In the feudal regime, where the judges and executors of civil law were usually illiterate, custom and law were largely one. When question rose as to law or penalty, the oldest members of the community were asked what had been the custom thereon in their youth. The community itself was therefore the chief source of law. The baron or king might give commands, but these were not laws; and if he exacted more than custom sanctioned he would be frustrated by universal resistance, vocal or dumb.43 Southern France had a written law as a Roman heritage; northern France, more feudal, preserved for the most part the laws of the Franks; and when in the thirteenth century these laws too were put into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality.
The feudal law of property was complex and unique. It recognized three forms of land possession: (1) the allod, unconditional ownership; (2) the fief—land whose usufruct, but not ownership, was ceded to a vassal on condition of noble service; and (3) tenure—where the usufruct was ceded to a serf or tenant on condition of feudal dues. In feudal theory only the king enjoyed absolute ownership; even the loftiest noble was a tenant, whose possession was conditional on service. Nor was the lord’s possession completely individual; every son had a birthright in the ancestral lands, and could obstruct their sale.44 Usually the whole estate was bequeathed to the eldest son. This custom of primogeniture, unknown to Roman or barbarian law,45 became advisable under feudal conditions because it put the military protection and economic management of the estate under one head, presumably the most mature. Younger sons were encouraged to venture forth and carve out new estates in other lands. Despite its limitations on ownership, feudal law yielded to no other in reverence for property, and in severity of punishments for violating property rights. A German code held that if a man removed the bark from one of the willow trees that held a dyke, “his belly shall be ripped up, and his bowels shall be taken out and wound around the harm he has done”; and as late as 1454 a Westphalian ordinance held that a man who had criminally removed his neighbor’s landmark should be buried in the earth with his head sticking out, and the land should then be plowed by oxen and men who had never plowed before; “and the buried man may help himself as best he can.”46
Procedure in feudal law largely followed the barbarian codes, and extended their efforts to substitute public penalties for private revenge. Churches, market places, “towns of refuge” were endowed with the right of sanctuary; by such restrictions vengeance might be stayed till the law could supervene. Manorial courts tried cases between tenant and tenant, or between tenant and lord; contests between lord and vassal, or lord and lord, were submitted to a jury of “peers of the barony”—men of at least equal standing, and of the same fief,47 with the complainant, and sitting in some baronial hall; episcopal or abbey courts tried cases involving persons in orders; while the highest appeals were heard by a royal court composed of peers of the realm, and sometimes presided over by the king. In the manorial courts plaintiff as well as defendant was imprisoned till judgment was pronounced. In all courts the plaintiff who lost was subject to the same penalty that would have been visited upon the defendant if guilty. Bribery was popular in all courts.48
Trial by ordeal continued throughout the feudal period. About the year 1215 some heretics at Cambrai were subjected to the hot iron test; suffering burns, they were led to the stake; but, we are told, one was spared when, upon confessing his errors, his hand immediately healed, leaving no trace of the burn. The growth of philosophy through the twelfth century, and the renewed study of Roman law, begot a distaste for these “ordeals of God.” Pope Innocent III secured their complete prohibition by the Fourth Lateran Council in 1216; Henry III adopted this prohibition into English law (1219), Frederick II into the Neapolitan Code (1231). In Germany the old tests persisted into the fourteenth century; Savonarola underwent the ordeal by fire at Florence in 1498; it was revived in the trial of witches in the sixteenth century.49
Feudalism encouraged the old Germanic trial by combat, partly as a mode of proof, partly in lieu of private revenge. The Normans re-established it in Britain after its disuse by the Anglo-Saxons, and it remained on the English statute book till the nineteenth century.50 In 1127 a knight named Guy was accused by another named Hermann of complicity in the assassination of Charles the Good of Flanders; on Guy denying it, Hermann challenged him to a judicial duel; they fought for hours, till they were both unhorsed and weaponless; they passed from fencing to wrestling, and Hermann demonstrated the justice of his charge by tearing Guy’s testicles from his body; whereupon Guy expired.51 Perhaps ashamed of such barbarities, feudal custom accumulated restrictions on the right to challenge. The accuser, to acquire such a right, was required to make out a probable case; the defendant might refuse to fight if he had proved an alibi; a serf could not challenge a freeman, nor a leper a sound man, nor a bastard a man of legitimate birth; in general one might challenge only a person of equal rank with himself. The laws of several communities gave the court the right to forbid any judicial duel at its discretion. Women, ecclesiastics, and persons suffering physical disability were exempt from challenge, but they might choose “champions”—professionally skilled duelists—to represent them. As early as the tenth century we find paid champions used as substitutes even by able-bodied males; since God would decide the issue according to the justice of the accusation, the identity of the combatants seemed irrelevant. Otto I submitted to duel by champions the question of his daughter’s chastity, and the disputed succession to certain estates;52 and in the thirteenth century King Alfonso X of Castile had recourse to such a duel to decide whether he should introduce Roman law into his kingdom.53 Embassies were sometimes supplied with champions in case diplomatic quarrels should admit of resolution by duels. Until 1821 such a champion figured in the coronation ceremony of English kings; he was by that date a picturesque relic; but in the Middle Ages he was supposed to fling his gauntlet upon the ground and loudly proclaim his readiness to defend in duel against any man the divine right of the new monarch to the crown.54
The use of champions cast discredit upon trial by combat; the rising bourgeoisie outlawed it in communal legislation; Roman law replaced it in southern Europe in the thirteenth century. The Church repeatedly denounced it, and Innocent III made the prohibition absolute (1215). Frederick II excluded it from his Neapolitan dominions; Louis IX abolished it in the regions directly subject to his rule (1260); and Philip the Fair (1303) forbade it anywhere in France. The duel derives not so much from judicial combat as from the ancient right of private revenge.
Feudal penalties were barbarously severe. Fines were innumerable. Imprisonment was used as a detention for trial, rather than as a punishment; but it could be a torture in itself when the cell was infested with vermin, rats, or snakes.55Men and women might be condemned to the public pillory or stocks, and be a target for public ridicule, decayed food, or stones. The ducking stool was used for minor crimes, and as a discouragement to gossips and shrews; the condemned person was strapped to a chair which was fastened to a long lever and was thereby submerged in a stream or a pond. Tougher convicts could be sentenced to serve as galley slaves: half naked and poorly fed, they were chained to the benches and compelled, on penalty of the severest flogging, to row to exhaustion. Flogging with lash or rod was a common punishment. Flesh—sometimes the face—might be branded with a letter symbolizing the crime; perjury and blasphemy could be punished by piercing the tongue with a hot iron. Mutilation was common; hands or feet, ears or nose, were cut off, eyes were gouged out; and William the Conqueror, to deter crime, decreed “that no one shall be killed or hanged for any misdeeds, but rather that his eyes be plucked out, and his hands, feet, and testicles cut off, so that whatever part of his body remains will be a living sign to all of his crime and iniquity.”56 Torture was little used in feudalism; Roman and ecclesiastical law revived it in the thirteenth century. Theft or murder was punished sometimes with exile, more often with beheading or hanging; women murderers were buried alive.57 An animal that had killed a human being might also be buried alive or hanged. Christianity preached mercy, but ecclesiastical courts decreed the same penalties as lay courts for similar crimes. The abbey court of St. Geneviève buried seven women alive for theft.58 Perhaps in a rude age barbarous punishments were needed to deter lawless men. But these barbarities continued till the eighteenth century; and the worst tortures were practiced not upon murderers by barons but upon pious heretics by Christian monks.