The spirit of laws by Charles de Secondat, Baron de Montesquieu

§ 11; the law of the Bavarians, tit. 1, §§ 10 and 11

Download 3.53 Mb.
Size3.53 Mb.
1   ...   51   52   53   54   55   56   57   58   ...   62

§ 11; the law of the Bavarians, tit. 1, §§ 10 and 11.

142. See the law of the Lombards, i, tit. 25 § 21; ibid., i, tit. 9, §§

8, 34; ibid., § 38, and the Capitulary of Charlemagne in the year 802,
cap. xxxii, containing an instruction given to those whom he sent into
the provinces.

143. See in Gregory of Tours, vii. 47, the detail of a process, wherein

a party loses half the composition that had been adjudged to him, for
having done justice to himself, instead of receiving satisfaction,
whatever injury he might have afterwards received.

144. See the law of the Saxons, cap. iii, § 4; the law of the Lombards,

i, tit. 37, §§ 1 and 2; and the law of the Alemans, tit. 45, §§ 1 and 2.
This last law gave leave to the party injured to right himself upon the
spot, and in the first transport of passion. See also the Capitularies
of Charlemagne in the year 779, cap. xxii, in the year 802, cap. xxxii,
and also that of the year 805, cap. v.

145. The compilers of the law of the Ripuarians seem to have softened

this. See the 85th title of those laws.

146. See the decree of Tassillon, De Popularibus legibus, art. 3, 4, 10,

16, 19; the law of the Angli, tit. vii. § 4.

147. Book i, tit. ix, § 4.

148. Pactus pro tenore pads inter Childebertum et Clotarium, anno 593,

et decretio Clotarii 2 regis, circa annum 595, cap. xi.

149. When it was not determined by the law, it was generally the third

of what was given for the composition, as appears in the law of the
Ripuarians, cap. lxxxix, which is explained by the third Capitulary of
the year 813. -- Edition of Baluzius, i, p. 512.

150. Book i, tit. 9, § 17, ed. Lindembrock.

151. Tit. 70.

152. Tit. 46. See also the law of the Lombards, i. cap. xxi, § 3,

Lindembrock's edition, si caballus cum pede, &c.

153. Tit. 28, § 6.

154. As appears by the decree of Clotharius II in the year 595.

155. Tit. 89.

156. Capitulare incerti anni, 57, in Baluzius, i p. 515, and it is to be

observed, that what was called fredum or faida, in the monuments of the
first race, is known by the name of bannum in those of the second race,
as appears from the Capitulary de partibus Saxoniæ, in the year 789.

157. See the Capitulary of Charlemagne, de villis, where he ranks these

freda among the great revenues of what was called villa, or the king's

158. See Marculfus, i, form. 3, 4, 17.

159. See Marculfus, i, form. 2, 3, 4.

160. See the Collections of those charters, especially that at the end

of the 5th volume of the historians of France, published by the
Benedictine monks.

161. See the 3rd, 4th, and 14th of the first book, and the charter of

Charlemagne, in the year 771, in Martene, Anecdot. collect., i, ii.

162. Treatise of village jurisdictions, Loyseau.

163. See Du Cange on the word hominium.

164. See Marculfus, i, form. 3, 4.

165. Ne aliubi nisi ad ecclesiam, ubi relaxati sunt, mallum teneant,

tit. 58, § i. See also § 19. Lindembrock's edition.

166. Tabulariis.

167. Mallum.

168. Vita S. Germeri, Episcopi Tolosani apud Bollandianos 16 Maii.

169. See also the life of St. Melanius, and that of St. Deicola.

170. In the council of Paris, in the year 615, art. 19. See also art.


171. Ibid., art. 5.

172. In the law of the Lombards, ii, tit. 44, cap ii. Lindembrock's


173. Ibid.

174. Letter in the year 858, art. 7 in the Capitularies, p. 108.

175. It is added to the law of the Bavarians, art. 7. See also art. 3.

Lindembrock's edition, p. 444.

176. In the year 857, in synodo apud Carisiacum, art. 4, edition of

Baluzius, p. 96.

177. Tit. 3, cap. xiii. Lindembrock's edition.

178. Tit. 85.

179. In the year 595, arts. 11 and 12, edition of the Capitularies by

Baluzius, p. 19.

180. Arts. 2 and 3.

181. See Du Cange, Glossary, on the word trustis.

182. Inserted in the Law of the Lombards, ii. tit. 52, §14. It is the

Capitulary of the year 793, in Baluzius, p. 544, art. 10.

183. See also the same law of the Lombards, ii, tit. 52, § 2, which

relates to the Capitulary of Charlemagne of the year 779, art. 21.

184. The third of the year 812, art. 10.

185. The second of the year 813, arts. 14, 20, Baluzius' edition, p.


186. Capitulare quintum anni 819 art. 23, Baluzius' edition, p. 617.

187. Edictum in Carisiaco in Baluzius, ii, p. 152.

188. Edictum Pistense, art. 18, Baluzius' edition, ii, p. 181.

189. Lib. 1.

190. I have already quoted it in the preceding chapter, Episcopi vel


191. History, vi.

192. Ibid.

193. Vol. ii, book III, 18, p. 270.

194. See the preliminary discourse of the Abbé du Bos.

195. See the Establishment of the French Monarchy, iii, book VI, 4, p.


196. He cites the 44th title of this law, and the law of the Ripuarians,

tit. 7 and 36.

197. Qui in truste dominicâ est, tit. 44, § 4, and this relates to the

13th formulary of Marculfus, de regis Antrustione. See also tit. 66, of
the Salic law, §§ 3 and 4, and tit. 74; and the law of the Ripuarians,
tit. 11, and the Capitulary of Charles the Bald, apud Carisiacum, in the
year 877, cap. xx.

198. Salic law, tit. 44, § 6.

199. Tit. 44, § 4.

200. Tit. 44, § 1.

201. Tit. 44, § 15.

202. Tit. 44, § 7.

203. Arts. 1, 2, and 3, of tit. 26, of the law of the Burgundians.

204. Establishment of the French Monarchy, iii, book VI. 4, 5

205. Ibid.; iii. 5, pp. 319, 320.

206. Ibid., iii, book VI, 4, pp. 307, 308.

207. Ibid., p. 309, and in the following chapter, pp. 310,320.

208. See xxviii. 28 of this work; and xxxi. 8.

209. Capitulary, Baluzius's edition, i, p. 19.

210. See xxviii. 28 of this work; and xxxi. 8.

211. Chapters 43, 44.

212. Ibid.

213. Establishment of the French Monarchy, iii, book VI, 4, p. 316.

214. Ibid., p. 316.

215. Ibid.

216. De Gestis Ludovici Pii, 43, 44.

217. Chapter 23.

218. Establishment of the French Monarchy, iii, book VI. 4, p. 302.


Book XXXI. Theory of the Feudal Laws among the Franks, in the Relation

They Bear to the Revolutions of their Monarchy

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
ædile 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

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 favourite, 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

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.

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.

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

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

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 Æga. The vassals of
Neustria and Burgundy chose this young prince for their king.[36] Æga
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 Æga, 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.

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.

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.

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

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

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 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.

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

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
Directory: mrhomepage.nsf

Share with your friends:
1   ...   51   52   53   54   55   56   57   58   ...   62

The database is protected by copyright © 2020
send message

    Main page