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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.