Part 33 (1/2)
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.