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]
