Part 33 (2/2)
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.
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