Book XXXI.
Theory of the Feudal Laws among the Franks, in the
Relation They Bear to the Revolutions of their Monarchy.
31.1. 1. Changes in the Offices and in the Fiefs.
The counts at first were sent into their districts only for a year; but they soon purchased the
continuation of their offices. Of this we have an example in the reign
of Clovis' grandchildren. A person named Peonius was count in the city
of Auxerre;
[1]
he sent his son Mummolus with money to Gontram, to
prevail upon him to continue him in his employment; the son gave the
money for himself, and obtained the father's place. The kings had
already begun to spoil their own favours.
Though by the laws of the kingdom the fiefs were precarious, yet
they were neither given nor taken away in a capricious and arbitrary
manner: nay, they were generally one of the principal subjects debated
in the national assemblies. It is natural, however, to imagine that
corruption crept into this as well as the other case; and that the
possession of the fiefs, like that of the counties, was continued for
money.
I shall show in the course of this book,
[2]
that, independently of the grants which the princes made for a certain time, there were others
in perpetuity. The court wanted to revoke the former grants; this
occasioned a general discontent in the nation, and was soon followed by
that famous revolution in French history, whose first epoch was the
amazing spectacle of the execution of Brunehault.
That this queen, who was daughter, sister and mother of so many
kings, a queen to this very day celebrated for public monuments worthy
of a Roman dile or proconsul, born with an admirable genius for affairs,
and endowed with qualities so long respected, should see herself of a
sudden exposed to so slow, so ignominious and cruel a torture,
[3]
by a king whose authority was but indifferently established in the nation,
[4]
would appear very extraordinary, had she not incurred that nation's
displeasure for some particular cause. Clo-tharius reproached her with
the murder of ten kings; but two of them he had put to death himself;
the death of some of the others was owing to chance, or to the villainy
of another queen;
[5]
and a nation that had permitted Fredegunda to die in her bed,
[6]
that had even opposed the punishment of her flagitious
crimes, ought to have been very different with respect to those of
Brunehault.
She was put upon a camel, and led ignominiously through the army; a
certain sign that she had given great offence to those troops.
Fredegarius relates that Protarius,
[7]
Brunehault's favoureite, stripped
the lords of their property, and filled the exchequer with the plunder;
that he humbled the nobility, and that no person could be sure of
continuing in any office or employment. The army conspired against him,
and he was stabbed in his tent; but Brunehault, either by revenging his
death, or by pursuing the same plan,
[8]
became every day more odious to
the nation.
[9]
Clotharius, ambitious of reigning alone, inflamed moreover with the
most furious revenge, and sure of perishing if Brunehault's children got
the upper hand, entered into a conspiracy against himself; and whether
it was owing to ignorance, or to the necessity of his circumstances, he
became Brunehault's accuser, and made a terrible example of that
princess.
Warnacharius had been the very soul of the conspiracy formed against
Brunehault. Being at that time mayor of Burgundy, he made Clotharius
consent that he should not be displaced while he lived.
[10]
By this step the mayor could no longer be in the same case as the French lords before
that period; and this authority began to render itself independent of
the regal dignity.
It was Brunehault's unhappy regency which had exasperated the
nation. So long as the laws subsisted in their full force, no one could
grumble at having been deprived of a fief, since the law did not bestow
it upon him in perpetuity. But when fiefs came to be acquired by
avarice, by bad practices and corruption, they complained of being
divested, by irregular means, of things that had been irregularly
acquired. Perhaps if the public good had been the motive of the
revocation of those grants, nothing would have been said; but they
pretended a regard for order while they were openly abetting the
principles of corruption; the fiscal rights were claimed in order to
lavish the public treasure; and grants were no longer the reward or the
encouragement of services. Brunehault, from a corrupt spirit, wanted to
reform the abuses of the ancient corruption. Her caprices were not owing
to weakness; the vassals and the great officers, thinking themselves in
danger, prevented their own by her ruin.
We are far from having all the records of the transactions of those
days; and the writers of chronicles, who understood very nearly as much
of the history of their time as our peasants know of ours, are extremely
barren. Yet we have a constitution of Clotharius, given in the council
of Paris,
[11]
for the reformation of abuses,
[12]
which shows that this
prince put a stop to the complaints that had occasioned the revolution.
On the one hand, he confirms all the grants that had been made or
confirmed by the kings his predecessors;
[13]
and on the other, he
ordains that whatever had been taken from his vassals should be restored
to them.
[14]
This was not the only concession the king made in that council; he
enjoined that whatever had been innovated, in opposition to the
privileges of the clergy, should be redressed; and he moderated the
influence of the court in the election of bishops.
[15]
He even reformed
the fiscal affairs, ordaining that all the new censuses should be
abolished,
[16]
and that they should not levy any toll established since
the deaths of Gontram, Sigebert, and Chilperic;
[17]
that is, he
abolished whatever had been done during the regencies of Fredegunda and
Brunehault. He forbad the driving of his cattle to graze in private
people's grounds;
[18]
and we shall presently see that the reformation
was still more general, so as to extend even to civil affairs.
Footnotes
[1]
Gregory of Tours, book iv, chap. 42.
[3]
Fredegarius, "Chronicle," chap. 42.
[4]
Clotharius II, son of Chilperic, and the father of Dagobert.
[5]
Fredegarius, "Chronicle," chap. 42.
[6]
See Gregory of Tours, book viii, chap. 31.
[7]
Fredegarius, "Chronicle," chap. 27, in the year 605.
[8]
Ibid., chap. 28, in the year 607.
[9]
Ibid., chap. 41, in the year 613.
[10]
Ibid., chap. 42, in the year 613.
[11]
Some time after Brunehault's execution, in the year 615. See
Baluzius's edition of the "Capitularies," p. 21.
31.2. 2. How the Civil Government was reformed.
Hitherto the nation had given marks of impatience and levity with regard to the choice or
conduct of her masters; she had regulated their differences and obliged
them to come to an agreement among themselves. But now she did what
before was quite unexampled; she cast her eyes on her actual situation,
examined the laws coolly, provided against their insufficiency,
repressed violence, and moderated the regal power.
The bold and insolent regencies of Fredegunda and Brunehault had
less surprised than roused the nation. Fredegunda had defended her
horried cruelties, her poisonings and assassinations, by a repetition of
the same crimes; and had behaved in such a manner that her outrages were
rather of a private than public nature. Fredegunda did more mischief:
Brunehault threatened more. In this crisis the nation was not satisfied
with rectifying the feudal system; she was also determined to secure her
civil government. For the latter was rather more corrupt than the
former; a corruption the more dangerous as it was more inveterate, and
connected rather with the abuse of manners than with that of laws.
The history of Gregory of Tours exhibits, on the one hand, a fierce
and barbarous nation; and on the other, kings remarkable for the same
ferocity of temper. Those princes were bloody, iniquitous and cruel,
because such was the character of the whole nation. If Christianity
appeared sometimes to soften their manners, it was only by the
circumstances of terror with which this religion alarms the sinner; the
church supported herself against them by the miraculous operations of
her saints. The kings would not commit sacrilege, because they dreaded
the punishments inflicted on that species of guilt: but this excepted,
either in the riot of passion or in the coolness of deliberation, they
perpetrated the most horrid crimes and barbarities where divine
vengeance did not appear so immediately to overtake the criminal. The
Franks, as I have already observed, bore with cruel kings, because they
were of the same disposition themselves; they were not shocked at the
iniquity and extortions of their princes, because this was the national
characteristic. There had been many laws established, but it was usual
for the king to defeat them all, by a kind of letter called
precepts,
[19]
which rendered them of no effect; they were somewhat
similar to the rescripts of the Roman Emperors; whether it be that our
kings borrowed this usage from those princes, or whether it was owing to
their own natural temper. We see in Gregory of Tours, that they
perpetrated murder in cool blood, and put the accused to death unheard;
how they gave precepts for illicit marriages;
[20]
for transferring successions; for depriving relatives of their right; and, in fine,
marrying consecrated virgins. They did not, indeed, assume the whole
legislative power, but they dispensed with the execution of the laws.
Clotharius' constitution redressed all these grievances: no one
could any longer be condemned without being heard:
[21]
relatives were made to succeed, according to the order established by law;
[22]
all precepts for marrying religious women were declared null;
[23]
and those who had obtained and made use of them were severely punished. We might
know perhaps more exactly his determinations with regard to these
precepts, if the thirteenth and the next two articles of this decree had
not been lost through the injury of time. We have only the first words
of this thirteenth article, ordaining that the precepts shall be
observed, which cannot be understood of those he had just abolished by
the same law. We have another constitution by the same prince,
[24]
which is in relation to his decree, and corrects in the same manner every
article of the abuses of the precepts.
True it is that Baluzius, finding this constitution without date and
without the name of the place where it was given, attributes it to
Clotharius I. But I say it belongs to Clotharius II, for three reasons:
1. It says that the king will preserve the immunities granted to the
churches by his father and grandfather.
[25]
What immunities could the
churches receive from Childeric, grandfather of Clotharius I, who was
not a Christian, and who lived even before the foundation of the
monarchy? But if we attribute this decree to Clotharius II, we shall
find his grandfather to have been this very Clotharius I, who made
immense donations to the church with a view of expiating the murder of
his son Cramne, whom he had ordered to be burned, together with his wife
and children.
2. The abuses redressed by this constitution were still subsisting
after the death of Clotharius I and were even carried to their highest
extravagance during the weak reign of Gontram, the cruel administration
of Chilperic, and the execrable regencies of Fredegunda and Brunehault.
Now, can we imagine that the nation would have borne with grievances so
solemnly proscribed, without complaining of their continual repetition?
Can we imagine she would not have taken the same step as she did
afterwards under Childeric II,
[26]
when, upon a repetition of the old
grievances, she pressed him to ordain that law and customs in regard to
judicial proceedings should be complied with as formerly.
[27]
In fine, as this constitution was made to redress grievances, it
cannot relate to Clotharius I, since there were no complaints of that
kind in his reign, and his authority was perfectly established
throughout the kingdom, especially at the time in which they place this
constitution; whereas it agrees extremely well with the events that
happened during the reign of Clotharius II, which produced a revolution
in the political state of the kingdom. History must be illustrated by
the laws, and the laws by history.
Footnotes
[19]
They were orders which the king sent to the judges to do or to
tolerate things contrary to law.
[20]
See Gregory of Tours, book iv, p. 227. Both our history and the
charters are full of this; and the extent of these abuses appears
especially in Clotharius' constitution, inserted in the edition of the
"Capitularies" made to reform them. Baluzius's edition, p. 7.
[24]
In Baluzius's edition of the "Capitularies," tome i., p. 7.
[25]
In the preceding book I have made mention of these immunities,
which were grants of judicial rights, and contained prohibitions to the
regal judges to perform any function in the territory, and were
equivalent to the erection or grant of a fief.
[26]
He began to reign towards the year 670.
[27]
See the "Life of St. Leger."
31.3. 3. Authority of the Mayors of the Palace.
I noticed that Clotharius II had promised not to deprive Warnacharius of his mayor's place during
life; a revolution productive of another effect. Before that time the
mayor was the king's officer, but now he became the officer of the
people; he was chosen before by the king, and now by the nation. Before
the revolution Protarius had been made mayor by Theodoric, and Landeric
by Fredegunda;
[28]
but after that the mayors
[29]
were chosen by the
nation.
[30]
We must not therefore confound, as some authors have done, these
mayors of the palace with such as were possessed of this dignity before
the death of Brunehault; the king's mayors with those of the kingdom. We
see by the law of the Burgundians that among them the office of mayor
was not one of the most respectable in the state;
[31]
nor was it one of
the most eminent under the first Kings of the Franks.
[32]
Clotharius removed the apprehensions of those who were possessed of
employments and fiefs; and when, after the death of Warnacharius,
[33]
he
asked the lords assembled at Troyes, who is it they would put in his
place, they cried out they would choose no one, but suing for his favour
committed themselves entirely into his hands.
Dagobert reunited the whole monarchy in the same manner as his
father; the nation had a thorough confidence in him, and appointed no
mayor. This prince, finding himself at liberty and elated by his
victories, resumed Brunehault's plan. But he succeeded so ill that the
vassals of Austrasia let themselves be beaten by the Sclavonians, and
returned home; so that the marches of Austrasia were left to prey to the
barbarians.
[34]
He determined then to make an offer to the Austrasians of resigning
that country, together with a provincial treasure, to his son Sigebert,
and to put the government of the kingdom and of the palace into the
hands of Cunibert, Bishop of Cologne, and of the Duke Adalgisus.
Fredegarius does not enter into the particulars of the conventions then
made; but the king confirmed them all by charters, and Austrasia was
immediately secured from danger.
[35]
Dagobert, finding himself near his end, recommended his wife
Nentechildis and his son Clovis to the care of ga. The vassals of
Neustria and Burgundy chose this young prince for their king.
[36]
ga and
Nentechildis had the government of the palace;
[37]
they restored
whatever Dagobert had taken;
[38]
and complaints ceased in Neustria and
Burgundy, as they had ceased in Austrasia.
After the death of ga, Queen Nentechildis engaged the lords of
Burgundy to choose Floachatus for their mayor.
[39]
The latter dispatched
letters to the bishops and chief lords of the kingdom of Burgundy, by
which he promised to preserve their honours and dignities for ever, that
is, during life.
[40]
He confirmed his word by oath. This is the period
at which the author of the Treatise on the Mayors of the Palace fixes
the administration of the kingdom by those officers.
[41]
Fredegarius, being a Burgundian, has entered into a more minute
detail as to what concerns the Mayors of Burgundy at the time of the
revolution of which we are speaking, than with regard to the mayors of
Austrasia and Neustria. But the conventions made in Burgundy were, for
the very same reasons, agreed to in Neustria and Austrasia.
The nation thought it safer to lodge the power in the hands of a
mayor whom she chose herself, and to whom she might prescribe
conditions, than in those of a king whose power was hereditary.
Footnotes
[28]
Instigante Brunihault, Theodorico jubente, &c. -- Fredegarius, chap. 27, in the year 605.
[29]
"Gesta regum Francorum," chap. 36.
[30]
See Fredegarius, "Chronicle," chap. 54, in the year 626, and his
anonymous continuator, chap. 101, in the year 695, and chap. 105, in the year 715.
Aimoin, book iv, chap. 15, Eginhard, "Life of Charlemagne," chap. 48. "Gesta regum
Francorum," chap. 45.
[31]
See the "Law of the Burgundians," præef., and the second supplement
to this law, tit. 13.
[32]
See Gregory of Tours, ix. 36.
[33]
Fredegarius, "Chronicle," chap. 44, in the year 626.
[34]
Fredegarius, "Chronicle," chap. 68, in the year 630.
[35]
Fredegarius, "Chronicle," chap. 75, in the year 632.
[36]
Fredegarius, "Chronicle," chap. 79, in the year 638.
[38]
Ibid., chap. 80, in the year 639.
[39]
Fredegarius, "Chronicle," chap. 89, in the year 641.
[41]
"De Majoribus Domus Regiæ."
31.4. 4. Of the Genius of the Nation in regard to the Mayors.
A government in which a nation that had an hereditary king chose a person to exercise
the regal authority seems very extraordinary; but, independently of the
circumstances of the times, I apprehend that the notions of the Franks
in this respect were derived from a remote source.
The Franks were descended from the Germans, of whom Tacitus says
[42]
that in the choice of their king they were determined by his noble
extraction, and in that of their leader, by his valour. This gives us an
idea of the kings of the first race, and of the mayors of the palace;
the former were hereditary, the latter elective.
No doubt but those princes who stood up in the national assembly and
offered themselves as the conductors of a public enterprise to such as
were willing to follow them, united generally in their own person both
the power of the mayor and the king's authority. By the splendour of
their descent they had attained the regal dignity; and their military
abilities having recommended them to the command of armies, they rose to
the power of mayor. By the regal dignity, our first kings presided in
the courts and assemblies, and enacted laws with the national consent;
by the dignity of duke or leader, they undertook expeditions and
commanded the armies.
In order to be acquainted with the genius of the primitive Franks in
this respect, we have only to cast an eye on the conduct of
Argobastes,
[43]
a Frank by nation, on whom Valentinian had conferred the
command of the army. He confined the emperor to his own palace, where he
would suffer nobody to speak to him, concerning either civil or military
affairs. Argobastes did at that time what was afterwards practised by
the Pepins.
Footnotes
[42]
"De Moribus Germanorum," 7.
[43]
See Sulpicius Alexander, in Gregory of Tours, book ii.
31.5. 5. In what Manner the Mayors obtained the Command of the Armies.
So long as the kings commanded their armies in person, the nation never
thought of choosing a leader. Clovis and his four sons were at the head
of the Franks, and led them on through a series of victories. Theobald,
son of Theodobert, a young, weak, and sickly prince, was the first of
our kings who confined himself to his palace.
[44]
He refused to
undertake an expedition into Italy against Narses, and had the
mortification of seeing the Franks choose for themselves two chiefs, who
led them against the enemy.
[45]
Of the four sons of Clotharius I,
Gontram was the least fond of commanding his armies;
[46]
the other kings
followed this example; and, in order to entrust the command without
danger into other hands, they conferred it upon several chiefs or
dukes.
[47]
Innumerable were the inconveniences which thence arose; all
discipline was lost, no one would any longer obey. The armies were
dreadful only to their own country; they were laden with spoils before
they had reached the enemy. Of these miseries we have a very lively
picture in Gregory of Tours.
[48]
"How shall we be able to obtain a
victory," said Gontram,
[49]
"we who do not so much as keep what our
ancestors acquired? Our nation is no longer the same." ... Strange that
it should be on the decline so early as the reign of Clovis'
grandchildren!
It was therefore natural they should determine at last upon an only
duke, a duke invested with an authority over this prodigious multitude
of feudal lords and vassals who had now become strangers to their own
engagements; a duke who was to establish the military discipline, and to
put himself at the head of a nation unhappily practised in making war
against itself. This power was conferred on the mayors of the palace.
The original function of the mayors of the palace was the management
of the king's household. They had afterwards, in conjunction with other
officers, the political government of fiefs; and at length they obtained
the sole disposal of them.
[50]
They had also the administration of
military affairs, and the command of the armies; employments necessarily
connected with the other two. In those days it was much more difficult
to raise than to command the armies; and who but the dispenser of
favours could have this authority? In this martial and independent
nation, it was prudent to invite rather than to compel; prudent to give
away or to promise the fiefs that should happen to be vacant by the
death of the possessor; prudent, in fine, to reward continually, and to
raise a jealousy with regard to preferences. It was therefore right that
the person who had the superintendence of the palace should also be
general of the army.
Footnotes
[45]
Agathias, book i. Gregory of Tours, book iv, chap. 9.
[46]
Gontram did not even march against Gondovald, who styled himself
son of Clotharius, and claimed his share of the kingdom.
[47]
Sometimes to the number of twenty. See Gregory of Tours, book v, chap. 27;
book viii, chaps. 28 and 30, book x, chap. 3. Dagobert, who had no mayor in Burgundy, observed
the same policy, and sent against the Gascons ten dukes and several
counts who had no dukes over them. — Fredegarius, "Chronicle," chap. 78, in the
year 636.
[48]
Gregory of Tours, book viii, chap. 30, and book x, chap. 3.
[49]
Ibid., book viii, chap. 30.
[50]
See the second supplement to the "Law of the Burgundians," tit.
13, and Gregory of Tours, book ix, chap. 36.
31.6. 6. Second Epoch of the Humiliation of our Kings of the first Race.
After the execution of Brunehault, the mayors were administrators of the
kingdom under the sovereigns; and though they had the conduct of the
war, the kings were always at the head of the armies, while the mayor
and the nation fought under their command. But the victory of Duke Pepin
over Theodoric and his mayor
[51]
completed the degradation of our
princes;
[52]
and that which Charles Martel obtained over Chilperic and
his mayor Rainfroy confirmed it.
[53]
Austrasia triumphed twice over
Neustria and Burgundy; and the mayoralty of Austrasia being annexed as
it were to the family of the Pepins, this mayoralty and family became
greatly superior to all the rest. The conquerors were then afraid lest
some person of credit should seize the king's person, in order to excite
disturbances. For this reason they kept them in the royal palace as in a
kind of prison, and once a year showed them to the people.
[54]
There
they made ordinances, but these were such as were dictated by the
mayor;
[55]
they answered ambassadors, but the mayor made the answers.
This is the time mentioned by historians of the government of the mayors
over the kings whom they held in subjection.
[56]
The extravagant passion of the nation for Pepin's family went so far
that they chose one of his grandsons, who was yet an infant, for
mayor;
[57]
and put him over one Dagobert, that is, one phantom over
another.
Footnotes
[51]
See the "Annals of Metz," years 687 and 688.
[55]
Ex chronico Centulensi, lib. ii.
[56]
"Annals of Metz," year 691. "Annals of Fuld," or of Laurishan,
Pippinus dux Francorum obtinuit regnum Francorum per annos 27, cum
regibus sibi subjectis.
[57]
The anonymous continuator of Fredegarius, chap. 104, in the year 714.
31.7. 7. Of the great Offices and Fiefs under the Mayors of the Palace.
The mayors of the palace were little disposed to establish the uncertain
tenure of places and offices; for, indeed, they ruled only by the
protection which in this respect they granted to the nobility. Hence the
great offices continued to be given for life, and this usage was every
day more firmly established.
But I have some particular reflections to make here in respect of
fiefs: I do not question but most of them became hereditary from this
time.
In the treaty of Andeli,
[58]
Gontram and his nephew Childebert
engage to maintain the donations made to the vassals and churches by the
kings their predecessors; and leave is given to the wives, daughters,
and widows of kings to dispose by will, and in perpetuity, of whatever
they hold of the exchequer.
Marculfus wrote his formularies at the time of the mayors.
[59]
We
find several in which the kings make donations both to the person and to
his heirs:
[60]
and as the formularies represent the common actions of
life, they prove that part of the fiefs had become hereditary towards
the end of the first race. They were far from having in those days the
idea of an unalienable demesne; this is a modern thing, which they knew
neither in theory nor practice.
In proof hereof we shall presently produce positive fact; and if we
can point out a time in which there were no longer any benefices for the
army, nor any funds for its support, we must certainly conclude that the
ancient benefices had been alienated. The time I mean is that of Charles
Martel, who founded some new fiefs, which we should carefully
distinguish from those of the earliest date.
When the kings began to make grants in perpetuity, either through
the corruption which crept into the government or by reason of the
constitution itself, which continually obliged those princes to confer
rewards, it was natural they should begin with giving the perpetuity of
the fiefs, rather than of the counties. For to deprive themselves of
some acres of land was no great matter; but to renounce the right of
disposing of the great offices was divesting themselves of their very
power.
Footnotes
[58]
Cited by Gregory of Tours, book ix. See also the edict of Clotharius
II, in the year 615, art. 16.
[59]
See the 24th and the 34th of the first book.
[60]
See the 14th formula of the first book, which is equally
applicable to the fiscal estates given direct in perpetuity, or given at
first as a benefice, and afterwards in perpetuity. See also the 17th
formula, ibid.
31.8. 8. In what Manner the Allodial Estates were changed into Fiefs.
The manner of changing an allodial estate into a fief may be seen in a
formulary of Marculfus.
[61]
The owner of the land gave it to the king,
who restored it to the donor by way of usufruct, or benefice, and then
the donor nominated his heirs to the king.
In order to find out the reasons which induced them thus to change
the nature of the allodia, I must trace the source of the ancient
privileges of our nobility, a nobility which for these eleven centuries
has been enveloped with dust, with blood, and with the marks of toil.
They who were seized of fiefs enjoyed very great advantages. The
composition for the injuries done them was greater than that of freemen.
It appears by the formularies of Marculfus that it was a privilege
belonging to a king's vassal, that whoever killed him should pay a
composition of six hundred sous. This privilege was established by the
Salic law,
[62]
and by that of the Ripuarians;
[63]
and while these two
laws ordained a composition of six hundred sous for the murder of a
king's vassal, they gave but two hundred sous for the murder of a person
freeborn, if he was a Frank or Barbarian, or a man living under, the
Salic law;
[64]
and only a hundred for a Roman.
This was not the only privilege belonging to the king's vassals. We
ought to know that when a man was summoned in court, and did not make
his appearance nor obey the judge's orders, he was called before the
king;
[65]
and if he persisted in his contumacy, he was excluded from the
royal protection,
[66]
and no one was allowed to entertain him, nor even
to give him a morsel of bread. Now, if he was a person of an ordinary
condition, his goods were confiscated;
[67]
but if he was the king's
vassal, they were not.
[68]
The first by his contumacy was deemed
sufficiently convicted of the crime, the second was not; the former for
the smallest crimes was obliged to undergo the trial by boiling
water,
[69]
the latter was condemned to this trial only in the case of
murder.
[70]
In fine, the king's vassal could not be compelled to swear
in court against another vassal.
[71]
These privileges were continually
increasing, and the Capitulary of Carloman does this honour to the
king's vassals, that they should not be obliged to swear in person, but
only by the mouth of their own vassals.
[72]
Moreover, when a person,
having these honours, did not repair to the army, his punishment was to
abstain from flesh-meat and wine as long as he had been absent from the
service; but a freeman
[73]
who neglected to follow his count was fined
sixty sous,
[74]
and was reduced to a state of servitude till he had paid
it.
It is very natural, therefore, to believe that those Franks who were
not the king's vassals, and much more the Romans, became fond of
entering into the state of vassalage: and that they might not be
deprived of their demesnes, they devised the usage of giving their
allodium to the king, of receiving it from him afterwards as a fief, and
of nominating their heirs. This usage was continued, and took place
especially during the times of confusion under the second race, when
every man being in want of a protector was desirous of incorporating
himself with the other lords, and of entering, as it were, into the
feudal monarchy, because the political no longer existed.
[75]
This continued under the third race, as we find by several
charters;
[76]
whether they gave their allodium, and resumed it by the
same act; or whether it was declared an allodium, and afterwards
acknowledged as a fief. These were called fiefs of resumption.
This does not imply that those who were seized of fiefs administered
them as a prudent father of a family would; for though the freemen grew
desirous of being possessed of fiefs, yet they managed this sort of
estates as usufructs are managed in our days. This is what induced
Charlemagne, the most vigilant and considerate prince we ever had, to
make a great many regulations in order to hinder the fiefs from being
demeaned in favour of allodial estates.
[77]
It proves only that in his
time most benefices were but for life, and consequently that they took
more care of the freeholds than of the benefices; and yet for all that,
they did not choose rather to be the king's vassals than freemen. They
might have reasons for disposing of some particular part of a fief, but
they were not willing to be stripped of their dignity likewise.
I know, likewise, that Charlemagne laments in a certain capitulary,
that in some places there were people who gave away their fiefs in
property, and redeemed them afterwards in the same manner.
[78]
But I do
not say that they were not fonder of the property than of the usufruct;
I mean only, that when they could convert an allodium into a fief, which
was to descend to their heirs, as is the case of the formulary
above-mentioned, they had very great advantages in doing it.
Footnotes
[62]
Tit. 44. See also tit. 66, sections 3 and 4; and tit. 74.
[64]
See also the "Law of the Ripuarians," tit. 7; and the Salic law,
tit. 44, art. 1 and 4.
[65]
Salic law, tit. 59 and 76.
[67]
Ibid., tit. 59, section 1.
[68]
Ibid., tit. 76, section 1.
[69]
Ibid., tit. 56 and 59.
[70]
Ibid., tit. 76, section 1.
[72]
Apud vernis palatium, in the year 883, art. 4 and 11.
[73]
"Capitulary of Charlemagne," second of the year 812, art. 1 and 3.
[75]
"Non infirmis reliquit hæredibus," says Lambert d'Ardres in Du
Cange, on the word alodis.
[76]
See those quoted by Du Cange, in the word alodis, and those
produced by Galland, in his Treatise on Allodial Lands, p. 14, ff.
[77]
Second Capitulary of the year 802, art. 10; and the seventh
Capitulary of the year 803, art. 3; the first Capitulary, incerti anni,
art. 49; the fifth Capitulary of the year 806, art. 7; the Capitulary of
the year 779, art. 29; the Capitulary of Louis the Pious, in the year
829, art. 1.
[78]
The fifth of the year 806, art. 8.
31.9. 9. How the Church Lands were converted into Fiefs.
The use of the fiscal lands should have been only to serve as a donation by which the
kings were to encourage the Franks to undertake new expeditions, and by
which, on the other hand, these fiscal lands were increased. This, as I
have already observed, was the spirit of the nation; but these donations
took another turn. There is still extant a speech of Chilperic,
[79]
grandson of Clovis, in which he complains that almost all these lands
had been already given away to the church. "Our exchequer," says he, "is
impoverished, and our riches are transferred to the clergy;
[80]
none
reign now but the bishops, who live in grandeur while we are quite
eclipsed."
This was the reason that the mayors, who durst not attack the lords,
stripped the churches; and one of the motives alleged by Pepin for
entering Neustria
[81]
was his having been invited thither by the clergy
to put a stop to the encroachments of the kings, that is, of the mayors,
who deprived the church of all her possessions.
The Mayors of Austrasia, that is the family of the Pepins, had
behaved towards the clergy with more moderation than those of Neustria
and Burgundy. This is evident from our chronicles,
[82]
in which we see
the monks perpetually extolling the devotion and liberality of the
Pepins. They themselves had been possessed of the first places in the
church. "One crow does not pull out the eyes of another"; as Chilperic
said to the bishops.
[83]
Pepin subdued Neustria and Burgundy; but as his pretence for
destroying the mayors and kings was the grievances of the clergy, he
could not strip the latter without acting inconsistently with his cause,
and showing that he made a jest of the nation. However, the conquest of
two great kingdoms and the destruction of the opposite party afforded
him sufficient means of satisfying his generals.
Pepin made himself master of the monarchy by protecting the clergy;
his son, Charles Martel, could not maintain his power but by oppressing
them. This prince, finding that part of the regal and fiscal lands had
been given either for life, or in perpetuity, to the nobility, and that
the church by receiving both from rich and poor had acquired a great
part even of the allodial estates, he resolved to strip the clergy; and
as the fiefs of the first division were no longer in being, he formed a
second.
[84]
He took for himself and for his officers the church-lands
and the churches themselves; thus he remedied an evil which differed
from ordinary diseases, as its extremity rendered it the more easy to
cure.
Footnotes
[79]
In Gregory of Tours, book vi, chap. 46.
[80]
This is what induced him to annul the testaments made in favour
of the clergy, and even the donations of his father; Gontram
re-established them, and even made new donations. — Gregory of Tours,
book vii, chap. 7.
[81]
See the "Annals of Metz," year 687.
[82]
See the "Annals of Metz."
[83]
In Gregory of Tours.
[84]
From "Ex Chronica Centulensi," lib. ii.
31.10. 10. Riches of the Clergy.
So great were the donations made to the
clergy that under the three races of our princes they must have several
times received the full property of all the lands of the kingdom. But if
our kings, the nobility, and the people found the way of giving them all
their estates, they found also the method of getting them back again.
The spirit of devotion established a great number of churches under the
first race; but the military spirit was the cause of their being given
away afterwards to the soldiery, who divided them among their children.
What a number of lands must have then been taken from the clergy's
mensalia/ The kings of the second race opened their hands, and made new
donations to them; but the Normans, who came afterwards, plundered and
ravaged all before them, wreaking their vengeance chiefly on the priests
and monks, and devoting every religious house to destruction. For they
charged those ecclesiastics with the destruction of their idols, and
with all the oppressive measures of Charlemagne by which they had been
successively obliged to take shelter in the north. These were
animosities which the space of forty or fifty years had not been able to
obliterate. In this situation, what losses must the clergy have
sustained! There were hardly ecclesiastics left to demand the estates of
which they had been deprived. There remained, therefore, for the
religious piety of the third race, foundations enough to make, and lands
to bestow. The opinions which were spread abroad and believed in those
days would have deprived the laity of all their estates, if they had
been but virtuous enough. But if the clergy were actuated by ambition,
the laity were not without theirs; if dying persons gave their estates
to the church, their heirs would fain resume them. We meet with
continual quarrels between the lords and the bishops, the gentlemen and
the abbots; and the clergy must have been very hard pressed, since they
were obliged to put themselves under the protection of certain lords,
who granted them a momentary defence, and afterwards joined their
oppressors.
But a better administration having been established under the third
race gave the clergy leave to augment their possessions; when the
Calvinists started up, and having plundered the churches, they turned
all the sacred plate into specie. How could the clergy be sure of their
estates, when they were not even safe in their persons? They were
debating on controversial subjects while their archives were in flames.
What did it avail them to demand back of an impoverished nobility those
estates which were no longer in possession of the latter, but had been
conveyed into other hands by different mortgages? The clergy have been
long acquiring, and have often refunded, and still there is no end of
their acquisitions.
31.11. 11. State of Europe at the Time of Charles Martel.
Charles Martel, who undertook to strip the clergy, found himself in a most happy
situation. He was both feared and beloved by the soldiery; he worked
for them, having the pretext of his wars against the Saracens. He was
hated, indeed, by the clergy, but he had no need of their
assistance.
[85]
The Pope, to whom he was necessary, stretched out his
arms to him. Every one knows the famous embassy he received from Gregory
III.
[86]
These two powers were strictly united, because they could not
do without each other: the Pope stood in need of the Franks to assist
him against the Lombards and the Greeks; Charles Martel had occasion for
the Pope, to humble the Greeks, to embarrass the Lombards, to make
himself more respectable at home, and to guarantee the titles which he
had, and those which he or his children might take. It was impossible,
therefore, for his enterprise to miscarry.
St. Eucherius, Bishop of Orleans, had a vision which frightened all
the princes of that time. I shall produce on this occasion the letter
written by the bishops assembled at Rheims to Louis, King of Germany,
who had invaded the territories of Charles the Bald;
[87]
because it will
give us an insight into the situation of things in those times, and the
temper of the people. They say
[88]
that "St. Eucherius, having been
snatched up into heaven, saw Charles Martel tormented in the bottom of
hell by order of the saints, who are to sit with Christ at the last
judgment; that he had been condemned to this punishment before his time,
for having stripped the church of her possessions and thereby charged
himself with the sins of all those who founded these livings; that King
Pepin held a council upon this occasion, and had ordered all the
church-lands he could recover to be restored; that as he could get back
only a part of them, because of his disputes with Vaifre, Duke of
Acquitaine, he issued letters called precaria
[89]
for the remainder, and
made a law that the laity should pay a tenth part of the church-lands
they possessed, and twelve deniers for each house; that Charlemagne did
not give the church-lands away; on the contrary, that he published a
capitulary, by which he engaged both for himself and for his successors
never to make any such grant; that all they say is committed to writing,
and that a great many of them heard the whole related by Louis the
Debonnaire, the father of those two kings."
King Pepin's regulation, mentioned by the bishops, was made in the
council held at Leptines.
[90]
The church found this advantage in it,
that such as had received those lands held them no longer but in a
precarious manner; and moreover that she received the tithe or tenth
part, and twelve deniers for every house that had belonged to her. But
this was only a palliative, and did not remove the disorder.
Nay, it met with opposition, and Pepin was obliged to make another
capitulary,
[91]
in which he enjoins those who held any of those
benefices to pay this tithe and duty, and even to keep up the houses
belonging to the bishopric or monastery, under the penalty of forfeiting
those possessions. Charlemagne renewed the regulations of Pepin.
[92]
That part of the same letter which says that Charlemagne promised
both for himself and for his successors never to divide again the
church-lands among the soldiery is agreeable to the capitulary of this
prince, given at Aix-la-Chapelle in the year 803, with a view of
removing the apprehensions of the clergy upon this subject. But the
donations already made were still in force.
[93]
The bishops very justly
add that Louis the Debonnaire followed the example of Charlemagne, and
did not give away the church-lands to the soldiery.
And yet the old abuses were carried to such a pitch, that the laity
under the children of Louis the Debonnaire preferred ecclesiastics to
benefices, or turned them out of their livings
[94]
without the consent
of the bishops. The benefices were divided among the next heirs,
[95]
and
when they were held in an indecent manner the bishops had no other
remedy left than to remove the relics.
[96]
By the Capitulary of Compigne
[97]
it is enacted that the king's
commissary shall have a right to visit every monastery, together with
the bishop, by the consent and in presence of the person who holds it;
and this shows that the abuse was general.
Not that there were laws wanting for the restitution of the
church-lands. The Pope having reprimanded the bishops for their neglect
in regard to the re-establishment of the monasteries, they wrote to
Charles the Bald that they were not affected by this reproach, because
they were not culpable;
[98]
and they reminded him of what had been
promised, resolved and decreed in so many national assemblies. In point
of fact, they quoted nine.
Still they went on disputing; till the Normans came and made them
all agree.
Footnotes
[85]
See the "Annals of Metz."
[87]
Year 858, in Carisiacus; Baluzius's edition, tome i, p. 101.
[88]
Ibid., tome ii, art. 7, p. 109.
[89]
Precaria, quod precibus utendum conceditur, says Cujas, in his
notes upon the first Book of Fiefs. I find in a diploma of King Pepin,
dated the third year of his reign, that this prince was not the first
who established these precaria; he cites one made by the Mayor Ebroin,
and continued after his time. See the diploma of the king, in the
"Historians of France" by the Benedictines, tome v, art. 6.
[90]
In the year 743, see the 5th book of the "Capitularies," art. 3,
Baluzius's edition, p. 825.
[91]
That of Metz, in the year 736, art. 4.
[92]
See his "Capitulary," in the year 803, given at Worms; Baluzius's
edition, p. 411, where he regulates the precarious contract, and that of
Frankfort, in the year 794, p. 267, art. 24, in relation to the
repairing of the houses; and that of the year 800, p. 330.
[93]
As appears by the preceding note, and by the "Capitulary of
Pepin, King of Italy," where it says, that the king would give the
monasteries in fief to those who would swear allegiance for fiefs: it is
added to the "Law of the Lombards," book iii, tit. 1, section 30; and to the Salic
laws, "Collection of Pepin's Laws in Echard," p. 195, tit. 26, art. 4.
[94]
See the constitution of Lotharius I, in the "Law of the Lombards,"
book iii. Leg. 1, section 43.
[97]
Given the 28th year of the reign of Charles the Bald, in the
year 868. Baluzius's edition, p. 203.
[98]
Concilium apud Bonoilum, the 16th year of Charles the Bald, in
the year 856, Baluzius's edition, p. 78.
31.12. 12. Establishment of the Tithes.
The regulations made under King
Pepin had given the church rather hopes of relief than effectually
relieved her; and as Charles Martel found all the landed estates of the
kingdom in the hands of the clergy, Charlemagne found all the
church-lands in the hands of the soldiery. The latter could not be
compelled to restore a voluntary donation, and the circumstances of that
time rendered the thing still more impracticable than it seemed to be of
its own nature. On the other hand, Christianity ought not to have been
lost for want of ministers, churches, and instruction.
[99]
This was the reason of Charlemagne's establishing the tithes,
[100]
a
new kind of property which had this advantage in favour of the clergy,
that as they were given particularly to the church, it was easier in
process of time to know when they were usurped.
Some have attempted to make this institution of a still remoter
date, but the authorities they produce seem rather, I think, to prove
the contrary. The constitution of Clotharius says
[101]
only that they
shall not raise certain tithes on church-lands;
[102]
so far then was the
church from exacting tithes at that time, that its whole pretension was
to be exempted from paying them. The second council of Mcon,
[103]
which
was held in 585, and ordains the payment of tithes, says, indeed, that
they were paid in ancient times, but it says also that the custom of
paying them was then abolished.
No one questions but that the clergy opened the Bible before
Charlemagne's time, and preached the gifts and offerings in Leviticus.
But I say that before that prince's reign, though the tithes might have
been preached, they were never established.
I noticed that the regulations made under King Pepin had subjected
those who were seized of church lands in fief to the payment of tithes,
and to the repairing of the churches. It was a great deal to induce by a
law, whose equity could not be disputed, the principal men of the nation
to set the example.
Charlemagne did more; and we find by the capitulary de Villis
[104]
that he obliged his own demesnes to the payment of the tithes; this was
a still more striking example.
But the commonalty are rarely influenced by example to sacrifice
their interests. The synod of Frankfort furnished them with a more
cogent motive to pay the tithes.
[105]
A capitulary was made in that
synod, wherein it is said that in the last famine the spikes of corn
were found to contain no seed,
[106]
the infernal spirits having devoured
it all, and that those spirits had been heard to reproach them with not
having paid the tithes; in consequence of which it was ordained that all
those who were seized of church lands should pay the tithes; and the
next consequence was that the obligation extended to all.
Charlemagne's project did not succeed at first, for it seemed too
heavy a burden.107 The payment of the tithes among the Jews was
connected with the plan of the foundation of their republic; but here it
was a burden quite independent of the other charges of the establishment
of the monarchy. We find by the regulations added to the law of the
Lombards
[107]
the difficulty there was in causing the tithes to be
accepted by the civil laws; and as for the opposition they met with
before they were admitted by the ecclesiastic laws, we may easily judge
of it from the different canons of the councils.
The people consented at length to pay the tithes, upon condition
that they might have the power of redeeming them. This the constitution
of Louis the Debonnaire
[108]
and that of the Emperor Lotharius, his son,
would not allow.
[109]
The laws of Charlemagne, in regard to the establishment of tithes,
were a work of necessity, not of superstition — a work, in short, in
which religion only was concerned. His famous division of the tithes
into four parts, for the repairing of the churches, for the poor, for
the bishop, and for the clergy, manifestly proves that he wished to give
the church that fixed and permanent status which she had lost.
His will shows that he was desirous of repairing the mischief done
by his grandfather, Charles Martel.
[110]
He made three equal shares of
his movable goods; two of these he would have divided each into
one-and-twenty parts, for the one-and-twenty metropolitan sees of his
empire; each part was to be sub-divided between the metropolitan and the
dependent bishoprics. The remaining third he distributed into four
parts; one he gave to his children and grandchildren, another was added
to the two-thirds already bequeathed, and the other two were assigned to
charitable uses. It seems as if he looked upon the immense donation he
was making to the church less as a religious act than as a political
distribution.
Footnotes
[99]
In the civil wars which broke out at the time of Charles Martel,
the lands belonging to the church of Rheims were given away to laymen;
"the clergy were left to shift as well as they could," says the "Life of
Remigius Surius," tome i, p. 279.
[100]
"Law of the Lombards," book iii, tit. 3, sections 1 and 2.
[101]
It is that on which I have descanted in the 4th chapter of this
book, and which is to be found in Baluzius's edition of the
"Capitularies," tome i, art. 11, p. 9.
[102]
The "Capitulary of Charlemagne" in the year 800, Baluzius's
edition, p. 336, explains extremely well what is meant by that sort of
tithe from which the church is exempted by Clotharius; it was the tithe
of the swine which were put into the king's forests to fatten; and
Charlemagne enjoins his judges to pay it, as well as other people, in
order to set an example: it is plain that this was a right of seigniory
or economy.
[103]
Canone 5, ex tomo 1, conciliorum antiquorum Galli opera Jacobi
Sirmundi.
[104]
Art. 6, Baluzius's edition, p. 332. It was given in the year
800.
[105]
Held under Charlemagne, in the year 794.
[106]
Baluzius's edition, p. 267, art. 23.
[[107]]
See among the rest the "Capitulary of Louis the Debonnaire" in
the year 829, Baluzius's edition, p. 663; against those who, to avoid
paying tithes neglected to cultivate the lands, &c., art. 5.
[107]
Among others, that of Lotharius, book iii, tit. 3, cap. vi.
[108]
In the year 829, art. 7, in Baluzius, tome i, p. 663.
[109]
In the "Law of the Lombards," book iii, tit. 3, section 8.
[110]
It is a kind of codicil produced by Eginhard, and different
from the will itself, which we find in Goldastus and Baluzius.
31.13. 13. Of the Election of Bishops and Abbots.
As the church had grown
poor, the kings resigned the right of nominating to bishoprics and other
ecclesiastic benefices.
[111]
The princes gave themselves less trouble
about the ecclesiastic ministers; and the candidates were less
solicitous in applying to their authorities. Thus the church received a
kind of compensation for the possessions she had lost.
Hence, if Louis the Debonnaire left the people of Rome in possession
of the right of choosing their popes, it was owing to the general spirit
that prevailed in his time;
[112]
he behaved in the same manner to the
see of Rome as to other bishoprics.
Footnotes
[111]
See the "Capitulary of Charlemagne" in the year 803, art. 2,
Baluzius's edition, p. 379; and the "Edict of Louis the Debonnaire," in the
year 834, in Goldast, "Constit. Imprial.," tome i.
[112]
This is mentioned in the famous canon, ego Ludovicus, which is
a palpable forgery; it is Baluzius's edition, p. 591, in the year 817.
31.14. 14. Of the Fiefs of Charles Martel.
I shall not pretend to determine
whether Charles Martel, in giving the church-lands in fief, made a grant
of them for life or in perpetuity. All I know is that under
Charlemagne
[113]
and Lotharius I
[114]
there were possessions of that
kind which descended to the next heirs, and were divided among them.
I find, moreover, that one part of them was given as allodia, and
the other as fiefs.
[115]
I noticed that the proprietors of the allodia were subject to
service all the same as the possessors of the fiefs. This, without
doubt, was partly the reason that Charles Martel made grants of allodial
lands as well as of fiefs.
Footnotes
[113]
As appears by his Capitulary, in the year 801, art. 17, in
Baluzius, tome i, p. 360.
[114]
See his constitution, inserted in the code of the Lombards,
book iii, tit. 1, section 44.
[115]
See the above constitution, and the "Capitulary of Charles the
Bald," in the year 846, cap. xx. in Villa Sparnaco, Baluzius's edition, tome
ii. p. 31, and that of the year 853, cap. iii and v, in the "Synod of
Soissons," Baluzius's edition, tome ii, p. 54; and that of the year 854, apud
Attiniacum, cap. x. Baluzius's edition, tome ii, p. 70. See also the first
Capitulary of Charlemagne, incerti anni, art. 49 and 56. Baluzius's
edition, tome i, p. 519.
31.15. 15. The same Subject continued.
We must observe that the fiefs
having been changed into church-lands, and these again into fiefs, they
borrowed something of each other. Thus the church-lands had the
privileges of fiefs, and these had the privileges of church-lands. Such
were the honorary rights of churches, which began at that time.
[116]
And
as those rights have ever been annexed to the judiciary power, in
preference to what is still called the fief, it follows that the
patrimonial jurisdictions were established at the same time as those
very rights.
Footnotes
[116]
See the "Capitularies," book v, art. 44, and the "Edict of Pistes," in
the year 869, art. 8 and 9, where we find the honorary rights of the
lords established, in the same manner as they are at this very day.
31.16. 16. Confusion of the Royalty and Mayoralty. The Second Race.
The connection of my subject has made me invert the order of time, so as to
speak of Charlemagne before I had mentioned the famous epoch of the
translation of the crown to the Carlovingians under King Pepin; a
revolution, which, contrary to the nature of ordinary events, is more
remarked perhaps in our days than when it happened.
The kings had no authority; they had only an empty name. The regal
title was hereditary, and that of mayor elective. Though it was latterly
in the power of the mayors to place any of the Merovingians on the
throne, they had not yet taken a king of another family; and the ancient
law which fixed the crown in a particular family was not yet erased from
the hearts of the Franks. The king's person was almost unknown in the
monarchy; but royalty was not. Pepin, son of Charles Martel, thought it
would be proper to confound those two titles, a confusion which would
leave it a moot point whether the new royalty was hereditary or not; and
this was sufficient for him who to the regal dignity had joined a great
power. The mayor's authority was then blended with that of the king. In
the mixture of these two authorities a kind of reconciliation was made;
the mayor had been elective, and the king hereditary; the crown at the
beginning of the second race was elective, because the people chose; it
was hereditary, because they always chose in the same family.
[117]
Father le Cointe, in spite of the authority of all ancient
records
[118]
denies that the Pope authorised this great change; and one
of his reasons is that he would have committed an injustice.
[119]
A fine
thing to see a historian judge of that which men have done by that which
they ought to have done; by this mode of reasoning we should have no
more history.
Be that as it may, it is very certain that immediately after Duke
Pepin's victory, the Merovingians ceased to be the reigning family. When
his grandson, Pepin, was crowned king, it was only one ceremony more,
and one phantom less; he acquired nothing thereby but the royal
ornaments; there was no change made in the nation.
This I have said in order to fix the moment of the revolution, that
we may not be mistaken in looking upon that as a revolution which was
only a consequence of it.
When Hugh Capet was crowned king at the beginning of the third race,
there was a much greater change, because the kingdom passed from a state
of anarchy to some kind of government; but when Pepin took the crown,
there was only a transition from one government to another, which was
identical.
When Pepin was crowned king there was only a change of name; but
when Hugh Capet was crowned there was a change in the nature of the
thing, because by uniting a great fief to the crown the anarchy ceased.
When Pepin was crowned the title of king was united to the highest
office; when Hugh Capet was crowned it was annexed to the greatest fief.
Footnotes
[117]
See the will of Charlemagne, and the division which Lewis
the Debonnaire made to his children in the assembly of the states held at Querzy,,
produced by Goldast, "quem populus eligere velit, ut patri suo succedate in
regni hæreditate."
[118]
The anonymous "Chronic.," in the year 752; and "Chronic. Centul.,"
in the year 754.
[119]
Fabella quæ post Pippini mortem excogitata est, equitati ac sanctitati Zachariæ papæ plurimum adversatur . . . "Ecclesiastic Annals of the French," tome 2, p. 319.
31.17. 17. A particular Circumstance in the Election of the Kings of the
Second Race.
We find by the formulary of Pepin's coronation that Charles
and Carloman were also anointed,
[120]
and blessed, and that the French
nobility bound themselves, on pain of interdiction and excommunication,
never to choose a prince of another family.
[121]
It appears by the wills of Charlemagne and Louis the Debonnaire,
that the Franks made a choice among the king's children, which agrees
with the above-mentioned clause. And when the empire was transferred
from Charlemagne's family, the election, which before had been
restricted and conditional, became pure and simple, so that the ancient
constitution was departed from.
Pepin, perceiving himself near his end, assembled the lords, both
temporal and spiritual, at St. Denis, and divided his kingdom between
his two sons, Charles and Carloman.
[122]
We have not the acts of this
assembly, but we find what was there transacted in the author of the
ancient historical collection, published by Canisius, and in the writer
of the annals of Metz,
[123]
according to the observation of
Baluzius.
[124]
Here I meet with two things in some measure
contradictory; that he made this division with the consent of the
nobility, and afterwards that he made it by his paternal authority. This
proves what I said, that the people's right in the second race was to
choose in the same family; it was, properly speaking, rather a right of
exclusion than that of election.
This kind of elective right is confirmed by the records of the
second race. Such is this capitulary of the division of the empire made
by Charlemagne among his three children, in which, after settling their
shares, he says,
[125]
"That if one of the three brothers happens to have
a son, such as the people shall be willing to choose as a fit person to
succeed to his father's kingdom, his uncles shall consent to it."
This same regulation is to be met with in the partition which Louis
the Debonnaire made among his three children, Pepin, Louis, and Charles,
in the year 837, at the assembly of Aix-la-Chapelle;
[126]
and likewise
in another partition, made twenty years before, by the same emperor, in
favour of Lotharius, Pepin, and Louis.
[127]
We may likewise see the oath
which Louis the Stammerer took at Compigne at his coronation. "I, Louis,
by the divine mercy, and the people's election, appointed king, do
promise"
[128]
... What I say is confirmed by the acts of the Council of
Valence, held in the year 890, for the election of Louis, son of Bo-on,
to the kingdom of Arles.
[129]
Louis was there elected, and the principal
reason they gave for choosing him is that he was of the imperial
family,
[130]
that Charles the Fat had conferred upon him the dignity of
king, and that the Emperor Arnold had invested him by the sceptre, and
by the ministry of his ambassadors. The kingdom of Arles, like the other
dismembered or dependent kingdoms of Charlemagne, was elective and
hereditary.
Footnotes
[120]
"Historians of France" by the Benedictines, vol. v, p. 9.
[123]
Tome ii, lectionis antiquæ.
[124]
Edition of the "Capitularies," tome i, p. 188.
[125]
In the 1st Capitulary of the year 806. Baluzius's edition, p.
439, art. 5.
[126]
In Goldast, "Constit. Imperial.," tome ii, p. 19.
[127]
Baluzius's edition, p. 574, art. 14.
[128]
Capitulary of the year 877. Baluzius's edition, p. 272.
[129]
In Father Labbe's "Councils," tome ix, col. 424; and in Dumont's "Corp.
Diplomat.," tome ii, art. 36.
[130]
By the mother's side.
31.18. 18. Charlemagne.
Charlemagne's intention was to restrain the power
of the nobility within proper bounds, and to hinder them from oppressing
the freemen and the clergy. He balanced the several orders of the state,
and remained perfect master of them all. The whole was united by the
strength of his genius. He led the nobility continually from one
expedition to another, giving them no time to form conspiracies, but
employing them entirely in the execution of his designs. The empire was
supported by the greatness of its chief; the prince was great, but the
man was greater. The kings, his children, were his first subjects, the
instruments of his power and patterns of obedience. He made admirable
laws; and, what is more, he took care to see them executed. His genius
diffused itself through every part of the empire. We find in this
prince's laws a comprehensive spirit of foresight, and a certain force
which carries all before it. All pretexts for evading the duties are
removed, neglects are corrected, abuses reformed or prevented.
[131]
He
knew how to punish, but he understood much better how to pardon. He was
great in his designs, and simple in the execution of them. No prince
ever possessed in a higher degree the art of performing the greatest
things with ease, and the most difficult with expedition. He was
continually visiting the several parts of his vast empire, and made them
feel the weight of his hand wherever it fell. New difficulties sprang up
on every side, and on every side he removed them. Never prince had more
resolution in facing dangers; never prince knew better how to avoid
them. He mocked all manner of perils, and particularly those to which
great conquerors are generally subject, namely, conspiracies. This
wonderful prince was extremely moderate, of a very mild character, plain
and simple in his behaviour. He loved to converse freely with the lords
of his court. He indulged, perhaps, too much his passion for the fair
sex; a failing, however, which in a prince who always governed by
himself; and who spent his life in a continual series of toils; may
merit some allowance. He was wonderfully exact in his expenses,
administering his demesnes with prudence, attention, and economy. A
father might learn from his laws how to govern his family; and we find
in his capitularies the pure and sacred source whence he derived his
riches.
[132]
I shall add only one word more: he gave orders that the
eggs in the bartons on his demesnes, and the superfluous garden-stuff,
should be sold;
[133]
he distributed among his people all the riches of
the Lombards, and the immense treasures of those Huns that had plundered
the whole world.
Footnotes
[131]
See his third Capitulary of the year 811, p. 486, art. 1, 2, 3,
4, 5, 6, 7, and 8; and the first Capitulary of the year 812, p. 490,
art. 1; and the Capitulary of the year 812, p. 494, art. 9 and 11, etc.
[132]
See the "Capitulary de Villis" in the year 800; his second
Capitulary of the year 813, art. 6 and 19; and the fifth book of the
"Capitularies," art. 303.
[133]
"Capitulary de Villis," art. 39. See this whole Capitulary, which
is a masterpiece of prudence, good administration, and economy.
31.19. 19. The same Subject continued.
Charlemagne and his immediate
successors were afraid lest those whom they placed in distant parts
should be inclined to revolt, and thought they should find more docility
among the clergy. For this reason they erected a great number of
bishoprics in Germany and endowed them with very large fiefs.
[134]
It
appears by some charters that the clauses containing the prerogatives of
those fiefs were not different from such as were commonly inserted in
those grants,
[135]
though at present we find the principal ecclesiastics
of Germany invested with a sovereign power. Be that as it may, these
were some of the contrivances they used against the Saxons. That which
they could not expect from the indolence or supineness of vassals they
thought they ought to expect from the sedulous attention of a bishop.
Besides, a vassal of that kind, far from making use of the conquered
people against them, would rather stand in need of their assistance to
support themselves against their own people.
Footnotes
[134]
See among others the foundation of the Archbishopric of Bremen,
in the Capitulary of the year 789. Baluzius's edition, p. 245.
[135]
For instance, the prohibition of the king's judges against
entering upon the territory to demand the freda, and other duties. I
have said a good deal concerning this in the preceding book, 20, 21, 22.
31.20. 20. Louis the Debonnaire.
When Augustus Csar was in Egypt he ordered
Alexander's tomb to be opened; and upon their asking him whether he was
willing they should open the tombs of the Ptolemies, he made answer that
he wanted to see the king, and not the dead. Thus, in the history of the
second race, we are continually looking for Pepin and Charlemagne; we
want to see the kings, and not the dead.
A prince who was the sport of his passions, and a dupe even to his
virtues; a prince who never understood rightly either his own strength
or weakness; a prince who was incapable of making himself either feared
or beloved; a prince, in fine, who with few vices in his heart had all
manner of defects in his understanding, took into his hands the reins of
the empire which had been held by Charlemagne.
At a time when the whole world is in tears for the death of his
father, at a time of surprise and alarm, when the subjects of that
extensive empire all call upon Charles and find him no more; at a time
when he is advancing with all expedition to take possession of his
father's throne, he sends some trusty officers before him in order to
seize the persons of those who had contributed to the irregular conduct
of his sisters. This step was productive of the most terrible
catastrophes.
[136]
It was imprudent and precipitate. He began with
punishing domestic crimes before he reached the palace; and with
alienating the minds of his subjects before he ascended the throne.
His nephew, Bernard, King of Italy, having come to implore his
clemency, he ordered his eyes to be put out, which proved the cause of
that prince's death a few days after, and created Louis a great many
enemies. His apprehension of the consequence induced him to shut his
brothers up in a monastery; by which means the number of his enemies
increased. These two last transactions were afterwards laid to his
charge in a judicial manner,
[137]
and his accusers did not fail to tell
him that he had violated his oath and the solemn promises which he had
made to his father on the day of his coronation.
[138]
After the death of the Empress Hermengarde, by whom he had three
children, he married Judith, and had a son by that princess; but soon
mixing all the indulgence of an old husband, with all the weakness of an
old king, he flung his family into a disorder which was followed by the
downfall of the monarchy.
He was continually altering the partitions he had made among his
children. And yet these partitions had been confirmed each in their turn
by his own oath, and by those of his children and the nobility. This was
as if he wanted to try the fidelity of his subjects; it was endeavouring
by confusion, scruples, and equivocation, to puzzle their obedience; it
was confounding the different rights of those princes, and rendering
their titles dubious, especially at a time when there were but few
fortresses, and when the principal bulwark of authority was the fealty
sworn and accepted.
The Emperor's children, in order to preserve their shares, courted
the clergy, and granted them privileges till then unheard. These
privileges were specious; and the clergy in return were made to warrant
the revolution in favour of those princes. Agobard
[139]
represents to
Louis the Debonnaire his having sent Lotharius to Rome, in order to have
him declared emperor; and that he had made a division of his dominions
among his children, after having consulted heaven by three days fasting
and praying. What defence could such a weak prince make against the
attack of superstition? It is easy to perceive the shock which the
supreme authority must have twice received from his imprisonment, and
from his public penance; they would fain degrade the king, and they
degraded the regal dignity.
We find difficulty at first in conceiving how a prince who was
possessed of several good qualities, who had some knowledge, who had a
natural disposition to virtue, and who in short was the son of
Charlemagne, could have such a number of enemies.
[140]
so impetuous and
implacable as even to insult him in his humiliation and to be determined
upon his ruin: and, indeed they would have utterly completed it, if his
children, who in the main were more honest than they, had been steady in
their design, and could have agreed among themselves.
Footnotes
[136]
The anonymous author of the "Life of Louis the Debonnaire," in
Duchesne's "Collection," tome ii, p. 295.
[137]
See his trial and the circumstances of his deposition, in
Duchesne's "Collection," tome ii, p. 333.
[138]
He directed him to show unlimited clemency (indeficientem
misericordiam) to his sisters, his brothers, and his nephews. Tegan in
the "Collection" of Duchesne, tome ii, p. 276.
[140]
See his trial and the circumstances of his deposition, in
Duchesne's "Collection," tome ii, p. 331. See also his life written by Tegan:
"Tanto enim odio laborabat, ut tæderet eos vita ipsius," says this
anonymous author in Duchesne, tome ii, p. 307.
31.21. 21. The same Subject continued.
The strength and solidity for which
the kingdom was indebted to Charlemagne still subsisted under Louis the
Debonnaire in such a degree as enabled the state to support its
grandeur, and to command respect from foreign nations. The prince's
understanding was weak, but the nation was warlike. His authority
declined at home, though there seemed to be no diminution of power
abroad.
Charles Martel, Pepin, and Charlemagne were in succession rulers of
the monarchy. The first flattered the avarice of the soldiers: the other
two that of the clergy. Louis the Debonnaire displeased both.
In the French constitution, the whole power of the state was lodged
in the hands of the king, the nobility, and clergy. Charles Martel,
Pepin, and Charlemagne joined sometimes their interest with one of those
parties to check the other and generally with both; but Louis the
Debonnaire could gain the affection of neither. He disobliged the
bishops by publishing regulations which had the air of severity, because
he carried things to a greater length than was agreeable to their
inclination. Very good laws may be ill-timed. The bishops in those days,
being accustomed to take the field against the Saracens and the Saxons,
had very little of the spirit of religion.
[141]
On the other hand, as he
had no longer any confidence in the nobility, he promoted mean
people,
[142]
turning the nobles out of their employments at court to
make room for strangers and upstarts.
[143]
By this means the affections
of the two great bodies of the nobility and clergy were alienated from
their prince, the consequence of which was a total desertion.
Footnotes
[141]
The anonymous author of the "Life of Louis the Debonnaire" in
Duchesne's "Collection," tome ii, p. 298.
[142]
Tegan says that what seldom happened under Charlemagne was a
common practice under Louis.
[143]
Being desirous to check the nobility, he promoted one Bernard
to the place of chamberlain, by which the great lords were exasperated
to the highest pitch.
31.22. 22. The same Subject continued.
But what chiefly contributed to
weaken the monarchy was the extravagance of this prince in alienating
the crown demesnes.
[144]
And here it is that we ought to listen to the
account of Nitard, one of our most judicious historians, a grandson of
Charlemagne, strongly attached to Louis the Debonnaire and who wrote his
history by order of Charles the Bald.
He says, "that one Adelhard for some time gained such an ascendant
over the Emperor, that this prince conformed to his will in everything;
that at the instigation of this favourite, he had granted the crown
lands to everybody that asked them,
[145]
by which means the state was
ruined."
[146]
Thus he did the same mischief throughout the empire as I
observed he had done in Aquitaine;
[147]
the former Charlemagne
redressed, but the latter was past all remedy.
The state was reduced to the same debility in which Charles Martel
found it. upon his accession to the mayoralty; and so desperate were its
circumstances that no exertion of authority was any longer capable of
saving it.
The treasury was so exhausted that in the reign of Charles the Bald,
no one could continue in his employments, nor be safe in his person
without paying for it.
[148]
When they had it in their power to destroy
the Normans, they took money to let them escape:
[149]
and the first
advice which Hincmar gives to Louis the Stammerer is to ask of the
assembly of the nation a sufficient allowance to defray the expenses of
his household.
Footnotes
[144]
Tegan, "De Gestis Ludovici Pii."
[145]
Nitard, lib. iv, prope finem.
[147]
See book xxx, chap. 10.
[148]
Hincmar, let. 1, to Louis the Stammerer.
[149]
See the fragment of the "Chronicle of the Monastery of St.
Sergius of Angers," in Duchesne, tome ii, p. 401.
31.23. 23. The same Subject continued.
The clergy had reason to repent the
protection they had granted to the children of Louis the Debonnaire.
This prince, as I have already observed, had never given any of the
church-lands by precepts to the laity;
[150]
but it was not long before
Lotharius in Italy, and Pepin in Aquitaine, quitted Charlemagne's plan,
and resumed that of Charles Martel. The clergy had recourse to the
Emperor against his children, but they themselves had weakened the
authority to which they appealed. In Aquitaine some condescension was
shown, but none in Italy.
The civil wars with which the life of Louis the Debonnaire had been
embroiled were the seed of those which followed his death. The three
brothers, Lotharius, Louis, and Charles, endeavoured each to bring over
the nobility to their party and to make them their tools. To such as
were willing therefore to follow them they granted church-lands by
precepts; so that to gain the nobility, they sacrificed the clergy.
We find in the Capitularies
[151]
that those princes were obliged to
yield to the importunity of demands, and that what they would not often
have freely granted was extorted from them: we find that the clergy
thought themselves more oppressed by the nobility than by the kings, It
appears that Charles the Bald
[152]
became the greatest enemy of the
patrimony of the clergy, whether he was most incensed against them for
having degraded his father on their account, or whether he was the most
timorous. Be that as it may, we meet with continual quarrels in the
Capitularies,
[153]
between the clergy who demanded their estates, and
the nobility who refused or deferred to restore them; and the kings
acting as mediators.
The situation of affairs at that time is a spectacle really
deserving of pity. While Louis the Debonnaire made immense donations out
of his demesnes to the clergy, his children distributed the church-lands
among the laity. The same prince with one hand founded new abbeys and
despoiled old ones. The clergy had no fixed state; one moment they were
plundered, another they received satisfaction; but the crown was
continually losing.
Toward the close of the reign of Charles the Bald, and from that
time forward, there was an end of the disputes of the clergy and laity
concerning the restitution of church-lands. The bishops indeed breathed
out still a few sighs in their remonstrances to Charles the Bald, which
we find in the Capitulary of the year 856, and in the letter they wrote
to Louis, King of Germany, in the year 858,
[154]
but they proposed
things, and challenged promises, so often eluded, that we plainly see
they had no longer any hopes of obtaining their desire.
All that could be expected then was to repair in general the
injuries done both to church and state.
[155]
The kings engaged not to
deprive the nobility of their freemen, and not to give away any more
church-lands by precepts,
[156]
so that the interests of the clergy and
nobility seemed then to be united.
The dreadful depredations of the Normans, as I have already
observed, contributed greatly to put an end to those quarrels.
The authority of our kings diminishing every day, both for the
reasons already given and those which I shall mention hereafter, they
imagined they had no better resource left, than to resign themselves
into the hands of the clergy. But the ecclesiastics had weakened the
power of the kings, and these had diminished the influence of the
ecclesiastics. In vain did Charles the Bald and his successors call in
the church to support the state, and to prevent its ruin; in vain did
they make use of the. respect which the commonalty had for that
body,
[157]
to maintain that which they should also have for their
prince;
[158]
in vain did they endeavour to give an authority to their
laws by that of the canons; in vain did they join the ecclesiastic with
the civil punishments;
[159]
in vain to counterbalance the authority of
the count did they give to each bishop the title of their commissary in
the several provinces;
[160]
it was impossible to repair the mischief
they had done; and a terrible misfortune, which I shall presently
mention, proved the ruin of the monarchy.
Footnotes
[150]
See what the bishops say in the synod of the year 845, apud
Teudonis villam, art. 4.
[151]
See the synod in the year 845, apud Teudonis villam, art. 3 and
4, which gives a very exact description of things; as also, that of the
same year, held at the palaces of Vernes, art. 12, and the synod of
Beauvais, also in the same year, art. 3, 4, and 6, in the "Capitulary in
villa Sparnaco," in the year 846, art. 20, and the letter which the
bishops assembled at Rheims wrote in 858, to Louis, King of Germany,
art. 8.
[152]
See the "Capitulary in villa Sparnaco," in the year 846. The
nobility had set the King against the bishops, insomuch that he expelled
them from the assembly; a few of the canons enacted in council were
picked out, and the prelates were told that these were the only ones
which should be observed; nothing was granted them that could be
refused. See art. 20, 21 and 22. See also the letter which the bishops
assembled at Rheims wrote in the year 858 to Louis, King of Germany,
art. 8, and the "Edict of Pistes," in the year 864, art. 5.
[153]
See this very Capitulary in the year 846, in villa Sparnaco.
See also the Capitulary of the assembly held apud Marsnam in the year
847, art. 4, wherein the clergy reduced themselves to demand only the
restitution of what they had been possessed of under Louis the
Debonnaire. See also the Capitulary of the year 851, apud Marsnam, art.
6, and 7, which confirms the nobility and clergy in their several
possessions, and that apud Bonoilum, in the year 856, which is a
remonstrance of the bishops to the king, because the evils, after so
many laws, had not been redressed; and, in fine, the letter which the
bishops assembled at Rheims wrote in the year 858, to Louis, King of
Germany, art. 8.
[155]
See the Capitulary of the year 851, art. 6 and 7.
[156]
Charles the Bald, in the Synod of Soissons, says, that he had
promised the bishops not to issue any more precepts relating to
church-lands. Capitulary of the year 853, art. 11, Baluzius's edition.
tome ii, p. 56.
[157]
See the "Capitulary of Charles the Bald," apud Saponarias, in the
year 859, art. 3. "Venilon, whom I made Archbishop of Sens, has
consecrated me; and I ought not to be expelled the kingdom by anybody."
[158]
See the "Capitulary of Charles the Bald," De Carisiaco, in the
year 857, Baluzius's edition, tome ii, p. 88, sections 1, 2, 3, 4, and 7.
[159]
See the synod of Pistes in the year 862, art. 4, and the
"Capitulary of Louis II," apud Vernis palatium, in the year 883, art. 4
and 5.
[160]
Capitulary of the year 876, under Charles, the Bald, in synodo
Pontigonensi, Baluzius's edition, art. 12.
31.24. 24. That the Freemen were rendered capable of holding Fiefs.
I said that the freemen were led against the enemy by their count, and the
vassals by their lord. This was the reason that the several orders of
the state balanced each other, and though the king's vassals had other
vassals under them, yet they might be overawed by the count, who was at
the head of all the freemen of the monarchy.
The freemen were not allowed at first to do homage for a fief; but
in process of time this was permitted:
[161]
and I find that this change
was made during the period that elapsed from the reign of Gontram to
that of Charlemagne. This I prove by the comparison which may be made
between the treaty of Andelot,
[162]
by Gontram, Childebert, and Queen
Brunehault, and the partition made by Charlemagne among his children, as
well as a like partition by Louis the Debonnaire.
[163]
These three acts
contain nearly the same regulations with regard to the vassals; and as
they determine the very same points, under almost the same
circumstances, the spirit as well as the letter of those three treaties
in this respect are very much alike.
But as to what concerns the freemen, there is a vital difference.
The treaty of Andelot does not say that they might do homage for a fief;
whereas we find in the divisions of Charlemagne and Louis the Debonnaire
express clauses to empower them to do homage. This shows that a new
usage had been introduced after the treaty of Andelot, whereby the
freemen had become capable of this great privilege.
This must have happened when Charles Martel, after distributing the
church-lands to his soldiers, partly in fief, and partly as allodia,
made a kind of revolution in the feudal laws. It is very probable that
the nobility who were seized already of fiefs found a greater advantage
in receiving the new grants as allodia; and that the freemen thought
themselves happy in accepting them as fiefs.
THE PRINCIPAL CAUSE OF THE HUMILIATION OF THE SECOND RACE
Footnotes
[161]
See what has been said already, book xxx, last chapter, towards
the end.
[162]
In the year 587, in Gregory of Tours, book ix.
[163]
See the following chapter, where I shall speak more diffusely
of those partitions; and the notes in which they are quoted.
31.25. 25. Changes in the Allodia.
Charlemagne in the partition
[164]
mentioned in the preceding chapter ordained that after his death the
vassals belonging to each king should be permitted to receive benefices
in their own sovereign's dominion, and not in those of another;
[165]
whereas they may keep their allodial estates in any of their
dominions.
[166]
But he adds
[167]
that every freeman might, after the
death of his lord, do homage in any of three kingdoms he pleased, as
well as he that never had been subject to a lord. We find the same
regulations in the partition which Louis the Debonnaire made among his
children in the year 817.
But though the freeman had done homage for a fief, yet the count's
militia was not thereby weakened: the freeman was still obliged to
contribute for his allodium, and to get people ready for the service
belonging to it, at the proportion of one man to four manors; or else to
procure a man that should do the duty of the fief in his stead. And when
some abuses had been introduced upon this head, they were redressed, as
appears by the constitutions of Charlemagne,
[168]
and by that of Pepin,
King of Italy, which explain each other.
[169]
The remark made by historians that the battle of Fontenay was the
ruin of the monarchy, is very true; but I beg leave to cast an eye on
the unhappy consequences of that day.
Some time after the battle, the three brothers, Lothairius, Louis,
and Charles, made a treaty,
[170]
wherein I find some clauses which must
have altered the whole political system of the French government.
1. In the declaration
[171]
which Charles made to the people of the
part of the treaty relating to them, he says that every freeman might
choose whom he pleased for his lord,
[172]
whether the king or any of the
nobility. Before this treaty the freeman might do homage for a fief; but
his allodium still continued under the immediate power of the king, that
is, under the count's jurisdiction; and he depended on the lord to whom
he vowed fealty, only on account of the fief which he had obtained.
After that treaty every freeman had a right to subject his allodium to
the king, or to any other lord, as he thought proper. The question is
riot in regard to those who put themselves under the protection of
another for a fief, but to such as changed their allodial into a feudal
land, and withdrew themselves, as it were, from the civil jurisdiction
to enter under the power of the king, or of the lord whom they thought
proper to choose.
Thus it was that those who formerly were only under the king's
power, as freemen under 'the count, became insensibly vassals one of
another, since every freeman might choose whom he pleased for his lord,
the king or any of the nobility.
2. If a man changed an estate which he possessed in perpetuity into
a fief, this new fief could no longer be only for life. Hence we see, a
short time after, a general law for giving the fiefs to the children of
the present possessor:
[173]
it was made by Charles the Bald, one of the
three contracting princes.
What has been said concerning the liberty every freeman had in the
monarchy, after the treaty of the three brothers, of choosing whom he
pleased for his lord, the king or any of the nobility, is confirmed by
the acts subsequent to that time.
In the reign of Charlemagne,
[174]
when the vassal had received a
present of a lord, were it worth only a sou, he could not afterwards
quit him. But under Charles the Bald, the vassals might follow what was
agreeable to their interests or their inclination with entire
safety;
[175]
and so strongly does this prince explain himself on the
subject that he seems rather to encourage them in the enjoyment of this
liberty than to restrain it. In Charlemagne's time, benefices were
rather personal than real; afterwards they became rather real than
personal.
Footnotes
[164]
In the year 806, between Charles, Pepin, and Louis, it is
quoted by Goldast, and by Baluzius, tome ii, p. 439.
[165]
Art. 9, p. 443, which is agreeable to the treaty of Andelot, in
Gregory of Tours, ix.
[166]
Art. 10, and there is no mention made of this in the treaty of
Andelot.
[167]
In Baluzius, tome i, p. 174, art. 9. See also the division made by
the same emperor in the year 837, art. 6, Baluzius's edition, p. 686.
[168]
In the year 811, Baluzius's edition, tome i, p. 486, art. 7 and 8,
and that of the year 812, ibid. p. 490, art. 1. See also the Capitulary
of the year 807, Baluzius's edition, tome i, p. 458.
[169]
In the year 793, inserted in the "Law of the Lombards," book iii, tit.
9, cap. ix.
[170]
In the year 847, quoted by Aubert le Mire, and Baluzius, tome ii,
page 42.
[172]
Art. 2, of the "Declaration of Charles."
[173]
Capitulary of the year 877, tit. 53, art. 9 and 10, apud
Carisiacum, similiter et de nostris vassallis faciendum est, &c.
This Capitulary relates to another of the same year, and of the same
place, art. 3.
[174]
"Capitulary of Aix la Chapelle," in the year 813, art. 16, and
the "Capitulary of Pepin," in the year 783, art. 5.
[175]
See the "Capitulary de Carisiaco," in the year 856, art. 10 and
13. Baluzius's edition, tome ii, p. 83, in which the king, together
with the lords spiritual and temporal, agreed to this.
31.26. 26. Changes in the Fiefs.
The same changes happened in the fiefs as
in the allodia. We find by the Capitulary of Compigne,
[176]
under King
Pepin, that those who had received a benefice from the king gave a part
of this benefice to different bondmen; but these parts were not distinct
from the whole. The king revoked them when he revoked the whole; and at
the death of the king's vassal, the rear-vassal lost also his rear-fief:
and a new beneficiary succeeded, who likewise established new
rear-vassals. Thus it was the person and not the rear-fief that depended
on the fief; on the one hand, the rear-vassal returned to the king
because he was not tied for ever to the vassal; and the rear-fief
returned also to the king because it was the fief itself and not a
dependence of it.
Such was the rear-vassalage, while the fiefs were during pleasure;
and such was it also while they were for life. This was altered when the
fiefs descended to the next heirs, and the rear-fiefs the same. That
which was held before immediately of the king was held now mediately;
and the regal power was thrown back, as it were, one degree, sometimes
two; and oftentimes more.
We find in the books of fiefs
[177]
that, though the king's vassals
might give away in fief, that is, in rear-fief, to the king, yet these
rear-vassals, or petty vavasors, could not give also in fief; so that
whatever they had given, they might always resume. Besides, a grant of
that kind did not descend to the children like the fiefs, because it was
not supposed to have been made according to the feudal laws.
If we compare the situation in which the rear-vassalage was at the
time when the two Milanese senators wrote those books, with what it was
under King Pepin, we shall find that the rear-fiefs preserved their
primitive nature longer than the fiefs.
[178]
But when those senators wrote, such general exceptions had been made
to this rule as had almost abolished it. For if a person who had
received a fief of a rear-vassal happened to follow him upon an
expedition to Rome, he was entitled to all the privileges of a
vassal.
[179]
In like manner, if he had given money to the rear-vassal to
obtain the fief, the latter could not take it from him, nor hinder him
from transmitting it to his son, till he returned him his money: in
fine, this rule was no longer observed by the senate of Milan.
[180]
Footnotes
[176]
In the year 757, art. 6, Baluzius's edition, p. 181.
[178]
At least in Italy and Germany.
[179]
Book i, of fiefs, chap. 1.
31.27. 27. Another change which happened in the Fiefs.
In Charlemagne's time they were obliged,
[181]
under great penalties, to repair to the
general meeting in case of any war whatsoever; they admitted of no
excuses, and if the count exempted any one, he was liable himself to be
punished. But the treaty of the three brothers
[182]
made a restriction
upon this head which rescued the nobility, as it were, out of the king's
hands; they were no longer obliged to serve him in time of war, except
when the war was defensive.
[183]
In others, they were at liberty to
follow their lord, or to mind their own business. This treaty relates to
another,
[184]
concluded, five years before, between the two brothers,
Charles the Bald and Louis, King of Germany, by which these princes
release their vassals from serving them in war, in case they should
attempt hostilities against each other; an agreement which the two
princes confirmed by oath, and at the same time made their armies swear
to it.
The death of a hundred thousand French, at the battle of Fontenay,
made the remains of the nobility imagine that by the private quarrels of
their kings about their respective shares, their whole body would be
exterminated, and that the ambition and jealousy of those princes would
end in the destruction of all the best families of the kingdom. A law
was therefore passed that the nobility should not be obliged to serve
their princes in war unless it was to defend the state against a foreign
invasion. This law obtained for several ages.
[185]
Footnotes
[181]
Capitulary of the year 802, art. 7, Baluzius's edition, p. 365.
[182]
Apud Marsnam, in the year 847, Baluzius's edition, p. 42.
[183]
Art. 5, ibid., p. 44.
[184]
Apud Argentoratum, in Baluzius, "Capitularies," tome ii, p. 39.
[185]
See the law of Guy, King of the Romans, among those which were
added to the Salic law, and to that of the Lombards, tit. 6, section 2 in
Echard.
31.28. 28. Changes which happened in the great Offices, and in the Fiefs.
The many changes introduced into the fiefs in particular cases seemed to
spread so widely as to be productive of general corruption. I noticed
that in the beginning several fiefs had been alienated in perpetuity;
but those were particular cases, and the fiefs in general preserved
their nature; so that if the crown lost some fiefs it substituted others
in their stead. I observed, likewise, that the crown had never alienated
the great offices in perpetuity.
[186]
But Charles the Bald made a general regulation, which equally
affected the great offices and the fiefs. He ordained, in his
capitularies, that the counties should be given to the children of the
count, and that this regulation should also take place in respect to the
fiefs.
[187]
We shall see presently that this regulation received a wider
extension, insomuch that the great offices and fiefs went even to
distant relatives. Thence it followed that most of the lords who before
this time had held immediately of the crown, held now mediately. Those
counts who formerly administered justice in the king's placita, and who
led the freemen against the enemy, found themselves situated between the
king and his freemen; and the king's power was removed farther off
another degree.
Again, it appears from the capitularies,
[188]
that the counts had
benefices annexed to their counties, and vassals under them. When the
counties became hereditary, the count's vassals were no longer the
immediate vassals of the king; and the benefices annexed to the counties
were no longer the king's benefices; the counts grew powerful because
the vassals whom they had already under them enabled them to procure
others.
In order to be convinced how much the monarchy was thereby weakened
towards the end of the second race we have only to cast an eye on what
happened at the beginning of the third, when the multiplicity of
rear-fiefs flung the great vassals into despair.
It was a custom of the kingdom
[189]
that when the elder brothers had
given shares to their younger brothers, the latter paid homage to the
elder; so that those shares were held of the lord paramount only as a
rear-fief. Philip Augustus, the Duke of Burgundy, the Counts of Nevers,
Boulogne, St. Paul, Dampierre, and other lords declared
[190]
that
henceforward, whether the fiefs were divided by succession or otherwise,
the whole should be always of the same lord, without any intermediation.
This ordinance was not generally followed; for, as I have elsewhere
observed, it was impossible to make general ordinances at that time; but
many of our customs were regulated by them.
Footnotes
[186]
Some authors pretend that the County of Toulouse had been given
away by Charles Martel, and passed by inheritance down to Raymond, the
last count; but, if this be true, it was owing to some circumstances
which might have been an inducement to choose the Counts of Toulouse
from among the children of the last possessor.
[187]
See his Capitulary of the year 877, tit. 53, art. 9 and 10,
apud Carisiacum. This Capitulary bears relation to another of the same
year and place, art. 3.
[188]
The third capitulary of the year 812, art. 7, and that of the
year 815, art. 6, on the Spaniards. The collection of the "Capitularies,"
book 5, art. 288, and the capitulary of the year 869, art. 2, and that
of the year 877, art. 13, Baluzius's edition.
[189]
As appears from Otho of Frissingue, Of the Actions of Frederic,
book ii, chap. 29.
[190]
See the ordinance of Philip Augustus in the year 1209, in the
new collection.
31.29. 29. Of the Nature of the Fiefs after the Reign of Charles the Bald.
We have observed that Charles the Bald ordained that when the possessor
of a great office or of a fief left a son at his death, the office or
fief should devolve to him. It would be a difficult matter to trace the
progress of the abuses which thence resulted, and of the extension given
to that law in each country. I find in the books of fiefs,
[191]
that
towards the beginning of the reign of the Emperor Conrad II, the fiefs
situated in his dominions did not descend to the grandchildren: they
descended only to one of the last possessor's children, who had been
chosen by the lord:
[192]
thus the fiefs were given by a kind of
election, which the lord made among the children.
In the seventeenth chapter of this book we have explained in what
manner the crown was in some respects elective, and in others hereditary
under the second race. It was hereditary, because the kings were always
taken from that family, and because the children succeeded; it was
elective, by reason that the people chose from among the children. As
things proceed step by step, and one political law has constantly some
relation to another political law, the same spirit was followed in the
succession of fiefs, as had been observed in the succession to the
crown.
[193]
Thus the fiefs were transmitted to the children by the right
of succession, as well as of election; and each fief became both
elective and hereditary, like the crown.
This right of election
[194]
in the person of the lord was not
subsisting at the time of the authors
[195]
of the book of fiefs, that
is, in the reign of the Emperor Frederick I.
Footnotes
[193]
At least in Italy and Germany.
[194]
Book i, of fiefs, tit. 1.
[195]
Gerardus Niger and Aubertus de Orto.
31.30. 30. The same Subject continued.
It is mentioned in the books of
fiefs, that when the Emperor Conrad set out for Rome, the vassals in his
service presented a petition to him that he would please to make a law
that the fiefs which descended to the children should descend also to
the grandchildren; and that he whose brother died without legitimate
heirs might succeed to the fief which had belonged to their common
father.
[196]
This was granted.
In the same place it is said (and we are to remember that those
writers lived at the time of the Emperor Frederick I)
[197]
"that the
ancient jurists had always been of opinion
[198]
that the succession of
fiefs in a collateral line did not extend farther than to
brothers-german, though of late it was carried as far as the seventh
degree, and by the new code they had extended it in a direct line in
infinitum." It is thus that Conrad's law was insensibly extended. All
these things being supposed, the bare perusal of the history of France
is sufficient to demonstrate that the perpetuity of fiefs was
established earlier in this kingdom than in Germany. Towards the
commencement of the reign of the Emperor Conrad II in 1024, things were
upon the same footing still in Germany, as they had been in France
during the reign of Charles the Bald, who died in 877. But such were the
changes made in this kingdom after the reign of Charles the Bald, that
Charles the Simple found himself unable to dispute with a foreign house
his incontestable rights to the empire; and, in fine, that in Hugh
Capet's time the reigning family, stripped of all its demesnes, was no
longer in a condition to maintain the crown.
The weak understanding of Charles the Bald produced an equal
weakness in the French monarchy. But as his brother, Louis, King of
Germany, and some of that prince's successors were men of better parts,
their government preserved its vigour much longer.
But what do I say? Perhaps the phlegmatic constitution, and, if I
dare use the expression, the immutability of spirit peculiar to the
German nation made a longer stand than the volatile temper of the French
against that disposition of things, which perpetuated the fiefs by a
natural tendency, in families.
Besides, the kingdom of Germany was not laid waste and annihilated,
as it were, like that of France, by that particular kind of war with
which it had been harassed by the Normans and Saracens. There were less
riches in Germany, fewer cities to plunder, less extent of coast to
scour, more marshes to get over, more forests to penetrate. As the
dominions of those princes were less in danger of being ravaged and torn
to pieces, they had less need of their vassals and consequently less
dependence on them. And in all probability, if the Emperors of Germany
had not been obliged to be crowned at Rome, and to make continual
expeditions into Italy, the fiefs would have preserved their primitive
nature much longer in that country.
Footnotes
[196]
Book i, of fiefs, tit. 1.
[197]
Cujas has proved it extremely well.
31.31. 31. In what Manner the Empire was transferred from the Family
of Charlemain.
The empire, which, in prejudice to the branch of Charles
the Bald had been already given to the bastard line of Louis, King of
Germany,
[199]
was transferred to a foreign house by the election of
Conrad, Duke of Franconia, in 912. The reigning branch in France, being
hardly able to contest a few villages, was much less in a situation to
contest the empire. We have an agreement entered into between Charles
the Simple and the Emperor Henry I, who had succeeded to Conrad, It is
called the Compact of Bonn.
[200]
These two princes met in a vessel which
had been placed in the middle of the Rhine, and swore eternal
friendship. They used on this occasion an excellent middle term. Charles
took the title of King of West France, and Henry that of King of East
France. Charles contracted with the King of Germany, and not with the
Emperor.
Footnotes
[199]
Arnold and his son Louis IV.
[200]
In the year 926, quoted by Aubert le Mire, Cod. donationum piarum, chap. 27.
31.32. 32. In what Manner the Crown of France was transferred to the House
of Hugh Capet.
The inheritance of the fiefs, and the general
establishment of rear-fiefs, extinguished the political and formed a
feudal government. Instead of that prodigious multitude of vassals who
were formerly under the king, there were now a few only, on whom the
others depended. The kings had scarcely any longer a direct authority; a
power which was to pass through so many other and through such great
powers either stopped or was lost before it reached its term. Those
great vassals would no longer obey; and they even made use of their
rear-vassals to withdraw their obedience. The kings, deprived of their
demesnes and reduced to the cities of Rheims and Laon, were left exposed
to their mercy; the tree stretched out its branches too far, and the
head was withered. The kingdom found itself without a demesne, as the
empire is at present. The crown was, therefore, given to one of the most
potent vassals.
The Normans ravaged the kingdom; they sailed in open boats or small
vessels, entered the mouths of rivers, and laid the country waste on
both sides. The cities of Orleans and Paris put a stop to those
plunderers, so that they could not advance farther, either on the Seine,
or on the Loire.
[201]
Hugh Capet, who was master of those cities, held
in his hands the two keys of the unhappy remains of the kingdom; the
crown was conferred upon him as the only person able to defend it. It is
thus the empire was afterwards given to a family whose dominions form so
strong a barrier against the Turks.
The empire went from Charlemagne's family at a time when the
inheritance of fiefs was established only as a mere condescendence. It
even appears that this inheritance obtained much later among the Germans
than among the French;
[202]
which was the reason that the empire,
considered as a fief, was elective. On the contrary, when the crown of
France went from the family of Charlemagne, the fiefs were really
hereditary in this kingdom; and the crown, as a great fief, was also
hereditary.
But it is very wrong to refer to the very moment of this revolution
all the changes which happened, either before or afterwards. The whole
was reduced to two events; the reigning family changed, and the crown
was united to a great fief.
Footnotes
[201]
See the "Capitulary of Charles the Bald," in the year 877, apud
Carisiacum, on the importance of Paris, St. Denis, and the castles on
the Loire, in those days.
[202]
See above, chapter 30.
31.33. 33. Some Consequences of the Perpetuity of Fiefs.
From the perpetuity of fiefs it followed that the right of seniority or
primogeniture was established among the French. This right was quite
unknown under the first race;
[203]
the crown was divided among the
brothers, the allodia were shared in the same manner; and as the fiefs,
whether precarious or for life, were not an object of succession, there
could be no partition in regard to those tenures.
Under the second race, the title of emperor, which Louis the
Debonnaire enjoyed, and with which he honoured his eldest son,
Lotharius, made him think of giving this prince a kind of superiority
over his younger brothers. The two kings were obliged to wait upon the
emperor every year, to carry him presents, and to receive much greater
from him; they were also to consult with him upon common affairs.
[204]
This is what inspired Lotharius with those pretences which met with such
bad success. When Agobard wrote in favour of this prince,
[205]
he
alleged the emperor's own intention, who had associated Lotharius with
the empire after he had consulted the Almighty by a three days' fast, by
the celebration of the holy mysteries, and by prayers and almsgiving;
after the nation had sworn allegiance to him, which they could not
refuse without perjuring themselves; and after he had sent
Lotharius to Rome to be confirmed by the Pope. Upon all this he lays
a stress, and not upon his right of primogeniture. He says, indeed, that
the emperor had designed a partition among the younger brothers, and
that he had given the preference to the elder; but saying he had
preferred the elder was saying at the saine time that he might have
given the preference to his younger brothers.
But as soon as the fiefs became hereditary, the right of seniority
was established in the feudal succession; and for the same reason in
that of the crown, which was the great fief. The ancient law of
partitions was no longer subsisting; the fiefs being charged with a
service, the possessor must have been enabled to discharge it. The law
of primogeniture was established, and the right of the feudal law was
superior to that of the political or civil institution.
As the fiefs descended to the children of the possessor, the lords
lost the liberty of disposing of them; and, in order to indemnify
themselves, they established what they called the right of redemption,
whereof mention is made in our customs, which at first was paid in a
direct line, and by usage came afterwards to be paid only in a
collateral line.
The fiefs were soon rendered transferable to strangers as a
patrimonial estate. This gave rise to the right of lord's dues, which
were established almost throughout the kingdom. These rights were
arbitrary in the beginning; but when the practice of granting such
permissions became general, they were fixed in every district.
The right of redemption was to be paid at every change of heir, and
at first was paid even in a direct line.
[206]
The most general custom
had fixed it to one year's income. This was burdensome and inconvenient
to the vassal, and affected in some measure the fief itself, It was
often agreed in the act of homage that the lord should no longer demand
more than a certain sum of money for the redemption, which, by the
changes incident to money, became afterwards of no manner of
importance.
[207]
Thus the right of redemption is in our days reduced
almost to nothing, while that of the lord's dues is continued in its
full extent. As this right concerned neither the vassal nor his heirs,
but was a fortuitous case which no one was obliged to foresee or expect,
these stipulations were not made, and they continued to pay a certain
part of the price.
When the fiefs were for life, they could not give a part of a fief
to hold in perpetuity as a rear-fief; for it would have been absurd that
a person who had only the usufruct of a thing should dispose of the
property of it. But when they became perpetual, this was permitted.
[208]
with some restrictions made by the customs, which was what they call
dismembering their fief.
[209]
The perpetuity of feudal tenures having established the right of
redemption, the daughters were rendered capable of succeeding to a fief,
in default of male issue. For when the lord gave the fief to his
daughter, he multiplied the cases of his right of redemption, because
the husband was obliged to pay it as well as the wife.
[210]
This
regulation could not take place in regard to the crown, for as it was
not held of any one, there could be no right of redemption over it.
The daughter of William V, Count of Toulouse, did not succeed to the
county. But Eleanor succeeded to Aquitaine, and Matilda to Normandy; and
the right of the succession of females seemed so well established in
those days, that Louis the Young, after his divorce from Eleanor, made
no difficulty in restoring Guienne to her. But as these two last
instances followed close on the first, the general law by which the
women were called to the succession of fiefs must have been introduced
much later into the county of Toulouse than into the other provinces of
France.
[211]
The constitution of several kingdoms of Europe has been directed by
the state of feudal tenures at the time when those kingdoms were
founded. The women succeeded neither to the crown of France nor to the
empire, because at the foundation of those two monarchies they were
incapable of succeeding to fiefs. But they succeeded in kingdoms whose
foundation was posterior to that of the perpetuity of the fiefs, such as
those founded by the Normans, those by the conquests made on the Moors,
and others, in fine, which were beyond the limits of Germany, and in
later times received in some measure a second birth by the establishment
of Christianity.
When these fiefs were at will, they were given to such as were
capable of doing service for them, and, therefore, were never bestowed
on minors; but when they became perpetual, the lords took the fief into
their own hands, till the pupil came of age, either to increase their
own emoluments, or to train the ward to the use of arms.
[212]
This is
what our customs call the guardianship of a nobleman's children, which
is founded on principles different from those of tutelage, and is
entirely a distinct thing from it.
When the fiefs were for life, it was customary to vow fealty for a
fief; and the real delivery, which was made by a sceptre, confirmed the
fief, as it is now confirmed by homage. We do not find that the counts,
or even the king's commissaries, received the homage in the provinces;
nor is this ceremony to be met with in the commissions of those officers
which have been handed down to us in the Capitularies. They sometimes,
indeed, made all the king's subjects take an oath of allegiance;
[213]
but so far was this oath from being of the same nature as the service
afterwards established by the name of homage, that it was only a
cere-money of less solemnity, occasionally used, either before or after
that act of obeisance; in short, it was quite a distinct thing from
homage.
[214]
The counts and the king's commissaries further made those vassals
whose fidelity was suspected give occasionally a security, which was
called firmitas,
[215]
but this security could not be an homage, since
kings gave it to each other.
[216]
And though the Abbot Suger
[217]
makes mention of a chair of
Dagobert, in which according to the testimony of antiquity, the kings of
France were accustomed to receive the homage of the nobility, it is
plain that he expresses himself agreeably to the ideas and language of
his own time.
When the fiefs descended to the heirs, the acknowledgment of the
vassal, which at first was only an occasional service, became a regular
duty. It was performed in a more splendid manner, and attended with more
formalities, because it was to be a perpetual memorial of the reciprocal
duties of the lord and vassal.
I should be apt to think that homages began to be established under
King Pepin, which is the time I mentioned that several benefices were
given in perpetuity, but I should not think thus without caution, and
only upon a supposition that the authors of the ancient annals of the
Franks were not ignorant pretenders,
[218]
who in describing the fealty
professed by Tassillon, Duke of Bavaria, to King Pepin, spoke according
to the usages of their own time.
[219]
Footnotes
[203]
See the Salic law, and the "Law of the Ripuarians," in the title
of Allodia.
[204]
See the Capitulary of the year 817, which contains the first
partition made by Louis the Debonnaire among his children.
[205]
See his two letters upon this subject, the title of one of
which is De Divisione Imperii.
[206]
See the ordinance of Philip Augustus, in the year 1209, on the
fiefs.
[207]
We find several of these conventions in the charters, as in the
register book of Vendme, and that of the abbey, in St. Cyprian in
Poitou, of which Mr. Galland has given some extracts, p. 55.
[208]
But they could not abridge the fiefs, that is, abolish a
portion of it.
[209]
They fixed the portion which they could dismember.
[210]
This was the reason that the lords obliged the widow to marry
again.
[211]
Most of the great families had their particular laws of
succession. See what M. de la Thaumassire says concerning the families
of Berri.
[212]
We see in the Capitulary of the year 817, apud Carisiacum, art.
3, Baluzius's edition, ii, p. 269, the moment in which the kings caused
the fiefs to be administered in order to preserve them for the minors;
an example followed by the lords, and which gave rise to what we have
mentioned by the name of the guardianship of a nobleman's children.
[213]
We find the formula thereof in the second Capitulary of the
year 802. See also that of the year 854, art. 13, and others.
[214]
M. Du Cange in the word hominium, p. 1163, and in the word
fidelitas, p. 474, cites the charters of the ancient homages where these
differences are found, and a great number of authorities which may be
seen. In paying homage, the vassal put his hand on that of his lord, and
took his oath; the oath of fealty was made by swearing on the gospels.
The homage was performed kneeling, the oath of fealty standing. None but
the lord could receive homage, but his officers might take the oath of
fealty. — See Littleton, 91, 92, faith and homage, that is,
fidelity and homage.
[215]
"Capitularies of Charles the Bald," in the year 860, post reditum
a Confluentibus, art. 3, Baluzius's edition, p. 145.
[217]
Suger, Lib. de administratione sua.
[218]
Year 757, cap. xvii.
[219]
One would think that here was an homage and an oath of fealty.
See note 6, p. 314.
31.34. 34. The same Subject continued.
When the fiefs were either
precarious or for life, they seldom bore a relation to any other than
the political laws; for which reason in the civil institutions of those
times there is very little mention made of the laws of fiefs. But when
they became hereditary, when there was a power of giving, selling, and
bequeathing them, they bore a relation both to the political and the
civil laws. The fief, considered as an obligation of performing military
service, depended on the political law; considered as a kind of
commercial property, it depended on the civil law. This gave rise to the
civil regulations concerning feudal tenures.
When the fiefs became hereditary, the law relating to the order of
succession must have been in relation to the perpetuity of fiefs. Hence
this rule of the French law, estates of inheritance do not ascend,
[220]
was established in spite of the Roman and Salic laws.
[221]
It was
necessary that service should be paid for the fief; but a grandfather or
a great-uncle would have been too old to perform any service; this rule
thus held good at first only in regard to the feudal tenures, as we
learn from Boutillier.
[222]
When the fiefs became hereditary, the lords who were to see that
service was paid for the fief, insisted that the females who were to
succeed to the feudal estate, and I fancy sometimes the males, should
not marry without their consent; insomuch that the marriage contracts
became in respect to the nobility both of a feudal and a civil
regulation.
[223]
In an act of this kind under the lord's inspection,
regulations were made for the succession, with the view that the heirs
might pay service for the fief: hence none but the nobility at first had
the liberty of disposing of successions by marriage contract, as
Boyer
[224]
and Aufrerius
[225]
have observed.
It is needless to mention that the power of redemption, founded on
the old right of the relatives, a mystery of our ancient French
jurisprudence I have not time to unravel, could not take place with
regard to the fiefs till they became perpetual.
Italiam, Italiam . . .
[226]
I finish my treatise of fiefs at a period where most authors
commence theirs.
Footnotes
[220]
Book iv, de fendis, tit. 59.
[221]
In the title of allodia.
[222]
"Somme Rurale," book i, tit. 76, p. 447.
[223]
According to an ordinance of St. Louis, in the year 1246 to
settle the customs of Anjou and Maine; those who shall have the care of
the heiress of a fief shall give security to the lord, that she shall
not be married without his consent.
[224]
Decision 155, No. 8; and 204, No. 38.
[225]
In "Capell. Thol.," decision 453.
[226]
"Æneid," book iii, v. 523.
