The very defects of the feudal system are, however, the
best proof that it was the natural and inevitable product of social evolution.
A legal theory so complex, so repugnant to the best traditions both of Roman
and barbarian government, could not have obtained general recognition, as part
of the natural order of things, unless it had grown up by degrees, unless it
had been the outcome of older usages and institutions. A form of social
organisation so cumbrous and so dangerous could hardly have survived for
centuries unless it had solved difficulties of unusual urgency and magnitude.
Let us then consider, in their historical order, the antecedents of feudalism
and the reasons of state by which it was justified.
Before the downfall of the Roman Empire the duties of
local government were slipping from the grasp of the imperial executive. With
or without official consent, the great proprietors - already held responsible for
the taxes, the military service, and the good conduct of their dependents - were
assuming rights of jurisdiction. When Gaul was reorganised by the Merovingians,
these private courts of law continued to exist; and they were even legally
recognised (by Clotaire II in 614) as institutions of public utility. A certain
number of great estates were further protected by special charters of privilege
(immunitas) which forbade public officials to enter them for the purposes
of making arrests, of holding courts, of collecting fines and levying
distraints. The owners were obliged to surrender any person accused of a grave
crime, but otherwise did justice at their pleasure.
