Front Page Titles (by Subject) BOOK XXX.: THEORY OF THE FEUDAL LAWS AMONG THE FRANKS, IN THE RELATION THEY BEAR TO THE ESTABLISHMENT OF THE MONARCHY. - Complete Works, vol. 2 The Spirit of Laws
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BOOK XXX.: THEORY OF THE FEUDAL LAWS AMONG THE FRANKS, IN THE RELATION THEY BEAR TO THE ESTABLISHMENT OF THE MONARCHY. - Charles Louis de Secondat, Baron de Montesquieu, Complete Works, vol. 2 The Spirit of Laws 
The Complete Works of M. de Montesquieu (London: T. Evans, 1777), 4 vols. Vol. 2.
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THEORY OF THE FEUDAL LAWS AMONG THE FRANKS, IN THE RELATION THEY BEAR TO THE ESTABLISHMENT OF THE MONARCHY.
Of feudal Laws.
I SHOULD think my work imperfect, were I to pass over in silence an event which never again, perhaps, will happen; were I not to speak of those laws which suddenly appeared over all Europe, without being connected with any of the former institutions; of those laws which have done infinite good and infinite mischief; which have suffered rights to remain when the demesne has been ceded; which by vesting several with different kinds of seignory over the same things or persons, have diminished the weight of the whole seignory; which have established different limits in empires of too great an extent; which have been productive of rule with a bias to anarchy, and of anarchy with a tendency to order and harmony.
This would require a particular work to itself; but considering the nature of the present undertaking, the reader will here meet rather with a general survey, than with a complete treatise of those laws.
The feudal laws form a very beautiful prospect. A venerable old* oak raises its losty head to the skies; the eye sees from afar its spreading leaves: upon drawing nearer, it perceives the trunk, but does not discern the root; the ground must be dug up to discover it.
Of the Source of feudal Laws.
THE conquerors of the Roman empire came from Germany. Though few ancient authors have described their manners, yet we have two of very great weight. Cæsar making war against the Germans, describes the manners† of that nation; and upon these he regulated‡ some of his enterprises. A few pages of Cæsar upon this subject are equal to whole volumes.
Tacitus has written an entire work on the manners of the Germans. This work is short, but it comes from the pen of Tacitus, who was always concise, because he saw every thing at one glance.
These two authors agree so perfectly with the codes still extant of the laws of the barbarians, that reading Cæsar and Tacitus, we imagine we are perusing these codes, and perusing these codes, we fancy we are reading Cæsar and Tacitus.
But if in this research into the feudal laws, I should find myself entangled and lost in a dark labyrinth, I fancy I have the clue in my hand, and that I shall be able to find my way through.
The Origin of Vassalage.
CÆSAR* says, “That the Germans neglected agriculture; that the greatest part of them lived upon milk, cheese, and flesh; that no one had lands or boundaries of his own; that the princes and magistrates of each nation allotted what portion of land they pleased, to individuals, and obliged them the year following to remove to some other part.” Tacitus says,† “That each prince had a multitude of men, who were attached to his service, and followed him wherever he went.” This author gives them a name in his language relative to their state, which is that of companions.‡ They had a strong emulation to obtain the prince’s esteem; and the princes had the same emulation to distinguish themselves in the bravery and number of their companions. “Their dignity and power,” continues Tacitus, “consists in being constantly surrounded with a multitude of young and chosen people: this they reckon their ornament in peace, this their defence and support in war. Their name becomes famous at home, and among neighbouring nations, when they excel all others in the number and courage of their companions: they receive presents and embassies from all parts. Reputation frequently decides the fate of war. In battle it is infamy in the prince to be surpassed in courage; it is infamy in the companions not to follow the brave example of their prince, it is an eternal disgrace to survive him. To defend him is their most sacred engagement. If a city be at peace, the princes go to those who are at war; and it is thus they retain a great number of friends. To these they give the war-horse and the terrible javelin. Their pay consists in coarse but plentiful repasts. The prince supports his liberality merely by war and plunder. You might easier persuade them to attack an enemy, and to expose themselves to the dangers of war, than to cultivate the land, or to attend to the cares of husbandry; they refuse to acquire by sweat what they can purchase with blood.”
Thus, among the Germans there were vassals, but no fiefs; they had no fiefs, because the princes had no lands to give; or rather their fiefs consisted in horses trained for war, in arms, and feasting. There were vassals, because there were trusty men who being bound by their word engaged to follow the prince to the field, and did very near the same service as was afterwards performed for the fiefs.
The same Subject continued.
CÆSAR* says, that “when any of the princes declared to the assembly that he intended to set out upon an expedition, and asked them to follow him, those who approved the leader, and the enterprize, stood up and offered their assistance. Upon which they were commended by the multitude. But if they did not fulfil their engagements, they lost the public esteem, and were looked upon as deserters and traitors.”
What Cæsar says in this place, and what we have extracted in the preceding chapter from Tacitus, is the substance of the history of our princes of the first race.
We must not therefore be surprized, that our kings should have new armies to raise upon every expedition, new troops to encourage, new people to engage; that to acquire much they were obliged to incur great expences; that they should be constant gainers by the division of lands and spoils, and yet give these lands and spoils incessantly away: that their demesne should continually increase and diminish; that a father upon settling a kingdom† on one of his children, should always give him a treasure with it; that the king’s treasure should be considered as necessary to the monarchy; and that one king‡ could not give part of it to foreigners, even in portion with his daughter, without the consent of the other kings. The monarchy moved by springs, which they were continually obliged to wind up.
Of the Conquests of the Franks.
IT is not true, that the Franks upon entering Gaul, took possession of the whole country to turn it into fiefs. Some have been of this opinion, because they saw the greatest part of the country towards the end of the second race, converted into fiefs, rear-fiefs, or other dependencies; but such a disposition was owing to particular causes, which we shall explain hereafter.
The consequence which sundry writers would infer from thence, that the Barbarians made a general regulation for establishing in all parts the state of villainage, is as false as the principle from which it is derived. If at a time when the fiefs were precarious, all the lands of the kingdom had been fiefs or dependencies of fiefs, and all the men in the kingdom vassals or bondmen, subordinate to vassals; as the person that has property is every possessed of power, the king who continually disposed of the fiefs, that is, of the only property then existing, would have been as arbitrary a monarch as the Grand Seignior; which is absolutely contradictory to all history.
Of the Goths, Burgundians, and Franks.
GAUL was invaded by German nations. The Visigoths took possession of the province of Narbonue, and of almost all the south; the Burgundians settled in the east; and the Franks subdued very near all the rest.
No doubt but these Barbarians retained in their respective conquests the manners, inclinations, and usages of their own country; for no nation can change in an instant their manner of thinking and acting. These people in Germany neglected agriculture. It seems by Cæsar and Tacitus, that they applied themselves greatly to a pastoral life: hence the regulations of the codes of the barbarian laws are almost all relating to their flocks. Roricon, who wrote a history among the Franks, was a shepherd.
Different Ways of dividing the Land.
AFTER the Goths and Burgundians had under various pretences penetrated into the heart of the empire, the Romans, in order to put a stop to their devastations, were obliged to provide for their subsistence. At first they allowed them* corn; but afterwards chose to give them lands. The emperors, or the Roman† magistrates in their name, made particular conventions with them concerning the division of lands, as we find in the chronicles and in the codes of the Visigoths‡ and Burgundians.§
The Franks did not follow the same plan. In the Salic and Ripuarian laws we find not the least vestige of any such division of lands: they had conquered the country, and so took what they pleased, making no regulations but amongst themselves.
Let us therefore distinguish between the conduct of the Burgundians and Visigoths in Gaul, of those same Visigoths in Spain, of the∥ auxiliary troops under Augustulus and Odoacer in Italy, and that of the Franks in Gaul, as also of the Vandals** in Africa. The former entered into conventions with the antient inhabitants, and in consequence thereof made a division of lands between them; the latter did no such thing.
The same Subject continued.
WHAT has induced some to think that the Roman lands were entirely usurped by the barbarians, is their finding in the laws of the Visigoths and the Burgundians, that these two nations had two thirds of the lands: but this they took only in certain quarters or districts assigned them.
Gundebald* says in the law of the Burgundians, that his people at their establishment had two-thirds of the lands allowed them; and the second supplement† to this law takes notice, that only a moiety would be allowed to those who should hereafter come to live in that country. Therefore all the lands had not been divided in the beginning between the Roman and the Burgundians.
In those two regulations we meet with the same expressions in the text; consequently they explain one another; and as the latter cannot mean an universal division of lands, neither can this signification be given to the former.
The Franks acted with the same moderation as the Burgundians; they did not strip the Romans wherever they extended their conquests. What would they have done with so much land? They took what suited them, and left the remainder.
A just application of the Law of the Burgundians and of that of the Visigoths in relation to the division of Lands.
IT is to be considered that those divisions of land were not made with a tyrannical spirit; but with a view of relieving the reciprocal wants of two nations that were to inhabit the same country.
The law of the Burgundians ordains that a Burgundian shall be received in an hospitable manner by a Roman. This is agreeable to the manners of the Germans, who, according to Tacitus,* were the most hospitable people in the world.
By the law of the Burgundians, it is ordained, that the Burgundians shall have two-thirds of the lands, and one third of the bondmen. In this it considered the genius of two nations, and conformed to the manner in which they procured their subsistence. As the Burgundians dealt chiefly in cattle, they wanted a great deal of land and few bondmen, and the Romans from their application to agriculture had need of less land and of a greater number of bondmen. The woods were equally divided, because their wants in this respect were the same.
We find in the code† of the Burgundians, that each Barbarian was placed near a Roman. The division therefore was not general; but the Romans who gave the division, were equal in numbers to the Burgundians who received it. The Roman was injured the least possible. The Burgundians as a martial people, fond of hunting and of a pastoral life, did not refuse to accept of the fallow grounds; while the Romans kept such lands as were properest for agriculture: the Burgundian’s flock fattened the Roman’s field.
THE law of the Burgundians‡ takes notice, that when those people settled in Gaul, they were allowed two-thirds of the land, and one-third of the bondmen. The state of villainage was therefore§ established in that part of Gaul before it was invaded by the Burgundians.
The law of the Burgundians in points relating to the two nations makes a formal† distinction in both, between the nobles, the free-born, and the bondmen, Servitude was not therefore a thing particular to the Romans; nor liberty and nobility particular to the Barbarians.
This very same law says,* that if a Burgundian freedman had not given a particular sum to his master, nor received a third share of a Roman, he was always supposed to belong to his master’s family. The Roman proprietor was therefore free, since he did not belong to another person’s family; he was free, because his third portion was a mark of liberty.
We need only open the Salic and Ripuarian laws, to be satisfied that the Romans were no more in a state of servitude among the Franks, than among the other conquerors of Gaul.
The count de Boulainvilliers is mistaken in the capital point of his system: he has not proved that the Franks made a general regulation to reduce the Romans into a kind of servitude.
As this author’s work is penned without art, and as he speaks with the simplicity, frankness, and candor of that ancient nobility from whence he descends, every one is capable of judging of the fine things he says, and of the errors into which he is fallen. I shall not therefore undertake to criticise him; I shall only observe, that he had more wit than sense, more sense than knowledge; though his knowledge was not contemptible, for he was well acquainted with the most valuable part of our history and laws.
The count de Boulainvilliers, and the abbé du Bos, have formed two different systems, one of which seems to be a conspiracy against the commons, and the other against the nobility. When the sun gave leave to Phaeton to drive his chariot, he said to him, “If you ascend too high, you will burn the heavenly mansions; if you descend too low, you will reduce the earth to ashes: Do not drive to the right, you will meet there with the constellation of the serpent; avoid going too much to the left, you will there fall in with that of the altar: keep in the middle* .”
The same Subject continued.
WHAT first gave rise to the notion of a general regulation made at the time of the conquest, is our meeting with a prodigious number of servitudes in France towards the beginning of the third race; and as the continual progression of these servitudes was not attended to, people imagined in an age of obscurity a general law which was never framed.
Towards the commencement of the first race, we meet with an infinite number of freemen, both among the Franks and the Romans; but the number of bondmen increased to that degree, that at the beginning of the third race, all the husbandmen and almost all the inhabitants† of towns were become bondmen: and whereas at the first period there was very near the same administration in the cities as among the Romans; namely, a corporaton, a senate, and courts of judicature; at the other we hardly meet with any thing but a lord and his bondmen.
When the Franks, Burgundians, and Goths, made their several invasions, they seized upon gold, silver, moveables, cloaths, men, women, boys, and whatever the army could carry; the whole was brought to one place, and divided amongst the army‡ . History shews, that after the first settlement, that is after the first devastations, they entered into an agreement with the inhabitants, and left them all their political and civil rights. This was the law of nations in those days; they plundered every thing in time of war, and granted every thing in time of peace. Were it not so, how should we find both in the Salic and Burgundian laws such a number of regulations absolutely contrary to a general servitude of the people?
But though the conquest was not immediately productive of servitude, it arose nevertheless from the same law of nations§ which subsisted after the conquest. Opposition, revolts, and the taking of towns, were followed by the slavery of the inhabitants. And, not to mention the wars which the conquering nations made against one another, as there was this particularity among the Franks, that the different partitions of the monarchy gave rise continually to civil wars between brothers or nephews, in which this law of nations was constantly practised, servitudes of course became more general in Franee than in other countries: and this is, I believe, one of the causes of the difference between our French laws and those of Italy and Spain, in respect to the right of seignories.
The conquest was soon over; and the law of nations then in force was productive of some servile dependencies. The custom of the same law of nations, which obtained for many ages, gave a prodigious extent to those servitudes.
Theodoric imagining that the people of Auvergne were not faithful to him, thus addressed the Franks of his division: “Follow me, and I will carry you into a country where you shall have gold, silver, captives, clothes, and flocks in abundance; and you shall remove all the people into your own country.”
After the conclusion of the peace* between Gontram and Chilperic, the troops employed in the siege of Bourges having had orders to return, carried such a considerable booty away with them, that they hardly left either men or cattle in the country.
Theodoric, king of Italy, whose spirit and policy it was ever to distinguish himself from the other barbarian kings, upon sending an army into Gaul, wrote thus to the General† “It is my will that the Roman laws be followed, and that you restore the fugitive slaves to their right owners. The defender of liberty ought not to encourage servants to desert their masters. Let other kings delight in the plunder and devastation of the towns which they have subdued; we are desirous to conquer in such a manner, that our subjects shall lament their having fallen too late under our government.” It is evident, that his intention was to cast an odium on the king’s of the Franks and the Burgundians, and that he alluded in the above passage to their particular law of nations.
Yet this law of nations continued in force under the second race. King Pepin’s army, having penetrated into Aquitaine, returned to France loaded with an immense booty, and with a vast number of bondmen, as we are informed by the annals of Metz* .
Here might I quote numberless† authorities; and as the public compassion was raised at the sight of those miseries, as several holy prelates, beholding the captives in chains, employed the treasure belonging to the church, and sold even the sacred utensils, to ransom as many as they could; and as several holy monks exerted themselves on that occasion, it is in the‡ lives of the saints that we meet with the best eclaircissements on this subject. And, although it may be objected to the authors of those lives, that they have been sometimes a little too credulous in respect to things which God has certainly performed, if they were in the order of his providence; yet we draw considerable lights from thence, with regard to the manners and usages of those times.
When we cast an eye upon the monuments of our history and laws, the whole seems to be an immense expanse,‡ or a boundless ocean: all those frigid, dry, crude writings must be devoured in the same manner, as Saturn is fabled to have devoured the stones.
A vast quantity of land which had been in the hands of freemen,§ was changed into mortmain, when the country was stripped of its free inhabitants; those who had a great multitude of bondmen either took large territories by force, or had them yielded by agreement, and built villages, as may be seen in different charters. On the other hand, the freemen who cultivated the arts, found themselves reduced to exercise those arts in a state of servitude: thus the servitudes restored to the arts and to agriculture whatever they had lost.
It was a customary thing with the proprietors of land, to give them to the churches, in order to hold them themselves by a quit-rent, thinking to partake by their servitude of the sanctity of the churches.
That the lands belonging to the division of the Barbarians paid no taxes.
A PEOPLE remarkable for their simplicity and poverty, a free and martial people, who lived without any other industry than that of tending their flocks, and who had nothing but rush cottages to attach them to their∥ lands; such a people, I say, must have followed their chiefs for the sake of booty, and not to pay or to raise taxes. The art of tax-gathering is generally invented too late, and when men begin to enjoy the felicity of other arts.
The transient* tax of a pitcher of wine for every acre, which was one of the exactions of Chilperic and Fredegonda, related only to the Romans. And indeed it was not the Franks that tore the rolls of those taxes, but the clergy who in those days were all Romans. The burthen of this tax lay chiefly on the inhabitants† of the towns; now these were almost all inhabited by Romans.
Gregory of Tours‡ relates, that a certain judge was obliged after the death of Chilperic to take refuge in a church, for having under the reign of that prince ordered taxes to be levied on several Franks, who in the reign of Childebert were ingenui, or freeborn: “Multos de Francis, qui tempore Childeberti regis ingenui fuerant, publico tributo subegit.” Therefore the Franks who were not bondmen paid no taxes.
There is not a grammarian but would be ashamed to see how the Abbé du Bos§ has interpreted this passage. He observes, that in those days the freedmen were also called ingenui. Upon this supposition he renders the Latin word ingenui, by freed from taxes; a phrase, which we indeed may use, as freed from cares, freed from punishments; but in the Latin tongue, such expressions as ingenui a tributis, libertini a tributis, manumissi tributorum, would be quite monstrous.
Parthenius, says Gregory of Tours∥ had like to have been put to death by the Franks for subjecting them to taxes. The Abbé du Bos finding himself hard pressed by this passage* very coolly supposes the thing in question: it was, he says, an extraordinary duty.
We find in the law of the Visigoths† , that when a Barbarian had seized upon the estate of a Roman, the judge obliged him to sell it, to the end that this estate might continue to be tributary; consequently the Barbarians paid no taxes‡ .
The Abbé du Bos§ who, to support his system, would fain have the Visigoths subject to taxes∥ , quits the literal and spiritual sense of the law, and pretends upon no other indeed than an imaginary foundation, that between the establishment of the Goths and this law there had been an augmentation of taxes which related only to the Romans. But none but father Harduin are allowed thus to exercise an arbitrary power over facts.
This learned author** has rumaged Justinian’s code†† , in search of laws, to prove that among the Romans the military benefices were subject to taxes. From whence he would infer that the same held good with regard to fiefs or benefices among the Franks. But the opinion that our fiefs derive their origin from that institution of the Romans, is at present exploded; it obtained only at a time when the Roman history, but not ours, was well understood, and our ancient records lay buried in obscurity and dust.
But the Abbé is in the wrong to quote Cassiodorus, and to make use of what was transacting in Italy, and in the part of Gaul subject to Theodoric, in order to acquaint us with the practice established among the Franks; these are things which must not be confounded. I propose shewing, some time or other, in a particular work, that the plan of the monarchy of the Ostrogoths was intirely indifferent from that of any other government founded in those days by the other Barbarian nations; and so far are we entitled to affirm that a practice obtained among the Franks, because it was established among the Ostrogoths, that on the contrary we have just reason to think that a custom of the Ostrogoths was not in force among the Franks.
The hardest task for persons of extensive erudition, is to deduce their arguments from passages not foreign to the subject, and to find, if we may be allowed to express ourselves in astronomical terms, the true place of the sun.
The same author makes a wrong use of the capitularies, as well as of the historians and laws of the barbarous nations. When he wants the Franks to pay taxes, he applies to freemen what can be understood only of* bondmen; when he speaks of their military service, he applies to† bondmen what can never relate but to freemen.
Of Taxes paid by the Romans and Gauls, in the monarchy of the Franks.
I MIGHT here examine whether after the Gauls and Romans were conquered, they continued to pay the taxes to which they were subject under the emperors. But, for the sake of brevity, I shall be satisfied with observing that if they paid them in the beginning, they were soon after exempted, and that those taxes were changed into a military service. For I confess I cannot conceive how the Franks should have been at first such great friends, and afterwards such sudden and violent enemies, to taxes.
A capitulary* of Lewis the Debonnaire explains extremely well the situation of the freemen in the monarchy of the Franks. Some troops† of Goths or Iberians, flying from the oppression of the Moors, were received into Lewis’s dominions. The agreement made with them was, that like other freemen they should follow their count to the army; and that upon a march they should mount guard‡ and patrol under the command also of their count; and that they should furnish horses and carriages for baggage to the king’s∥ commissaries and to the ambassadors in their way to and from court; and that they should not be compelled to pay any further acknowledgment, but should be treated as the other freemen.
It cannot be said that these were new usages introduced towards the commencement of the second race. This must be referred at least to the middle or to the end of the first. A capitulary of the year* 864, says in express terms, that it was the ancient custom for freemen to perform military service, and to furnish likewise the horses and carriages above mentioned; duties particular to themselves, and from which those who possessed the fiefs were exempt, as we shall prove hereafter.
This is not all; there was a regulation† which hardly permitted the imposing of taxes on those freemen. He who had sour manors‡ was always obliged to march against the enemy: he who had but three, was joined with a freeman that had only one; the latter bore the fourth part of the other’s charges, and staid at home. In like manner, they joined two freemen who had each two manors; he who went to the army had half his charges borne by him who staid at home.
Again, we have an infinite number of charters, in which the privileges of fiefs are granted to lands or districts possessed by freemen, and of which I shall make farther mention hereafter∥ . These lands are exempted from all the duties or services, which were required of them by the counts, and by the rest of the king’s officers: and as all these services are particularly enumerated, without making any mention of taxes, it is manifest that no taxes were imposed upon them.
It was very natural that the Roman art of tax-gathering should fall of itself in the monarchy of the Franks: it was a most complicate art, far above the conception, and wide from the plan, of those simple people. Were the Tartars to over-run Europe, we should find it very difficult to make them comprehend what is meant by our financiers.
The* anonymous author of the life of Lewis the Debonnaire, speaking of the counts and other officers of the nation of the Franks, whom Charlemaign established in Aquitania, says, that he intrusted them with the care of defending the frontiers, as also with the military power and the direction of the demesnes belonging to the crown. This shews the state of the royal revenues under the second race. The prince had kept his demesnes in his own hands, and employed his bondmen in improving them. But the indictions, the capitations, and other imposts raised at the time of the emperors on the persons or goods of freemen, had been changed into an obligation of defending the frontiers, and marching against the enemy.
In the same history† , we find that Lewis the Debonnaire having been to wait upon his father in Germany, this prince asked him, why he, who was a crowned head, came to be so poor: to which Lewis made answer, that he was only a nominal king, and that the great lords were possessed of almost all his demesnes; that Charlemaign, being apprehensive lest this young prince should forfeit their affection, if he attempted himself to resume what he had inconsiderately granted, appointed commissaries to restore things to their former situation.
The bishops writings‡ to Lewis brother to Charles the Bald, use these words: “Take care of your lands, that you may not be obliged to travel continually by the houses of the clergy, and to tire their bondmen with carriages. Manage your affairs, continue they, in such a manner, that you may have enough to live upon, and to receive embassies.” It is evident, that the king’s revenues* in those days consisted of their demesnes.
Of what they called Census.
AFTER the Barbarians had quitted their own country, they were desirous of reducing their usages into writing; but as they found a difficulty in writing German words with Roman letters, they published these laws in Latin.
In the confusion and rapidity of the conquest, most things changed their nature; in order however to express them, they were obliged to make use of such old Latin words, as were most analogous to the new usages. Thus whatever was likely to revive† the idea of the ancient census of the Romans, they called by the name of census tributum; and when things had no relation at all to the Roman census, they expressed, as well as they could, the German words by Roman letters: thus they formed the word fredum, on which I shall have occasion to descant in the following chapters.
The words census and tributum having been employed in an arbitrary manner, this has thrown some obscurity on the signification in which these words were used under our princes of the first and second race. And modern* authors who have adopted particular systems, having found these words in the writings of those days, imagined that what was then called census, was exactly the census of the Romans; and from thence they inferred this consequence, that our kings of the two first races had put themselves in the place of the Roman emperors, and made no change in ‡ their administration. Besides, as particular duties raised under the second race were by change and by certain∥ restrictions converted into others, they inferred from thence that these duties were the census of the Romans; and, as since the modern regulations, they found that the crown demesnes were absolutely unalienable, they pretended that those duties which represented the Roman census, and did not form a part of the demesnes, were mere usurpation. I omit the other consequences.
To apply the ideas of the present time to distant ages, is a source of error. To these people who want to modernize all the ancient ages, I shall say what the Egyptian priests said to Solon, “O Athenians, you are mere children!”
That what they called census was raised only on the bondmen, and not on the freemen.
THE king, the clergy, and the lords raised regular taxes, each on the bondmen of their respective demesnes. I prove it with respect to the king, by the capitulary de Villis; with regard to the clergy, by the codes of the* laws of the Barbarians; and with relation to the lords, by the regulations† which Charlemaign made concerning this subject.
These taxes were called census; they were œconomical and not fiscal duties, mere private services and not public obligations.
I affirm, that what they called census at that time, was a tax raised upon the bondmen. This I prove by a formulary of Marculfus containing a permission from the king to enter into holy orders, provided the persons be* free-born, and not enrolled in the register of the census. I prove it also by a commission from Charlemaign to a count‡ , whom he had sent into Saxony; which contains the infranchisement of the Saxons for having embraced Christianity, and is properly a charter of freedom∥ . This prince restores them to their former§ civil liberty, and exempts them from paying the census. It was therefore the same thing to be a bondman as to pay the census, to be free as not to pay it.
By a kind of letters patent* of the same prince in favour of the Spaniards, who had been received into the monarchy, the counts are forbid to demand any census of them, or to deprive them of their lands. That strangers upon their coming to France were treated as bondmen, is a thing well known; and Charlemaign being desirous they should be considered as freemen, since he would have them be proprietors of their lands, forbade the demanding any census of them.
A capitulary of Charles the Bald† , given in favour of those very Spaniards, orders them to be treated like the other Franks, and forbids the requiring any census of them: consequently this census was not paid by freemen.
The thirtieth article of the edict of Pistes reforms the abuse, by which several of the husbandmen belonging to the king or to the church, sold the lands dependent on their manors to ecclesiastics or to people of their condition, reserving only a small cottage to themselves; by which means they avoided paying the census; and, it ordains, that things should be restored to their primitive situation: the census was therefore a tax peculiar to bondmen.
From thence also it follows, that there was no general census in the monarchy; and this is clear from a great number of passages. For what could be the meaning of this‡ capitulary? “We ordain that the royal census should be levied in all places, where formerly it was† lawfully levied.” What could be the meaning of that in which‡ Charlemaign orders his commissaries in the provinces to make an exact enquiry into all the census’s that belonged in former times∥ to the king’s demesne? And of that§ in which he disposes of the census’s paid by those* of whom they are demanded? What can that other capitulary†† mean, in which we read, “If any person‡‡ has acquired a tributary land, on which we were accustomed to levy the census?” And that other in fine∥∥ , in which Charles the Bald§§ makes mention of the lands, whose census had from time immemorial belonged to the king.
Observe that there are some passages which seem at first sight to be contrary to what I have said, and yet confirm it. We have already seen that the freemen in the monarchy were obliged only to furnish particular carriages; the capitulary just now cited gives to this** the name of census, and opposes it to the census paid by the bondmen.
Besides, the edict††† of Pistes takes notice of those freemen who are obliged to pay the royal census for their‡ head and for their cottages, and who had sold themselves during the famine. The king orders them to be ransomed. This is∥ because those who were manumitted by the king’s letters, did not, generally speaking, acquire a full and perfect§ liberty, but they paid censum in capite; and these are the people here meant.
We must therefore explode the idea of a general and universal census, in imitation of that of the Romans, from which census the rights of the lords are also supposed to have been derived by usurpation. What was called census in the French monarchy, independently of the abuse made of that word, was a particular tax imposed on the bondmen by their masters.
I beg the reader to excuse the trouble I must give him with such a number of citations. I should be more concise, did I not meet with the Abbé du Bos’s book on the establishment of the French monarchy in Gaul, continually in my way. Nothing is a greater obstacle to our progress in knowledge, than a bad performance of a celebrated author; because, before we instruct, we must begin with undeceiving.
Of the feudal Lords or Vassals.
I HAVE taken notice of those volunteers among the Germans, who followed their princes in their several expeditions. The same usage continued after the conquest. Tacitus mentions them by the name of companions* ; the Salic law by that of men who have vowed fealty† to the king; the formularies of‡ Marculfus by that of the king’s Antrustios∥ , the earliest French historians by that of Leudes§ , faithful and loyal; and those of later date by that of vassals** and lords.
In the Salic and Ripuarian laws we meet with an infinite number of regulations in regard to the Franks, and only with a few for the Antrustios. The regulations concerning the Antrustios are different from those which were made for the other Franks; they are full of what relates to the settling of the property of the Franks, but mention not a word concerning that of the Antrustios. This is because the property of the latter was regulated rather by the political than by the civil law, and was the share that fell to an army, and not the patrimony of a family.
The goods reserved for the feudal lords were called fiscal†† goods, benefices, honours, and fiefs, by different authors, and in different times.
There is no doubt but the fiefs at first were at will‡‡ . We find in Gregory of Tours∥∥ , that Sunegisilus and Gallomanus were deprived of all they held of the exchequer, and no more was left them than their real property. When Gontram raised his nephew Childebert to the throne, he had a private conference with him, in which he named* the persons who ought to be honoured with, and those who ought to be deprived of, the fiefs. In a formulary† of Marculfus, the king gives in exchange not only the benefices held by his exchequer, but likewise those which had been held by another. The law of the Lombards opposes‡ the benefices to property. In this our historians, the formularies, the codes of the different barbarous nations, and all the monuments of those days, are unanimous. In fine, the writers of the book of fiefs∥ inform us, that at first the lords could take them back when they pleased, that afterwards they granted them for the space of a year§ , and that at length they gave them for life.
Of the Military Service of Freemen.
TWO sorts of people were bound to military service; the great and lesser vassals, who were obliged in consequence of their fief; and the freemen, whether Franks, Romans, or Gauls, who served under the count, and were commanded by him and his officers.
The name of freemen was given to those, who on the one hand had no benefices or fiefs, and on the other were not subject to the base services of villainage; the lands they possessed were what they called allodial estates.
The counts* assembled the freemen, and led them against the enemy; they had officers under them who were called† vicars; and as all the freemen were divided into hundreds, which constituted what they called a borough, the counts had also officers under them, who were denominated centenarii, and led the freemen‡ of the borough, or their hundreds, to the field.
This division into hundreds is posterior to the establishment of the Franks in Gaul. It was made by Clotharius and Childebert, with a view of obliging each district to answer for the robberies committed in their division; this we find in the decrees∥ of those princes. A regulation of this kind is to this very day observed in England.
The bishops were greatly embarrassed, and†† inconsistent with themselves; they requested of Charlemaign not to oblige them any longer to a military service; and when he granted their request, they complained that he had deprived them of the public esteem: so that this prince was obliged to justify his intentions upon this head. Be that as it may, when they were exempted from marching against the enemy, I do not find that their vassals were led by the counts; on the contrary, we see* that the kings or the bishops chose one of their feudatories to conduct them.
In a capitulary† of Lewis the Debonnaire, this prince distinguishes three sorts of vassals, those belonging to the king, those to the bishops, and those to the counts. The‡ vassals of a feudal lord were not led against the enemy by the count, except some employment in the king’s houshold hindered the lord himself from commanding them.
But who is it that led the feudal lords into the field? No doubt the king himself, who was always at the head of his faithful vassals. Hence we constantly find in the capitularies a distinction made∥ between the king’s vassals and those of the bishops. Such brave and magnanimous princes as our kings, did not take the field to put themselves at the head of an ecclesiastic militia; these were not the men they chose to conquer or to die with.
But these laws carried their vassals and rear-vassals with them; as we can prove by the capitulary* , in which Charlemaign ordains that every freeman, who has four manors either in his own property, or as a benefice from some body else, should march against the enemy or follow his lord. It is evident, that Charlemaign means, that the person who had a manor of his own should march under the count, and he who held a benefice of a lord, should set out along with him.
And yet the Abbé du Bos† pretends, that when mention is made in the capitularies, of tenants who depended on a particular lord, no others are meant than bondmen; and he grounds his opinion on the law of the Visigoths, and the practice of that nation. It is much better to rely on the capitularies themselves; that which I have just quoted, says expressly the contrary. The treaty between Charles the Bald and his brothers, takes notice also of freemen, who might chuse to follow either a lord or the king; and this regulation is conformable to a great many others.
We may therefore conclude, that there were three sorts of military services; that of the king’s vassals, who had no other vassals under them; that of the bishops or of the other clergy, and their vassals, and, in fine, that of the count, who commanded the freemen.
Not but the vassals might be also subject to the count; as those who have a particular command are subordinate to him, who is invested with a more general authority.
We even find that the count and the king’s commissaries might oblige them to pay the fine, when they had not fulfilled the engagements of their fief. In like manner if the king’s vassals‡ committed any outrage, they were subject to the correction of the count, unless they chose rather to submit to that of the king.
Of the double Service.
IT was a fundamental principle of the monarchy, that whosoever was subject to the military power of another person, was subject also to his civil jurisdiction. Thus the capitulary* of Lewis the Debonnaire in the year 815, makes the military power of the count, and his civil jurisdiction over the freemen, keep always an equal pace. Thus the placita† of the count who carried the freemen against the enemy, were‡ called the placita of the freemen; from whence undoubtedly came this maxim, that the questions relating to liberty could be decided only in the count’s placita, and not in those of his officers. Thus the count never led the vassals§ belonging to the bishops or to the abbots against the enemy, because they were not subject to this civil jurisdiction. Thus he never commanded the rear-vassals belonging to the king’s vassals. Thus the glossary** of the English laws informs us, that those to whom†† the Saxons gave the name of Coples, were by the Normans called Counts, or companions, because they shared the justiciary fines with the King. Thus we see, that at all times the duty of a vassal‡‡ towards his lord, was to bear arms§§ , and to try his peers in his court.
One of the reasons which produced this connexion between the judiciary right and that of leading the forces against the enemy, was because the person who led them exacted at the same time the payment of the fiscal duties, which consisted in some carriage services due by the freemen, and in general in certain judiciary profits, of which we shall treat hereafter.
The lords had the right of administring justice in their fief, by the same principle as the counts had it in their counties. And indeed the counties in the several variations that happened at different times, always followed the variations of the fiefs; both were governed by the same plan, and by the same principles. In a word, the counts in their counties were lords, and the lords in their seignories were counts.
It has been a mistake to consider the counts as civil officers, and the dukes as military commanders. Both were equally civil∥ and military officers: the whole difference consisted in the duke’s having several counts under him, though there were counts who had no duke over them, as we learn from Fredegarius*
It will be imagined perhaps that the government of the Franks must have been very severe at that time, since the same officers were invested with a military and civil power, nay, even with a fiscal authority, over the subjects; which in the preceding books I have observed to be distinguishing marks of despotism.
But we must not believe that the counts pronounced judgment by themselves, and administered justice in the same manner as the bashaws in Turky; in order to judge affairs, they assembled a kind of assizes, where the principal men appeared.
To the end we may thoroughly understand what relates to the judicial proceedings, in the formulas, in the laws of the barbarians, and in the capitularies, it is proper to observe that the functions of the count, of the Grafio or fiscal judge, and the Centenarius, were the same; that the judges, the Rathimburgers, and the sheriffs, were the same persons under different names. These were the counts assistants, and were generally seven in number; and as he was obliged to have twelve persons to judge† , he filled up the number with the principal men‡ .
But whoever had the jurisdiction, the king, the count, the Grafio, the Centenarius, the lords, or the clergy, they never tried causes alone; and this usage, which derived its origin from the forests of Germany, was still continued even after the fiefs had assumed a new form.
With regard to the fiscal power, its nature was such, that the count could hardly abuse it. The rights of the prince in respect to the freemen, were so simple, that they consisted only, as we have already observed, in certain carriages which were∥ demanded of them on some public occasions. And as for the judiciary rights, there were laws which prevented* misdemeanours.
Of Compositions among the barbarous Nations.
SINCE it is impossible to have any tolerable notion of our political law, unless we are thoroughly acquainted with the laws and manners of the German nations, I shall therefore pause here a while, in order to enquire into those manners and laws.
It appears by Tacitus, that the Germans knew only two capital crimes; they hanged traitors, and drowned cowards; these were the only public crimes among those people. When a man† had injured another, the relations of the person injured took share in the quarrel, and the offence was cancelled by a satisfaction. This satisfaction was made to the person offended when capable of receiving it: or to the relations if they had been injured in common, or if by the decease of the party injured, the satisfaction had devolved to them.
In the manner mentioned by Tacitus, these satisfactions were made by the mutual agreement of the parties; hence in the codes of the barbarous nations these satisfactions are called compositions.
The law‡ of the Frisians is the only one I find that has left the people in that situation, in which every family at variance was in some measure in the state of nature, and in which being unrestrained either by a political or civil law, they might give a loose to their revenge, till they had obtained satisfaction. Even this law was moderated; a regulation was made that the person whose life was sought after should be unmolested in his own house, as also in going and coming from church, and from the court where causes were tried.*
The compilers of the Salic law cite∥ an ancient usage of the Franks, by which a person who had dug a corpse out of the ground, in order to strip it, should be banished from society, till the relations had consented to his being re-admitted. And as before that time strict orders were issued to every one, even to the offender’s own wife, not to give him a morsel of bread, or to receive him under their roof; such a person was in respect to others, and others in respect to him, in a state of nature, till an end was put to this state by a composition.
This excepted, we find that the sages of the different barbarous nations thought of determining by themselves, what would have been too long and too dangerous to expect from the mutual agreement of the parties. They took care to fix the value of the composition which the party injured was to receive. All those barbarian laws are in this respect most admirably exact; the several cases are minutely§ distinguished, the circumstances are weighed, the law substitutes itself in the place of the person injured, and insists upon the same satisfaction as he himself would have demanded in cold blood.
By the establishing of those laws, the German nations quitted that state of nature, in which they seemed to have lived in Tacitus’s time.
Rotharis declares in the law of† the Lombards, that he had increased the compositions anciently accustomed for wounds, to the end that the wounded person being fully satisfied, all enmities should cease. And indeed, as the Lombards, from a very poor people, were grown rich by the conquest of Italy, the ancient compositions were become frivolous, and reconcilements prevented. I do not question but this was the motive, which obliged the other chiefs of the conquering nations, to make the different codes of laws now extant.
The principal composition was that which the murderer paid to the relations of the deceased. The difference of† conditions produced a difference in the compositions: Thus in the law of the Angli, there was a composition of six hundred sous for the murder of an adeling, two hundred for that of a freeman, and thirty for killing a bondman. The largeness therefore of the composition for the life of a man, was one of his chief privileges; for besides the distinction it made of his person, it likewise established a greater security in his favour among rude and boisterous nations.
This we are made sensible of by the law of the‡ Bavarians: it gives the names of the Bavarian families who received a double composition, because they were the first∥ after the Agilolfings. The Agilolfings were of the ducal race, and it was customary with this nation to choose a duke out of that family; these had a quadruple composition. The composition for a duke exceeded by a third, that which had been established for the Agilolfings: “Because he is a duke, says the law, a greater honour is paid to him than to his relations.”
All these compositions were valued in money. But as those people, especially when they lived in Germany, had very little specie, they might pay it in cattle, corn, moveables, arms, dogs, hawks§ , lands, &c. The law itself* frequently determined the value of those things; which explains how it was possible for them to have such a number of pecuniary punishments with so very little money.
These laws were therefore employed in exactly determinating the difference of wrongs, injuries, and crimes; to the end that every one might know how far he had been injured or offended, the reparation he was to receive, and especially that he was to receive no more.
In this light it is easy to conceive, that a person who had taken revenge after having received satisfaction, was guilty of an heinous crime. This contained a public as well as a private offence: it was a contempt of the law of itself; a crime which the legislators† never failed to punish.
There was another crime, which above all others was considered as dangerous, when‡ those people lost something of their spirit of independence, and when the kings endeavoured to establish a better civil administration: this was the refusing to give or to receive satisfaction. We find in the different codes of the laws of the Barbarians, that the legislators were peremptory∥ on this article. In effect, a person who refused to receive satisfaction, wanted to preserve his right of prosecution; he who refused to give it left the right of prosecution to the person injured; and this is what the sages had reformed in the institutions of the Germans, whereby people were invited but not compelled to compositions.
I have just now made mention of a text of the Salic law, in which the legislator left the party offended at liberty to receive or refuse satisfaction; it is the law§ by which a person who had stript a dead body, was expelled society; till the relations upon receiving satisfaction, petitioned for his being re-admitted. It was owing to the respect they had for sacred things, that the compilers of the Salic laws did not meddle with the ancient usage.
It would have been absolutely unjust to grant a composition to the relations of a robber killed in the fact, or to the relations of a woman who had be repudiated for the crime of adultery. The law* of the Bavarians allowed no composition in the like case, but punished the relations who sought revenge.
It is no rare thing to meet with compositions for involuntary actions in the codes of the laws of the Barbarians. The law of the Lombards is generally very prudent; it† ordained, that in those cases the composition should be according to the person’s generosity; and that the relations should no longer be permitted to pursue their revenge.
Clotharius the second made a very wise decree: he forbade† the person robbed to receive any clandestine composition, and without an order from the judge. We shall presently see the motive of this law.
Of what was afterwards called the Jurisdiction of the Lords.
BESIDE the composition which they were obliged to pay to the relations for murders or injuries, they were also under a necessity of paying a certain duty, which the codes of the barbarian laws call‡fredum. We have no term in our modern language to express it; yet I intend to treat of it at large; and in order to give an idea of it, I begin with defining it a recompence for the protection granted against the right of prosecution. Even to this day, fred, in the Swedish language, signifies peace.
The administration of justice among those rude and unpolished nations, was nothing more than granting to the person who had committed an offence, a protection against the prosecution of the party offended, and obliging the latter to accept of the satisfaction due to him: insomuch that among the Germans, contrary to the practice of all other nations, justice was administered in order to protect the criminal against the party injured.
The codes of the Barbarian laws have given us the cases in which the freda might be demanded. When the relations could not prosecute, they allow of no fredum; and indeed, when there was no prosecution, there could be no composition for a protection against it. Thus, in the law of the§ Lombards, if a person happened to kill a freeman by chance, he paid the value of the man killed, without the fredum; because as he had killed him involuntarily, it was not the case in which the relations were allowed the right of prosecution. Thus in the law of the* Ripuarians, when a person was killed with a piece of wood, or with any instrument made by a man, the instrument or the wood were deemed culpable, and the relations seized upon them for their own use, but were not allowed to demand the fredum.
In like manner, when a beast happened to kill a man, the‡ same law established a composition without the fredum, because the relations of the deceased were not offended.
In fine, it was ordained by the† Salic law, that a child who had commited a fault before the age of twelve, should pay the composition without the fredum: as he was not yet able to bear arms, he could not be in the case in which the party injured, or his relations, had a right to demand satisfaction.
It was the criminal that paid the fredum for the peace and security, of which he had been deprived by his crime, and which he might recover by protection. But a child did not lose this security; he was not a man, and consequently could not be expelled from human society.
This fredum was a local right in favour of the person who was∥ judge of the district. Yet the law of the Ripuarians§ forbade him to demand it himself: it ordained, that the party who had gained the cause should receive it and carry it to the exchequer, to the end that there might be a lasting peace, says the law, among the Ripuarians.
The greatness of the fredum was proportioned to the degree of* protection: thus the fredum for the king’s protection was greater than what was granted for the protection of the count, or of the other judges.
Here I see the origin of the jurisdiction of the lords. The fiefs comprized very large territories, as appears from a vast number of records. I have already proved that the kings raised no taxes on the lands belonging to the division of the Franks; much less could they reserve to themselves any duties on the fiefs. Those who obtained them, had in this respect a full and perfect enjoyment, reaping every possible emolument from them. And as one of the most considerable† emoluments was the justiciary profits freda, which were received according to the usage of the Franks, it followed from thence, that the person seized of the fief, was also seized of the jurisdiction, the exercise of which consisted of the compositions made to the relations, and of the profits accruing to the lord; it was nothing more than ordering the payment of the compositions of the law, and demanding the legal fines.
We find by the formularies containing confirmation of the perpetuity of a fief in favour of a feudal lord* , or of the privileges of fiefs in favour of† churches, that the fiefs were possessed of this right. This appears also from an infinite number of charters‡ mentioning a prohibition to the king’s judges or officers of entering upon the territory in order to exercise any act of judicature whatsoever, or to demand any judiciary emolument. When the king’s judges could no longer make any demand in a district, they never entered it; and those to whom this district was left, performed the same functions as had been exercised before by the judges.
The king’s judges are forbidden also to oblige the parties to give security for their appearing before them: it belonged therefore to the person who had received the territory in fief, to demand this security. They mention also, that the king’s commissaries shall not insist upon being accommodated with a lodging; in effect, they no longer exercised any function in those districts.
The administration therefore of justice, both in the old and new fiefs, was a right inherent in the very fief itself, a lucrative right which constituted a part of it. For this reason it had been considered at all times in this light; from whence this maxim arose, that jurisdictions are patrimonial in France.
Some have thought that the jurisdictions derived their origin from the manumissions made by the kings and lords, in favour of their bondmen. But the German nations, and those descended from them, are not the only people who manumitted their bondmen, and yet they are the only people that established patrimonial jurisdictions. Besides, we find by the formularies* of Marculfus that there were freemen dependent on these jurisdictions in the earliest times: the bondmen were therefore subject to the jurisdiction, because they were upon the territory; and they did not give rise to the fiefs for having been annexed to the fief.
Others have taken a shorter cut: the lords, say they, and this is all they say, usurped the jurisdictions. But are the nations descended from Germany the only people in the world that usurped the rights of princes? We are sufficiently informed by history, that several other nations have encroached upon their sovereigns; and yet we find no other instance of what we call the jurisdiction of the lords. The origin of it is therefore to be traced in the usages and customs of the Germans.
Whoever has the curiosity to look into Loyseau† will be surprised at the manner in which this author supposes the lords to have proceeded, in order to form and usurp their different jurisdictions. They must have been the most artful people in the world; they must have robbed and plundered, not after the manner of a military nation, but as the country justices and the attornies rob one another. Those brave warriors must be said to have formed a general system of politics throughout all the provinces of the kingdom, and in so many other countries in Europe: Loyseau makes them reason, as he himself reasoned in his closet.
Once more: if the jurisdiction was not a dependence of the fief, how come we every where† to find, that the service of the fief was to attend the king or the lord both in their courts and in the army?
Of the territorial Jurisdiction of the Churches.
THE churches acquired a very considerable property. We find that our kings gave them great seignories, that is, great fiefs; and we find jurisdictions established at the same time in the demesnes of those churches. From whence could so extraordinary a privilege derive its origin? It must certainly have been in the nature of the grant: the church land had this privilege, because it had not been taken from it. A seignory was given to the church; and it was allowed to enjoy the same privileges, as if it had been granted to a vassal. It was also subjected to the same service as it would have paid to the state if it had been given to a layman, according to what we have already observed.
The churches had therefore the right of demanding the payment of compositions in their territory; and of insisting upon the fredum; and as those rights necessarily implied that of hindering the king’s officers from entering upon the territory, to demand these fréda and to exercise acts of judicature, the right which ecclesiastics had of administering justice in their own territory, was called immunity, in the style of the formularies* , of the charters, and of the capitularies.
The law of the Ripuarians† forbids the freedmen‡ of the churches, to hold the assembly∥ for administering justice in any other place than in the church where they were manumitted. The churches had therefore jurisdictions even over freemen, and held their placita in the earliest times of the monarchy.
I find in the lives of the saints§ , that Clovis gave to a certain holy person a power over a district of six leagues, and exempted it from all manner of jurisdiction. This, I believe, is a falsity, but it is a falsity of a very ancient date; both the truth and the fiction contained in that life are relative to the customs and laws of those times, and it is these customs* and laws we are investigating.
Clotharius II. orders†† the bishops or the nobility who are possessed of estates in distant parts, to chuse upon the very spot those who are to administer justice, or to receive the judiciary emoluments.
The same prince‡‡ regulates the judiciary power between the ecclesiastic courts and his officers. The capitulary of Charlemaign in the year 802 prescribes to the bishops and abbots, the qualifications necessary for their officers of justice. Another capitulary∥∥ of the same prince inhibits the royal officers, to exercise any jurisdiction over§§ those who are employed in manuring church-lands, except they entered into that state by fraud, and to exempt themselves from contributing to the public charges. The bishops assembled at Rheims made a declaration* , that the vassals belonging to the respective churches are within their immunity. The capitulary of Charlemaign in the year 806† ordains that the churches should have both criminal and civil jurisdiction over those who live upon their lands. In fine, as the capitulary‡ of Charles the Bald distinguishes between the king’s jurisdiction, that of the lords, and that of the church; I shall say nothing farther∥ upon this subject.
That the Jurisdictions were established before the End of the second Race.
IT has been pretended that the vassals usurped the jurisdiction in their seignories, during the confusion of the second race. Those who chuse rather to form a general proposition than to examine it, found it easier to say that the vassals did not possess, than to discover how they came to possess. But the jurisdictions do not owe their origin to usurpations; they are derived from the primitive establishment, and not from its corruption.
“He who kills a freeman, says* the law of the Bavarians, shall pay a composition to his relations, if he has any; if not, he shall pay it to the duke, or to the person under whose protection he had put himself in his life-time.” It is well known what it was to put one’s self under the protection of another for a benefice.
“He who had been robbed of his bondman, says the law of the Alemans† , shall have recourse to the prince to whom the robber is subject; to the end that he may obtain a composition.”
“If a centenarius, says‡ the decree of Childebert, finds a robber in another hundred than his own, or in the limits of our faithful vassals, and does not drive him out, he shall be answerable for the robber, or purge himself by oath.” There was therefore a difference between the district of the centenarii and that of the vassals.
This decree∥ of Childebert explains the constitution of Clotharius in the same year, which being given for the same case and fact, differs only in the terms; the constitution calling in truste, what by the decree is stiled in terminis fidelium nostrorum. Messieurs Bignon and Ducange§ who pretend that in truste signified another king’s demesne, are mistaken in their conjecture.
Pepin, king of Italy, in a constitution** that had been made as well for the Franks as for the Lombards, after imposing penalties on the counts and other royal officers, for prevarications or delays in the administration of justice, ordains†† that if it happens that a Frank or a Lombard possessed of a fief is unwilling to administer justice, the judge to whose district he belongs, shall suspend the exercise of his fief, and in the mean time, either the judge or his commissary shall administer justice.
It appears by a capitulary* of Charlemaign, that the kings did not levy the freda in all places. Another† capitulary of the same prince shews the feudal laws, and feudal court to have been already established. Another of Lewis the Debonnaire ordains, that when a person possessed of a fief, does not administer justice‡ , or hinders it from being administered, the king’s commissaries shall live upon him at discretion, till justice be administered. I shall likewise quote two∥ capitularies of Charles the Bald, one of the year 861; where we find the particular jurisdictions established, with judges and subordinate officers; and the other§ of the year 864, where he makes a distinction between his own seignories and those of private persons.
We have not the original grants of the fiefs, because they were established by the partition, which is known to have been made among the conquerors. It cannot therefore be proved by original contracts, that the jurisdictions were at first annexed to the fiefs: but if in the formularies of the confirmations, or of the translations of those fiefs in perpetuity, we find, as already hath been observed, that the jurisdiction was there established; this judiciary right must certainly have been inherent in the fief, and one of its chief privileges.
We have a far greater number of records, that establish the patrimonial jurisdiction of the clergy in their districts, than there are to prove that of the benefices or fiefs of the feudal lords; for which two reasons may be assigned. The first, that most of the records now extant were preserved or collected by the monks, for the use of their monasteries. The second, that the patrimony of the several churches having been formed by particular grants, and by a kind of exception to the order established, they were obliged to have charters granted to them; whereas the concessions made to the feudal lords being consequences of the political order, they had no occasion to demand, and much less to preserve, a particular charter. Nay, the kings were oftentimes satisfied with making a simple delivery with the scepter, as appears from the life of St. Maur.
But the third formulary* of Marculfus sufficiently proves, that the privileges of immunity, and consequently that of jurisdiction, were common to both the clergy and the laity, since it is made for both. The same may be said of the constitution of Clotharius II† .
General Idea of the Abbé Du Bos’s Book on the Establishment of the French Monarchy in Gaul.
BEFORE I finish this book, it will not be im, proper to write a few strictures on the Abbé du Bos’s performance, because my notions are perpetually contrary to his; and if he has hit on the truth, I must have missed it.
This performance has imposed upon a great many, because it is penned with art; because the point in question is constantly supposed; because the more it is deficient in proofs, the more it abounds in probabilities; and, in fine, because an infinite number of conjectures are laid down as principles, and from thence other conjectures are inferred as consequences. The reader forgets he has been doubting, in order to begin to believe. And as a prodigious fund of erudition is interspersed, not in the system, but around it, the mind is taken up with the appendages, and neglects the principal. Besides, such a vast multitude of researches hardly permit one to imagine that nothing has been found; the length of the way makes us think that we are arrived at our journey’s end.
But when we examine the matter thoroughly, we find an immense colossus with earthen feet; and it is the earthen feet that render the colossus immense. If the Abbé du Bos’s system had been well grounded, he would not have been obliged to write three tedious volumes to prove it; he would have found every thing within his subject; and without wandering on every side in quest of what was extremely foreign to it, even reason itself would have undertaken to range this in the same chain with the other truths. Our history and laws would have told him; “Do not take so much trouble, we shall be your vouchers.”
The same Subject continued. Reflection on the main Part of the System.
THE Abbé du Bos endeavours by all means to explode the opinion that the Franks made the conquest of Gaul. According to his system our kings were invited by the people, and only substituted themselves in the place, and succeeded to the rights, of the Roman emperors.
This pretension cannot be applied to the time when Clovis, upon his entering Gaul, took and plundered the towns; neither is it applicable to the period when he defeated Syagrius the Roman commander, and conquered the country which he held; it can therefore be referred only to the period when Clovis, already master of a great part of Gaul by open force, was called by the choice and affection of the people to the sovereignty over the rest. And it is not enough that Clovis was received, he must have been called; the Abbé du Bos must prove that the people chose rather to live under Clovis, than under the domination of the Romans, or under their own laws. The Romans belonging to that part of Gaul not yet invaded by the Barbarians, were, according to this author, of two sorts; the first were of the Armorican confederacy, who had driven away the emperor’s officers, in order to defend themselves against the Barbarians, and to be governed by their own laws; the second were subject to the Roman officers. Now does the Abbé produce any convincing proofs that the Romans who were still subject to the empire, called in Clovis? Not one. Does he prove that the republic of the Armoricans invited Clovis; or even concluded any treaty with him? Not at all. So far from being able to tell us the fate of this republic, he cannot even so much as prove its existence; and notwithstanding he pretends to trace it from the time of Honorius to the conquest of Clovis, notwithstanding he relates with a most admirable exactness all the events of those times; still this republic remains invisible in ancient authors. For there is a wide difference between proving by a passage of Zozymus* , that under the emperor Honorius, the† country of Armorica and the other provinces of Gaul revolted and formed a kind of republic; and shewing us that notwithstanding the different pacifications of Gaul, the Armoricans formed a particular republic, which continued till the conquest of Clovis: and yet this is what he should have demonstrated by strong and substantial proofs, in order to establish his system. For when we behold a conqueror entering a country, and subduing a great part of it by force and open violence, and soon after we find the whole country subdued, without any mention in history of the manner of its being effected, we have sufficient reason to believe that the affair ended as it began.
When we find he has mistaken this point, it is easy to perceive that his whole system falls to the ground; and as often as he infers a consequence from these principles, that Gaul was not conquered by the Franks, but that the Franks were invited by the Romans, we may safely deny it.
This author proves his principle, by the Roman dignities with which Clovis was invested: he insists that Clovis succeeded to Chilperic his father in the office of magister malitiæ. But these two offices are merely of his own creation. S. Remigius’s letter to Clovis, on which he grounds his opinion‡ , is only a congratulation upon his accession to the crown. When the intent of a writing is so well known, why should we give it another turn?
Clovis, towards the end of his reign, was made consul by the emperor Anastasius: but what right could he receive from an authority that lasted only one year? It is very probable, says our author, that in the same diploma the emperor Anastasius made Clovis proconsul. And, I say, it is very probable he did not. With regard to a fact for which there is no foundation, the authority of him who denies is equal to that of him who affirms. But I have also a reason for denying it. Gregory of Tours, who mentions the consulate, says never a word concerning the proconsulate. And even this proconsulate could have lasted only about six months. Clovis died a year and a half after he was created consul; and we cannot pretend to make the proconsulate an hereditary office. In fine, when the consulate, and, if you will, the proconsulate were conferred upon him, he was already master of the monarchy, and all his rights were established.
The second proof alledged by the Abbé du Bos, is the renunciation made by the emperor Justinian, in favour of the children and grand-children of Clovis, of all the rights of the empire over Gaul. I could say a great deal concerning this renunciation. We may judge of the regard shewn to it by the kings of the Franks, from the manner in which they performed the conditions of it. Besides, the kings of the Franks were masters, and peaceable sovereigns of Gaul; Justinian had not one foot of ground in that country; the western empire had been destroyed a long time before; and the eastern empire had no right to Gaul, but as representing the emperor of the west. These were rights to rights; the monarchy of the Franks was already founded; the regulation of their establishment was made; the reciprocal rights of the persons and of the different nations who lived in the monarchy, were agreed on; the laws of each nation were given and even reduced into writing. What could therefore that foreign renunciation avail to a government already established?
What can the Abbé mean by making such a parade of the declamations of all those bishops, who amidst the confusion, and total subversion of the state, endeavour to flatter the conqueror? What else is implied by flattering, but the weakness of him who is obliged to flatter? What does rhetoric and poetry prove, but the use of those very arts? Is it possible to help being surprised at Gregory of Tours, who after mentioning the assassinations committed by Clovis, says, that God laid his enemies every day at his feet, because he walked in his ways? Who doubts but the clergy were glad of Clovis’s conversion, and that they even reaped great advantages from it? But who doubts at the same time that the people experienced all the miseries of conquest, and that the Roman government submitted to that of the Franks? The Franks were neither willing nor able to make a total change; and few conquerors were ever seized with so great a degree of madness. But to render all the Abbé du Bos’s consequences true, they must not only have made no change amongst the Romans, but they must have even changed themselves.
I could undertake to prove, by following this author’s method, that the Greeks never conquered Persia. I should set out with mentioning the treaties which some of their cities concluded with the Persians: I should mention the Greeks who were in Persian pay, as the Franks were in the pay of the Romans. And if Alexander entered the Persian territories, besieged, took, and destroyed the city of Tyre, it was only a particular affair like that of Syagrius. But, behold the Jewish pontiff goes forth to meet him. Listen to the oracle of Jupiter Hammon. Recollect how he had been predicted at Gordium. See what a number of towns crowd, as it were, to submit to him; and how all the Satraps and grandees come to pay him obeisance. He put on the Persian dress; this is Clovis’s consular robe. Does not Darius offer him one half of his kingdom? Is not Darius assassinated like a tyrant? Do not the mother and wife of Darius weep at the death of Alexander? Were Quintus Curtius, Arrian, or Plutarch, Alexander’s cotemporaries? Has not the invention of* printing affording us great lights, which those authors wanted? Such is the history of the establishment of the French monarchy in Gaul.
Of the French Nobility.
THE Abbé du Bos maintains, that at the commencement of our monarchy there was only one order of citizens among the Franks. This assertion, so injurious to the noble blood of our principal families, is equally affronting to the three great houses which successively governed this realm. The origin of their grandeur would not therefore have been lost in the obscurity of time. History might point out the ages when they were plebeian families; and to make Childeric, Pepin, and Hugh Capet gentlemen, we should be obliged to trace their pedigree among the Romans or Saxons, that is, among the conquered nations.
This author grounds* his opinion on the Salic law. By that law, he says, it plainly appears, that there were not two different orders of citizens among the Franks: it allowed a composition† of two hundred sous for the murder of any Frank whatsoever; but among the Romans it distinguished the king’s guest, for whose death it gave a composition of three hundred sous, from the Roman proprietor to whom it granted a hundred, and from the Roman tributary to whom it gave only a composition of forty-five. And as the difference of the compositions formed the principal distinction, he concludes that there was but one order of citizens among the Franks, and three among the Romans.
It is astonishing that his very mistake did not set him right. And indeed, it would have been very extraordinary that the Roman nobility who lived under the domination of the Franks, should have a larger composition; and been persons of much greater importance than the most illustrious among the Franks, and their greatest generals. What probability is there, that the conquering nation should have so little respect for themselves, and so great a regard for the conquered people? Besides, our outhor quotes the laws of other barbarous nations, which proves that they had different orders of citizens. Now it would be a matter of astonishment that this general rule should have failed only among the Franks. Hence he ought to have concluded either that he did not rightly understand, or that he misapplied, the passages of the Salic law; which is actually the case.
Upon opening this law, we find that the composition for the death of an Antrustio* , that is, of the king’s vassal, was fix hundred sous: and that for the death of a Roman, who was the† king’s guest, was only three hundred. We find there likewise that‡ the composition for the death of an ordinary Frank∥ was two hundred sous; and for the death of an ordinary Roman§ , was only one hundred. For the death of a Roman** tributary, who was a kind of bondman or freedman, they paid a composition of fortyfive sous: but I shall take no notice of this, no more than of the composition for the murder of a Frank bondman or of a Frank freedman, because this third order of persons is out of the question.
What does our author do? He is quite silent with respect to the first order of persons among the Franks, that is the article relating to the Antrustios; and afterwards, upon comparing the ordinary Frank, for whose death they paid a composition of two hundred sous, with those whom he distinguishes under three orders among the Romans, and for whose death they paid different compositions, he finds that there was only one order of citizens among the Franks, and that there were three among the Romans.
As the Abbé is of opinion that there was only one order of citizens among the Franks, it would have been lucky for him that there had been only one order also among the Burgundians, because their kingdom constituted one of the principal branches of our monarchy. But in their codes* we find three sorts of compositions, one for the Burgundian or Roman nobility, the other for the Burgundians or Romans of a middling condition, and the third for those of a lower rank in both nations. He has not quoted this law.
It is very extraordinary to see in what manner he evades† those passages which press him hard on all sides. If you speak to him of the grandees, lords, and the nobility: these, he says, are mere distinctions of respect, and not of order; they are things of courtesy, and not legal privileges; or else, he says, those people belonged to the king’s council; nay, they possibly might be Romans: but still there was only one order of citizens among the Franks. On the other hand, if you speak to him of some Franks of an inferior rank‡ , he says, they are bondmen; and thus he interprets the decree of Childebert. But I must stop here a little, to enquire farther into this decree. Our author has rendered it famous by availing himself of it in order to prove two things; the one* , that all the compositions we meet with in the laws of the Barbarians were only civil fines added to corporal punishments, which intirely subverts all the antient records: the other, that all freemen were judged directly and immediately by the king† , which is contradicted by an infinite number of passages and authorities informing us of the‡ judiciary order of those times.
This decree, which was made in an assembly∥ of the nation, says, that if the judge finds a notorious robber, he must command him to be tied, in order to be carried before the king, si Francus fucrit; but if he is a weaker person (debilior persona), he shall be hanged on the spot. According to the Abbé du Bos, Francus is a freeman, debilior persona is a bondman. I shall defer entering for a moment into the signification of the word Francus, and begin with examining what can be understood by these words, a weaker person. In all languages whatsoever, every comparison necessarily supposeth three terms, the greatest, the less degree, and the least. If none were here meant but freemen and bondmen, they would have said a bondman, and not a man of less power. Therefore debilior persona does not signify a bondman, but a person of a superior condition to a bondman. Upon this supposition, Francus cannot mean a freeman but a powerful man; and this word is taken here in that acception, because among the Franks there were always men who had greater power than others in the state, and it was more difficult for the judge or count to chastise them. This explication agrees very well with many capitularies* , where we find the cases in which the criminals were to be carried before the king, and those in which it was otherwise.
It is mentioned in the life of Lewis the Debonnaire† , written by Tegan, that the bishops were the principal cause of the humiliation of that emperor, especially those who had been bondmen, and such as were born among the Barbarians. Tegan thus addresses Hebo, whom this prince had drawn from the state of servitude, and made archbishop of Rheims. “What recompence‡ did the emperor receive from you for so many benefits? He made you a freeman, but did not enoble you, because he could not give you nobility after having given you your liberty.”
This discourse which proves so strongly the two orders of citizens, does not at all confound the Abbé du Bos. He answers thus∥ : “The meaning of this passage is not, that Lewis the Debonnaire was incapable of introducing Hebo into the order of the nobility. Hebo, as archbishop of Rheims, must have been of the first order, superior to that of the nobility.” I leave the reader to judge, whether this be not the meaning of that passage; I leave him to judge whether there be any question here concerning a precedency of the clergy over the nobility. “This passage proves only,” continues the same writer§ , “that the freeborn subjects were qualified as noblemen; in the common acceptation noblemen and men who are free-born have for this long time signified the same thing.” What! because some of our Burghers have lately assumed the quality of noblemen, shall a passage of the life of Lewis the Debonnaire be applied to this sort of people? “And perhaps, (continues he still)∥ Hebo had not been a bondman among the Franks, but among the Saxons, or some other German nation, where the people were divided into several orders.” Then because of the Abbé du Bos’s perhaps there must have been no nobility among the nation of the Franks. But he never applied a perhaps so badly. We have seen that Tegan§ distinguishes the bishops, who had opposed Lewis the Debonnaire, some of whom had been bondmen, and others of a barbarous nation. Hebo belonged to the former and not to the latter. Besides, I do not see how a bondman, such as Hebo, can be said to have been a Saxon or a German; a bondman has no family, and consequently no nation. Lewis the Debonnaire manumitted Hebo; and as bondmen after their manumission, embraced the law of their master, Hebo was become a Frank, and not a Saxon or German.
I have been hitherto acting offensively; it is now time to defend myself. It will be objected to me, that indeed the body of the Antrustios formed a distinct order in the state, from that of the freemen; but as the fiefs were at first precarious, and afterwards for life, this could not form a nobleness of descent, since the privileges were not annexed to an hereditary fief. This is the objection which induced Mr. de Valos to think, that there was only one order of citizens among the Franks; an opinion which the Abbé du Bos has borrowed of him, and which he has absolutely spoiled with so many bad arguments. Be that as it may, it is not the Abbé du Bos that could make this objection. For after having given three orders of Roman nobility, and the quality of the king’s guest for the first, he could not pretend to say that this title was a greater mark of a noble descent than that of Antrustio. But I must give a direct answer. The Antrustios or trusty men were not such because they were possessed of a fief, but they had a fief given them because they were Antrustios or trusty men. The reader may please to recollect what has been said in the beginning of this book. They had not at that time, as they had afterwards, the same fief: but if they had not that, they had another, because the fiefs were given at their birth, and because they were often granted in the assemblies of the nation, and, in fine, because it was the interest of the nobility to receive them, it was likewise the king’s interest to grant them. These families were distinguished by their dignity of trusty men, and by the privilege of being qualified to swear allegiance for a fief. In the following book,* I shall demonstrate from the circumstances of time, that there were freemen who were permitted to enjoy this great privilege, and consequently to enter into the order of nobility. This was not the case at the time of Gontram, and his nephew Childebert; but so it was at the time of Charlemaign. But though in that prince’s reign the freemen were not incapable of possessing fiefs, yet it appears by the above-cited passage of Tegan, that the freedmen were absolutely excluded. Will the Abbé du Bos,† who carries us to Turkey, to give us an idea of the ancient French nobility; will he, I say, pretend that they ever complained among the Turks of the elevation of people of low birth to the honours and dignities of the state, as they complained under Lewis the Debonnaire and Charles the Bald? There was no complaint of that kind under Charlemaign. because this prince always distinguished the ancient fron the new families; which Lewis the Debonnaire and Charles the Bald did not.
The public should not forget the obligation it owes to the Abbé du Bos for several excellent performances. It is by these works, and not by his history of the establishment of the French monarchy, we ought to judge of his merit. He committed very great mistakes, because he had more in view the count of Boulainvillier’s work, than his own subject.
From all these strictures I shall draw only one reflection; if so great a man was mistaken, how cautiously ought I to tread?
[† ]Book 6.
[‡ ]For instance, his retreat from Germany. Ibid.
[* ]Book 6th of the Gallic wars. Tacitus adds, “Nulli domus aut ager, aut aliqua cura; prout ad quem venére aluntur.” De morib. Germ.
[† ]De morib. German.
[* ]De Bello Gallico, lib. 6.
[† ]See the life of Dagobert.
[‡ ]See Gregory of Tours, book 6. on the marriage of the daughter of Chilperic. Childebert sends ambassadors to tell him, that he should not give the cities of his father’s kingdom to his daughter, nor his treasures, nor his bondmen, nor horses, nor horsemen, nor teams of oxen, &c.
[* ]The Romans obliged themselves to this by treaties.
[† ]Burgundiones partem Galliæ occuparunt, terrasque cum Gallicis senatoribus diviserunt. Marius’s Chronicle in the year 456.
[‡ ]Book x. tit. 1. sect. 8, 9, and 16.
[§ ]Chap. 54, sect. 1 and 2. This division was still subsisting in the time of Lewis the Debonnaire, as appears by his capitulary of the year 829, which has been inserted in the law of the Burgundians, tit. 79. sect. 1.
[∥ ]See Procopius, war of the Goths.
[** ]See Procopius, war of the Vandals.
[* ]Licèt eo tempore quo populus noster mancipiorum tertiam & duas terrarum partes accepit, &c. Law of the Burgundians, tit. 54. sect. 1.
[† ]Ut non ampliùs a Burgondionibus qui infra venerunt requiratur quàm ad præsens necessitas fuerit, medietas terræ. Art. 11.
[* ]De morib. German.
[† ]And in that of the Visigoths.
[‡ ]Tit. 54.
[§ ]This is confirmed by the whole title of the code de Agricolis & Censitis, & Colonis.
[† ]Si dentem optimati Burgundioni vel Romano nobili excusserit tit. 26. sect. 1. & si mediocribus personis ingenuis tam Burgundionibus quam Romanis. Ibid. sect. 2.
[* ]Tit. 57.
[† ]While Gaul was under the dominion of the Romans, they formed particular bodies; these were generally freedmen, or the descendants of freed men.
[‡ ]See Gregory of Tours, book ii. chap. 27. Aimoin, book i. chap. 12.
[§ ]See the lives of the Saints in the next page.
[* ]Ibid. book vi. chap. 31.
[† ]Letter 43. lib. iii. in Cassiod.
[* ]In the year 1763. Innumerabilibus spoliis & captivis totus ille exercitus diratus, in Franciam reversus est.
[† ]See the annals of Fuld, in the year 1739; Paulus Diaconus, de gestis Longobardorum, lib. iii. c. 30. & lib. iv. c. 1. and the lives of the saints in the next quotation.
[‡ ]See the lives of S. Epiphanius, S. Eptadius, S. Cæsarius, S. Fidolus, S. Porcian, S. Treverius, S. Eusichius, and of S. Leger, the miracles of S. Julian, &c.
[§ ]Even the husbandmen themselves were not all slaves: see the 18th and 23d law in the code de agricolis, et censitis, et colonis, and the 20th of the same title.
[∥ ]See Gregory of Tours, book ii.
[* ]Gregory of Tours, book v.
[† ]Quæ conditio universis urbibus per Galliam constitutis summopere est adhibita. Life of S. Aridius.
[‡ ]Book vii.
[§ ]Establishment of the French Monarchy, tom. iii. chap. 14. page 515.
[∥ ]Book iii. c. 136.
[* ]Tom. iii. p. 514.
[† ]Judices atque præpositi tertias Romanorum, ab illis qui occupatas tenent, auferant, & Romanis suâ exactione sine aliquâ dilatione restituant, at nihil fisco debeat deperire. Lib. x. tit. 1. cap. 14.
[‡ ]The Vandal’s paid none in Africa. Procopius, war of the Vandals, lib. 1. and 2. Historia Miscella, lib 16. p. 106. Observe that the conquerors of Africa were a mixture of Vandals, Alans, and Franks. Historia Miscella, lib. 14. p. 94.
[§ ]Establishment of the Franks in Gaul, tom. iii. chap 14. page 510.
[∥ ]He lays a stress upon another law of the Visigoths, book x. tit. 1. art xi. which proves nothing at all; it says only, that he who has received of a lord a piece of land on condition of a rent or service, ought to pay it.
[** ]Book iii. p. 511.
[†† ]Lege iii. tit. 74. lib. 11.
[* ]Establishment of the French monarchy, tom. iii. chap. 14. page 513. where he quotes the 28th article of the edict of Pistes. See farther on.
[† ]Ibid. tom. iii. chap. 4. page 293.
[* ]In the year 815, chap. 1. which is agreeable to the capitulary of Charles the Bald, in the year 844. art. 1. & 2.
[† ]Pro Hispanis in partibus Aquitaniæ, Septimaniæ, & Provinciæ, consistentibus. Ibid.
[‡ ]Excubias & explorationes quas Wactas dicunt. Ibid.
[∥ ]They were not obliged to furnish any to the count. Ibid. art. 5.
[* ]Ut pagenses Franci, qui caballos habent, cum suis comitibus in hostem pergant. The counts are forbid to deprive them of their horses, ut hostem facere, & debitos paraveredos secundum antiquam consuetudinem exsolvere possint. Edict of Pistes in Baluzius, p. 186.
[† ]Capitulary of Charlemaign, in the year 812. chap. 1. Edict of Pistes in the year 864. art. 27.
[‡ ]Quatuor mansos. I fancy that what they called mansus was a particular portion of land belonging to a farm where there were bondmen; witness the capitulary of the year 853, apud Sylvacum, tit. xiv. against those who drove the bondmen from their mansus.
[∥ ]See above, chap. xx. of this book.
[* ]In Duchesne, tom. ii. p. 287.
[† ]Ibid. p. 80.
[‡ ]See the capitulary of the year 858. art. 14.
[* ]They levied also some duties on rivers, where there happened to be a bridge or a passage.
[† ]The census was so generical a word, that they made use of it to express the tolls of rivers, when there was a bridge or ferry to pass. See the third capitulary, in the year 803. edition of Baluzius, page 395. art. 1. and the 5th in the year 819. page 616. They gave likewise this name to the carriages furnished by the freemen to the king, or to his commissaries, as appears by the capitulary of Charles the Bald, in the year 865. art. 8.
[* ]The Abbé du Bos, and his followers.
[‡ ]See the weakness of the arguments produced by the Abbé du Bos, in the establishment of the French monarchy, tom. iii. book 6. chap. 14. especially in the inference he draws from a passage of Gregory of Tours, concerning a dispute between his church and king Charibert.
[∥ ]For instance, by infranchisements.
[* ]Law of the Alemans, chap. 22. and the law of the Bavarians, tit. 1. chap. 14. where the regulations are to be found which the clergy made concerning their order.
[† ]Book 5th of the Capitularies, chap. 303.
[* ]Si ille de capite suo bene ingenuus sit, et in Puletico publico censitus non est. Lib. 1. formul. 19.
[‡ ]In the year 789. edition of the Capitularies by Baluzius, vol. i. p. 250.
[∥ ]Et ut ista ingenuitatis pagina firma stabilisque consistat. Ibid.
[§ ]Pristinæque libertati donatos, & omni nobis debito censu solutos. Ibid.
[* ]Præceptum pro Hispanis, in the year 812. edition of Baluzius, tom. i. page 500.
[† ]In the year 844. edition of Baluzius, tom. ii. art. 1 and 2. page 17.
[‡ ]Third capitulary of the year 805. art. 20 and 23. inserted in the collection of Anzegise, book iii. art. 15. This is agreeable to that of Charles the Bald, in the year 854. apud Attiniacum, art. 6.
[† ]Undecunque legitime exigebatur. Ibid.
[‡ ]In the year 812. art. 10. & 11. edition of Baluzius, tom. 1. page 398.
[∥ ]Undecunque antiquitus ad partem regis venire solebant. Capitulary of the year 812, art. 10. & 11.
[§ ]In the year 813. art. 6. edition of Baluxius, tom. i. page 508.
[* ]De illis unde censa exigunt. Capitulary of the year 813. art. 6.
[†† ]Book 4. of the Capitularies, art. 37. and inserted in the law of the Lombards.
[‡‡ ]Si quis terram tributariam, unde census ad partem nostram exire solebat, susceperit. Book 4. of the Capitularies, art. 37.
[∥∥ ]In the year 805. art. 8.
[§§ ]Unde census ad partem regis exivit antiquitus. Capitulary of the year 805. art. 8.
[** ]Censibus vel paraveredis quos Franci homines ad regiam potestatem exsolvere debent.
[††† ]In the year 864. art. 34. edition of Baluzius, page 192.
[‡ ]De illis francis hominibus qui censum regium de suo capite & de suis recellis debeant. Ibid.
[∥ ]The 28th article of the same edict explains this extremely well; it even makes a distinction between a Roman freedman and a Frank freedman: And we likewise see there that the census was not general: it deserves to be read.
[§ ]As appears by the capitulary of Charlemaign in the year 813, which we have already quoted.
[† ]Qui sunt in truste regis, tit. 44. art. 4.
[‡ ]Book i. formul. 18.
[∥ ]From the word trew, which signifies faithful, among the Germans.
[§ ]Leudes, fideles.
[** ]Vassalli, seniores.
[†† ]Fiscalia. See the 14th formulary of Marculfus, book i. It is mentioned in the life of S. Maur, dedit fiscum unum; and in the annals of Metz, in the year 747, dedit illi comitatus & fiscos plurimos. The goods designed for the support of the royal family were called regalia.
[‡‡ ]See the 1st book, tit. 1. of the fiefs; and Cujas on that book.
[∥∥ ]Book ix. chap. 38.
[* ]Quos honoraret muneribus, quos ab honore depelleret. Ibid. lib. 7.
[† ]Vel reliquis quibuscumque beneficiis, quodcumque ille, vel fiscus noster, in ipsis locis tenuisse noscitur. Lib. 1. formul. 30.
[‡ ]Lib. iii. tit. 8. sect. 3.
[∥ ]Antiquissimo enim tempore sic erat in Dominorum potestate connexum, ut quando vellent possent auferre rem in feudam a se datam: postea vero conventum est ut per annum tantum firmitatem haberent, deinde statutum est ut usque ad vitam fidelis produceretur. Feudorum, lib. 1. tit. 1.
[§ ]It was a kind of precarious tenure which the lord consented or refused to renew every year; as Cujas has observed.
[* ]See the capitulary of Charlemaign in the year 812. art. 3. & 4. edition of Baluzius, tom. 1. p. 491. and the edict of Pistes in the year 864. art. 26. tom. i. p. 186.
[† ]Et habebat unusquisque comes Vicarios & Centenarios secum. Book ii. of the capitularies, art. 28.
[‡ ]They were called Compagenses.
[∥ ]Published in the year 595. art. 1. See the capitularies, edition of Baluzius, page 20. These regulations were undoubtedly made by agreement.
[** ]Capitulary of Charlemaign, in the year 812. art. 1. & 5. edition of Baluzius, tom. 1. page 490.
[†† ]See the capitulary of the year 803. published at Worms, edition of Baluzius, page 408 & 410.
[* ]Capitulary of Worms in the year 803, edition of Baluzius, page 409. and the council in the year 845, under Charles the Bald, in verno palatio, edition of Baluzius, tom. ii. page 17. art. 8.
[† ]The 5th capitulary of the year 819. art. 27. edition of Baluzius, p. 618.
[‡ ]De Vassis Dominicis qui adhuc intra casam serviunt & tamen beneficia habere noscuntur, statutum est ut quicumque ex eis cum Domino Imperatore domi remanserint, vassallos suos casatos secum non retineant; sed cum comite, cujus pagenses sunt, ire permittant. Second Capitulary in the year 812. art. 7. edition of Baluzius, rom. 1. page 494.
[∥ ]Capitulary 1. of the year 812. art. 5. de bominibus nostris, & episcoporum & abbatum qui vel beneficia vel talia propria habent, &c. edition of Baluzius, tom. 1. p. 490.
[* ]In the year 812. chap. 1. edition of Baluzius, page 490. Ut omnis bomo liber quatuor mansos vestitos de proprio suo, sive de alicujus beneficio babet, ipse se præparet, & ipse in hostem pergat, sive cam seniore suo.
[† ]Tom. 3. book 6. chap. 4. p. 299. establishment of the French monarchy.
[‡ ]Capitulary of the year 882. art. 11. apud vernum palatium, edition of Baluzius, tom. ii. page 289.
[* ]Art. 1, 2, and the council in verno palatio of the year 845. art. 8. edition of Baluzius, tom. ii. page 17.
[† ]Or assizes.
[‡ ]Capitularies book fourth of the collection of Angezize, art. 57. and the 5th capitulary of Lewis the Pious in the year 819. art. 14th, edition of Baluzius, tom. 1. page 615.
[§ ]See the 8th note of the preceding chapter.
[** ]It is to be found in the collection of William Lambard, de priscis Anglorum legibus.
[†† ]In the word Satrapia.
[‡‡ ]This is well explained by the assizes of Jerusalem, chap. 221 and 222.
[§§ ]The advowees of the church (advocati) were equally at the head of their placita; and of their militia.
[∥ ]See the 8th formulary of Marculfus, book i. which contains the letters given to a duke, patrician, or count, and invests them with the civil jurisdiction, and the fiscal administration.
[* ]Chronicle, chap. 78. in the year 636.
[† ]See concerning this subject the capitularies of Lewis the Pious, added to the Salic law, art 2. and the formula of judgments given by Du Cange in the word boni homines.
[‡ ]Per bonos homines, sometimes there were none but principal men. See the appendix to the formularies of Marculsus, ch. 51.
[∥ ]And some tolls on rivers, of which I have spoken already.
[* ]See the law of the Ripuarians, tit. 89. and the Law of the Lombards, book ii. tit. 52. sect. 9.
[† ]Suscipere tam inimicitias, seu patris seu propinqui, quam amicitias necesse est: nec implacabiles durant; luitur enim etiam homicidium certo armentorum ac pecorum numero, recipitque satisfactionem universa domus. Tacit. de morib. Germ.
[‡ ]See this law in the 2d title on murders; and Vulemar’s addition on robberies.
[* ]Additio sapientum, tit. i. sect. 1.
[∥ ]Salic tit. lviii. sect. 1. tit. xvii. sect 3.
[§ ]The Salic laws are admirable in this respect, see especially the titles 2, 3, 4, 5, 6, and 7, which related to the stealing of cattle.
[† ]Book i. tit. 7. sect. 15.
[† ]See the law of the Angli, tit. i. sect 1, 2, & 4, ibid. tit. v. sect vi. the law of the Bavarians, tit. i. chap 8. & 9. and the law of the Frisians, tit. xv.
[‡ ]Tit. ii. chap. 20.
[∥ ]Hozidra, Hozza, Sagena, Habilingua, Aniena. Ibid.
[§ ]Thus the law of Ina valued life by a certain sum of money, or by a certain portion of land. Leges Inæ regis, titulo de villico regio de priscis Anglorum legibus, Cambridge, 1644.
[* ]See the law of the Saxons, which makes this same regulation for several people, chap. 18. See also the law of the Ripuarians, tit. 36. sect. 11. the law of the Bavarians, tit. 1. sect. 10, and 11. Si aurum non babet, donet aliam pecuniam, mancipia, terram, &c.
[† ]See the law of the Lombards, book i. tit. 25. sect. 21. ibid. book i. tit. 9. sect. 8 and 34. ibid. sect. 38, and the capitulary of Charlemaign in the year 802. chap. 32. containing an instruction given to those whom he sent into the provinces.
[‡ ]See in Gregory of Tours, book vii. chap. 47. the detail of a process, wherein a party loses half the composition that had been adjudged to him, for having done justice to himself, instead of receiving satisfaction, whatever injury he might have afterwards received.
[∥ ]See the law of the Saxons. chap. 3 and 4. the law of the Lombards, book i. tit. 37. sect. 1 and 2. and the law of the Alemans, tit. 45. sect 1 and 2. This last law gave leave to the party injured to right himself upon the spot, and in the first transport of passion. See also the capitularies of Charlemaign in the year 779. chap. 22. in the year 802. chap. 32. and also that of the year 805. chap. 5.
[§ ]The compilers of the law of the Ripuariaus seem to have softened this. See the 85th title of those laws.
[* ]See the decree of Taffillon, de popularibus legibus, art. 3, 4, 10, 16, 19. the law of the Angli. tit. 7. sect. 4.
[† ]Book i. tit. ix. sect. 4.
[† ]Pactus pro tenore pacis inter Childebertum & Clotarium, anno 593. & decretio Clotarii 2. regis, circa annum 595. chap. 11.
[‡ ]When it was not determined by the law, it was generally the third of what was given for the composition, as appears in the law of the Ripuarians, chap. 89. which is explained by the third capitulary of the year 813. Edition of Baluzius. tom, 1. page 512.
[§ ]Book i. tit. 9. sect. 17. edition of Lindenbrock.
[* ]Tit. 70.
[‡ ]Tit. 46. See also the law of the Lombards, book i. chap. 21. sect. 3. Lindenbrock’s edition: Si caballus cum pede, &c.
[† ]Tit. 28. sect. 6.
[∥ ]As appears by the decree of Clotharius II. in the year 595; fredus tamen judici in cujus page est reservetur.
[§ ]Tit. 85.
[* ]Capitulare incerti anni, chap. 57. in Baluzius. tom. i. page 515. and it is to be observed, that what was called fredum or faida, in the monuments of the first race, is known by the name of bannum in those of the second race, as appears from the capitulary de partibus Saxoniæ, in the year 789.
[† ]See the capitulary of Charlemaign, de villis, where he ranks these freda among the great revenues of what was called villæ, or the king’s demesnes.
[* ]See the 3d, 8th, and 17th formula, book i. of Marculsus.
[† ]See the 2d, 3d, and 4th formula of Marculsus, book i.
[‡ ]See the collections of those charters, especially that at the end of the 5th volume of the historians of France, published by the Benedictine monks.
[* ]See the 3d, 4th, and 14th of the first book, and the charter of Charlemaign, in the year 771, in Martenne, tom. i. Anecdot. collect. 11. Præcipientes jubemus ut ullus judex publicus . . . . . bomines ipsius ecclesiæ et monasterii ipsius Morbacensis tam ingenuos quam et servos, & qui super eorum terras manere, &c.
[† ]Treatise of village jurisdictions.
[† ]See Mons. du Cange on the word bominium.
[* ]See the 3d and 4th formulary of Marculsus, book 1.
[† ]Ne alibi nisi ad ecclesiam, ubi relaxati sunt, mallum teneant, tit. 58. sect. 1. See also sect. 19. Lindenbrock’s edition.
[§ ]Vita S. Germeri Episcopi Tolosani apud Bollandianos, 16 Maii.
[* ]See also the life of S. Melanius, and that of S. Deicola.
[†† ]In the council of Paris, in the year 615. Episcopi vel potentes, qui in aliis possident regionibus, judices vel missos discussores de aliis provinciis non instituant, nisi de loco qui justitiam percipiant & aliis reddant, art. 19. See also the 12th art.
[‡‡ ]Ibid. art. 5.
[∥∥ ]In the law of the Lombards, book ii. tit. 44. chap. 2. Lindenbrock’s edition.
[§§ ]Servi Aldiones, libellarii antiqui, vel alii noviter facti. Ibid.
[* ]Letter in the year 858. art. 7. in the capitularies, p. 108. Sieut illæ res et facultates, in quibus vivunt clerici, ita et illæ sub consecratione immunitatis sunt, de quibus debent militare vassalli.
[† ]It is added to the law of the Bavarians, art. 7. See also the 3d. art. Lindenbrock’s edition, page 444. Imprimis omnium jubendam est ut habeant ecclesiæ earum justitias, & in vita illorum qui habitant in ipsis ecclesiis & post, tam in pecuniis quam et in substantiis earum.
[‡ ]In the year 857. in synodo apud Carifiatum, art. 9. edition of Baluzius, page 96.
[∥ ]See the letter written by the bishops assembled at Rheims in the year 858. art. 7. in the capitularies, Baluzius’s edition, page 108. Sicut illæ res & facultates in quibus vivunt clerici, ita et illæ sub consecratione immunitatis sunt de quibus debent militare vassalli, &c.
[* ]Tit. iii. chap. 13. Lindenbrock’s edition.
[† ]Tit. 85.
[‡ ]In the year 595. art. 11 & 12. edition of the capitularies by Baluzius, page 19. Pari conditione convenit ut si una centena in alia centena vestigium secuta fuerit et invenerit, vel in quibuscunque fidelium nostrorum terminis vestigium miserit, & ipsum in aliam centenam minime expellere potuerit, aut convictus reddit latronem, &c.
[∥ ]Si vestigius comprobatur latronis, tamen præsentia nihil longe mulctando; aut si persequens latronem suum comprehenderit, integram sibi compositionem accipiat. Quod si in truste invenitur, medietatem compositionis trustis adquirat, & capitale exigat a latrone, art. 2. & 3.
[§ ]See the Glossary on the word trustis.
[** ]Inserted in the law of the Lombards, book ii. tit. 52. sect. 14. it is the capitulary of the year 793. in Baluzius, page 544. art. 10.
[†† ]Et si forsitan Francus aut Longobardus habens beneficium justitiam facere noluerit, ille judex in cujus ministerio fuerit, contradicat illi beneficium suum, interim dum ipse aut missus ejus justitiam faciat. See also the same law of the Lombards, book ii. tit. 52. sect. 2. which relates to the capitulary of Charlemaign of the year 779. art. 21.
[* ]The third of the year 812. art. 10.
[† ]The second of the year 813. Baluzius’s edition.
[‡ ]Capitulare quintum anni 819. art. 90. Baluzius’s edition, page 617. Ut ubicumque missi, aut episcopum, aut abbatem, aut alium quemlibet bonore præditum invenerint qui justitiam facere noluit vel probibuit, de ipsius rebus vivant quamdiu in eo loco justitias facere debent.
[∥ ]Edictum in Carisiaco in Balluzius, tom. ii. page 152. Unusquisque advocatus pro omnibus de sua advocatione . . . . . in convenientia ut cum ministerialibus de sua advocatione quos invenerit contra bunc bannum nostrum fecisse . . . . castiget.
[§ ]Edictum Pistense, art. 18. Baluzius’s edition, tom. ii. page 181. Si in fiscum nostrum vel in quamcunque immunitatem aut alicujus potentis potestatum vel proprietatem confugerit, &c.
[* ]Lib. 1. Maximum regni nostri augere credimus monimentum, si beneficia opportuna locis ecclesiarum aut cui volueris dicere, benevola deliberatione concedimus.
[† ]I have already quoted it in the preceding chapter, Episcopi vel potentes.
[* ]Hist. lib. vi.
[† ]Totusque tractus Armoricus aliæque Galliarum provinciæ. Ibid.
[‡ ]Tom. ii. book 3. chap. 18. page 270.
[* ]See the preliminary discourse of the Abbé du Bos.
[* ]See the establishment of the French monarchy, vol. iii. book 6. chap. 4. page 304.
[† ]He cites the 44th title of this law, and the law of the Ripuarians, tit. 7. and 36.
[* ]Qui in truste dominica est, tit. 44. sect. 4. and this relates to the 13th formulary of Marculfus, de regis Antrustione. See also the title 66. of the Salic law, sect. 3. and 4. and the title 74. and the law of the Ripuarians, tit. 11. and the capitulary of Charles the Bald apud Carisiacum, in the year 877. chap. 20.
[† ]Salic law, tit. 44. sect. 6.
[‡ ]Ibid. tit. 44. sect. 4.
[∥ ]Tit. 44. sect. 15.
[§ ]Tit. 44 sect. 15.
[** ]Salic law, tit. 44. sect. 7.
[* ]Si quis quolibet casu dentem optimati Burgundioni vel Romano nobili excusserit, solidos viginti quinque cogatur exsolvere; de mediocribus personis ingenuis tam Burgundionibus quam Romanis si dens excussus fuerit, decem solidis componatur; de inferioribus personis, quidque solidos. Art. 1, 2, and 3, of tit. 26. of the law of the Burgundians.
[† ]Establishment of the French monarchy, vol. iii. book 6. chap. 4. and 5.
[‡ ]Ibid. vol. iii. chap. 5. page 319 and 320.
[* ]Establishment of the French monarchy, vol. iii. b. 6. c. 4. p. 307 and 308.
[† ]Ibid. page 309. and in the following chapter, page 319 and 320.
[‡ ]See the 28th book of this work, chap. 28. and the 31st. book, chap. 8.
[∥ ]Itaque Colonia convenit & ita bannivimus, ut unusque judex criminosum latronem ut audierit, ad casam suam ambulet & ipsum ligare faciat; ita ut si Francus fuerit, ad nostram præsentiam dirigatur; & si debilior persona fuerit, in loco pendatur. Capitulary, of Baluzius’s edition, tom. i. page 19.
[* ]See the 28th book of this work, chap. 28. and the 31st book, chap. 8.
[† ]Chap. 43. and 44.
[‡ ]O qualem remunerationem reddidisti ei! fecit te liberum, non nobilem, quod impossibile est post libertatem. Ibid.
[∥ ]Establishment of the French monarchy, vol. iii. book 6. chap. 4. p. 3, 6.
[∥ ]Establishment of the French monarchy, vol. iii. book 6. chap. 4. p. 3. 6.
[§ ]Omnes episcopi molesti fuerunt Ludovico, & maximè ii quos è servile conditione honoratos habebat, cum his qui ex barbaris nationibus ad hoc fasti. gium perducti sunt. De gestis Ludovici Pii, cap. 43 & 44.
[* ]Chap. 23.
[† ]Establishment of the French monarchy, vol. iii. book 6. chap. 4. p. 302.