The Spirit Of Laws Part 33

This would require a particular work to itself; but considering the nature of the present undertaking, the reader will here meet rather with a general survey than with a complete treatise of those laws.

The feudal laws form a very beautiful prospect. A venerable old oak raises its lofty head to the skies, the eye sees from afar its spreading leaves; upon drawing nearer, it perceives the trunk but does not discern the root; the ground must be dug up to discover it.1 2.-Of the Source of Feudal Laws The conquerors of the Roman Empire came from Germany. Though few ancient authors have described their manners, yet we have two of very great weight. Caesar making war against the Germans describes the manners of that nation;2 and upon these he regulated some of his enterprises.3 A few pages of Caesar upon this subject are equal to whole volumes.4 Tacitus has written an entire work on the manners of the Germans. This work is short, but it comes from the pen of Tacitus, who was always concise, because he saw everything at one glance.

These two authors agree so perfectly with the codes still extant of the laws of the barbarians, that reading Caesar and Tacitus we imagine we are perusing these codes, and perusing these codes we fancy we are reading Caesar and Tacitus.

But if in this research into the feudal laws, I should find myself entangled and lost in a dark labyrinth I fancy I have the clue in my hand, and that I shall be able to find my way through.

3.-The Origin of Va.s.salage Caesar says,5 that "The Germans neglected agriculture; that the greatest part of them lived upon milk, cheese, and flesh; that no one had lands or boundaries of his own; that the princes and magistrates of each nation allotted what portion of land they pleased to individuals, and obliged them the year following to remove to some other part." Tacitus says,6 that "Each prince had a mult.i.tude of men, who were attached to his service, and followed him wherever he went." This author gives them a name in his language in accordance with their state, which is that of companions.7 They had a strong emulation to obtain the prince's esteem; and the princes had the same emulation to distinguish themselves in the bravery and number of their companions. "Their dignity and power," continues Tacitus, "consist in being constantly surrounded with a mult.i.tude of young and chosen people; this they reckon their ornament in peace, this their defence and support in war. Their name becomes famous at home, and among neighboring nations, when they excel all others in the number and courage of their companions: they receive presents and emba.s.sies from all parts. Reputation frequently decides the fate of war. In battle it is infamy in the prince to be surpa.s.sed in courage; it is infamy in the companions not to follow the brave example of their prince; it is an eternal disgrace to survive him. To defend him is their most sacred engagement. If a city be at peace, the princes go to those who are at war; and it is thus they retain a great number of friends. To these they give the war horse and the terrible javelin. Their pay consists in coa.r.s.e but plentiful repasts. The prince supports his liberality merely by war and plunder. You might more easily persuade them to attack an enemy and to expose themselves to the dangers of war, than to cultivate the land, or to attend to the cares of husbandry; they refuse to acquire by sweat what they can purchase with blood."

Thus, among the Germans, there were va.s.sals, but no fiefs; they had no fiefs, because the princes had no lands to give; or rather their fiefs consisted in horses trained for war, in arms, and feasting. There were va.s.sals, because there were trusty men who being bound by their word engaged to follow the prince to the field, and did very nearly the same service as was afterwards performed for the fiefs.

4.-The same Subject continued Caesar says,8 that "when any of the princes declared to the a.s.sembly that he intended to set out upon an expedition and ask them to follow him, those who approved the leader and the enterprise stood up and offered their a.s.sistance. Upon which they were commended by the mult.i.tude. But, if they did not fulfil their engagements, they lost the public esteem, and were looked upon as deserters and traitors."

What Caesar says in this place, and what we have extracted in the preceding chapter from Tacitus, are the substance of the history of our princes of the first race.

We must not, therefore, be surprised, that our kings should have new armies to raise upon every expedition, new troops to encourage, new people to engage; that to acquire much they were obliged to incur great expenses; that they should be constant gainers by the division of lands and spoils, and yet give these lands and spoils incessantly away: that their demesne should continually increase and diminish; that a father upon settling a kingdom on one of his children9 should always give him a treasure with it: that the king's treasure should be considered as necessary to the monarchy; and that one king could not give part of it to foreigners, even in portion with his daughter, without the consent of the other kings.10 The monarchy moved by springs, which they were continually obliged to wind up.

5.-Of the Conquests of the Franks It is not true that the Franks upon entering Gaul took possession of the whole country to turn it into fiefs. Some have been of this opinion because they saw the greatest part of the country towards the end of the second race converted into fiefs, rear-fiefs, or other dependencies; but such a disposition was owing to particular causes which we shall explain hereafter.

The consequence which sundry writers would infer thence, that the barbarians made a general regulation for establis.h.i.+ng in all parts the state of villanage is as false as the principle from which it is derived. If at a time when the fiefs were precarious, all the lands of the kingdom had been fiefs, or dependencies of fiefs; and all the men in the kingdom va.s.sals or bondmen subordinate to va.s.sals; as the person that has property is ever possessed of power, the king, who would have continually disposed of the fiefs, that is, of the only property then existing, would have had a power as arbitrary as that of the Sultan is in Turkey; which is contradictory to all history.

6.-Of the Goths, Burgundians, and Franks Gaul was invaded by German nations. The Visigoths took possession of the province of Narbonne, and of almost all the South; the Burgundians settled in the East; and the Franks subdued very nearly all the rest.

No doubt but these barbarians retained in their respective conquests the manners, inclinations, and usages of their own country; for no nation can change in an instant their manner of thinking and acting. These people in Germany neglected agriculture. It seems by Caesar and Tacitus that they applied themselves greatly to a pastoral life; hence the regulations of the codes of barbarian laws almost all relate to their flocks. Roricon, who wrote a history among the Franks, was a shepherd.11 7.-Different Ways of dividing the Land After the Goths and Burgundians had, under various pretences, penetrated into the heart of the empire, the Romans, in order to put a stop to their devastations, were obliged to provide for their subsistence. At first they allowed them corn;12 but afterwards chose to give them lands. The emperors, or the Roman magistrates, in their name, made particular conventions with them concerning the division of lands,13 as we find in the chronicles and in the codes of the Visigoths14 and Burgundians.15 The Franks did not follow the same plan. In the Salic and Ripuarian laws, we find not the least vestige of any such division of lands; they had conquered the country, and so took what they pleased, making no regulations but among themselves.

Let us, therefore, distinguish between the conduct of the Burgundians and Visigoths in Gaul, of those same Visigoths in Spain, of the auxiliary troops under Augustulus and Odoacer in Italy,16 and that of the Franks in Gaul, as also of the Vandals in Africa.17 The former entered into conventions with the ancient inhabitants, and in consequence thereof made a division of lands between them; the latter did no such thing.

8-The same Subject continued What has induced some to think that the Roman lands were entirely usurped by the barbarians is, their finding in the laws of the Visigoths and the Burgundians that these two nations had two-thirds of the lands; but this they took only in certain quarters or districts a.s.signed them.

Gundebald says, in the law of the Burgundians, that his people at their establishment had two-thirds of the lands allowed them;18 and the second supplement to this law notices that only a moiety would be allowed to those who should hereafter come to live in that country.19 Therefore, all the lands had not been divided in the beginning between the Romans and the Burgundians.

In those two regulations we meet with the same expressions in the text, consequently they explain one another; and as the latter cannot mean a universal division of lands, neither can this signification be given to the former.

The Franks acted with the same moderation as the Burgundians; they did not strip the Romans wherever they extended their conquests. What would they have done with so much land? They took what suited them, and left the remainder.

9.-A just Application of the Law of the Burgundians, and of that of the Visigoths, in relation to the Division of Lands It is to be considered that those divisions of land were not made with a tyrannical spirit; but with a view of relieving the reciprocal wants of two nations that were to inhabit the same country.

The law of the Burgundians ordains that a Burgundian shall be received in an hospitable manner by a Roman. This is agreeable to the manners of the Germans, who, according to Tacitus, were the most hospitable people in the world.

By the law of the Burgundians, it is ordained that the Burgundians shall have two-thirds of the lands, and one-third of the bondmen. In this it considered the genius of two nations, and conformed to the manner in which they procured their subsistence. As the Burgundians kept herds and flocks, they wanted a great deal of land and few bondmen, and the Romans from their application to agriculture had need of less land and of a greater number of bondmen. The woods were equally divided, because their wants in this respect were the same.20 We find in the code of the Burgundians,21 that each barbarian was placed near a Roman. The division, therefore, was not general; but the Romans who gave the division were equal in number to the Burgundians who received it. The Roman was injured least. The Burgundians as a martial people, fond of hunting and of a pastoral life, did not refuse to accept of the fallow grounds; while the Romans kept such lands as were properest for culture: the Burgundian's flock fattened the Roman's field.

10.-Of Servitudes The law of the Burgundians notices22 that when those people settled in Gaul, they were allowed two-thirds of the land, and one-third of the bondmen. The state of villanage was, therefore, established in that part of Gaul before it was invaded by the Burgundians.23 The law of the Burgundians, in points relating to the two nations, makes a formal distinction in both, between the n.o.bles, the free-born and the bondmen.24 Servitude was not, therefore, a thing peculiar to the Romans; nor liberty and n.o.bility to the barbarians.

This very same law says,25 that if a Burgundian freed-man had not given a certain sum to his master, nor received a third share of a Roman, he was always supposed to belong to his master's family. The Roman proprietor was therefore free, since he did not belong to another person's family; he was free, because his third portion was a mark of liberty.

We need only open the Salic and Ripuarian laws to be satisfied, that the Romans were no more in a state of servitude among the Franks than among the other conquerors of Gaul.

The Count de Boulainvilliers26 is mistaken in the capital point of his system: he has not proved that the Franks made a general regulation which reduced the Romans into a kind of servitude.

As this author's work is penned without art, and as he speaks with the simplicity, frankness, and candor of that ancient n.o.bility whence he descends, every one is capable of judging of the good things he says, and of the errors into which he has fallen. I shall not, therefore, undertake to criticise him; I shall only observe, that he had more wit than enlightenment, more enlightenment than learning; though his learning was not contemptible, for he was well acquainted with the most valuable part of our history and laws.

The Count de Boulainvilliers and the Abbe du Bos27 have formed two different systems, one of which seems to be a conspiracy against the commons, and the other against the n.o.bility. When the sun gave leave to Phaeton to drive his chariot, he said to him, "If you ascend too high, you will burn the heavenly mansions; if you descend too low, you will reduce the earth to ashes; do not drive to the right, you will meet there with the constellation of the Serpent; avoid going too much to the left, you will there fall in with that of the Altar: keep in the middle."28 11.-The same Subject continued What first gave rise to the notion of a general regulation made at the time of the conquest was our meeting with an immense number of forms of servitude in France, towards the beginning of the third race; and as the continual progression of these forms of servitude was not perceived, people imagined in an age of obscurity a general law which was never framed.

Towards the commencement of the first race we meet with an infinite number of freemen, both among the Franks and the Romans; but the number of bondmen increased to that degree, that at the beginning of the third race, all the husbandmen and almost all the inhabitants of towns had become bondmen:29 and whereas, at the first period, there was very nearly the same administration in the cities as among the Romans, namely, a corporation, a senate, and courts of judicature; at the other we hardly meet with anything but a lord and his bondmen.

When the Franks, Burgundians, and Goths made their several invasions, they seized upon gold, silver, movables, clothes, men, women, boys, and whatever the army could carry; the whole was brought to one place, and divided among the army.30 History shows, that after the first settlement, that is, after the first devastation, they entered into an agreement with the inhabitants, and left them all their political and civil rights. This was the law of nations in those days; they plundered everything in time of war, and granted everything in time of peace. Were it not so, how should we find both in the Salic and Burgundian laws such a number of regulations absolutely contrary to a general servitude of the people?

But though the conquest was not immediately productive of servitude, it arose nevertheless from the same law of nations which subsisted after the conquest.31 Opposition, revolts, and the taking of towns were followed by the slavery of the inhabitants. And, not to mention the wars which the conquering nations made against one another, as there was this peculiarity among the Franks, that the different part.i.tions of the monarchy gave rise continually to civil wars between brothers or nephews, in which this law of nations was constantly practised, servitudes, of course, became more general in France than in other countries: and this is, I believe, one of the causes of the difference between our French laws and those of Italy and Spain, in respect to the right of seigniories.

The conquest was soon over, and the law of nations then in force was productive of some servile dependence. The custom of the same law of nations, which obtained for many ages, gave a prodigious extent to those servitudes.

Theodoric32 imagining that the people of Auvergne were not faithful to him, thus addressed the Franks of his division: "Follow me, and I will carry you into a country where you shall have gold, silver, captives, clothes, and flocks in abundance; and you shall remove all the people into your own country."

After the conclusion of the peace between Gontram and Chilperic the troops employed in the siege of Bourges, having had orders to return, carried such a considerable booty away with them, that they hardly left either men or cattle in the country.33 Theodoric, King of Italy, whose spirit and policy it was ever to distinguish himself from the other barbarian kings, upon sending an army into Gaul, wrote thus to the general:34 "It is my will that the Roman laws be followed, and that you restore the fugitive slaves to their right owners. The defender of liberty ought not to encourage servants to desert their masters. Let other kings delight in the plunder and devastation of the towns which they have subdued; we are desirous to conquer in such a manner, that our subjects shall lament their having fallen too late under our government." It is evident that his intention was to cast odium on the kings of the Franks and the Burgundians, and that he alluded in the above pa.s.sage to their particular law of nations.

Yet this law of nations continued in force under the second race. King Pepin's army, having penetrated into Aquitaine, returned to France loaded with an immense booty, and with a number of bondmen, as we are informed by the Annals of Metz.35 Here might I quote numberless authorities;36 and as the public compa.s.sion was raised at the sight of those miseries, as several holy prelates, beholding the captives in chains, employed the treasure belonging to the church, and sold even the sacred utensils, to ransom as many as they could; and as several holy monks exerted themselves on that occasion, it is in the "Lives of the Saints" that we meet with the best explanations on the subject.37 And, although it may be objected to the authors of those lives that they have been sometimes a little too credulous in respect to things which G.o.d has certainly performed, if they were in the order of his providence; yet we draw considerable light thence with regard to the manners and usages of those times.

When we cast an eye upon the monuments of our history and laws, the whole seems to be an immense expanse, a boundless ocean;38 all those frigid, dry, insipid, and hard writings must be read and devoured in the same manner as Saturn is fabled to have devoured the stones.

A vast quant.i.ty of land which had been in the hands of freemen39 was changed into mortmain. When the country was stripped of its free inhabitants; those who had a great mult.i.tude of bondmen either took large territories by force, or had them yielded by agreement, and built villages, as may be seen in different charters. On the other hand, the freemen who cultivated the arts found themselves reduced to exercise those arts in a state of servitude; thus the servitudes restored to the arts and to agriculture whatever they had lost.

It was a customary thing with the proprietors of lands, to give them to the churches, in order to hold them themselves by a quit-rent, thinking to partake by their servitude of the sanct.i.ty of the churches.

12.-That the Lands belonging to the Division of the Barbarians paid no Taxes A people remarkable for their simplicity and poverty, a free and martial people, who lived without any other industry than that of tending their flocks, and who had nothing but rush cottages to attach them to their lands,40 such a people, I say, must have followed their chiefs for the sake of booty, and not to pay or to raise taxes. The art of tax-gathering was invented later, and when men began to enjoy the blessings of other arts.

The temporary tax of a pitcher of wine for every acre,41 which was one of the exactions of Chilperic and Fredegonda, related only to the Romans. And, indeed, it was not the Franks that tore the rolls of those taxes, but the clergy, who in those days were all Romans.42 The burden of this tax lay chiefly on the inhabitants of the towns;43 now these were almost all inhabited by Romans.

Gregory of Tours relates,44 that a certain judge was obliged, after the death of Chilperic, to take refuge in a church, for having under the reign of that prince ordered taxes to be levied on several Franks who in the reign of Childebert were ingenui, or free-born: "Multos de Francis, qui tempore Childeberti regis ingenui fuerant, publico tributo subegit." Therefore the Franks who were not bondmen paid no taxes.

There is not a grammarian but would turn pale to see how the Abbe du Bos has interpreted this pa.s.sage.45 He observes, that in those days the freedmen were also called ingenui. Upon this supposition he renders the Latin word ingenui, by the words "freed from taxes"; a phrase which we indeed may use in French, as we say "freed from cares," "freed from punishments"; but in the Latin tongue such expressions as ingenui a tributis libertini a tributis, manumissi tributorum, would be quite monstrous.46 Parthenius, says Gregory of Tours,47 had like to have been put to death by the Franks for subjecting them to taxes. The Abbe du Bos finding himself hard pressed by this pa.s.sage48 very coolly a.s.sumes the thing in question; it was, says he, a surcharge.

We find in the law of the Visigoths,49 that when a barbarian had seized upon the estate of a Roman, the judge obliged him to sell it, to the end that this estate might continue to be tributary; consequently the barbarians paid no land taxes.50 The Abbe du Bos,51 who would fain have the Visigoths subjected to taxes,52 quits the literal and spiritual sense of the law, and pretends, upon no other indeed than an imaginary foundation, that between the establishment of the Goths and this law, there had been an augmentation of taxes which related only to the Romans. But none but Father Harduin are allowed thus to exercise an arbitrary power over facts.

This learned author53 has rummaged Justinian's code,54 in search of laws to prove, that among the Romans, the military benefices were subject to taxes. Whence he would infer that the same held good with regard to fiefs or benefices among the Franks. But the opinion that our fiefs derive their origin from that Inst.i.tution of the Romans is at present exploded; it obtained only at a time when the Roman history, not ours, was well understood, and our ancient records lay buried in obscurity and dust.

But the abbe is in the wrong to quote Ca.s.siodorus, and to make use of what was transacting in Italy, and in the part of Gaul subject to Theodoric, in order to acquaint us with the practice established among the Franks; these are things which must not be confounded. I propose to show, some time or other, in a certain work, that the plan of the monarchy of the Ostrogoths was entirely different from that of any other government founded in those days by the other barbarian nations; and that so far from our being ent.i.tled to affirm that a practice obtained among the Franks because it was established among the Ostrogoths we have on the contrary just reason to think that a custom of the Ostrogoths was not in force among the Franks.

The hardest task for persons of extensive erudition is, to seek their proofs in such pa.s.sages as bear upon the subject, and to find, if we may be allowed to express ourselves in astronomical terms, the position of the sun.

The same author makes a wrong use of the capitularies, as well as of the historians and laws of the barbarous nations. When he wants the Franks to pay taxes, he applies to freemen what can be understood only of bondmen;55 when he speaks of their military service, he applies to bondmen what can never relate but to freemen.56 13.-Of Taxes paid by the Romans and Gauls in the Monarchy of the Franks I might here examine whether, after the Gauls and Romans were conquered, they continued to pay the taxes to which they were subject under the emperors. But, for the sake of brevity, I shall be satisfied with observing, that if they paid them in the beginning, they were soon after exempted, and that those taxes were changed into a military service. For, I confess, I can hardly conceive how the Franks should have been at first such great friends, and afterwards such sudden and violent enemies, to taxes.

A Capitulary57 of Louis the Debonnaire explains extremely well the situation of the freemen in the monarchy of the Franks. Some troops of Goths or Iberians,58 flying from the oppression of the Moors, were received into Louis's dominions. The agreement made with them was that, like other freemen, they should follow their count to the army; and, that upon a march they should mount guard and patrol under the command also of their count;59 and that they should furnish horses and carriages for baggage to the king's commissaries,60 and to the amba.s.sadors in their way to or from court; and that they should not be compelled to pay any further impost, but should be treated as the other freemen.

It cannot be said, that these were new usages introduced at the commencement of the second race. This must be referred at least to the middle or to the end of the first. A capitulary of the year 86461 says in express terms that it was the ancient custom for freemen to perform military service, and to furnish likewise the horses and carriages above mentioned; duties particular to themselves, and from which those who possessed the fiefs were exempt, as I shall prove hereafter.

This is not all; there was a regulation which hardly permitted the imposing of taxes on those freemen.62 He who had four manors was always obliged to march against the enemy:63 he who had but three was joined with a freeman that had only one; the latter bore the fourth part of the other's charges, and stayed at home. In like manner, they joined two freemen who had each two manors; he who went to the army had half his charges borne by him who stayed at home.

Again, we have an infinite number of charters, in which the privileges of fiefs are granted to lands or districts possessed by freemen, and of which I shall make further mention hereafter.64 These lands are exempted from all the duties or services which were required of them by the counts, and by the rest of the king's officers; and as all these services are particularly enumerated without making any mention of taxes, it is manifest that no taxes were imposed upon them.

It was very natural that the Roman system of taxation should of itself fall out of use in the monarchy of the Franks; it was a most complicated device, far above the conception, and wide from the plan of those simple people. Were the Tartars to overrun Europe, we should find it very difficult to make them comprehend what is meant by our financiers.

The anonymous author of the "Life of Louis the Debonnaire,"65 speaking of the counts and other officers of the nation of the Franks, whom Charlemagne established in Aquitania, says, that he intrusted them with the care of defending the frontiers, as also with the military power and the direction of the demesnes belonging to the crown. This shows the state of the royal revenues under the second race. The prince had kept his demesnes in his own hands, and employed his bondmen in improving them. But the indications, the capitations, and other imposts raised at the time of the emperors on the persons or goods of freemen had been changed into an obligation of defending the frontiers, and marching against the enemy.

In the same history,66 we find that Louis the Debonnaire, having been to wait upon his father in Germany, this prince asked him, why he, who was a crowned head, came to be so poor; To which Louis made answer, that he was only a nominal king, and that the great lords were possessed of almost all his demesnes; that Charlemagne being apprehensive lest this young prince should forfeit their affection, if he attempted himself to resume what he had inconsiderately granted, appointed commissaries to restore things to their former situation.

The bishops, writing67 to Louis, brother of Charles the Bald, used these words: "Take care of your lands, that you may not be obliged to travel continually by the houses of the clergy, and to tire their bondmen with carriages. Manage your affairs," continue they, "in such a manner, that you may have enough to live upon, and to receive emba.s.sies." It is evident that the king's revenues in those days consisted of their demesnes.68 14.-Of what they called Census After the barbarians had quitted their own country, they were desirous of reducing their usages into writing; but as they found difficulty in writing German words with Roman letters, they published these laws in Latin.

In the confusion and rapidity of the conquest, most things changed their nature; in order, however, to express them, they were obliged to make use of such old Latin words as were most a.n.a.logous to the new usages. Thus, whatever was likely to revive the idea of the ancient census of the Romans they called by the name of census tributum;69 and when things had no relation at all to the Roman census, they expressed, as well as they could, the German words by Roman letters; thus they formed the word fredum, on which I shall have occasion to descant in the following chapters.

The words census and tributum having been employed in an arbitrary manner this has thrown some obscurity on the signification in which these words were used under our princes of the first and second race. And modern authors70 who have adopted particular systems, having found these words in the writings of those days, imagined that what was then called census, was exactly the census of the Romans; and thence they inferred this consequence, that our kings of the first two races had put themselves in the place of the Roman emperors, and made no change in their administration.71 Besides, as particular duties raised under the second race were by change and by certain restrictions converted into others,72 they inferred thence that these duties were the census of the Romans; and as, since the modern regulations, they found that the crown demesnes were absolutely unalienable, they pretended that those duties which represented the Roman census, and did not form a part of the demesnes, were mere usurpation. I omit the other consequences.

To apply the idea of the present time to distant ages is the most fruitful source of error. To those people who want to modernize all the ancient ages, I shall say what the Egyptian priests said to Solon, "O Athenians, you are mere children!"73 15.-That what they called Census was raised only on the Bondmen and not on the Freemen The king, the clergy, and the lords raised regular taxes, each on the bondmen of their respective demesnes. I prove it with respect to the king, by the Capitulary de Villis; with regard to the clergy, by the codes of the laws of the barbarians74 and in relation to the lords, by the regulations which Charlemagne made concerning this subject.75 These taxes were called census; they were economical and not fiscal claims, entirely private dues and not public taxes.

I affirm, that what they called census at that time was a tax raised upon the bondmen. This I prove by a formulary of Marculfus containing a permission from the king to enter into holy orders, provided the persons be free-born,76 and not enrolled in the register of the census. I prove it also by a commission from Charlemagne to a count77 whom he had sent into Saxony, which contains the enfranchis.e.m.e.nt of the Saxons for having embraced Christianity, and is properly a charter of freedom.78 This prince restores them to their former civil liberty,79 and exempts them from paying the census. It was, therefore, the same thing to be a bondman as to pay the census, to be free as not to pay it.

By a kind of letters-patent of the same prince in favor of the Spaniards,80 who had been received into the monarchy, the counts are forbidden to demand any census of them, or to deprive them of their lands. That strangers upon their coming to France were treated as bondmen is a thing well known; and Charlemagne being desirous they should be considered as freemen, since he would have them be proprietors of their lands, forbade the demanding any census of them.

A Capitulary of Charles the Bald,81 given in favor of those very Spaniards, orders them to be treated like the other Franks, and forbids the requiring any census of them; consequently this census was not paid by freemen.

The thirtieth article of the Edict of Pistes reforms the abuse by which several of the husbandmen belonging to the king or to the church sold the lands dependent on their manors to ecclesiastics or to people of their condition, reserving only a small cottage to themselves; by which means they avoided paying the census; and it ordains that things should be restored to their primitive situation: the census was, therefore, a tax peculiar to bondmen.

Thence also it follows, that there was no general census in the monarchy; and this is clear from a great number of pa.s.sages. For what could be the meaning of this capitulary,82 "We ordain that the royal census should be levied in all places, where formerly it was lawfully levied"?83 What could be the meaning of that in which Charlemagne84 orders his commissaries in the provinces to make an exact inquiry into all the census that belonged in former times to the king's demesne?85 And of that86 in which he disposes of the census paid by those87 of whom they are demanded? What can that other capitulary mean88 in which we read, "If any person has acquired a tributary land89 on which we were accustomed to levy the census "? And that other, in fine,90 in which Charles the Bald91 makes mention of feudal lands whose census had from time immemorial belonged to the king?

Observe that there are some pa.s.sages which seem at first sight to be contrary to what I have said, and yet confirm it. We have already seen that the freemen in the monarchy were obliged only to furnish particular carriages; the capitulary just now cited gives to this the name of census,92 and opposes it to the census paid by the bondmen.

Besides, the Edict of Pistes93 notices those freemen who are obliged to pay the royal census for their head and for their cottages,94 and who had sold themselves during the famine. The king orders them to be ransomed. This is because those who were manumitted by the king's letters95 did not, generally speaking, acquire a full and perfect liberty,96 but they paid censum in capite; and these are the people here meant.

We must, therefore, waive the idea of a general and universal census, derived from that of the Romans, from which the rights of the lords are also supposed to have been derived by usurpation. What was called census in the French monarchy, independently of the abuse made of that word, was a particular tax imposed on the bondmen by their masters.

I beg the reader to excuse the trouble I must give him with such a number of citations. I should be more concise did I not meet with the Abbe du Bos's book on the establishment of the French monarchy in Gaul, continually in my way. Nothing is a greater obstacle to our progress in knowledge, than a bad performance of a celebrated author; because, before we instruct we must begin with undeceiving.

16.-Of the feudal Lords or Va.s.sals I have noticed those volunteers among the Germans, who have followed their princes in their several expeditions. The same usage continued after the conquest. Tacitus mentions them by the name of companions;97 the Salic law by that of men who have vowed fealty to the king;98 the formularies of Marculfus99 by that of the king's "antrustios,"100 the earliest French historians by that of "leudes,"101 faithful and loyal; and those of later date by that of va.s.sals and lords.102 In the Salic and Ripuarian laws we meet with an infinite number of regulations in regard to the Franks, and only with a few for the antrustios. The regulations concerning the antrustios are different from those which were made for the other Franks; they are full of what relates to the settling of the property of the Franks but mention not a word concerning that of the antrustios. This is because the property of the latter was regulated rather by the political than by the civil law, and was the share that fell to an army, and not the patrimony of a family.

The goods reserved for the feudal lords were called fiscal goods, benefices, honors, and fiefs, by different authors, and in different times.103 There is no doubt but the fiefs at first were at will.104 We find in Gregory of Tours,105 that Sunegisilus and Galloma.n.u.s were deprived of all they held of the exchequer, and no more was left them than their real property. When Gontram raised his nephew Childebert to the throne, he had a private conference with him, in which he named the persons who ought to be honored with, and those who ought to be deprived of, the fiefs.106 In a formulary of Marculfus,107 the king gives in exchange, not only the benefices held by his exchequer, but likewise those which had been held by another. The law of the Lombards opposes the benefices to property.108 In this, our historians, the formularies, the codes of the different barbarous nations, and all the monuments of those days are unanimous. In fine, the writers of the book of fiefs inform us,109 that at first the lords could take them back when they pleased, that afterwards they granted them for the s.p.a.ce of a year,110 and that at length they gave them for life.

17.-Of the military Service of Freemen Two sorts of people were bound to military service; the great and lesser va.s.sals, who were obliged in consequence of their fiefs; and the freemen, whether Franks, Romans, or Gauls, who served under the count and were commanded by him and his officers.

The name of freemen was given to those, who on the one hand had no benefits or fiefs, and on the other were not subject to the base services of villanage; the lands they possessed were what they called allodial estates.

The counts a.s.sembled the freemen,111 and led them against the enemy; they had officers under them who were called vicars;112 and as all the freemen were divided into hundreds, which const.i.tuted what they called a borough, the counts had also officers under them, who were denominated centenarii, and led the freemen of the borough, or their hundreds, to the field.113 This division into hundreds is posterior to the establishment of the Franks in Gaul. It was made by Clotharius and Childebert, with a view of obliging each district to answer for the robberies committed in their division; this we find in the decrees of those princes.114 A regulation of this kind is to this very day observed in England.

As the counts led the freemen against the enemy, the feudal lords commanded also their va.s.sals or rear-va.s.sals; and the bishops, abbots, or their advocates115 likewise commanded theirs.116 The bishops were greatly embarra.s.sed and inconsistent with themselves;117 they requested Charlemagne not to oblige them any longer to military service; and when he granted their request, they complained that he had deprived them of the public esteem; so that this prince was obliged to justify his intentions upon this head. Be that as it may, when they were exempted from marching against the enemy I do not find that their va.s.sals were led by the counts; on the contrary, we see that the kings or the bishops chose one of their feudatories to conduct them.118 In a Capitulary of Louis the Debonnaire,119 this prince distinguishes three sorts of va.s.sals, those belonging to the king, those to the bishops, and those to the counts. The va.s.sals of a feudal lord were not led against the enemy by the count, except some employment in the king's household hindered the lord himself from commanding them.120 But who is it that led the feudal lords into the field? No doubt the king himself, who was always at the head of his faithful va.s.sals. Hence we constantly find in the Capitularies a distinction made between the king's va.s.sals and those of the bishops.121 Such brave and magnanimous princes as our kings did not take the field to put themselves at the head of an ecclesiastic militia; these were not the men they chose to conquer or to die with.

But these lords likewise carried their va.s.sals and rear-va.s.sals with them, as we can prove by the Capitulary in which Charlemagne ordains that every freeman who has four manors, either in his own property or as a benefice from somebody else, should march against the enemy or follow his lord.122 It is evident, that Charlemagne means, that the person who had a manor of his own should march under the count and he who held a benefice of a lord should set out along with him.

And yet the Abbe du Bos pretends,123 that when mention is made in the Capitularies of tenants who depended on a particular lord, no others are meant than bondmen; and he grounds his opinion on the law of the Visigoths and the practice of that nation. It is much better to rely on the Capitularies themselves; that which I have just quoted says expressly the contrary. The treaty between Charles the Bald and his brothers notices also those freemen who might choose to follow either a lord or the king; and this regulation is conformable to a great many others.

We may, therefore, conclude, that there were three sorts of military services; that of the king's va.s.sals, who had other va.s.sals under them; that of the bishops or of the other clergy and their va.s.sals, and, in fine, that of the count, who commanded the freemen.

Not but the va.s.sals might be also subject to the count; as those who have a particular command are subordinate to him who is invested with a more general authority.

We even find that the count and the king's commissaries might oblige them to pay the fine when they had not fulfilled the engagements of their fief. In like manner, if the king's va.s.sals committed any outrage124 they were subject to the correction of the count, unless they choose to submit rather to that of the king.

18.-Of the double Service It was a fundamental principle of the monarchy that whosoever was subject to the military power of another person was subject also to his civil jurisdiction. Thus the Capitulary of Louis the Debonnaire,125 in the year 815, makes the military power of the count and his civil jurisdiction over the freemen keep always an equal pace. Thus the placita126 of the count who carried the freemen against the enemy were called the placita of the freemen;127 whence undoubtedly came this maxim, that the questions relating to liberty could be decided only in the count's placita, and not in those of his officers. Thus the count never led the va.s.sals128 belonging to the bishops or to the abbots, against the enemy, because they were not subject to his civil jurisdiction. Thus, he never commanded the rear-va.s.sals belonging to the king's va.s.sals. Thus the glossary of the English laws informs us,129 that those to whom the Saxons gave the name of coples130 were by the Normans called counts, or companions, because they shared the justiciary fines with the king. Thus we see, that at all times the duty of a va.s.sal towards his lord131 was to bear arms,132 and to try his peers in his court.

One of the reasons which produced this connection between the judiciary right and that of leading the forces against the enemy was because the person who led them exacted at the same time the payment of the fiscal duties, which consisted in some carriage services due by the freemen, and in general in certain judiciary profits, of which we shall treat hereafter.

The lords had the right of administering justice in their fief, by the same principle as the counts had it in their counties. And, indeed, the counties in the several variations that happened at different times always followed the variations of the fiefs; both were governed by the same plan, and by the same principles. In a word, the counts in their counties were lords, and the lords in their seigniories were counts.

It has been a mistake to consider the counts as civil officers, and the dukes as military commanders. Both were equally civil and military officers:133 the whole difference consisted in the duke's having several counts under him, though there were counts who had no duke over them, as we learn from Fredegarius.134 It will be imagined, perhaps, that the government of the Franks must have been very severe at that time, since the same officers were invested with a military and civil power, nay, even with a fiscal authority, over the subjects; which in the preceding books I have observed to be distinguis.h.i.+ng marks of despotism.

But we must not believe that the counts p.r.o.nounced judgment by themselves, and administered justice in the same manner as the bashaws in Turkey; in order to judge affairs, they a.s.sembled a kind of a.s.sizes, where the princ.i.p.al men appeared.

To the end we may thoroughly understand what relates to the judicial proceedings in the formulas, in the laws of the barbarians and in the Capitularies, it is proper to observe that the functions of the count, of the grafio or fiscal judge, and the centenarius were the same; that the judges, the rathimburghers, and the aldermen were the same persons under different names. These were the count's a.s.sistants, and were generally seven in number; and as he was obliged to have twelve persons to judge,135 he filled up the number with the princ.i.p.al men.136 But whoever had the jurisdiction, the king, the count, the grafio, the centenarius, the lords, or the clergy, they never tried causes alone; and this usage, which derived its origin from the forests of Germany, was still continued even after the fiefs had a.s.sumed a new form.

With regard to the fiscal power, its nature was such that the count could hardly abuse it. The rights of the prince in respect to the freemen were so simple that they consisted only, as we have already observed, in certain carriages which were demanded of them on some public occasions.137 And as for the judiciary rights, there were laws which prevented misdemeanors.138 19.-Of Compositions among the barbarous Nations Since it is impossible to gain any insight into our political law unless we are thoroughly acquainted with the laws and manners of the German nations, I shall, therefore, pause here awhile, in order to inquire into those manners and laws.

It appears by Tacitus, that the Germans knew only two capital crimes; they hanged traitors, and drowned cowards; these were the only public crimes among that people. When a man had injured another, the relatives of the person injured took share in the quarrel, and the offence was cancelled by a satisfaction.139 This satisfaction was made to the person offended, when capable of receiving it; or to the relatives if they had been injured in common, or if by the decease of the party aggrieved or injured the satisfaction had devolved to them.

In the manner mentioned by Tacitus, these satisfactions were made by the mutual agreement of the parties; hence in the codes of the barbarous nations these satisfactions are called compositions.

The law of the Frisians140 is the only one I find that has left the people in that situation in which every family at variance was in some measure in the state of nature, and in which being unrestrained either by a political or civil law they might give freedom to their revenge till they had obtained satisfaction. Even this law was moderated; a regulation was made141 that the person whose life was sought after should be unmolested in his own house, as also in going and coming from church and the court where causes were tried.

The compilers of the Salic law142 cite an ancient usage of the Franks, by which a person who had dug a corpse out of the ground, in order to strip it, should be banished from society till the relatives had consented to his being readmitted. And as before that time strict orders were issued to everyone, even to the offender's own wife, not to give him a morsel of bread, or to receive him under their roofs, such a person was in respect to others, and others in respect to him, in a state of savagery till an end was put to this state by a composition.

This excepted, we find that the sages of the different barbarous nations thought of determining by themselves what would have been too long and too dangerous to expect from the mutual agreement of the parties. They took care to fix the value of the composition which the party wronged or injured was to receive. All those barbarian laws are in this respect most admirably exact; the several cases are minutely distinguished,143 the circ.u.mstances are weighed, the law subst.i.tutes itself in the place of the person injured and insists upon the same satisfaction as he himself would have demanded in cold blood.

By the establis.h.i.+ng of those laws, the German nations quitted that state of nature in which they seemed to have lived in Tacitus's time.

Rotharis declares, in the law of the Lombards,144 that he had increased the compositions allowed by ancient custom for wounds, to the end that the wounded person being fully satisfied, all enmities should cease. And, indeed, as the Lombards, from a very poor people had grown rich by the conquest of Italy, the ancient compositions had become frivolous, and reconcilements prevented. I do not question but this was the motive which obliged the other chiefs of the conquering nations to make the different codes of laws now extant.

The princ.i.p.al composition was that which the murderer paid to the relatives of the deceased. The difference of conditions produced a difference in the compositions.145 Thus in the law of the Angli, there was a composition of six hundred sous for the murder of an adeling, two hundred for that of a freeman, and thirty for killing a bondman. The largeness, therefore, of the composition for the life of a man was one of his chief privileges; for besides the distinction it made of his person, it likewise established a greater security in his favor among rude and boisterous nations.

This we are made sensible of by the law of the Bavarians:146 it gives the names of the Bavarian families who received a double composition, because they were the first after the Agilolfings.147 The Agilolfings were of the ducal race, and it was customary with this nation to choose a duke out of that family; these had a quadruple composition. The composition for a duke exceeded by a third that which had been established for the Agilolfings. "Because he is a duke," says the law, "a greater honor is paid to him than to his relatives."

All these compositions were valued in money. But as those people, especially when they lived in Germany, had very little specie, they might pay it in cattle, corn, movables, arms, dogs, hawks, lands, etc.148 The law itself frequently determined the value of those things; which explains how it was possible for them to have such a number of pecuniary punishments with so very little money.149 These laws were, therefore, employed in exactly determining the difference of wrongs, injuries, and crimes; to the end that everyone might know how far he had been injured or offended, the reparation he was to receive, and especially that he was to receive no more.

In this light it is easy to conceive, that a person who had taken revenge after having received satisfaction was guilty of a heinous crime. This contained a public as well as a private offence; it was a contempt of the law of itself; a crime which the legislators never failed to punish.150 There was another crime which above all others was considered as dangerous, when those people lost something of their spirit of independence, and when the kings endeavored to establish a better civil administration; this was, the refusing to give or to receive satisfaction.151 We find in the different codes of the laws of the barbarians that the legislators were peremptory on this article.152 In effect, a person who refused to receive satisfaction wanted to preserve his right of prosecution; he who refused to give it left the right of prosecution to the person injured; and this is what the sages had reformed in the inst.i.tutions of the Germans, whereby people were invited but not compelled to compositions.

I have just now made mention of a text of the Salic law, in which the legislator left the party offended at liberty to receive or to refuse satisfaction; it is the law by which a person who had stripped a dead body was expelled from society till the relatives upon receiving satisfaction pet.i.tioned for his being readmitted.153 It was owing to the respect they had for sacred things, that the compilers of the Salic laws did not meddle with the ancient usage.

It would have been absolutely unjust to grant a composition to the relatives of a robber killed in the act, or to the relatives of a woman who had been repudiated for the crime of adultery. The law of the Bavarians allowed no compositions in the like cases, but punished the relatives who sought revenge.154 It is no rare thing to meet with compositions for involuntary actions in the codes of the laws of the barbarians. The law of the Lombards is generally very prudent; it ordained155 that in those cases the compositions should be according to the person's generosity; and that the relatives should no longer be permitted to pursue their revenge.

Clotharius II made a very wise decree; he forbade the person robbed to receive any clandestine composition, and without an order from the judge.156 We shall presently see the motive of this law.

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.157 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.