[ Pobierz całość w formacie PDF ]
.56Kings had a particular obligation to protect the property rights oftheir subjects, above all of churches.Thus, the Emperor Frederick I took53E.Levy, West Roman Vulgar Law (Philadelphia, 1951), 64 72.54Pollock and Maitland, History of English Law [HEL], ii.12.55Capitularia Regum Francorum, i.153.8 (cases de proprietate aut libertate are ordered tobe heard only in the presence of imperial missi or counts), ii.240; Formulae, 288 9, and cf.54, 137, 147 8, 150, 208, 271; Recueil des Actes de Charles le Chauve, i.17, 20, 26, 28, ii.22, 243 etc., iii.334 5, 372; Lotharii I et Lotharii II Diplomata, 53.40, 74.4, 105.19,117.11,17, 128.32, 173.26, 178.20, 205.30, 212.9, 253.6, 279.8, 405.29 etc.56EHD i, ed.Whitelock, 481 3, 499, 531, 538; Susan Reynolds, Fiefs and Vassals (OxfordUP, 1994), 59 73. 202 Legal Ordering of the State of the Realmmonasteries and their lands under his protection; established (literally stabilized ) liberties, in one case of the bishop of the Jews of Worms;made grants in proprietary right for the most part to clergy, sometimesadding hereditary right and full power of disposition (facultatemdisponendi) as it was enjoyed by other imperial churches ; andconfirmed his ministeriales pious grants of their hereditary property.57On the other hand, lay advocates were forbidden to acquire in heredi-tary right , or grant benefices from, the property of the churches theywere intended to protect, and an abbot who disposed of his inheritancewas enjoined to do so only for the greater benefit (maiori utilitate) ofhis house and by the counsel of his brother canons.58 The propertyrights of the church were not to be alienated lightly: they were possessedfor higher purposes, and the property of the king was for the samereason on a different plane from that of the baronage.Bishops might beendowed with whole counties by the emperor, but they were not to letthe office of the counts they appointed become hereditary.The castlesand the lands of a margrave which were established by the emperor asthe property of the monastery which the fidelis had founded were saidto be taken from the proprietary right of the kingdom.59 Because itwas for the imperial majesty always to increase public property (rempublicam), not diminish it for the sake of any reason or person,Frederick s grant of lands to his nephew Henry the Lion, duke ofBavaria and Saxony, had to be balanced by Henry s transfer toFrederick of the castle of Baden, along with a hundred ministeriales andother estates, and by the emperor s acquisition, formally approved bythe princes, of further lands to be the right and property of the king-dom.60A subject s ownership of property was qualified by the condition,stated or implied, of loyal service to the king in return for the beneficeand privilege given him. Benefice was the general term for propertybestowed and protected by royal benevolence, ranging from thecounties and their jurisdiction delegated to magnates, through the landswith which bishoprics and abbeys were endowed in return for theservice of prayers for the king s state, to the holdings given to men ofvarying status with military service as the underlying obligation.6157Formulae, 54, 135 6; examples in Friderici I Diplomata, 1152 1158, 16, 18 19, 19 22,46 7, 142 3, 164, 175 6, 180 1, 181 2, 186 7, 285 (the bishop of the Jews of Worms),323 5, 357 9; 1158 1167, 59 64, 82, 83 4, 110 11, 130 1, 138 9, 166 8, 305, 332, 455 6,459 60; 1168 1180, 9 10, 11, 92 3, 149, 186 9; 1181 1190, 8, 26, 121 5; 128 31, 181 3,229, 258 9, 267 8, 504.58Friderici I Diplomata, 1152 1158, 119, 121; 1158 1167, 164, 183, 197; 1168 1180,34 5, 52.37; 1181 1190, 100.59Ibid.1152 1158, 251 3; 1158 1167, 168.15.60Ibid.1152 1158, 332 3; cf.1158 1167, 53.20.61Capitularia Regum Francorum, i.93 (c.6), 104 (49,50), 131 (6,7), 132 (18), 136 (4), 330 The law of land-holding 203 Feudalism was a vital stage in the development of a law of property,because it spread the conditional holding of land, and generated thewhole legal terminology of landlord and tenant.The Libri Feudorumor Customs of Fiefs added in the twelfth century to the Corpus JurisCivilis start with the Emperor Conrad II s edict of 1037, De beneficiisregni Italici, regulating relationships between the king, the bishops, andthe holders of church lands south of the Alps.Intervening to stop a warbetween the archbishop and the rebellious vavassores of Milan, theEmperor Conrad could do no more than recognize the customary lawwhich had grown up around the granting and holding of beneficesfurther down the social hierarchy.In order to reconcile seniores andmilites, he decreed firstly that a vavassor or lesser knight holding of abishop, abbot, abbess, margrave, count, or other person who hadbenefices of public or ecclesiastical property should not be deprived ofhis benefice except by the judgment of his peers.(His fellow knightswould presumably know the conditions on which his tenement hadbeen granted.) But the most important clause of the edict gave thenearest heir of a deceased vassal (son, nephew, or brother) the absoluteright to succeed to the benefice.It was to this type of military benefice,by which the grantor retained superior rights but the grantee and hisheirs were protected from arbitrary confiscation, that Irnerius and theother masters of the renaissance of Roman law applied the term fiefand around it that they constructed the doctrines of ius feudale.62The nature of the practical arrangements on which the jurists built feudal law can be gleaned from the language of charters. Fief(feodum) followed beneficium in emphasizing the beneficiariesacceptance and consequent holding of the granted properties fromsuperiors.63 In eleventh-century France benefice and fief were usedinterchangeably of parcels of comital and vicecomital land and juris-diction held by private lords, and of the castles from which the propertywas controlled
[ Pobierz całość w formacie PDF ]