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230.: The Feudal Law of Frederick I for Italy, 1158. - Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age [1905]

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A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905).

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230.

The Feudal Law of Frederick I for Italy, 1158.

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.1

Duchies, marks, and counties may not be divided.2 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.

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 no. 4, title L, note 5). 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 no. 4, title L, note 1), 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,1 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. . . .

232.

Frederic II Appoints a Justiciar and a Court Secretary, 1235. From the Peace of the Land which was Proclaimed at Mainz, 1235.

(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, 1398. (German.)

(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.

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.

[1 ] 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.

[2 ] 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).

[1 ] 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.