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]
