The Spirit Of Laws Part 38

All these things being supposed, the bare perusal of the history of France is sufficient to demonstrate that the perpetuity of fiefs was established earlier in this kingdom than in Germany. Towards the commencement of the reign of the Emperor Conrad II in 1024, things were upon the same footing still in Germany, as they had been in France during the reign of Charles the Bald, who died in 877. But such were the changes made in this kingdom after the reign of Charles the Bald, that Charles the Simple found himself unable to dispute with a foreign house his incontestable rights to the empire; and, in fine, that in Hugh Capet's time the reigning family, stripped of all its demesnes, was no longer in a condition to maintain the crown.

The weak understanding of Charles the Bald produced an equal weakness in the French monarchy. But as his brother, Louis, King of Germany, and some of that prince's successors were men of better parts, their government preserved its vigor much longer.

But what do I say? Perhaps the phlegmatic const.i.tution, and, if I dare use the expression, the immutability of spirit peculiar to the German nation made a longer stand than the volatile temper of the French against that disposition of things, which perpetuated the fiefs by a natural tendency, in families.

Besides, the Kingdom of Germany was not laid waste and annihilated, as it were, like that of France, by that particular kind of war with which it had been hara.s.sed by the Normans and Saracens. There were less riches in Germany, fewer cities to plunder, less extent of coast to scour, more marshes to get over, more forest to penetrate. As the dominions of those princes were less in danger of being ravaged and torn to pieces they had less need of their va.s.sals and consequently less dependence on them. And in all probability, if the emperors of Germany had not been obliged to be crowned at Rome, and to make continual expeditions into Italy, the fiefs would have preserved their primitive nature much longer in that country.

31.-In what Manner the Empire was transferred from the Family of Charlemagne The empire, which, in prejudice to the branch of Charles the Bald, had been already given to the b.a.s.t.a.r.d line of Louis, King of Germany,203 was transferred to a foreign house by the election of Conrad, Duke of Franconia, in 912. The reigning branch in France being hardly able to contest a few villages was much less in a situation to contest the empire. We have an agreement entered into between Charles the Simple, and the Emperor Henry I, who had succeeded to Conrad. It is called the Compact of Bonn.204 These two princes met in a vessel which had been placed in the middle of the Rhine, and swore eternal friends.h.i.+p. They used on this occasion an excellent middle term. Charles took the t.i.tle of King of West France, and Henry that of King of East France. Charles contracted with the King of Germany, and not with the Emperor.

32.-In what Manner the Crown of France was transferred to the House of Hugh Capet The inheritance of the fiefs, and the general establishment of rear-fiefs, extinguished the political and formed a feudal government. Instead of that prodigious mult.i.tude of va.s.sals who were formerly under the king, there were now a few only, on whom the others depended. The kings had scarcely any longer a direct authority; a power which was to pa.s.s through so many other and through such great powers either stopped or was lost before it reached its term. Those great va.s.sals would no longer obey; and they even made use of their rear-va.s.sals to withdraw their obedience. The kings, deprived of their demesnes and reduced to the cities of Rheims and Laon were left exposed to their mercy; the tree stretched out its branches too far, and the head was withered. The kingdom found itself without a demesne, as the empire is at present. The crown was, therefore, given to one of the most potent va.s.sals.

The Normans ravaged the kingdom; they sailed in open boats or small vessels, entered the mouths of rivers, and laid the country waste on both sides. The cities of Orleans and Paris put a stop to those plunderers, so that they could not advance farther, either on the Seine, or on the Loire.205 Hugh Capet, who was master of those cities, held in his hands the two keys of the unhappy remains of the kingdom; the crown was conferred upon him as the only person able to defend it. It is thus the empire was afterwards given to a family whose dominions form so strong a barrier against the Turks.

The empire went from Charlemagne's family at a time when the inheritance of fiefs was established only as a mere condescendence. It even appears that this inheritance obtained much later among the Germans than among the French;206 which was the reason that the empire, considered as a fief, was elective. On the contrary, when the crown of France went from the family of Charlemagne, the fiefs were really hereditary in this kingdom; and the crown, as a great fief, was also hereditary.

But it is very wrong to refer to the very moment of this revolution all the changes which happened, either before or afterwards. The whole was reduced to two events; the reigning family changed, and the crown was united to a great fief.

33.-Some Consequences of the Perpetuity of Fiefs From the perpetuity of fiefs it followed, that the right of seniority or primogeniture was established among the French. This right was quite unknown under the first race;207 the crown was divided among the brothers, the allodia were shared in the same manner; and as the fiefs, whether precarious or for life, were not an object of succession, there could be no part.i.tion in regard to those tenures.

Under the second race, the t.i.tle of Emperor, which Louis the Debonnaire enjoyed, and with which he honored his eldest son, Lotharius, made him think of giving this prince a kind of superiority over his younger brothers. The two kings were obliged to wait upon the Emperor every year, to carry him presents, and to receive much greater from him; they were also to consult with him upon common affairs.208 This is what inspired Lotharius with those pretences which met with such bad success. When Agobard wrote in favor of this prince,209 he alleged the Emperor's own intention, who had a.s.sociated Lotharius with the empire after he had consulted the Almighty by a three days' fast, by the celebration of the holy mysteries, and by prayers and almsgiving; after the nation had sworn allegiance to him which they could not refuse without perjuring themselves; and after he had sent Lotharius to Rome to be confirmed by the Pope. Upon all this he lays a stress, and not upon his right of primogeniture. He says, indeed, that the Emperor had designed a part.i.tion among the younger brothers, and that he had given the preference to the elder; but saying he had preferred the elder was saying at the same time that he might have given the preference to his younger brothers.

But as soon as the fiefs became hereditary, the right of seniority was established in the feudal succession; and for the same reason in that of the crown, which was the great fief. The ancient law of part.i.tions was no longer subsisting; the fiefs being charged with a service, the possessor must have been enabled to discharge it. The law of primogeniture was established, and the right of the feudal law was superior to that of the political or civil inst.i.tution.

As the fiefs descended to the children of the possessor, the lords lost the liberty of disposing of them; and, in order to indemnify themselves, they established what they called the right of redemption, whereof mention is made in our customs, which at first was paid in a direct line, and by usage came afterwards to be paid only in a collateral line.

The fiefs were soon rendered transferable to strangers as a patrimonial estate. This gave rise to the right of lord's dues, which were established almost throughout the kingdom. These rights were arbitrary in the beginning; but when the practice of granting such permissions became general they were fixed in every district.

The right of redemption was to be paid at every change of heir, and at first was paid even in a direct line.210 The most general custom had fixed it to one year's income. This was burdensome and inconvenient to the va.s.sal, and affected in some measure the fief itself. It was often agreed in the act of homage that the lord should no longer demand more than a certain sum of money for the redemption, which, by the changes incident to money, became afterwards of no manner of importance.211 Thus the right of redemption is in our days reduced almost to nothing, while that of the lord's dues is continued in its full extent. As this right concerned neither the va.s.sal nor his heirs, but was a fortuitous case which no one was obliged to foresee or expect, these stipulations were not made, and they continued to pay a certain part of the price.

When the fiefs were for life, they could not give a part of a fief to hold in perpetuity as a rear-fief; for it would have been absurd that a person who had only the usufruct of a thing should dispose of the property of it. But when they became perpetual, this was permitted,212 with some restrictions made by the customs, which was what they call dismembering their fief.213 The perpetuity of feudal tenures having established the right of redemption, the daughters were rendered capable of succeeding to a fief, in default of male issue. For when the lord gave the fief to his daughter, he multiplied the cases of his right of redemption, because the husband was obliged to pay it as well as the wife.214 This regulation could not take place in regard to the crown, for as it was not held of anyone there could be no right of redemption over it.

The daughter of William V, Count of Toulouse, did not succeed to the county. But Eleanor succeeded to Aquitaine, and Matilda to Normandy; and the right of the succession of females seemed so well established in those days, that Louis the Young, after his divorce from Eleanor, made no difficulty in restoring Guienne to her. But as these two last instances followed close on the first, the general law by which the women were called to the succession of fiefs must have been introduced much later into the county of Toulouse than into the other provinces of France.215 The const.i.tution of several kingdoms of Europe has been directed by the state of feudal tenures at the time when those kingdoms were founded. The women succeeded neither to the crown of France nor to the empire, because at the foundation of those two monarchies they were incapable of succeeding to fiefs. But they succeeded in kingdoms whose foundation was posterior to that of the perpetuity of the fiefs, such as those founded by the Normans, those by the conquests made on the Moors, and others, in fine, which were beyond the limits of Germany, and in later times received in some measure a second birth by the establishment of Christianity.

When these fiefs were at will, they were given to such as were capable of doing service for them, and, therefore, were never bestowed on minors; but when they became perpetual, the lords took the fief into their own hands, till the pupil came of age, either to increase their own emoluments, or to train the ward to the use of arms.216 This is what our customs call "the guardians.h.i.+p of a n.o.bleman's children," which is founded on principles different from those of tutelage, and is entirely a distinct thing from it.

When the fiefs were for life, it was customary to vow fealty for a fief; and the real delivery, which was made by a sceptre, confirmed the fief, as it is now confirmed by homage. We do not find that the counts, or even the king's commissaries, received the homage in the provinces; nor is this ceremony to be met with in the commissions of those officers which have been handed down to us in the Capitularies. They sometimes, indeed, made all the king's subjects take an oath of allegiance;217 but so far was this oath from being of the same nature as the service afterwards established by the name of homage, that it was only a ceremony, of less solemnity, occasionally used, either before or after that act of obeisance; in short, it was quite a distinct thing from homage.218 The counts and the king's commissaries further made those va.s.sals whose fidelity was suspected give occasionally a security, which was called firmitas,219 but this security could not be an homage since kings gave it to each other.220 And though the Abbot Suger221 makes mention of a chair of Dagobert, in which according to the testimony of antiquity, the kings of France were accustomed to receive the homage of the n.o.bility, it is plain that he expresses himself agreeably to the ideas and language of his own time.

When the fiefs descended to the heirs, the acknowledgment of the va.s.sal, which at first was only an occasional service, became a regular duty. It was performed in a more splendid manner, and attended with more formalities, because it was to be a perpetual memorial of the reciprocal duties of the lord and va.s.sal.

I should be apt to think that homages began to be established under King Pepin, which is the time I mentioned that several benefices were given in perpetuity, but I should not think thus without caution, and only upon a supposition that the authors of the ancient annals of the Franks were not ignorant pretenders,222 who in describing the fealty professed by Ta.s.sillon, Duke of Bavaria, to King Pepin, spoke according to the usages of their own time.223 34.-The same Subject continued When the fiefs were either precarious or for life they seldom bore a relation to any other than the political laws; for which reason in the civil inst.i.tutions of those times there is very little mention made of the laws of fiefs. But when they became hereditary, when there was a power of giving, selling, and bequeathing them, they bore a relation both to the political and the civil laws. The fief considered as an obligation of performing military service, depended on the political law; considered as a kind of commercial property, it depended on the civil law. This gave rise to the civil regulations concerning feudal tenures.

When the fiefs became hereditary, the law relating to the order of succession must have been in relation to the perpetuity of fiefs. Hence this rule of the French law, "estates of inheritance do not ascend," 224 was established in spite of the Roman and Salic laws.225 It was necessary that service should be paid for the fief; but a grandfather or a great-uncle would have been too old to perform any service; this rule thus held good at first only in regard to the feudal tenures, as we learn from Boutillier.226 When the fiefs became hereditary, the lords who were to see that service was paid for the fief, insisted that the females who were to succeed to the feudal estate, and I fancy sometimes the males, should not marry without their consent; insomuch that the marriage contracts became in respect to the n.o.bility both of a feudal and a civil regulations227 In an act of this kind under the lord's inspection, regulations were made for the succession, with the view that the heirs might pay service for the fief: hence none but the n.o.bility at first had the liberty of disposing of successions by marriage contract, as Boyer228 and Aufrerius229 have observed.

It is needless to mention that the power of redemption founded on the old right of the relatives, a mystery of our ancient French jurisprudence I have not time to unravel, could not take place with regard to the fiefs till they became perpetual.

Italiam, Italiam230..........

I finish my treatise of fiefs at a period where most authors commence theirs.

1 Gregory of Tours, book IV. chap. xlii.

2 Chap. 7.

3 Fredegarius's "Chronicle," chap. xlii.

4 Clotharius II, son of Chilperic, and the father of Dagobert.

5 Fredegarius's "Chronicle," chap. xlii.

6 See Gregory of Tours, book VIII. chap. x.x.xi.

7 "Saeva illi fuit contra personas iniquitas, fisco nimium tribuens, de rebus personarum ingeniose fisc.u.m vellens implere...ut nullus reperiretur qui gradum quem arripuerat potuisset adsumere."-Fredeg. "Chron." cap. xxvii., in the year 605.

8 Ibid. cap. xxviii., in the year 607.

9 Ibid. cap. xli., in the year 613. "Burgundiae Farones, tam episcopi quam caeteri Leudes, timentes Brunechildem et odium in eam habentes, consilium inientes," etc.

10 Ibid. cap. xli., in the year 613. "Sacramento a Clothario accepto ne unquam vitae suae temporibus degraderetur."

11 Some time after Brunehaut's execution, in the year 615. See Baluzius's edition of the Capitularies, p. 21.

12 Quae contra rationis ordinem acta vel ordinata sunt, ne in antea, quod avertat divinitas, contingant, disposuerimus, Christo praesule, per hujus edicti nostri tenorem generaliter emendare."-Ibid. art. 16.

13 Ibid. art. 16.

14 Ibid. art. 17.

15 "Et quod per tempora ex hoc praetermissum est vel dehinc perpetualiter observetur."

16 "Ita ut, episcopo decedente, in loco ipsius qui a metropolitano ordinari debet c.u.m provincialibus, a clero et populo eligatur; et, si persona condigna fuerit, per ordinationem principis ordinetur; vel certe si de palatio eligitur, per meritum personae et doctrinae ordinetur."-Ibid. art. 1.

17 "Et ubic.u.mque census novus impie additus est, emendetur."-Art. 8.

18 Ibid. art. 9.

19 Ibid. art. 21.

20 They were orders which the king sent to the judges to do or to tolerate things contrary to law.

21 See Gregory of Tours, book IV. p. 227. Both our history and the charters are full of this; and the extent of these abuses appears especially in Clotharius's const.i.tution, inserted in the edition of the Capitularies made to reform them. Baluzius's edition, p. 7.

22 Art. 22.

23 Ibid. art. 6.

24 Ibid.

25 In Baluzius's edition of the Capitularies, tom. i. p. 7.

26 In the preceding book I have made mention of these immunities, which were grants of judicial rights, and contained prohibitions to the regal judges to perform any function in the territory, and were equivalent to the erection or grant of a fief.

27 He began to reign towards the year 670.

28 See the "Life of St. Leger."

29 "Instigante Brunihault, Theodorico jubente," etc.-Fredegarius, chap. xxvii., in the year 605.

30 "Gesta regum Francorum," chap. x.x.xvi.

31 See Fredegarius's "Chronicle," chap. liv., in the year 626, and his "Anonymous Continuator," chap. ci., in the year 695, and chap. cv., in the year 715. Aimoin, book IV. chap. xv., Eginhard, "Life of Charlemagne," chap. xlviii. "Gesta regum Francorum." chap. xlv.

32 See the law of the Burgundians in praefat. and the second supplement to this law, t.i.t. 13.

33 See Gregory of Tours, book IX. chap. x.x.xvi.

34 "Eo anno, Clotarius c.u.m proceribus et leudibus Burgundiae Treca.s.sinis conjungitur, c.u.m eorum esset sollicitus si vellent jam, Warnachario discesso,alium in ejus honoris gradum sublimare: sed omnes unanimiter denegantes se nequaquam velle majorem domus eligere, regis gratiam obnixe petentes, c.u.m rege transegere."-Fredegarius, "Chronicle," chap. liv., in the year 626.

35 "Istam victoriam quam Vinidi contra Francos meruerunt, non tantum Sclavinorum fort.i.tudo obtinuit, quantum dementatio Austrasiorum, dum se cernebant c.u.m Dagoberto odium incurrisse, et a.s.sidue expoliarentur."-Fredegarius's "Chronicle," chap. lxviii., in the year 630.

36 "Deinceps Austrasii eorum studio limitem et regnum Francorum contra Vinidos utiliter defensa.s.se nosc.u.n.tur."-Fredegarius's "Chronicle," chap. lx.x.x., in the year 632.

37 Fredegarius's "Chronicle," chap. lxxix., in the year 638.

38 Ibid.

39 Ibid. chap. lx.x.x., in the year 639.

40 Ibid. chap. lx.x.xix., in the year 641.

41 Ibid. cap. lx.x.xix. "Floachatus cunctis ducibus a regno Burgundiae, seu et pontificibus, per epistolas etiam et sacramentis firmavit unicuique gradum honoris et dignitatem, seu et amicitiam, perpetuo conservare."

42 "Deinceps a temporibus Clodovei, qui fuit filius Dagoberti inclyti regis, pater vera Theodorici, regnum Francorum decidens per majorem domus, cpit ordinari."-"De Majoribus Domus Regiae."

43 "Reges ex n.o.bilitate duces ex virtute sumunt."-"De Moribus Germanorum."

44 See Sulpicius Alexander, in Gregory of Tours, book II.

45 In the year 552.

46 "Leutheres vero et Butilinus, tametsi id regi ipsorum minime placebat belli c.u.m eis societatem inierunt."-Agathias, book I. Gregory of Tours, book IV. chap. ix.

47 Gontram did not even march against Gondovald, who styled himself son of Clotharius, and claimed his share of the kingdom.

48 Sometimes to the number of twenty. See Gregory of Tours, book V. chap. xxvii., book VIII. chap. xviii. and x.x.x., book X. chap. iii. Dagobert, who had no mayor in Burgundy, observed the same policy, and sent against the Gascons ten dukes and several counts who had no dukes over them.-Fredegarius's "Chronicle," chap. lxxviii., in the year 636.

49 Gregory of Tours, book VIII. chap. x.x.x., and book X. chap. iii. Ibid. book VIII. chap. x.x.x.

50 Ibid.

51 See the second supplement to the law of the Burgundians, t.i.t. 13, and Gregory of Tours, book IX. chap. x.x.xvi.

52 See the "Annals of Metz, years 687 and 688.

53 "Illis quidem nomina regum imponens, ipse totius regni habens privilegium," etc.-"Annals of Metz," year 695.

54 "Annals of Metz," year 719.

55 "Sedemque illi regalem sub sua ditione concessit."-Ibid. anno 719.

56 "Ex chronic Centulensi," lib. 2, "ut responsa quae erat edoctus vel potius jussus, ex sua velut potestate redderet"

57 "Annals of Metz," anno 691. "Anno princ.i.p.atus Pippini super Theodoric.u.m...'Annals' of Fuld, or of Laurishan, Pippinus dux Francorum obtinuit regnum Francorum per annos 27, c.u.m regibus sibi subjectis."

58 "Posthaec Theudoaldus filius ejus (Grimoaldi) parvulus in loco ipsius, c.u.m praedicto rege Dagoberto, majordomus palatii effectus est." The "Anonymous Continuator" of Fredegarius in the year 714, chap. civ.

59 Cited by Gregory of Tours, book IX. See also the Edict of Clotharius II. in the year 615, art. 16.

60 "Ut si quid de agris fiscalibus vel speciebus atque praesidio pro arbitrii sui voluntate facere aut cuiquam conferre voluerint, fixa stabilitate perpetuo conservetur."

61 See the 24th and the 34th of the first book.

62 See the 14th formula of the first book, which is equally applicable to the fiscal estates given direct in perpetuity, or given at first as a benefice, and afterwards in perpetuity: "Sicut ab illo aut a fisco nostro fuit possessa" See also the 17th formula, ibid.

63 Book I. formulary 13.

64 t.i.t. 44. See also t.i.t. 66, sees. 3 and 4; and t.i.t. 74.

65 t.i.t. II.

66 See also the law of the Ripuarians, t.i.t. 7; and the Salic law, t.i.t. 44, arts. 1 and 4.

67 Salic law, t.i.ts. 59 and 76.

68 "Extra sermonem regis."-Salic law, t.i.ts. 59 and 76.

69 Salic law, t.i.t. 59, sec. 1.

70 Ibid. t.i.t. 76, sec. 1.

71 Ibid. t.i.ts. 56 and 59.

72 Ibid. t.i.t. 76, sec. 1.

73 Ibid. t.i.t. 76, sec. 2.

74 "Apud vernis palatium," in the year 883, arts. 4 and 11.

75 Capitulary of Charlemagne, in the year 812, arts. 1 and 3.