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.
