have more than one lord for one fief; and the
lord shall not transfer the fief to another lord without the consent of
the vassal. Vassals shall be responsible to the lord for the conduct of
their sons; if the son of a vassal offends the lord, the father, on pain
of losing his fief, shall compel him either to make satisfaction to the
lord for his fault or to leave his household. If the son refuses to
obey, he shall not be allowed to inherit the fief on his father's death
unless he has made satisfaction. Vassals shall in a similar manner be
responsible to their lord for the conduct of their vassals, and all
their dependents.
In case of a controversy between two vassals of the same lord in regard
to a fief, the matter shall be tried and decided by the lord. In case of
a controversy between a vassal and his lord, it shall be decided by a
court of peers of the vassal, sworn on their oath of fidelity to do
justice in the case.
We also decree that in every oath of fidelity the fidelity to the
emperor shall be excepted by name.
{105} Notice the attempt of the king to enforce his authority in
military matters over the vassals of his vassals. In strict feudal law
the rear-vassal was responsible only to his immediate lord for the
fulfillment of his duties, but the king generally claimed authority over
them in matters in which the welfare of the state was concerned, as in
the matter of military service in public wars.
{106} In Germany the great lords retained for a long time in theory
their character of public officials and their fiefs were regarded as
administrative districts of the state. Hence the idea that they were
indivisible, a character which still adhered to the lands of the
electoral princes in later times (see no. 160, Golden Bull, ch. XX).
VII. COURTS, JUDICIAL PROCESSES, AND THE PEACE
It is not our purpose to give a complete account of all the mediæval
courts, nor to show fully their mutual connection. Because of the great
difficulties of the subject and the lack of suitable documents we name
only the most important courts and offer a few passages to illustrate
them. It is not that such documents are scarce that we have presented so
few of them; but they contain so much that would require long
explanations that they would demand far more space than we felt could
properly be given to this subject. The materials which we offer
illustrate the courts for the most part after 1100, but they throw light
on those of the earlier period. In many other documents contained in
this book there are references to courts and judicial processes which
the student should carefully observe.
I. The royal court. According to mediæval theory the king was the judge
in the whole realm. He had jurisdiction over all things. But because he
could not be present everywhere and hear all cases, he appointed men
(dukes, counts, etc.) to act as judges in his place. But they merely
represented him. So whenever the king in his travels comes to a place,
he at once replaces the local judge and all the machinery for the
administration of justice. Since he was present in person, he needed no
one to represent him. Eventually the great princes refused to receive
him into their palaces because of the heavy expense in entertaining him
and his numerous retinue, so his journeys as judge into their
territories gradually ceased. In 1220 Frederick II agreed that he would
exercise his rights as judge in the cities of the bishops only during
the diets which he should hold in them and a week before and a week
after. (See no. 136, par. 10.) He soon ceased to travel as judge, and
after 1250 acted as judge only in and during the diets which he held.
Since in theory all judges and courts merely represented the king, he
had the right to call before himself any case, no matter where it was
pending. This was called the _jus evocandi_, the "right of calling."
Rudolph of Hapsburg and his successors granted both princes and cities
exemption from this. In the Golden Bull (no. 160, chs. VIII and XI)
Charles IV renounced all right to call any of the subjects of the
electoral princes before his court. These exemptions were gradually
extended to all the princes, imperial cities, bishops, and other
territorial lords, until in 1487 the crown completely lost its _jus
evocandi_.
In the same way everyone had the right to appeal to the king, against
the decision of any court. But in time the king surrendered this also in
the same way to the electoral princes and agreed never to receive
appeals from any of their subjects. See no. 160.
Frederick II found it impossible to attend to all the business of the
royal court, and so in 1235 appointed a justiciar to represent him in
all minor cases. See no. 232, par. 28. He also made provision for
keeping complete records of the imperial court, and appointed a court
secretary and put him under the control of the justiciar. See no. 232,
par. 29.
II. The county courts. The county was composed of several districts
called hundreds. Each hundred had its court, which was always held in
the same place. The count received his authority as judge from the king,
and with it the right to inflict the king's ban or fine of sixty
shillings. The count went about from one court place to another, holding
three courts a year in each place. This regular court was in session
three days. If the business of the court could not be attended to in
these three days, the count announced another court to be held a few
weeks later. All the freemen of the hundred in which the court was held
were bound to be present at it. The courts of the count were called the
greater courts (_judicia majora_) and had jurisdiction over property,
criminal actions of a serious character, and suits to recover serfs. The
lower or hundred courts (_judicia minora_, see nos. 139, §7; no. 231, I,
58) had jurisdiction over cases involving debts, chattels, and trespass.
These lower courts were presided over by judges of inferior rank called
_Schultheissen_, _Gografen_, or hundred-counts, who were either
appointed by the count or elected by the people. They merely represented
the count, and could not inflict the king's ban.
The counts were at first regarded as officials of the king, but under
the influence of feudalism they became vassals and received their
judgeships as fiefs.
III. Courts on the royal domain. All who lived on the crown lands, or
royal domain, as they were called, were exempt from the county courts.
The king appointed an official to administer justice to them. He was
called an advocate and his office an advocacy. His position was similar
to that of the count in the county courts. He presided over the _judicia
majora_, and appointed _Schultheissen_ to preside over the _judicia
minora_.
IV. Courts on the lands of bishops and abbots. All those who lived on
the lands of bishops and abbots who held directly from the king, were
also exempt from the county courts. They were under the jurisdiction of
the bishop or abbot, who appointed an advocate to preside over the
higher courts, and _Schultheissen_ to preside over the lower. These
courts were quite like those on the royal domain.
V. The sovereign courts of the princes. The dukes received their
jurisdiction with their fiefs, and in theory their courts did not differ
from those of the counts. But they had a different development. For the
dukes steadily developed toward sovereignty in their territories, and in
1231 many of them got complete exemption from the royal jurisdiction
(see no. 139).
The duke of Austria was the first one to secure such complete exemption
(1156); see no. 110. The Golden Bull (chaps. VIII and XI) shows that all
the electors had acquired complete exemption and were sovereigns in
their territories in the administration of justice.
VI. The courts of great landholders. Every great landholder, having a
large number of vassals, held a court for the trial of all questions
which arose between him and his vassals, or among his vassals. Since he
also had jurisdiction over all the tenants and serfs on his lands, he of
course held courts for them, which were similar to those described in
III and IV. They are very similar also to the manorial courts in
England.
VII. For the courts of the ministerials see nos. 297, 231, III, 42.
VIII. Ecclesiastical courts. There were also ecclesiastical courts which
were presided over by clergymen, such as bishops, abbots, cathedral
provosts, archbishops, etc. They tried all cases which involved offenses
against the laws of the church.
IX. As the cities secured the right to govern themselves, they also in
many cases got jurisdiction over themselves. In the documents in section
X there are many references to courts and judicial processes in the
cities. From the explanations given here the student will be able to
understand at least their chief features.
X. Arbitration. Since the courts and the machinery for administering
justice proved to be inefficient, it became common, especially among the
cities, to create a commission of arbitration to settle all quarrels in
a peaceable manner. See no. 319.
In German courts the judge was really only the presiding officer. The
decision was rendered by the people who were present or by the
_Schoeffen_. Generally some particular person had the right to propose
the verdict (cf. no. 297, §5). At the proper time the judge asked him
what decision he wished to propose. Then the others present might agree
with the proposed verdict or offer another in its stead.
In cases where there were no witnesses the accused was compelled to
bring one or more of his relatives, friends, or neighbors, who swore
that they believed that he was telling the truth. They were called his
compurgators.
_Schoeffe_, pl. _Schoeffen_, were the permanent judges of the hundred
court. They were instituted by Karl the Great to take the place of the
temporary _rachinburgii_ of the Salic law (see note 22). There were
generally twelve of them in each county, and seven must be present
before a court could be legally opened. They gave the decision in
certain courts, and in so far they may be compared to our modern jury.
They held their office for life. In the German cities the board of
_Schoeffen_ played a very important part in the administration of
justice.
_Schoeffen_ free, or _Schoeffenbar_ free, were all the free-born. They
were eligible for the office of _Schoeffe_.
The _Pfleghaften_ were the free peasants who owned lands but because
they did not render military service were compelled to pay an army tax.
The payment of this tax was regarded as an evidence that they were not
completely free, and hence their position was lower than that of the
freemen who rendered military service for their lands.
The _Landsassen_ were, like the _leti_ (see note 18), essentially serfs,
attached to the soil, and paying fixed rent and services.
The _Bauermeister_ was at the head of the peasants of a village or
district and acted as judge in certain cases when no other judge was at
hand.
231. Sachsenspiegel.
Following the revival in the study of the Roman law and the connection
of Germany with Italy under the Staufer, Roman law was being introduced
into Germany, where it naturally tended to replace the customary law,
which was for the most part unwritten. The desire of the Saxons to
preserve their own law and to prevent the uncertainty that would
necessarily soon arise in it led them to attempt to codify it. Eike von
Repkau, a nobleman, undertook the task of reducing their customs to
writing. He called his book or code, which was written between 1215 and
1276, the _Sachsenspiegel_, that is, the mirror in which the Saxon law
is seen.
I, 2. Every Christian man who has attained his majority is bound to
attend the ecclesiastical court in the bishopric in which he lives three
times a year. Three classes of people are exempt from this: The
_Schoeffenbar_ free shall attend the court of the bishop; the
_Pfleghaften_ shall attend the court of the _præpositus_ of the
cathedral, and the _Landsassen_ shall attend the court of the
archpriests.
They shall also all attend the civil courts. The _Schoeffenbar_ free
shall attend the burggrave's court [also called the advocate's court]
every eighteen weeks. In it judgment is given under the king's ban. If a
court is called to meet after the close of the regular court, all the
_Pfleghaften_ shall attend it to try all cases involving misdeeds. This
attendance is all that the judge may require from them.
The _Pfleghaften_ shall attend the court of the _Schultheiss_ which is
held every six weeks, to try cases concerning their possessions.
The _Landsassen_ who have no property shall attend the court of the
_Gograf_ which is held every six weeks. In the courts of the _Gograf_
and of the burggrave the _Bauermeister_ shall make complaint of all
whose duty it is to attend the court but do not do so. And he shall ask
an investigation about all cases which involve bloody wounds, abusive
speech, the drawing of swords in a threatening manner, and all kinds of
misdeeds, provided no suit has been entered about them.
I, 53. If anyone does not attend court when it is called, or fails to
prove his case when he has brought suit, or challenges a man and is
defeated, or does not come promptly to court, or disturbs the court by
word or deed, or fails to pay a debt when the court has given judgment
against him, he shall pay the judge his fine. In every case in which one
party secures "damages" from another, the convicted party must also pay
the judge his fine. And even in many cases in which no damage is
involved, the judge may assess his fine....
No one is fined twice for the same offence, unless he breaks the peace
on a holy day. In that case he pays two fines, one to the ecclesiastical
court and one to the civil court, and he pays damages besides to him
whom he has injured.
I, 58. If the people choose a _Gograf_ for a long period, the count or
the margrave shall invest him with his office.... When the count comes
into the district of the _Gograf_, the latter loses all his authority
and cannot hold court [because his superior, whom he merely represents,
is present]. In the same way when the king comes into the territory
which is under the jurisdiction of the count, the count loses all his
authority and cannot hold court. And this is true of all courts. In the
presence of the king all other judges lose their authority and the king
must try all cases. A count is the same as a judge, according to old
German ideas.
II, 3. If a man is challenged to a duel who was not warned of it before
he came to court, he shall have time, according to his rank, to prepare
himself for it. The _Schoeffenbar_ free shall have six weeks, other
freemen and ministerials fifteen days. But for all other things that are
laid to a man's charge he shall answer at once, and either admit or deny
his guilt.
II, 12. No man may render a decision in a case to which his lord, his
vassal, or his friend is a party, if it involves their life or honor.
_Schoeffenbar_ free men may render decisions in all cases, but no one
may render decisions in their cases unless he is of the same rank as
they.... If a man objects to a decision after it is rendered, he may
appeal to the higher judge and then to the king. In case an appeal is
made, the judge shall send his messengers who understand the case to the
king. The messengers shall be freemen, and the judge shall pay all their
expenses while on the journey. They shall have enough bread and beer,
and three dishes for dinner and a cup of wine. Their servants shall have
two dishes. He shall give five sheaves for each horse every day, and
shoes for their forefeet. As soon as they learn that the king is in
Saxony they shall go to him and bring back his decision within six
weeks.
If the man who made the appeal loses it, he shall pay the judge his
fine, and all the expenses of his messengers to the king, and damages to
the man against whose decision he appealed....
If a judge asks a man to render a decision, and the man is in doubt and
cannot make up his mind about it, he may refuse to give a decision, and
the judge shall ask someone else for a decision.... If a man proposes a
decision and someone who is present objects to it and proposes another,
the judge shall accept that decision which receives a majority of the
votes of those present.
II, 13. A thief shall be hung. If a theft takes place by day in a villa
[village] and the object stolen is worth less than three shillings, the
_Bauermeister_ may pass judgment on the thief the same day. He may
punish him in his hair and skin,{107} or fine him three shillings. This
is the highest sum for which the _Bauermeister_ may try [_i.e._, not
more than three shillings]. But he cannot try the case the next day. But
in cases involving money, or movable goods, or false weights and
measures, and cheating in the sale of victuals, he may assess higher
fines. Murderers, and all who steal horses from the plow, or grain from
the mill, or rob churches or cemeteries, and all who are guilty of
treason, or arson, or who make gain out of information entrusted to them
by their lord, shall be broken on the wheel.
If anyone beats, seizes, or robs another, or burns his house, or does
violence to a woman, or breaks the peace, or is taken in adultery, he
shall have his head cut off. Whoever conceals a thief or stolen property
or aids a thief in any way, shall be punished as a thief. Heretics,
witches, and poisoners shall be burnt.
If a judge refuses to punish a crime, he shall be punished as if guilty
of it himself. No one is bound to attend his court or submit to his
judgment if he has refused to grant him justice.
II, 27. If a man refuses to pay bridge or ferry toll, he shall be made
to pay it fourfold. If he refuses to pay toll on the frontier, he shall
be fined thirty shillings. This is the toll for ferries: For coming and
going, four foot-passengers shall pay a penny; a man on horseback, a
half-penny; a loaded wagon, four pence. The toll for bridges is half
this. No toll shall be collected from anyone except at bridges and
ferries.... An empty wagon pays half as much as a loaded one.... If
anyone leaves the road and drives over cultivated land he shall pay a
penny for each one of his wheels and make good the damage he has done.
If on horseback, he shall pay half a penny besides the damage.
II, 28. If anyone cuts another's wood, or mows his grass, or fishes in
his streams, he shall pay a fine of three shillings and make good the
damage besides. If he fishes in another's fish-pond, or cuts down trees
which have been planted, or fruit-trees, or if he takes the fruit from a
tree, or cuts down trees which mark boundaries, or removes stones which
have been set up to mark boundaries, he shall pay a fine of thirty
shillings.... Whoever by night steals wood that has been cut, or grass
that has been mown, shall be hung. If he steals them by day, he shall be
punished in his "hair and skin." A fisherman may use the bank as far as
he can step from his boat.
III, 26. The king is the common judge everywhere. The _Schoeffenbar_
free man cannot be called before a foreign court to fight a duel. But he
must answer in the court in whose jurisdiction he is.
III, 33. Every man has the right to be tried before the king. And every
man must respond if suit is brought against him before the king....
III, 42. Do not be surprised that I have said nothing about the law of
the ministerials. It is so varied that no one could ever come to the end
of it. For under every bishop, abbot, and abbess, there are ministerials
who have their special code of laws, and so I cannot set them all down
here....
III, 52. The king is elected as judge in all cases concerning property,
fiefs, and life. But he cannot be everywhere, nor judge all cases, and
so he gives _Fahnlehen_ [flag-fiefs] to the princes [_i.e._, with
jurisdiction over them], and counties to counts with the power to
appoint _Schultheissen_, so that they can act as judges in the king's
stead.
III, 53. For every case a judge receives a fine but not damages. For no
one receives damages but the man who brings the suit. And the judge
cannot be both judge and a party to the suit.
III, 55. No one but the king can act as judge over the princes.
III, 60. The emperor enfeoffs all ecclesiastical princes with their
fiefs using the sceptre as a symbol, and all secular princes with their
_Fahnlehen_ using a flag as a symbol. A _Fahnlehen_ must not be vacant a
year and a day. Wherever the king is, the mint and tolls of that place
are surrendered to him during his stay there. And the local court is
closed because he is the judge [and the local judge merely represents
him]. While he is present all cases must be tried before him. The first
time the king comes into the land [_i.e._, after his election], all
prisoners must be brought before him, and he shall decide whether they
shall be set free or tried....
III, 63. Constantine the Great gave pope Silvester the secular fine of
fifty shillings in addition to his ecclesiastical authority, in order
that he might use both secular and ecclesiastical means to compel people
to obey and do right. So the two courts, the ecclesiastical and the
secular, should aid each other, and each should punish all who resist
the other....
III, 64. If the king summons the princes to render military service to
the empire, or to come to a diet, and informs them of it by means of
letters bearing his seal six weeks before the time set, they must obey
and go to the king if he is in Germany. If they do not go, they shall
pay a fine. The princes who have _Fahnlehen_ pay 100 pounds. All others
pay twelve pounds. A nobleman who does not come pays his duke ten
pounds.... Those who are under a count or imperial advocate pay him
sixty shillings, if he has the king's ban. No one but the king can grant
the king's ban.
III, 69. In courts where the judge may inflict the king's ban, neither
the judge nor the _Schoeffen_ shall wear caps or hats or any covering on
the head, or gloves. But they may wear mantles on their shoulders. They
shall not carry weapons [in court]. They shall fast until they pass
judgment on every man, whether he is a German or Wend. No one except
them shall pass judgment. They shall sit while passing judgment.
III, 70. In courts where the judge has no authority to inflict the
king's ban, any man may give the decision, or be a witness....
{107} Punishment in the "hair and skin" was especially cruel. The guilty
one was flogged and his hair was wound about a stick which was then
turned around and around until the hair was all pulled out. For some
offences the hair was closely cut instead of being pulled out, which
was, of course, much more humane. Long hair was worn by freemen as a
mark of their rank.
232. Frederic II Appoints a Justiciar and a Court Secretary, 1235. From
the Peace of the Land which was Proclaimed at Mainz, 1235.
Altmann und Bernheim, no. 103.
(28).... We wish that all cases over which we cannot preside in person
shall be tried by a man of approved character and good reputation, who
shall be placed over the courts in our stead. And except in those cases
which we reserve for our decision his judgment shall be final. We decree
therefore that our court shall have as justiciar a free man, and he
shall hold the office at least a year if he judges justly. He shall
preside over the court every day except on Sundays and other holy days,
and he shall administer justice to all litigants except to the princes
and to other high persons in cases which touch their persons, rights,
honor, fiefs, possessions, and inheritances, and the most important
cases. All such cases we reserve for our judgment. This justiciar shall
not fix the time for the more important cases which come before him
without our special command. He shall not proscribe the guilty nor
release from proscription. This we reserve for ourselves. He shall take
oath that he will not receive anything for his decision, and that he
will not be influenced by love, or hatred, or beseechings, or money, or
fear, or favor, but according to his conscience, in good faith, without
fraud or treachery, he will judge according to what he knows or believes
to be right. We grant him all the fees which come from the absolution of
those who have been proscribed, provided their cases were tried before
him. We do this that he may be free to judge as he wishes, and may not
find it necessary to receive gifts from anyone. He shall not remit the
fine of anyone, in order that men may fear proscription.
(29) He shall have a special notary who shall keep the names of those
who are proscribed, and of those who brought suit against them, an
account of the case itself, and the day on which the proscription took
place; also the names of those who are absolved from proscription, and
of those who brought suit against them, and the day they were freed from
proscription; also the names of those who stand as security for them,
and where they live, and also an account of any other security which the
man to be absolved is required to furnish for the satisfaction of the
one who brought suit against him. All letters and documents concerning
suits shall be sent to him. He shall devote all his time to this, and
shall have no other work to do at the imperial court. He shall keep a
list of those who are denounced as dangerous, and when anyone is freed
from suspicion, he shall take his name from the list.... He shall be a
layman, because a clergyman is not permitted to write judgments which
involve the shedding of blood, and also in order that if he does wrong
in his office he may be punished properly. He shall take an oath to
conduct himself faithfully and legally in his office....
233. Wenzel Creates a Commission to Arbitrate all Differences, 1389.
From the Peace of Eger, 1389. (German.)
Altmann und Bernheim, no. 107.
(2) We, king Wenzel, have made an agreement with the electors, princes,
counts, lords, and the cities, and all who are parties to this league of
peace, in regard to robbery, murder, arson, illegal seizure of persons,
and quarrels which may arise between those who are party to this peace,
that a commission shall be appointed to judge all cases of infraction of
the peace, and the decision of this commission, or of a majority of it,
shall be binding on all concerned. The electors, princes, counts, and
lords shall name four of these commissioners, and the cities shall name
four. And we will appoint a man to be president of this commission. If
any member of this peace is injured by anyone, the case shall be brought
before the president of the commission. Within fourteen days he shall
call the commission to meet in one of the four cities, Würzburg,
Neustadt, Bamberg, or Nürnberg, as seems best to him. And the decision
of this commission, or a majority of it, shall be binding, and they may
call on the nearest lords, cities, officials, and judges, to aid them
against the one who has broken the peace and inflicted the damage. And
they shall be bound to aid them until the damage has, in the judgment of
the commission, been made good.
(5) These nine men who form the commission shall swear on the holy
relics that they will faithfully act as judges for rich and poor alike.
(10) If a war or quarrel arises between the lords and the cities who are
in this peace, it shall be reported to the president and members of the
commission. And both parties shall submit to the decision which the
commission, or a majority of it, shall render in the case. If anyone
refuses to submit to their decision, all the members of this league of
peace shall aid the commission in enforcing it.
234-239. Ordeals or Judgments of God.
M. G. LL. 4to, V, pp. 599 ff. Ordines judiciorum Dei.
The appeal to the judgment of God in legal cases was an old Germanic
practice. There is evidence that the settlement of cases by lot, and by
judicial combat or duel, was common in the earliest times. In the Salic
and other laws there are references to the ordeal by hot water, etc.
After the introduction of Christianity and the growth of the influence
of the priest, the various ordeals were conducted by the church. The
casting of lots and the judicial combat were opposed by the church, the
one because it was inseparably connected with heathen rites, and the
other because of its violence. Accordingly the church introduced other
forms, some of which are illustrated here. The ordeal was ordinarily
resorted to when the regular rules of evidence were not satisfied, as
when one party could not furnish the required number of compurgators, or
was accused of perjury, etc. The ordeal might be used either to
determine which of two persons was in the wrong, or to test the guilt or
innocence of a single accused person. The commonest forms were: (1) The
ordeal of the sacrament, in which the accused took the sacrament, the
expectation being that if he were guilty the consequences would be
fatal; (2) the ordeal of the cross, in which the two persons stood with
arms outstretched in the form of a cross, and the one whose arms fell
first was regarded as guilty; (3) the ordeal by hot water; (4) the
ordeal by hot iron, in which the accused either carried a piece of hot
iron in his hand a certain distance or walked barefoot over pieces of
hot iron; (5) the ordeal by cold water; (6) the ordeal by the bread and
cheese; (7) the ordeal by the suspended bread, or psalter, in which the
object suspended was expected to turn around if the accused person was
guilty; (8) the judicial combat, which was not favored by the church,
but which was very commonly used among the noble class.
234. Ordeal by Hot Water.
Pp. 612 ff.
(1) When men are to be tried by the ordeal of hot water, they shall
first be made to come to church in all humility, and prostrate
themselves, while the priest says these prayers:
First prayer. Aid, O God, those who seek thy mercy, and pardon those who
confess their sins....
(2) After these prayers, the priest shall rise and say the mass before
all the men who are to be tried, and they shall take part in the mass.
But before they take the communion, the priest shall adjure them in
these words: I adjure you, by the Father, Son, and Holy Spirit, by your
Christianity, by the only begotten Son of God, whom you believe to be
the Redeemer of the world, by the holy Trinity, by the holy gospel, and
by the relics of the saints which are kept in this church, that you do
not come to the holy communion and take of it, if you have done this
offence, or consented to it, or if you know who committed it, or
anything else about it.
(3) If they all keep silence and no one makes any confession, the priest
shall go to the altar and take communion, and then give it to the men;
but before they take it he shall say: Let this body and blood of our
Lord Jesus Christ be today a trial of your guilt or innocence.
(4) After the mass the priest shall go to the place where the ordeal is
to be held, bearing with him the book of the gospels and a cross, and he
shall say a short litany. After the litany he shall exorcise the water
before it becomes hot, as follows:
(5) I exorcise thee, water, in the name of omnipotent God, and in the
name of Jesus Christ, his Son, our Lord, that you may become exorcised
and freed from the power of the enemy and the wiles of the devil; so
that, if this man who is about to put his hand in you is innocent of the
crime of which he is accused, he may escape all injury through the grace
of omnipotent God. If he is guilty either in deed or knowledge of the
offence of which he is accused, may the power of omnipotent God prove
this upon him, so that all men may fear and tremble at the name of our
Lord Jesus Christ, who lives and reigns with God.
(6) Prayer. Lord Jesus Christ, who art a just judge, strong and patient,
plenteous in mercy, by whom all things are made, God of gods, Lord of
lords, who didst come down from the bosom of the Father for us and our
salvation, and wast born of the Virgin Mary; who by thy passion on the
cross didst redeem the world; who didst descend into hell and there
didst bind the devil in the outer darkness, and free by thy great power
the souls of all the just who suffered there for the original sin; we
beseech thee, O Lord, to send down from heaven thy Holy Spirit upon this
water, which is now hot and steaming from the fire, that through it we
may have a just judgment upon this man. O Lord, who didst turn the water
into wine in Cana of Galilee as a sign of thy power, who didst lead the
three children Meshach, Shadrach, and Abednego, through the fiery
furnace without harm, who didst free Susanna from the false accusation,
who didst open the eyes of the man born blind, who didst raise Lazarus
after four days from the tomb, who didst reach out thy hand to Peter as
he was sinking in the sea, we, thy suppliants, beseech thee not to have
regard for the errors in our prayer, but to make known to us before all
men thy true and righteous judgment; so that if this man who is accused
of fornication, _or_ theft, _or_ homicide, _or_ adultery, _or_ any other
crime, and who is about to put his hand into the hot water, is not
guilty of that crime, thou wilt so guard him that no harm or injury
shall happen to that hand.