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30.20. 20. Of what was afterwards called the Jurisdiction of the Lords.

Besides the composition which they were obliged to pay to the relatives for murders or injuries, they were also under a necessity of paying a certain duty which the codes of the barbarian laws called fredum. [149] I intend to treat of it at large; and in order to give an idea of it, I begin with defining it as a recompense for the protection granted against the right of vengeance. Even to this day, fred in the Swedish language signifies peace.

The administration of justice among those rude and unpolished nations was nothing more than granting to the person who had committed an offence a protection against the vengeance of the party offended, and obliging the latter to accept of the satisfaction due to him: insomuch that among the Germans, contrary to the practice of all other nations, justice was administered in order to protect the criminal against the party injured.

The codes of the Barbarian laws have given us the cases in which the freda might be demanded. When the relatives could not prosecute, they allowed of no fredum; and indeed, when there was no prosecution there could be no composition for a protection against it. Thus, in the law of the Lombards, [150] if a person happened to kill a freeman by accident, he paid the value of the man killed, without the fredum; because, as he had killed him involuntarily, it was not the case in which the relatives were allowed the right of prosecution. Thus in the law of the Ripuarians, [151] when a person was killed with a piece of wood, or with any instrument made by man, the instrument or the wood were deemed culpable, and the relatives seized upon them for their own use, but were not allowed to demand the fredum.

In like manner, when a beast happened to kill a man, the same law established a composition without the fredum, because the relatives of the deceased were not offended. [152]

In fine, it was ordained by the Salic law, [153] that a child who had committed a fault before the age of twelve should pay the composition without the fredum: as he was not yet able to bear arms, he could not be in the case in which the party injured, or his relatives, had a right to demand satisfaction.

It was the criminal that paid the fredum for the peace and security of which he had been deprived by his crime, and which he might recover by protection. But a child did not lose this security; he was not a man, and consequently could not be expelled from human society.

This fredum was a local right in favour of the person who was judge of the district. [154] Yet the law of the Ripuarians [155] forbade him to demand it himself: it ordained that the party who had gained the cause should receive it and carry it to the exchequer, to the end that there might be a lasting peace, says the law among the Ripuarians.

The greatness of the fredum was proportioned to the degree of protection: thus the fredum for the king's protection was greater than what was granted for the protection of the count, or of the other judges. [156]

Here I see the origin of the jurisdiction of the lords. The fiefs comprised very large territories, as appears from a vast number of records. I have already proved that the kings raised no taxes on the lands belonging to the division of the Franks; much less could they reserve to themselves any duties on the fiefs. Those who obtained them had in this respect a full and perfect enjoyment, reaping every possible emolument from them. And as one of the most considerable emoluments was the justiciary profits (freda), [157] which were received according to the usage of the Franks, it followed thence that the person seized of the fief was also seized of the jurisdiction, the exercise of which consisted of the compositions made to the relatives, and of the profits accruing to the lord; it was nothing more than ordering the payment of the compositions of the law, and demanding the legal fines. We find by the formularies containing confirmation of the perpetuity of a fief in favour of a feudal lord, [158] or of the privileges of fiefs in favour of churches, [159] that the fiefs were possessed of this right. This appears also from an infinite number of charters [160] mentioning a prohibition to the king's judges or officers of entering upon the territory in order to exercise any act of judicature whatsoever, or to demand any judiciary emolument. When the king's judges could no longer make any demand in a district, they never entered it; and those to whom this district was left performed the same functions as had been exercised before by the judges.

The king's judges are forbidden also to oblige the parties to give security for their appearing before them; it belonged therefore to the person who had received the territory in fief to demand this security. They mention also that the king's commissaries shall not insist upon being accommodated with a lodging; in effect, they no longer exercised any function in those districts.

The administration therefore of justice, both in the old and new fiefs, was a right inherent in the very fief itself, a lucrative right which constituted a part of it. For this reason it had been considered at all times in this light; whence this maxim arose, that jurisdictions are patrimonial in France.

Some have thought that the jurisdictions derived their origin from the manumissions made by the kings and lords in favour of their bondmen. But the German nations, and those descended from them, are not the only people who manumitted their bondmen, and yet they are the only people that established patrimonial jurisdictions. Besides, we find by the formularies of Marculfus [161] that there were freemen dependent on these jurisdictions in the earliest times: the bondmen were therefore subject to the jurisdiction, because they were upon the territory; and they did not give rise to the fiefs for having been annexed to the fief.

Others have taken a shorter cut; the lords, say they (and this is all they say), usurped the jurisdictions. But are the nations descended from Germany the only people in the world that usurped the rights of princes? We are sufficiently informed by history that several other nations have encroached upon their sovereigns, and yet we find no other instance of what we call the jurisdiction of the lords. The origin of it is therefore to be traced in the usages and customs of the Germans.

Whoever has the curiosity to look into Loyseau [162] will be surprised at the manner in which this author supposes the lords to have proceeded in order to form and usurp their different jurisdictions. They must have been the most artful people in the world; they must have robbed and plundered, not after the manner of a military nation, but as the country justices and the attornies rob one another. Those brave warriors must be said to have formed a general system of politics throughout all the provinces of the kingdom, and in so many other countries in Europe; Loyseau makes them reason as he himself reasoned in his closet.

Once more; if the jurisdiction was not a dependence of the fief, how come we everywhere to find that the service of the fief was to attend the king or the lord, both in their courts and in the army? [163]

Footnotes