Book XXX.
Theory of the Feudal Laws among the Franks in the Relation
They Bear to the Establishment of the Monarchy.
30.1. 1. 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 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 lofty 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.
[1]
Footnotes
[1]
Quantum vertice ad oras Æthereas, tantum radice ad Tartara tendit
-- Virgil.
30.2. 2. 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. Csar making war against
the Germans describes the manners of that nation;
[2]
and upon these he
regulated some of his enterprises.
[3]
A few pages of Csar 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 everything at one glance.
These two authors agree so perfectly with the codes still extant of
the laws of the Barbarians, that reading Csar and Tacitus we imagine we
are perusing these codes, and perusing these codes we fancy we are
reading Csar 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.
Footnotes
[3]
For instance, his retreat from Germany. — Ibid.
30.3. 3. The Origin of Vassalage.
Csar says
[4]
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
[5]
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 in
accordance with their state, which is that of companions.
[6]
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,
"consist in being constantly surrounded by 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 more easily 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 nearly the
same service as was afterwards performed for the fiefs.
Footnotes
[4]
"De Bello Gall.," book vi. 21; Tacitus, De Moribus Germanorum, 31.
[5]
"De Moribus Germanorum," 13.
30.4. 4. The same Subject continued.
Csar says
[7]
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 enterprise 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 Csar says in this place, and what we have extracted in the
preceding chapter from Tacitus, are the substance of the history of our
princes of the first race.
We must not therefore be surprised 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
expenses; 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
[8]
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.
[9]
The monarchy moved by springs, which they were
continually obliged to wind up.
Footnotes
[7]
"De Bello Gall.," lib. vi, 22.
[8]
See the "Life of Dagobert."
[9]
See Gregory of Tours, book vi, 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.
30.5. 5. 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 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 ever possessed of power, the king, who would have
continually disposed of the fiefs, that is, of the only property then
existing; would have had a power as arbitrary as that of the Sultan is
in Turkey; which is contradictory to all history.
30.6. 6. Of the Goths, Burgundians, and Franks.
Gaul was invaded by German
nations. The Visigoths took possession of the province of Narbonne, and
of almost all the south; the Burgundians settled in the east; and the
Franks subdued very nearly 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 Csar and
Tacitus that they applied themselves greatly to a pastoral life; hence
the regulations of the codes of Barbarian laws almost all relate to
their flocks. Roricon, who wrote a history among the Franks, was a
shepherd.
30.7. 7. 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,
[10]
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,
[11]
as we find in the chronicles
and in the codes of the Visigoths
[12]
and Burgundians.
[13]
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 among 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 ltaly,
[14]
and that
of the Franks in Gaul, as also of the Vandals in Africa.
[15]
The former
entered into conventions with the ancient inhabitants, and in
consequence thereof made a division of lands between them; the latter
did no such thing.
Footnotes
[10]
The Romans obliged themselves to this by treaties. See Zozimus,
v, upon the distribution of corn demanded by Alaric. — ED.
[11]
Marius' "Chronicle" in the year 456.
[12]
Book x, tit. 1, sections 8, 9, & 16.
[13]
Chapter 54, section 1, 2. This division was still subsisting in
the time of Louis the Debonnaire, as appears by his Capitulary of the
year 829, which has been inserted in the "Law of the Burgundians," tit.
79, section 1.
[14]
See Procopius, "War of the Goths."
[15]
See Procopius, "War of the Vandals."
30.8. 8. 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;
[16]
and
the second supplement to this law notices that only a moiety would be
allowed to those who should hereafter come to live in that country.
[17]
Therefore, all the lands had not been divided in the beginning between
the Romans 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 a 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.
Footnotes
[16]
"Law of the Burgundians," tit. 54, section 1.
30.9. 9. 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,
[18]
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 kept
herds and flocks, 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
[19]
that each Barbarian was
placed near a Roman. The division therefore was not general; but the
Romans who gave the division were equal in number to the Burgundians who
received it. The Roman was injured least. 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 culture: the Burgundian's flock fattened the Roman's
field.
Footnotes
[18]
"De Moribus Germanorum," 21.
[19]
And in that of the Visigoths.
30.10. 10. Of Servitudes.
The law of the Burgundians notices
[20]
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.
[21]
The law of the Burgundians, in points relating to the two nations,
makes a formal distinction in both, between the nobles, the freeborn and
the bondmen.
[22]
Servitude was not therefore a thing peculiar to the
Romans; nor liberty and nobility to the Barbarians.
This very same law says,
[23]
that if a Burgundian freedman had not
given a certain 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
which reduced 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 candour of that ancient nobility whence
he descends, every one is capable of judging of the good things he says,
and of the errors into which he has fallen. I shall not, therefore,
undertake to criticise him; I shall only observe that he had more wit
than enlightenment, more enlightenment than learning; though his
learning 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
Phton 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."
[24]
Footnotes
[21]
This is confirmed by the whole title of the "Code de Agricolis et
Censitis, et Colonis."
[22]
Tit. 26, section 1, a.
[24]
Ovid, "Met." lib. ii, 134.
30.11. 11. The same Subject continued.
What first gave rise to the notion
of a general regulation made at the time of the conquest was our meeting
with an immense number of forms of servitude in France, towards the
beginning of the third race; and as the continual progression of these
forms of servitude was not perceived, 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 had
become bondmen:
[25]
and whereas, at the first period, there was very
nearly the same administration in the cities as among the Romans,
namely, a corporation, a senate, and courts of judicature; at the other
we hardly meet with anything but a lord and his bondmen.
When the Franks, Burgundians, and Goths made their several
invasions, they seized upon gold, silver, movables, clothes, men, women,
boys, and whatever the army could carry; the whole was brought to one
place, and divided among the army.
[26]
History shows that after the
first settlement, that is, after the first devastation, 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 everything in time of war, and granted everything 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.
[27]
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
peculiarity 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 France 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 seigniories.
The conquest was soon over, and the law of nations then in force was
productive of some servile dependences. The custom of the same law of
nations, which obtained for many ages, gave a prodigious extent to those
servitudes.
Theodoric
[28]
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.
[29]
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:
[30]
"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 odium on the kings 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 number of bondmen, as we are
informed by the annals of Metz.
[31]
Here might I quote numberless authorities;
[32]
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
explanations on the subject.
[33]
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 light
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, a boundless ocean;
[34]
all those
frigid, dry, insipid, and hard writings must be read and 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
[35]
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 lands, 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.
Footnotes
[25]
While Gaul was under the dominion of the Romans they formed
particular bodies; these were generally freedmen, or the descendants of
freedmen.
[26]
See Gregory of Tours, Book ii, chap. 27. Aimoin, book i, chap. 12.
[27]
See the "Lives of the Saints," footnote 7, below.
[28]
Gregory of Tours, book iii.
[29]
Ibid., book vi, chap. 31.
[30]
Cassiodorus, lib. iii, letter 43.
[32]
See the annals of Fuld, in the year 739, Paulus Diaconus, De
gestis Longobardorum, lib. iii, chap. 30, lib. iv, chap. 1, and the "Lives of the Saints" in the
next footnote.
[33]
See the lives of St. Epiphanius, St. Eptadius, St. Cæsarius, St.
Fidolus, St. Porcian, St. Treverius, St. Eusichius, and of St. Leger;
the miracles of St. Julian, &c.
[34]
Ovid, "Met.," lib. i, 293.
[35]
Even the husbandmen themselves were not all slaves; see the Leg.
18, 23, "Cod. de Agricolis, et Censitis, et Colonis," and Leg. 20 of the
same title.
30.12. 12. 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,
[36]
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 was invented later, and when men began to enjoy the
blessings of other arts.
The temporary tax of a pitcher of wine for every acre,
[37]
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.
[38]
The burden
of this tax lay chiefly on the inhabitants of the towns;
[39]
now these
were almost all inhabited by Romans.
Gregory of Tours relates
[40]
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 free-born: 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 turn pale to see how the Abbé du
Bos has interpreted this passage.
[41]
He observes that in those days the
freedmen were also called ingenui. Upon this supposition he renders the
Latin word ingenui, by the words "freed from taxes"; a phrase which we
indeed may use in French, as we say "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,
[42]
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
[43]
very coolly assumes the thing
in question; it was, says he, a surcharge.
We find in the law of the Visigoths
[44]
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 land taxes.
[45]
The Abbé du Bos,
[46]
who would fain have the Visigoths subjected to
taxes,
[47]
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
[48]
has rummaged Justinian's Code
[49]
in search
of laws to prove that, among the Romans, the military benefices were
subject to taxes. 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, 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 to
show, some time or other, in a certain work, that the plan of the
monarchy of the Ostrogoths was entirely different from that of any other
government founded in those days by the other Barbarian nations; and
that so far from our being entitled to affirm that a practice obtained
among the Franks because it was established among the Ostrogoths, we
have on the contrary 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 seek their
proofs in such passages as bear upon the subject, and to find, if we may
be allowed to express ourselves in astronomical terms, the position 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;
[50]
when he speaks of their military service, he applies to
bondmen what can never relate but to freemen.
[51]
Footnotes
[36]
See Gregory of Tours, book ii.
[38]
Ibid., book viii, 36.
[39]
"Life of St. Aridius."
[41]
"Establishment of the French Monarchy," tome iii, chap. 14, p. 515. See
Baluzius, ii, p. 187.
[44]
Book x, tit. 1, cap. xiv.
[45]
The Vandals paid none in Africa. — Procopius, "War of the
Vandals," lib. i and ii. "Historia Miscella," lib. xvi, p. 106. Observe that the
conquerors of Africa were a mixture of Vandals, Alans, and Franks.
"Historia Miscella," lib. xiv, p. 94.
[46]
"Establishment of the Franks in Gaul," tome iii, chap. 14, p. 510.
[47]
He lays a stress upon another law of the Visigoths, book x, tit. 1,
art. 11, 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.
[49]
Leg. 3, xi, tit. 74.
[50]
"Establishment of the French Monarchy," tome iii, chap. 14, p. 513, where he
quotes the 28th article of the edict of Pistes. See farther on.
[51]
Ibid. tome iii, chap. 4, p. 298.
30.13. 13. 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 can hardly conceive how the Franks should
have been at first such great friends, and afterwards such sudden and
violent enemies, to taxes.
A capitulary
[52]
of Louis 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 Louis' 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,
[53]
and to the ambassadors in their
way to or from court; and that they should not be compelled to pay any
further impost, but should be treated as the other freemen.
It cannot be said that these were new usages introduced at 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
[54]
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 I shall prove
hereafter.
This is not all; there was a regulation which hardly permitted the
imposing of taxes on those freemen.
[55]
He who had four manors was
obliged to march against the enemy:
[56]
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 stayed 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 stayed 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 further mention hereafter.
[57]
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 system of taxation should of
itself fall out of use in the monarchy of the Franks; it was a most
complicated device, far above the conception, and wide from the plan of
those simple people. Were the Tartars to overrun Europe, we should find
it very difficult to make them comprehend what is meant by our
financiers.
The anonymous author of the life of Louis the Debonnaire,
[58]
speaking of the counts and other officers of the nation of the Franks,
whom Charlemagne established in Aquitania, says, that he entrusted 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
shows 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,
[59]
we find that Louis 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 Louis made answer
that he was only a nominal king, and that the great lords were possessed
of almost all his demesnes; that Charlemagne, 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, writing
[60]
to Louis, brother of Charles the Bald, used
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.
[61]
Footnotes
[52]
In the year 815, cap. i, which is agreeable to the Capitulary of
Charles the Bald, in the year 844, arts. 1, 2.
[53]
They were not obliged to furnish any to the count. --Ibid., art. 5.
[54]
The counts are forbidden to deprive them of their horses, ut
hostem facere, et debitos paraveredos secundum antequam consuetudinem
exsolvere possint. -- "Edict of Pistes," in Baluzius, p. 186.
[55]
"Capitulary of Charlemagne," chap. 1, in the year 812. Edict of Pistes
in the year 864, art. 27.
[56]
Quatuor mansos. I fancy that what they called Afansus was a
particular portion of land belonging to a farm where there were bondmen;
witness the capitulary of the year 853, apud Sylvacum, tit. 14, against
those who drove the bondmen from their Mansus.
[57]
See below, chapter 20 of this book.
[58]
In Duchesne, tome ii, p. 287.
[60]
See the Capitulary of the year 858, art. 14.
[61]
They levied also some duties on rivers, where there happened to
be a bridge or a passage.
30.14. 14. 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 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,
[62]
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
[63]
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 thence they
inferred this consequence, that our kings of the first two races had put
themselves in the place of the Roman emperors, and made no change in
their administration.
[64]
Besides, as particular duties raised under the
second race were by change and by certain restrictions converted into
others,
[65]
they inferred 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 the most
fruitful source of error. To those 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!"
[66]
Footnotes
[62]
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, p. 395,
art. 1; and the 5th in the year 819, p. 616. They gave likewise this
name to the carriages furnished by the freemen to the king, or to his
commissaries, as appeals by the Capitulary of Charles the Bald in the
year 865, art. 8.
[63]
The Abbé du Bos, and his followers.
[64]
See the weakness of the arguments produced by the Abbé du Bos, in
the Establishment of the French Monarchy, tome iii, book VI, chap. 14; especially
in the inference he draws from a passage of Gregory of Tours, concerning
a dispute between his church and King Charibert.
[65]
For instance, by enfranchisements.
[66]
Plato, Timæus. — ED.
30.15. 15. 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
[67]
and in relation
to the lords, by the regulations which Charlemagne made concerning this
subject.
[68]
These taxes were called census; they were economical and not fiscal
claims, entirely private dues and not public taxes.
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 freeborn,
[69]
and not enrolled in the register of the census. I prove
it also by a commission from Charlemagne to a count
[70]
whom he had sent
into Saxony, which contains the enfranchisement of the Saxons for having
embraced Christianity, and is properly a charter of freedom.
[71]
This
prince restores them to their former civil liberty,
[72]
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,
[73]
who had been received into the monarchy, the counts are
forbidden 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 Charlemagne being desirous they
should be considered as freemen, since he would have them be proprietors
of their lands, forbad the demanding any census of them.
A capitulary of Charles the Bald,
[74]
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.
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?
[75]
"We ordain that the royal
census should be levied in all places where formerly it was lawfully
levied."
[76]
What could be the meaning of that in which Charlemagne
[77]
orders his commissaries in the provinces to make an exact inquiry into
all the census that belonged in former times to the king's demesne?
[78]
And of that
[79]
in which he disposes of the census paid by those
[80]
of whom they are demanded? What can that other capitulary mean
[81]
in which we read, "If any person has acquired a tributary land
[82]
on which we
were accustomed to levy the census?" And that other, in fine,
[83]
in
which Charles the Bald
[84]
makes mention of feudal 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
[85]
notices those freemen who are
obliged to pay the royal census for their head and for their
cottages,
[86]
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
[87]
did not, generally speaking, acquire a full and
perfect liberty.
[88]
but they paid censum in capite; and these are the
people here meant.
We must, therefore, waive the idea of a general and universal
census, derived from that of the Romans, from which 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' 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.
Footnotes
[67]
"Law of the Alemans," cap. xxii; and the "Law of the Bavarians,"
tit. 1, cap. iv., where the regulations are to be found which the clergy
made concerning their order.
[68]
"Capitularies," book v, chap. 303.
[70]
In the year 789, edition of the "Capitularies" by Baluzius, vol. i, p.
250.
[73]
"Pro Hispanis," in the year 812, ed. Baluzius, tome i, p. 500.
[74]
In the year 844, ed. Baluzius, tome ii, arts. 1 and 2, p. 27.
[75]
Third Capitulary of the year 805, arts. 20 and 22, inserted in
the "Collection of Angezise," book iii, art. 15. This is agreeable to that of
Charles the Bald, in the year 854, apud Attiniacum, art. 6.
[77]
In the year 812, arts. 10 and 11, ed. Baluzius, tome i, p. 498.
[78]
Capitulary of the year 812, arts. 10 and 11.
[79]
In the year 813, art. 6, ed. Baluzius, tome i, p. 508.
[80]
Capitulary of the year 813, art. 6.
[81]
Book iv of the "Capitularies," art. 37, and inserted in the law of
the Lombards.
[82]
Book iv of the "Capitularies," art. 37.
[83]
In the year 805, art. 8.
[84]
Capitulary of the year 805, art. 8.
[85]
In the year 864, art. 34, ed. Baluzius, p. 192.
[87]
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.
[88]
As appears by the Capitulary of Charlemagne in the year 813,
which we have already quoted.
30.16. 16. Of the feudal Lords or Vassals.
I have noticed those volunteers
among the Germans, who have followed their princes in their several
expeditions. The same usage continued after the conquest. Tacitus
mentions them by the name of companions;
[89]
the Salic law by that of
men who have vowed fealty to the king;
[90]
the formularies of
Marculfus
[91]
by that of the king's Antrustios;
[92]
the earliest French
historians by that of Leudes,
[93]
faithful and loyal; and those of later
date by that of vassals and lords.
[94]
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.
[95]
There is no doubt but the fiefs at first were at will.
[96]
We find
in Gregory of Tours
[97]
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.
[98]
In a formulary of Marculfus,
[99]
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.
[100]
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
[101]
that at first the lords could take them back when they pleased, that
afterwards they granted them for the space of a year,
[102]
and that at length they gave them for life.
Footnotes
[89]
Comites. "De Moribus Germanorum," 13.
[90]
Qui sunt in truste regis, tit. 44, art. 4.
[92]
From the word trew, which signifies faithful among the Germans.
[95]
Fiscalia. See Marculfus, book i. form. 14. It is mentioned in the
"Life of St. Maur," dedit fiscum unum: and in the annals of Metz, in the year 747, dedit illi comitatus et fiscos plurimos. The goods designed for the support of the royal family were called regalia.
[96]
See book i, tit. 1, of the fiefs; and Cujas on that book.
[100]
Book iii, tit. 8, 3.
[101]
"Feudorum," lib. i, tit. 1.
[102]
It was a kind of precarious tenure which the lord consented or
refused to renew every year; as Cujas has observed.
30.17. 17. 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
benefits 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,
[103]
and led them against the
enemy; they had officers under them who were called vicars;
[104]
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.
[105]
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.
[106]
A regulation of this kind is to this very day observed in England.
As the counts led the freemen against the enemy, the feudal lords
commanded also their vassals or rear-vassals; and the bishops, abbots,
or their advocates
[107]
likewise commanded theirs.
[108]
The bishops were greatly embarrassed and inconsistent with
themselves;
[109]
they requested Charlemagne not to oblige them any
longer to 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.
[110]
In a Capitulary of Louis the Debonnaire,
[111]
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 household hindered the lord himself from commanding
them.
[112]
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,
[113]
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 lords likewise carried their vassals and rear-vassals with
them, as we can prove by the capitulary in which Charlemagne ordains
that every freeman who has four manors, either in his own property or as
a benefice from somebody else, should march against the enemy or follow
his lord.
[114]
It is evident that Charlemagne 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
[115]
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 notices also those freemen who might choose 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 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
[116]
they were subject to the correction of the count, unless
they choose to submit rather to that of the king.
Footnotes
[103]
See the "Capitulary of Charlemagne" in the year 812, arts. 3 and
4, ed. Baluzius, tome i, p. 491; and the edict of Pistes in the year 864,
art. 26, tome ii, p. 186.
[104]
Book ii of the "Capitularies," art. 28.
[105]
They were called Compagenses.
[106]
Published in the year 595, art. 1. See the "Capitularies," ed.
Baluzius, p. 20. These regulations were undoubtedly made by agreement.
[108]
"Capitulary of Charlemagne," in the year 812, art. 1 and 5, ed.
Baluzius, tome i, p. 490.
[109]
See the Capitulary of the year 803, published at Worms, ed
Baluzius, pp. 408, 410.
[110]
"Capitulary of Worms" in the year 803, edition of Baluzius, p.
409; and the council in the year 845, under Charles, the Bald, in verno
palatio, edition of Baluzius, tome ii, p. 17, art. 8.
[111]
The fifth Capitulary of the year 819, art. 27, edition of
Baluzius, p. 618.
[112]
Capitulary 11 in the year 812, art. 7, edition of Baluzius, i,
p. 494.
[113]
Capitulary i of the year 812, art. 5, edition of Baluzius, i,
p. 490.
[114]
In the year 812, cap. i, edition of Baluzius, p. 490.
[115]
Establishment of the French Monarchy, iii, book VI, cap. iv, p.
299.
[116]
Capitulary of the year 882, art. 11, apud vernis palatium,
edition of Baluzius, tome ii, p. 289.
30.18. 18. 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 Louis the Debonnaire,
[117]
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
[118]
of the count who carried the freemen
against the enemy were called the placita of the freemen;
[119]
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
[120]
belonging to the
bishops, or to the abbots, against the enemy, because they were not
subject to his civil jurisdiction. Thus he never commanded the
rear-vassals belonging to the king's vassals. Thus the glossary of the
English laws informs us
[121]
that those to whom the Saxons gave the name
of Coples
[122]
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
[123]
was to bear arms
[124]
and to try his peers in his court.
One of the reasons which produced this connection 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 administering 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 seigniories 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:
[125]
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.
[126]
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 Turkey; 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 Rathimburghers, and the aldermen were the same persons
under different names. These were the count's assistants, and were
generally seven in number; and as he was obliged to have twelve persons
to judge,
[127]
he filled up the number with the principal men.
[128]
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.
[129]
And as for the judiciary rights, there were laws
which prevented misdemeanors.
[130]
Footnotes
[117]
Art. 1, 2, and the council in verno palatio of the year 845,
art. 8, edition of Baluzius, tome ii, p. 17.
[119]
"Capitularies," book iv of the "Collection of Angezise," art. 57;
and the fifth capitulary of Louis the Debonnaire, in the year 819, art.
14, edition of Baluzius, tome i, p. 615.
[120]
See the 8th note of the preceding chapter.
[121]
It is to be found in the "Collection of William Larabard," De
Priscis Anglorum legibus.
[122]
In the word Satrapia.
[123]
This is well explained by the assizes of Jerusalem, chaps. 221, 222.
[124]
The advowees of the church (advocati) were equally at the head
of their placita and of their militia.
[125]
See Marculfus, book i, form. 8, which contains the letters given to
a duke, patrician, or count; and invests them with the civil
jurisdiction, and the fiscal administration.
[126]
"Chronicle," 78, in the year 636.
[127]
See concerning this subject the "Capitularies of Louis the
Debonnaire" added to the Salic law, art. 2, and the formula of judgments
given by Du Cange in the word boni homines.
[128]
Per bonos homines, sometimes there were none but principal men.
See the appendix to the formularies of Marculfus, chap. 51.
[129]
And some tolls on rivers, of which I have spoken already.
[130]
See the "Law of the Ripuarians," tit. 89; and the "Law of the
Lombards," book ii, tit. 52, sec. 9.
30.19. 19. Of Compositions among the barbarous Nations.
Since it is
impossible to gain any insight into our political law unless we are
thoroughly acquainted with the laws and manners of the German nations, I
shall, therefore, pause here awhile, in order to inquire 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 that people. When a man had injured another, the relatives
of the person injured took share in the quarrel, and the offence was
cancelled by a satisfaction.
[131]
This satisfaction was made to the
person offended, when capable of receiving it; or to the relatives if
they had been injured in common, or if by the decease of the party
aggrieved or 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
[132]
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 freedom to their
revenge till they had obtained satisfaction. Even this law was
moderated; a regulation was made
[133]
that the person whose life was
sought after should be unmolested in his own house, as also in going and
coming from church and the court where causes were tried. The compilers
of the Salic law
[134]
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 relatives 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 roofs, such a person was in respect
to others, and others in respect to him, in a state of savagery 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 wronged or injured was to receive. All those barbarian laws are in
this respect most admirably exact; the several cases are minutely
distinguished,
[135]
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' time.
Rotharis declares, in the law of the Lombards,
[136]
that he had
increased the compositions allowed by ancient custom 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 had grown
rich by the conquest of Italy, the ancient compositions had 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
relatives of the deceased. The difference of conditions produced a
difference in the compositions.
[137]
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:
[138]
it gives the names of the Bavarian families who received a double
composition, because they were the first after the Agilolfings.
[139]
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 relatives."
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, movables, arms, dogs, hawks, lands,
&c.
[140]
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.
[141]
These laws were therefore employed in exactly determining 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 a 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.
[142]
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.
[143]
We find in the different codes of the laws of the
Barbarians that the legislators were peremptory on this article.
[144]
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 incited
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 to
refuse satisfaction; it is the law by which a person who had stripped a
dead body was expelled from society till the relatives upon receiving
satisfaction petitioned for his being re-admitted.
[145]
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
relatives of a robber killed in the act, or to the relatives of a woman
who had been repudiated for the crime of adultery. The law of the
Bavarians allowed no compositions in the like cases, but punished the
relatives who sought revenge.
[146]
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
[147]
that in those cases
the compositions should be according to the person's generosity; and
that the relatives should no longer be permitted to pursue their
revenge.
Clotharius II made a very wise decree; he forbad the person robbed
to receive any clandestine composition, and without an order from the
judge.
[148]
We shall presently see the motive of this law.
Footnotes
[131]
Tacitus, "De Moribus Germanorum," 21.
[132]
See this law in the 2nd title on murders; and Vulemar's
addition on robberies.
[134]
Salic Law, tit. 8, section 1; tit. 17, section 3.
[135]
The Salic laws are admirable in this respect, see especially
the titles 3, 4, 5, 6, and 7, which related to the stealing of cattle.
[136]
Book i, tit. 7, section 15.
[137]
See the "Law of the Angli," tit. 1, sections 1, 2, and 4; ibid.
tit. 5, section 6; the "Law of the Bavarians," tit. 1, cap. 8, 9, and the "Law
of the Frisians," tit. 15.
[139]
Hozidra, Ozza, Sagana, Habalingua, Anniena. — Ibid.
[140]
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.
[141]
See the "Law of the Saxons," which makes this same regulation for
several people, cap. xviii. See also the "Law of the Ripuarians," tit. 36,
section 11; the "Law of the Bavarians," tit. 1, sections 10 and 11.
[142]
See the "Law of the Lombards," book i, tit. 25 section 21; ibid., book i, tit.
9, section 8, 34; ibid., section 38, and the Capitulary of Charlemagne in
the year 802, cap. xxxii, containing an instruction given to those whom
he sent into the provinces.
[143]
See in Gregory of Tours, book vii. 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.
[144]
See the "Law of the Saxons," cap. iii, section 4; the "Law of the
Lombards," book i, tit. 37, sections 1 and 2; and the "Law of the Alemans," tit.
45, sections 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 Charlemagne" in the year 779, cap. xxii, in the
year 802, cap. xxxii, and also that of the year 805, cap. v.
[145]
The compilers of the "Law of the Ripuarians" seem to have
softened this. See the 85th title of those laws.
[146]
See the decree of Tassillon, De Popularibus legibus, art. 3, 4,
10, 16, 19; the "Law of the Angli," tit. vii. section 4.
[147]
Book i, tit. ix, section 4.
[148]
Pactus pro tenore pads inter Childebertum et Clotarium, anno
593, et decretio Clotarii 2 regis, circa annum 595, cap. xi.
30.20. 20. Of what was afterwards called the Jurisdiction of the Lords.
Besides the composition which they were obliged to pay to the relatives
for murders or injuries, they were also under a necessity of paying a
certain duty which the codes of the barbarian laws called fredum.
[149]
I intend to treat of it at large; and in order to give an idea of it, I
begin with defining it as a recompense for the protection granted
against the right of vengeance. 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 vengeance 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 relatives could not prosecute, they
allowed 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,
[150]
if a person happened to kill a freeman by accident,
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 relatives
were allowed the right of prosecution. Thus in the law of the
Ripuarians,
[151]
when a person was killed with a piece of wood, or with
any instrument made by man, the instrument or the wood were deemed
culpable, and the relatives 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 relatives of
the deceased were not offended.
[152]
In fine, it was ordained by the Salic law,
[153]
that a child who had
committed 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 relatives, 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.
[154]
Yet the law of the Ripuarians
[155]
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.
[156]
Here I see the origin of the jurisdiction of the lords. The fiefs
comprised 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),
[157]
which were received according to
the usage of the Franks, it followed 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 relatives, 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,
[158]
or of the privileges of fiefs in favour of
churches,
[159]
that the fiefs were possessed of this right. This appears
also from an infinite number of charters
[160]
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; 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
[161]
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
[162]
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 everywhere to find that the service of the fief was to attend
the king or the lord, both in their courts and in the army?
[163]
Footnotes
[149]
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, cap. lxxxix, which is explained by the third Capitulary
of the year 813. — Edition of Baluzius, i, p. 512.
[150]
Book i, tit. 9, section 17, ed. Lindembrock.
[152]
Tit. 46. See also the law of the Lombards, i. cap. xxi, 3,
Lindembrock's edition, si caballus cum pede, &c.
[153]
Tit. 28, section 6.
[154]
As appears by the decree of Clotharius II in the year 595.
[156]
"Capitulare incerti anni," chap. 57, in Baluzius, tome i p. 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.
[157]
See the Capitulary of Charlemagne, de villis, where he ranks
these freda among the great revenues of what was called villæ, or the
king's demesnes.
[158]
See Marculfus, book i, form. 3, 4, 17.
[159]
See Marculfus, book i, form. 2, 3, 4.
[160]
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.
[161]
See the 3rd, 4th, and 14th of the first book, and the charter
of Charlemagne, in the year 771, in Martene, Anecdot. collect., ii, tome i.
[162]
Treatise of village jurisdictions, Loyseau.
[163]
See Du Cange on the word hominium.
30.21. 21. Of the Territorial Jurisdiction of the Churches.
The churches
acquired very considerable property. We find that our kings gave them
great seigniories, that is, great fiefs; and we find jurisdictions
established at the same time in the demesnes of those churches. 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 seigniory 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 freda 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.
[164]
The law of the Ripuarians
[165]
forbids the freedom of the
churches
[166]
to hold the assembly for administering justice in any
other place than in the church where they were manumitted.
[167]
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
[168]
that Clovis gave to a certain
holy person 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 in relation to the customs and laws of those times, and
it is these customs and laws we are investigating.
[169]
Clotharius II orders the bishops or the nobility who are possessed
of estates in distant parts, to choose upon the very spot those who are
to administer justice, or to receive the judiciary emoluments.
[170]
The same prince regulates the judiciary power between the
ecclesiastic courts and his officers.
[171]
The Capitulary of Charlemagne
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
[172]
to exercise any jurisdiction
over those who are employed in cultivating church lands, except they
entered into that state by fraud, and to exempt themselves from
contributing to the public charges.
[173]
The bishops assembled at Rheims
made a declaration that the vassals belonging to the respective churches
are within their im-munity.
[174]
The Capitulary of Charlemagne in the
year 806 ordains that the churches should have both criminal and civil
jurisdiction over those who live upon their lands.
[175]
In fine, as the
capitulary of Charles the Bald
[176]
distinguishes between the king's
jurisdiction, that of the lords, and that of the church, I shall say
nothing further upon this subject.
Footnotes
[164]
See Marculfus, book i, form. 3, 4.
[165]
Ne alibi nisi ad ecclesiam, ubi relaxati sunt, mallum teneant,
tit. 58, section i. See also section 19. Lindembrock's edition.
[168]
Vita S. Germeri, Episcopi Tolosani apud Bollandianos 16 Maii.
[169]
See also the "Life of St. Melanius," and that of St. Deicola.
[170]
In the council of Paris, in the year 615, art. 19. See also
art. 12.
[172]
In the "Law of the Lombards," book ii, tit. 44, cap ii. Lindembrock's
edition.
[174]
Letter in the year 858, art. 7 in the "Capitularies," p. 108.
[175]
It is added to the "Law of the Bavarians," art. 7. See also art.
3. Lindembrock's edition, p. 444.
[176]
In the year 857, in synodo apud Carisiacum, art. 4, edition of
Baluzius, p. 96.
30.22. 22. That the Jurisdictions were established before the End of the
Second Race.
It has been pretended that the vassals usurped the
jurisdiction in their seigniories, during the confusion of the second
race. Those who choose 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 relatives 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 lifetime."
[177]
it is well known what it was to put oneself 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."
[178]
"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."
[179]
There was therefore a difference
between the district of the centenarii and that of the vassals.
This decree of Childebert
[180]
explains the constitution of
Clotharius of the same year, which being given for the same occasion and
on the same matter differs only in the terms; the constitution calling
in truste what by the decree is styled in terminis fidelium nostrorum.
Messieurs Bignon and Ducange, who pretend that in truste signified
another king's demesne, are mistaken in their conjecture.
[181]
Pepin, King of Italy, in a constitution that had been made as well
for the Franks as for the Lombards,
[182]
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 meantime, either the judge or his commissary shall
administer justice.
[183]
It appears by a Capitulary of Charlemagne,
[184]
that the kings did
not levy the freda in all places. Another capitulary of the same prince
shows the feudal laws
[185]
and feudal court to have been already
established. Another of Louis the Debonnaire ordains that when a person
possessed of a fief does not administer justice,
[186]
or binders it from
being administered, the king's commissaries shall live in his house at
discretion, till justice be administered. I shall likewise quote two
capitularies of Charles the Bald; one of the year 861,
[187]
where we
find the particular jurisdictions established, with judges and
subordinate officers; and the other of the year 864,
[188]
where he makes
a distinction between his own seigniories 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 has 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 derogation
from 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 sceptre, 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 the clergy and the laity, since it is made for both.
[189]
The same may be said of the constitution of Clotharius II.
[190]
Footnotes
[177]
Tit. 3, cap. xiii. Lindembrock's edition.
[179]
In the year 595, arts. 11 and 12, edition of the Capitularies
by Baluzius, p. 19.
[181]
See Du Cange, "Glossary," on the word trustis.
[182]
Inserted in the "Law of the Lombards," book ii. tit. 52, section 14. It is
the Capitulary of the year 793, in Baluzius, p. 544, art. 10.
[183]
See also the same "Law of the Lombards," book ii, tit. 52, section 2,
which relates to the Capitulary of Charlemagne of the year 779, art. 21.
[184]
The third of the year 812, art. 10.
[185]
The second of the year 813, arts. 14, 20, Baluzius' edition, p.
509.
[186]
Capitulare quintum anni 819 art. 23, Baluzius' edition, p. 617.
[187]
Edictum in Carisiaco in Baluzius, tome ii, p. 152.
[188]
Edictum Pistense, art. 18, Baluzius' edition, tome ii, p. 181.
[190]
I have already quoted it in the preceding chapter, "Episcopi vel
patentes."
30.23. 23. General Idea of the Abbé du Bos' Book on the Establishment of the
French Monarchy in Gaul.
Before I finish this book, it will not be
improper to write a few strictures on the Abbé du Bos' 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 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
permits one to imagine that nothing has been found; the length of the
way makes us think that we have 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' system had been well grounded, he
would not have been obliged to write three tedious volumes to prove it;
he would have found everything 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."
30.24. 24. 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. Now 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 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
Zozimus
[191]
that under the Emperor Honorius, the country of
Armorica
[192]
and the other provinces of Gaul revolted and formed a kind
of republic, and showing us that notwithstanding the different
pacifications of Gaul, the Armoricans formed always 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 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 Childeric his
father in the office of magister militi. But these two offices are
merely of his own creation. St. Remigius' letter to Clovis, on which he
grounds his opinion, is only a congratulation upon his accession to the
crown.
[193]
When the intent of a writing is so well known, why should we
give it another turn?
Clovis, towards the end of the 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 pro-consulate 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 alleged by the Abbé du Bos is the renunciation made
by the Emperor Justinian, in favour of the children and grandchildren 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 shown 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 upon 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 admitted, the laws of each nation were
given and even reduced to writing. What, therefore, could 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 do
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'
consequences true, they must not only have made no change among the
Romans, but they must even have 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 Ammon. 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' 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 Quintius Curtius, Arrian, or Plutarch,
Alexander's contemporaries? Has not the invention of printing afforded
us great light which those authors wanted?
[194]
Such is the history of
the Establishment of the French Monarchy in Gaul.
Footnotes
[191]
"History," lib. vi.
[193]
Vol. ii, book III, chap. 18, p. 270.
[194]
See the preliminary discourse of the Abbé du Bos.
30.25. 25. 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.
[195]
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;
[196]
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 had 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 author quotes the laws of other barbarous nations which
prove 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.
[197]
that is, of the king's vassal, was six hundred sous;
and that for the death of a Roman, who was the king's guest, was only
three hundred.
[198]
We find there likewise that the composition
[199]
for the death of an ordinary Frank was two hundred sous;
[200]
and for the
death of an ordinary Roman, was only one hundred.
[201]
For the death of a Roman tributary,
[202]
who was a kind of bondman or freedman, they paid
a composition of forty-five sous: but I shall take no notice of this,
any 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 Burgundians 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.
[203]
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.
[204]
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,
[205]
he says they are
bondmen; and thus he interprets the decree of Childebert. But I must
stop here a little, to inquire 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 entirely subverts all the ancient records;
[206]
the other, that
all freemen were judged directly and immediately by the king.
[207]
which is contradicted by an infinite number of passages and authorities
informing us of the judiciary order of those times.
[208]
This decree, which was made in an assembly of the nation,
[209]
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 fuerit; 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 supposes 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
acceptation, 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 construction agrees very well
with many capitularies
[210]
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 Louis the Debonnaire,
[211]
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 recompense did the Emperor receive from you for so many benefits?
He made you a freeman, but did not ennoble you, because he could not
give you nobility after having given you your liberty."
[212]
This passage, which proves so strongly the two orders of citizens,
does not at all confound the Abbé du Bos. He answers thus:
[213]
"The meaning of this passage is not that Louis 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 precedence of the clergy over the nobility. "This passage
proves only," continues the same writer,
[214]
"that the free-born
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 Louis the Debonnaire
be applied to this sort of people? "And perhaps," continues he
still,
[215]
"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' "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,
[216]
who had opposed Louis 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. Louis the Debonnaire manumitted
Hebo; and as bondmen after their manumission embraced the law of their
master, Hebo had 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 M. de Valois
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 that 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 as 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
[217]
I shall demonstrate how, from the circumstances of the time,
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 Charlemagne. 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 emancipated serfs were absolutely excluded.
Will the Abbé du Bos, who carries us to Turkey to give us an idea of the
ancient French nobility;
[218]
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 Louis
the Debonnaire and Charles the Bald? There was no complaint of that kind
under Charlemagne, because this prince always distinguished the ancient
from the new families; which Louis 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 Boulainvilliers' 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?
Footnotes
[195]
See the "Establishment of the French Monarchy," vol. iii, book VI, chap. 4, p. 301.
[196]
He cites the 44th title of this law, and the "Law of the
Ripuarians," tit. 7 and 36.
[197]
Qui in truste dominic est, tit. 44, section 4, and this relates to the 13th formulary of Marculfus, de regis Antrustione. See also tit. 66, of the Salic law, section 3 and 4, and tit. 74; and the "Law of the Ripuarians," tit. 11, and the "Capitulary of Charles the Bald," apud Carisiacum, in the year 877, cap. xx.
[198]
Salic law, tit. 44, section 6.
[199]
Tit. 44, section 4.
[200]
Tit. 44, section 1.
[201]
Tit. 44, section 15.
[202]
Tit. 44, section 7.
[203]
Arts. 1, 2, and 3, of tit. 26, of the "Law of the Burgundians."
[204]
"Establishment of the French Monarchy," vol. iii, book VI, chaps. 4 and 5.
[205]
Ibid.; vol. iii, chap. 5, pp. 319 and 320.
[206]
Ibid., vol. iii, book VI, chap. 4, pp. 307 and 308.
[207]
Ibid., p. 309, and in the following chapter, pp. 310,320.
[208]
See book xxviii of this work; and book xxxi. 8.
[209]
"Capitulary," Baluzius's edition, tome i, p. 19.
[210]
See book xxviii of this work, chap. 24; and book xxxi, chap. 8.
[211]
Chapters 43 and 44.
[213]
"Establishment of the French Monarchy," vol. iii, book VI, chap. 4, p. 316.
[216]
"De Gestis Ludovici Pii," chaps. 43 and 44.
[218]
"Establishment of the French Monarchy," vol. iii, book VI, chap. 4, p. 302.