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Roman law, modern law and “Feudal” law – a hint as to what that wild madman Paul Marks is on about.

I am no legal expert (“we have noticed Paul”), but I do want to give an hint about what I am on about when I mention the words “Feudal law” or Roman law or modern law – it if be wrong….. well see later for my “get out of jail” card on that.

Before I say anything more I had better state that one can have serfdom without feudalism (for example the Emperor Diocletian established de facto serfdom by declaring that peasants could not leave the land – and many other legal systems had done this before him) and one can have feudalism without serfdom (places like Sark, feudal to only a couple of years ago, were not known for serfdom).

“Feudalism” is (if it is anything – other than just a word) a system where people swear loyality (they make an active choice) it is a MILITARY thing at base, and “feudal” law is about (fundementally) such blood contracts (after all one is swearing to defend someone to the death – one’s own death, and the other side of this contract, the obligations of one’s lord, has to be fundemental also) are based on tradition and custom – made into formal law. That is why (by the way) “Feudal” law can be different in different places – different old customs and traditions.

“Feudal” law can not, logically, be anything else (than old customs and traditions presented as formal law). as if this law can be changed by “the Prince” (either a Roman Emperor or a modern “legislature”) then they can not be part of a contract – as they are, effectively, “above the law” (because the can change it whenever they feel like doing so).

One swears to defend one’s lord to the death and he (or she – for a fedual overlord can be female) swears to unhold the law (as, for example, Henry the First of England did in his formal charter of 1100 – in order to get the people to rally to him against his older brothers) – if the “the law” is simply whatever they say it is (as with a Roman Emperor or a modern Parliament or other legislature) then this is not Feudalism – any more than the “my honour is loyality” of the SS was the warrior code of Northman (indeed, as Tolkien noted, to pretend that there is no difference between honour and loyality – and to hold that loyality is unconditional, i.e. that one will do dishonorable things if ordered to do so, is a direct and deliberate MOCKERY of the traditional honour code). One swears to to defend one’s lord to the death (one’s own death) in return not for “protection” (that is a Roman view of law – or a modern one – after all if one is promising to shed one’s life’s blood for someone else personal protection is not the main thing in play), but for JUSTICE for the upholding of tradition and custom. Seen as a manifestation in this world of divine and universal justice (different in details from place to place – but not in fundemenal PRINCIPLE and, for the same reason, not changing fundemenally over time). This is why the oath is a sacred thing – based on the creator of the universe and the natural law itself.

“All theory Paul – what does this mean in PRACTICE?”

Very well.

First for Roman law (i.e. late Roman law – the law of the Empire). For this I will turn to “Justinian’s Institutes” (Cornell University Press 1987). By the way this is only a tiny part of Roman law of the time – there were many volumes of the writings of previous law officers and the legislation of Emperors (actually the truth of the so called “Code of Justinian” is that most of it is not from Justinian and it is not a code, the “Twelve Tables” back in 450 B.C. may or may not have been a code, but the endless rules and regulations that Romans lived under more than a thousand years later certainly were not a code).

In this work it is stated (Book Two, section one “The Classification of Things”) that neither the seashore or rivers can be privately owned.

So no private beaches under Roman law – and no protected fishing (or protection of water supply from rivers) either.

Anyone may fish where they like – and no private person or association (what Romans would call a “collegia” – spelling alert) may restrict water supply by stating that it is private (they can do that with a well – but not with a river).

In the modern age such thing as Spanish law (that holds that no river is private) and even supposedly Common Law New Zealand (where the last Labour party government nationalized the sea shore) follow the idea that neither rivers or the sea shore (the beaches) can be private property.

It is very different under Feudal law – the notion of “private property” may not be formally stated (that depends on the exact type of “Feudal” law we are talking about – for example it was stated under the law of Norway) the King (as lord of lords) may (or may not) formally “own” everthing – but he certainly can not BEHAVE as if he does (more on that later).

And rivers and beaches can be de facto owned under Feudal law.

For example under Scots law (inherited from their local version of feudal law) right up to 1845, if you wanted to sell something you gave a public display of what it was – remember most people could not read.

And if you wanted to sell private fishing rights (something that can not exist under Roman law) you, as well making a speech before witnesses (plus anyone who wanted to turn up to the river to watch the former owner of the fishing rights sell them to someone else) you handed over a fish.

For land it was some earth (on the site you were selling – again before witnesses), for the hunting rights of birds it was a bird (again….) and so on.

Also under Roman law the owner of a transport service (say someone who makes their living with a couch or carts) or the owner of an inn (or other establishment of business) could not turn away a customer – could not “discriminate” against them (to use modern language) as the owner of a transport service was a “common carrier” and the owner of an inn provided “public accomidations”.

Feudal law does not even know what “common carriers” and “public accomidations” are.

If you owned a cart (or some such) you could transport people or goods. And if you owned a building you could put people up (in return for payment).

But you did not have to do so – if you did not want to.

Owning a cart did not make you part of a special caste that served the state (indeed the term “state” does not really fit into feudal thinking – it is a Roman term or a modern term).

Ditto if you owned a building and put people (if you had a mind to) in return for money, that did not mean you were a special sort of animal called a “public accomidations” person serving the needs of the state (whatever “the state” is supposed to be).

But all the above misses the point anyway……..

As the point is – if Justinian (or some other Emperor) had decided (on a whim) to change the above “legal principles” they could (they were above the law – and could make the law whatever their WILL wished it to be).

If a feudal overlord said one day “I have decided to change the law – after all the law is whatever I say it is”. People would have thought they had gone mad – they might even have called a priest to fight against the demon or devil that had taken over the mind of their lord.

Of course one would fight to the death to save the life of one’s lord – but the lord had no rightful power to “change the law”. After all that would mean a power to overthrow custom and tradition – the manifestation in the land (the spirit of the land) of the law of God, the natural law of the universe. This might manifest itself differently in different lands (depending on the customs and traditions of that land and people), but the fundemental principles of the law were divine and universal.

Of course Roman legal thinkers (like Greek Stoics and Aristotelians before them) also accepted the existance of natural law – but they held that state law trumped it.

“Feudal” thinking (when understood the concept of “the state” at all – which it did not really) held the exact opposite.

The King might give orders in battle and war (and so on) – but if his orders went against the law, they were void (at least to a man of honour). That is why “the spirit of Nurenberg” (“I was only obeying orders”) might be fine from a Roman point of view – but does not make any sense from a “feudal” one.

The lord may call upon you to fight to the death – indeed he should not have to call (you should do that without him asking). But he may not order you to rob or murder someone else – to commit an injustice.

Of course terrible injustices (mass murder, rape and so on) might still occur. But if someone said “what I did was lawful because the Prince (or council or….) told me to it” then they simply showed (even to a person with no learning at all) that they simply did not understand what the words “right” and “law” meant – and were, at best, insane.

Canon Law (church law – and it is impossible to understand “feudal” law without understanding the influence of religion upon it – whether Christian or PAGAN) held the same view – see Brian Tierney’s “The Idea of Natual Rights” (Emery University 1997).

Like Roman Law, Canon Law held that there was positive law (the commands of the Prince – of council in a Republic like Venice) and natural law.

But (like “feudal” thinking) it turned the Roman law thinking on its head.

Far from “positive” law trumping natural law – natural law trumped the “will of the ruler”.

Hence more than a thousand years of Church-State disputes (or disputes between Canon Lawyers and Roman Lawyers – in spite of them, in many ways, shareing the same tradition) they looked at things in reverse ways.

“That was just because the Church wanted to declare what natural law was – as a power grab”

Partly YES – but the Church always made a distinction between Christian practices (the rules of the Church) and the universal laws of God – that applied to nonChristians as much as to Christians (indeed even to nonChristians AGAINST Christians).

Of course some Popes and so on were corrupt scumbags guilty of every crime known to man – but some were not, and even the worst of them held that there were things they should not do (even if they did them) the idea that their WILL was law, would have been denounced as the vomit of the Devil (even by the worst Popes.

Canon lawyers (like “Feudal” ones) would have regarded the pretensions of modern Parliaments (and “human rights” courts) to change fundemental law as they see fit – as, at best, insanity and (more likely) as clear evidence that these “legislatures” and “judges” were agents of the Evil One.

And one must not think that such people were stupid or filled with silly fancies. Many of the Popes and theologians of the past were profound legal thinkers and philosophers – not every Pope spent their time chasing girls and murdering rivals (and even the oness that did often did good work also).

Still back to “Feudal” law – and a single example to come to the end of this post……

I draw from “A Summery view of the feudal law, with the differences of the Scots law from it; together with a dictionary of the select terms of the Scots and English law, by way of appendix” (John Dundas 1710).

As a general rule of thumb – the older an account of “feudal” law the better. As old accounts are more concerned with just laying the thing out – not (like Maitland and his, Blackstone influenced [no wonder the Founding Fathers of the United States despised Blackstone - with his doctrine that whatever Parliament declared was law], crew “explaining” what law “must” be i.e. whatever the state, Parliament, says it is).

Difference number 80.

“By the Feudal law no Man is forced to part with or sell his Few [fief of land] or any part of it.

By our law [i.e. law made by Parliament and so on] a vassel may be forced to give some part of it for High-ways and if his Neighbour be building a Park, or Inclosure, he may be forced to sell an adjacent corner of his Grounds to him, to perfect it”.

This is much like the so called “Edict of Quierzy” (877) which repeated the “old right” that not even a King of France could take the land of one person and give it to another (or himself).

To a Roman lawyer this makes no sense.

To a modern lawyer (such as that scumbag Maitland – and I am right to call him a “scumbag” after all he claims that no Act of Parliament “has ever been passed” that was irational or evil, so there is no need for any judge or jury to oppose an Act of Parliament as being against natural justice, a concept he scorns anyway – I could name a hundred Acts of Parliament passed before Maitland wrote that Devil-vomit lie, that were utterly evil and against basic natural justice) it makes no sense also.

As Maitland says, mocking the upholders of the “speculative dogma” of natural justice “We can  (its upholders seem to say) concieve that a statute might be so irational,  so wicked, that we would not want to enforce it; but as a matter of fact, we have never known such a statute made.”

Pages 107-108  “A Sketch of English Legal History” G.P. Putnam and Sons, New York and London (1915) chapter five (written by Maitland rather than his coarthor Francis Montague) on “Statute and Common Law”.

Oh you dog Maitland,  you pig  – may you be burning, even as I type these words,  for your lies. What of the Statute of Labourers that tried to reduce all peasants (including those who had always been free – such as the people of Kent) to serfs? Much in the manner of the Emperor Diocletian. Or the Stature of Artificers under the first Elizabeth that tried to turn all people (bar the rich) into de facto slaves – forbidden to practice any other trade than that of their father, and forbidden to leave the parish of their birth?  What of the “Black Act” (passed as late as the 1700s) that punished some two hundred crimes (some quite minor) with death?

What of so many other Acts of Parliament – both so irational and so wicked that no one (other than a monster) would uphold them?

However,  I hope the idea of law as trying (in the circumstances of  time and place) to give effect to the principles of jusice (NOT the WILL of the ruler or rulers – in the mannor of the late Roman Empire or of Thomas Hobbes and his “Legal Positivists” with their Hell vomit doctrine that whatever the “legistlature” declares is law)  makes a some sense to libertarians.

As for my errors – no doubt many and terrible……

I offer the words of John Dundas.

“If this Treatise should happen to be less correct, the Reader would be pleased to give himself the trouble to mend the Errors, and excuse what is amiss, this Book being given to be printed by a certain person when the Author was our of Town, and knew nothing of the publishing of it, not having designed so soon to send it abroad into the world.”

11 Comments

  1. Mr Ed says:

    If only the law were (still?) like a language, universally and readily understood, the work of no individual or group, and changing organically to suit circumstances rather than being changed to suit individuals or groups.

  2. Single Acts of Tyranny says:

    I have to say this is a truly stunning post, great job Paul

  3. John Galt says:

    In the feudal system, I was amused by the fact that it makes no fundamental difference if the king owns all of the land or the king owns none of it. Provided he defends a well understood concept of “Justice” (made up of natural law and custom), then he can do on the land as he pleases.

    I had always assumed that the lands were gifted to the feudal lords from the king and thereon downwards, that the price was loyalty and the recognition of that loyalty (to the death). Equally, when a feudal lord died, his heir presented his claim of right to the king and in return for continued loyalty, retained the lands and title of his father/predecessor.

    Since from this perspective all lands are the gift of the crown, doesn’t that mean that if the king refuses to accept an oath from the heir of a feudal lord then the lands would revert to the king?

    I can see why the barons wanted Magna Carta to stop King John from cheating them out of their lands and titles.

  4. Laird says:

    Great article, Paul. Thanks for sharing it.

  5. Julie near Chicago says:

    Paul, I can’t thank you enough for this explanation of feudal law. I see that Dundas’ book is available on Amazon! It’s available with free shipping, if you merely add another book or two whose combined price adds up to $ 8.03. I’m sure I can find something… :)

    Whence my next question. At least twice now you’ve alluded to the Founders’ dislike of Blackstone. Could you point me to works that I could use in making that argument to others? I did a search of /The Federalist Papers/, but came up with only about three or four references to Blackstone at all.

  6. Paul Marks says:

    John Galt.

    Under SOME “Feudal” systems (not all of them – as the school books declare, for example Norway and ….) the King might be held to “own the land”.

    But as for “do what he liked with it” – that is exactly what he could NOT do.

    I have pointed this out so many times, it is hard to believe that you have not noticed.

    It is under Imperal ROMAN law or MODERN LAW that the ruler can take land away from individuals or voluntary groups, on just about whim they feel like.

    Under “Feudal” law the King could NOT take land away from individuals or groups (such as the church) on some whim. He might be the “owner” of it, but he was NOT the “holder” of it (other than his own personal estates – which, by the way, still exist).

    Indeed the King or Prince was often urged to “live off his own” (his own personal estates – only a tiny fraction of the country) as TAXATION is more of a Roman or modern concept.

    “Why should a King or Queen need taxation – if they can call upon any free man to come and fight to the death?”

    Fair enough – accept that they should not need to “call”.

    Still sometimes a call was made – and not just in the Middle Ages.

    For example when that arch modernist Frederick the Great invaded the lands of the Hapsburgs ion 1740, Marie Theresa went (with her baby in her arms) to the Magyars (the Hungarians) – and the people rose.

    Of course the Magyars are a bit odd – as (unusually) all children of a lord are held to be a lord (not just the eldest son) – over time this meant …….

    By the way in old Scots law anyone with a landholding (a “Few” – fief) was considered a lord (male or female) WITHOUT any formal startment from the King or Queen.

    King John was trying to act like a Roman Emperor (or a modern political leader) not a “Feudal” King.

    The Great Charter was a Feudal document – all the great charters of the period were.

    You seem to think that the Charter of 1215 (or Henry’s of 1100 – or….) were anti Feudal, actually they WERE “Feudalism” – as was the declaration of 877 and so on.

    This was the FUNDEMENTAL DIFFERENCE beteen the West and Islam (or between the West and Ancient Rome or the modern “West”) the ruler might (or might not) be held to be the “owner” – but he could not take the land from the free “HOLDERS” on some “planning” whim.

    Julie.

    To someone like Blackstone the Founders were out-of-date – harking back to concepts of limited government to be found in “Feudal” charters (such as that of 1215) and also of Canon Law (as Brian Tierney points out in his “The Idea of Natural Rights” Emery University 1997, the argument of the Founders, for all their dislike of Catholics, were those of the Scholastics of the Middle Ages – the very position that 16th century rulers had revolted AGAINST).

    As for the Founders on Blackstone.

    Jefferson on Blackstone.

    Or Adams on Blackstone.

    Or Madison on Blackstone.

    Should not be hard to find.

    Good test of a search engine.

    Still – you want a book reference from me.

    Forest McDonald.

    “Novus Ordo Seclorum: The Intellectual Origins of the Constitution”, University of Kansas Press 1985.

    By the way – Kansas is normally on the right side of things (1932 can be forgiven as Franklin Roosevelt campaigned for LESS statism – however 1936 and 1964 were indeed bad).

  7. Paul Marks says:

    By the way – a film I watched last night was “Feudal”.

    “Alice”.

    “Yes it was Feudal – it was wild fantasy, you FOOL Paul Marks”.

    Perhaps…..

    But look past the anti Victorian stuff at the start (although that was less blatent than the Dr Who episode – with its attacks on “Victorian Values” and its propaganda for Gay Marriage, although it was still a good episode actually….).

    The Red Queeen was the older sister.

    So on what basis did people fight against her?

    Because she had broken the law (the true law) – by her plunder and her executions on WHIMS (the idea that the whim of the ruler was “law” like some Roman Emperor or “enlightened” Prince).

    The White Queeen (the younger sister) kept the law.

    And so (by a Feudal mindset) was the rightful Queen.

    For the King or Queen (or the council or Parliament) is NOT above the law according to this mindset – nor does such an individual or council “make” law (or change law) according to this mindset.

    And notice the vow of the Blond Queen?

    Not to kill.

    That reminds me of the Empress Elizabeth of Russia (the great enemy of Frederick the Great).

    Although her vow was somewhat different – not to EXECUTE anyone.

    The giant blond Empress (a little like the “White Lady of the English” the daughter of Alfred the Great, and warrior Queen of Mercia – who spread terror into the hearts of the Vikings) and her semi sane Cossacks (tax free till the First World War – for they carved their land from the wilderness, and held it against the Tartar nomads by their weapons and courage), certainly did not refrain from killing.

    However, it is true that if you refused to fight them…….

  8. Paul Marks says:

    Mr Ed.

    The trouble with Common Law talk (law changing organially to suit difference circumstances) is that is exactly what the judges say they do.

    And it has had terrible results in modern times.

    Small example, the “legal fiction of the invitee” in the United States (the idea that someone comes on your holding without your permission, hurts themselves, and you are responsible and must compensate them “as if” they were a guest).

    Modern Common Laywers (as far as I know) do not even accept that there are unchanging principles of justice (to each their own) – let alone unchanging law (the effort to apply the principle of justice to the cirumstances of time and place).

    A state appointed judge (or a guild appointed judge – as, in many American States, the Bar Association has de facto taken over) can rule just about everything.

    The final appeal must be to justice – not to a judge.

    As in Athens Tenn in 1946 (hat tip to Julie for that one). Or the Feudal revolt of 1215.

    “May God defend the Right”.

  9. Julie near Chicago says:

    Bloody ‘eck, Paul, do you know how many zillion pages Messrs. Adams, Jefferson, and Madison inflicted upon their peers and progeny? And the Liberty Fund has most (I think) of the works of each, along with much other good stuff of course, available for download or for reading online…free.

    In all seriousness, I’ve often wondered how the people of the 18th and 19th centuries managed such a huge volume of correspondence, along with essays, articles, books, broadsides…and in some cases doing actual work, such as walking behind the plough or milking the cows. It’s truly amazing.

    Meanwhile, I have Mr. Fundas’ book and two of Mr. Tierney’s–the ones you recommended and a little paperback as lagniappe–on order from Amazon. My 2013 Christmas present, you see. :)

    Have you read any of Donald S. Lutz’s books? I have his /*American Political Theory*/–interesting. He thinks our Constitution was basically born out of the experience of the Colonists themselves. I also have one of Michael Zuckert’s books, which I read a few years ago…he blames it all on Locke, and swears Religion never entered the heads of any of the Framers.

    I read a couple of Jefferson’s comments on Blackstone in /*The Jeffersonian Cyclopedia*/. They were a trifle, um, acerbic….

  10. Paul Marks says:

    Julie – I think no television was the key.

    At least so a friend who has given up television has told me.

    But they were also just hardworking people – who MADE THE TIME.

    Glad you found that Jefferson did not like Blackstone.

    What he (and the other Founders – even Hamilton) would have made of modern legal thinkers I dread to think.

    Of course jury trial is another non Imperial Roman thing,

    It was Frankish inquest thing originally – taken up by the Viking Normans and brought to England (although there are elements to be found among the Saxons also – such as the 12 man village councils back in the Old Country….).

    Once “barbarian” and “Feudal” Europe had many forms of procedure – of which trial by combat (with those weird bits of horn and bone – looking like stone age pickaxes) was only one. For example, turning up to court with 12 oathkeepers (to declare one’s truthfullness in having no debt) was only formally outlawed in England and Wales in the 1830s (the last recorded time someone actually did it is 1824 – “what do you mean trail – here are my oath keepers, my opponent has not brought any, or formally said we can not use this procedure, so I win by DEFAULT”).

    But, gradually, a state appointed judge deciding the case (as with the old Roman Empire) became the only accepted form of procedure. Although Church courts (with church appointed judges) also survived in some places. Even Law Merchant became restricted to commercial disputes (which is what it always concentrated on anyway).

    Apart from in English law (and, in spite of its Roman influence, Scots law) only on this island was there some check upon the judge.

    Some survival of “barbarian” or “feudal” elements – as the recovery of Roman law had swept them from Europe.

    I have not read Donald Lutz’s works – perhaps I should……

  11. Paul Marks says:

    Of course the Byzantine Empire survived (for centuries) against the forces of Islam, when it gave up the late Roman concept (the people as slaves – dependent on the state) to the “Feudal” concept of landowners (or landholders – in Fedual systems where the King was the notional “owner” of all land) taking an active part in defence.

    I believe that, in spite of all his astonishing military sucess (like Constantine before him- he may have been a better General than an Emperor) the long term decline of the Byzantine Empire was sealed when the Emperor “Bazil the Bulgar Basher” turned against this system (supposedly because he was hostile to the wealth and power of the landowners in Asia Minor – what is now Turkey).

    Another example would be what turns Americans into Canadians.

    Most English speaking Canadians did NOT come to Canada at the time of the American War of Independence – they were NOT Empire Loyalists (at least not a first).

    Most English speaking Canadians came from the United States later – why did they come?

    Cheap land.

    But with a nonmonetary price.

    A formal oath of loyality to the British Crown.

    Not a Roman style oath of protection – we obey, please protect your humble slaves.

    But a “Feudal” style oath – an oath to FIGHT (if need be) to defend the Crown.

    And in 1812 (and in many wars since then) the new “Canadians” proved to be loyal to their sworn word.

    “Feudal” thinking often WORKS.

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