Theory of the Feudal Laws among the Franks in the
Relation They Bear to the Establishment of the Monarchy
1. Of Feudal Laws. I should think my work
imperfect were I to pass over in silence an event which never again,
perhaps, will happen; were I not to speak of those laws which suddenly
appeared over all Europe without being connected with any of the former
institutions; of those laws which have done infinite good and infinite
mischief; which have suffered rights to remain when the demesne has been
ceded; which by vesting several with different kinds of seignory over the
same things or persons have diminished the weight of the whole seignory;
which have established different limits in empires of too great extent;
which have been productive of rule with a bias to anarchy, and of anarchy
with a tendency to order and harmony.
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. Cæsar 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 Cæsar upon this subject are equal to whole volumes.
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 Cæsar and Tacitus we imagine we
are perusing these codes, and perusing these codes we fancy we are reading
Cæsar 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 Vassalage. Cæsar says4
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 says5
that, "Each prince had a multitude 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.6 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 by a multitude 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 neighbouring nations,
when they excel all others in the number and courage of their companions:
they receive presents and embassies from all parts. Reputation frequently
decides the fate of war. In battle it is infamy in the prince to be
surpassed 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 coarse 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
Thus, among the Germans, there were vassals, 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
vassals, 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. Cæsar
says7 that "when any of the
princes declared to the assembly that he intended to set out upon an
expedition and asked them to follow him, those who approved the leader and
the enterprise stood up and offered their assistance. Upon which they were
commended by the multitude. But, if they did not fulfil their engagements,
they lost the public esteem, and were looked upon as deserters and
What Cæsar 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 children8
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.9
The monarchy moved by springs, which they were continually obliged to wind
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
The consequence which sundry writers would infer thence, that the
barbarians made a general regulation for establishing in all parts the
state of villainage 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
vassals or bondmen subordinate to vassals; 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 Cæsar 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.
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,10 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,11 as we find in the
chronicles and in the codes of the Visigoths12
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 ltaly,14
and that of the Franks in Gaul, as also of the Vandals in Africa.15
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 assigned them.
Gundebald says, in the law of the Burgundians, that his people at their
establishment had two-thirds of the lands allowed them;16
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.17
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 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
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,18
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.
We find in the code of the Burgundians19
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
10. Of Servitudes. The law of the Burgundians
notices20 that when those people
settled in Gaul, they were allowed two-thirds of the land, and one-third
of the bondmen. The state of villainage was therefore established in that
part of Gaul before it was invaded by the Burgundians.21
The law of the Burgundians, in points relating to the two nations, makes
a formal distinction in both, between the nobles, the freeborn and the
bondmen.22 Servitude was not
therefore a thing peculiar to the Romans; nor liberty and nobility to the
This very same law says,23 that
if a Burgundian freedman 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 Boulainvilliers 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 candour of that ancient nobility 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 Abbé du Bos have formed two
different systems, one of which seems to be a conspiracy against the
commons, and the other against the nobility. When the sun gave leave to Phæton
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."24
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:25 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
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.26 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.27 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 partitions 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 dependences. The custom of the same law of
nations, which obtained for many ages, gave a prodigious extent to those
Theodoric28 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.29
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:30
"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 passage 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.31
Here might I quote numberless authorities;32
and as the public compassion 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.33
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 God
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
When we cast an eye upon the monuments of our history and laws, the
whole seems to be an immense expanse, a boundless ocean;34
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
A vast quantity of land which had been in the hands of freemen35
was changed into mortmain. When the country was stripped of its free
inhabitants, those who had a great multitude 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 sanctity 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,36
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,37
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.38
The burden of this tax lay chiefly on the inhabitants of the towns;39
now these were almost all inhabited by Romans.
Gregory of Tours relates40 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 Abbé
du Bos has interpreted this passage.41
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.
Parthenius, says Gregory of Tours,42
had like to have been put to death by the Franks for subjecting them to
taxes. The Abbé du Bos finding himself hard pressed by this passage43
very coolly assumes the thing in question; it was, says he, a surcharge.
We find in the law of the Visigoths44
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.45
The Abbé du Bos,46 who
would fain have the Visigoths subjected to taxes,47
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 author48 has
rummaged Justinian's Code49 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 Institution 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
But the Abbé is in the wrong to quote Cassiodorus, 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 entitled 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 passages as bear upon the subject, and to find, if we may
be allowed to express ourselves in astronomical terms, the position of the
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;50
when he speaks of their military service, he applies to bondmen what can
never relate but to freemen.51
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 capitulary52 of Louis the
Debonnaire explains extremely well the situation of the freemen in the
monarchy of the Franks. Some troops of Goths or Iberians, flying from the
oppression of the Moors, were received into Louis' 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; and that they should furnish
horses and carriages for baggage to the king's commissaries,53
and to the ambassadors 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
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 864 54
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.55
He who had four manors was obliged to march against the enemy:56
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.57
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,58
speaking of the counts and other officers of the nation of the Franks,
whom Charlemagne established in Aquitania, says, that he entrusted 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 indictions, 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,59 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, writing60 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 embassies." It is evident that the king's
revenues in those days consisted of their demesnes.61
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 analogous 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,62
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 authors63 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.64
Besides, as particular duties raised under the second race were by change
and by certain restrictions converted into others,65
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 ideas 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!"66
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
Barbarians67 and in relation to the
lords, by the regulations which Charlemagne made concerning this subject.68
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 freeborn,69 and not
enrolled in the register of the census. I prove it also by a
commission from Charlemagne to a count70
whom he had sent into Saxony, which contains the enfranchisement of the
Saxons for having embraced Christianity, and is properly a charter of
freedom.71 This prince restores
them to their former civil liberty,72
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 favour of the
Spaniards,73 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, forbad the demanding any census of
A capitulary of Charles the Bald,74
given in favour 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 passages. For what could be the
meaning of this capitulary?75 "We
ordain that the royal census should be levied in all places where formerly
it was lawfully levied."76
What could be the meaning of that in which Charlemagne77
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?78
And of that79 in which he disposes
of the census paid by those80 of
whom they are demanded? What can that other capitulary mean81
in which we read, "If any person has acquired a tributary land82
on which we were accustomed to levy the census?" And that other, in
fine,83 in which Charles the Bald84
makes mention of feudal lands whose census had from time immemorial
belonged to the king.
Observe .that there are some passages 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,
and opposes it to the census paid by the bondmen.
Besides, the edict of Pistes85
notices those freemen who are obliged to pay the royal census for their
head and for their cottages,86 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 letters87
did not, generally speaking, acquire a full and perfect liberty.88
but they paid censum in capite; and these are the people here
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 Abbé
du Bos' 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 Vassals. 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;89
the Salic law by that of men who have vowed fealty to the king;90
the formularies of Marculfus91 by
that of the king's Antrustios;92
the earliest French historians by that of Leudes,93
faithful and loyal; and those of later date by that of vassals and lords.94
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, honours, and fiefs, by different authors, and in different
There is no doubt but the fiefs at first were at will.96
We find in Gregory of Tours97 that
Sunegisilus and Gallomanus 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
honoured with, and those who ought to be deprived of, the fiefs.98
In a formulary of Marculfus,99 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.100
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 us101
that at first the lords could take them back when they pleased, that
afterwards they granted them for the space of a year,102
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
vassals, who were obliged in consequence of their fief; 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 villainage; the lands they possessed were what they called allodial
The counts assembled the freemen,103
and led them against the enemy; they had officers under them who were
called vicars;104 and as all the
freemen were divided into hundreds, which constituted 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.105
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.106
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 vassals or rear-vassals; and the bishops, abbots, or
their advocates107 likewise
The bishops were greatly embarrassed and inconsistent with themselves;109
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 vassals
were led by the counts; on the contrary, we see that the kings or the
bishops chose one of their feudatories to conduct them.110
In a Capitulary of Louis the Debonnaire,111
this prince distinguishes three sorts of vassals, those belonging to the
king, those to the bishops, and those to the counts. The vassals 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
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 vassals.
Hence we constantly find in the capitularies a distinction made between
the king's vassals and those of the bishops,113
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 vassals and rear-vassals 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.114 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
And yet the Abbé du Bos pretends115
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
We may, therefore, conclude that there were three sorts of military
services; that of the king's vassals, who had other vassals under them;
that of the bishops or of the other clergy and their vassals, and, in
fine, that of the count, who commanded the freemen.
Not but the vassals 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 vassals committed any outrage116
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,117
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 placita118
of the count who carried the freemen against the enemy were called the
placita of the freemen;119
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 vassals120
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-vassals belonging to the king's vassals. Thus the glossary of the
English laws informs us121 that
those to whom the Saxons gave the name of Coples122
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 vassal towards his lord123
was to bear arms124 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
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:125 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.126
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
distinguishing marks of despotism.
But we must not believe that the counts pronounced judgment by
themselves, and administered justice in the same manner as the bashaws in
Turkey; in order to judge affairs, they assembled a kind of assizes, where
the principal 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 assistants,
and were generally seven in number; and as he was obliged to have twelve
persons to judge,127 he filled up
the number with the principal men.128
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 assumed 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.129
And as for the judiciary rights, there were laws which prevented
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.131
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 Frisians132 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 made133
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 law134
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 re-admitted. And as
before that time strict orders were issued to every one, 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,135
the circumstances are weighed, the law substitutes 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 establishing of those laws, the German nations quitted that state
of nature in which they seemed to have lived in Tacitus' time.
Rotharis declares, in the law of the Lombards,136
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 principal composition was that which the murderer paid to the
relatives of the deceased. The difference of conditions produced a
difference in the compositions.137
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 favour among rude and boisterous nations.
This we are made sensible of by the law of the Bavarians:138
it gives the names of the Bavarian families who received a double
composition, because they were the first after the Agilolfings.139
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 honour 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, &c.140
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.141
These laws were therefore employed in exactly determining the difference
of wrongs, injuries and crimes; to the end that every one 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.142
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 endeavoured to establish a better civil
administration; this was the refusing to give or to receive satisfaction.143
We find in the different codes of the laws of the Barbarians that the
legislators were peremptory on this article.144
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 institutions of the Germans, whereby people were incited 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
petitioned for his being re-admitted.145
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.146
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 ordained147
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
Clotharius II made a very wise decree; he forbad the person robbed to
receive any clandestine composition, and without an order from the judge.148
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.149 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.
The codes of the Barbarian laws have given us the cases in which the
freda might be demanded. When the relatives could not prosecute,
they allowed of no fredum; and indeed, when there was no
prosecution there could be no composition for a protection against it.
Thus, in the law of the Lombards,150
if a person happened to kill a freeman by accident, he paid the value of
the man killed, without the fredum; because, as he had killed him
involuntarily, it was not the case in which the relatives were allowed the
right of prosecution. Thus in the law of the Ripuarians,151
when a person was killed with a piece of wood, or with any instrument made
by man, the instrument or the wood were deemed culpable, and the relatives
seized upon them for their own use, but were not allowed to demand the
In like manner, when a beast happened to kill a man, the same law
established a composition without the fredum, because the
relatives of the deceased were not offended.152
In fine, it was ordained by the Salic law,153
that a child who had committed a fault before the age of twelve should pay
the composition without the fredum: as he was not yet able to bear
arms, he could not be in the case in which the party injured, or his
relatives, had a right to demand satisfaction.
It was the criminal that paid the fredum for the peace and
security of which he had been deprived by his crime, and which he might
recover by protection. But a child did not lose this security; he was not
a man, and consequently could not be expelled from human society.
This fredum was a local right in favour of the person who was
judge of the district.154 Yet the
law of the Ripuarians155 forbade
him to demand it himself: it ordained that the party who had gained the
cause should receive it and carry it to the exchequer, to the end that
there might be a lasting peace, says the law among the Ripuarians.
The greatness of the fredum was proportioned to the degree of
protection: thus the fredum for the king's protection was greater
than what was granted for the protection of the count, or of the other
Here I see the origin of the jurisdiction of the lords. The fiefs
comprised very large territories, as appears from a vast number of
records. I have already proved that the kings raised no taxes on the lands
belonging to the division of the Franks; much less could they reserve to
themselves any duties on the fiefs. Those who obtained them had in this
respect a full and perfect enjoyment, reaping every possible emolument
from them. And as one of the most considerable emoluments was the
justiciary profits (freda),157
which were received according to the usage of the Franks, it followed
thence that the person seized of the fief was also seized of the
jurisdiction, the exercise of which consisted of the compositions made to
the relatives, and of the profits accruing to the lord; it was nothing
more than ordering the payment of the compositions of the law, and
demanding the legal fines. We find by the formularies containing
confirmation of the perpetuity of a fief in favour of a feudal lord,158
or of the privileges of fiefs in favour of churches,159
that the fiefs were possessed of this right. This appears also from an
infinite number of charters160
mentioning a prohibition to the king's judges or officers of entering upon
the territory in order to exercise any act of judicature whatsoever, or to
demand any judiciary emolument. When the king's judges could no longer
make any demand in a district, they never entered it; and those to whom
this district was left performed the same functions as had been exercised
before by the judges.
The king's judges are forbidden also to oblige the parties to give
security for their appearing before them; it belonged therefore to the
person who had received the territory in fief to demand this security.
They mention also that the king's commissaries shall not insist upon being
accommodated with a lodging; in effect, they no longer exercised any
function in those districts.
The administration therefore of justice, both in the old and new fiefs,
was a right inherent in the very fief itself, a lucrative right which
constituted a part of it. For this reason it had been considered at all
times in this light; whence this maxim arose, that jurisdictions are
patrimonial in France.
Some have thought that the jurisdictions derived their origin from the
manumissions made by the kings and lords in favour of their bondmen. But
the German nations, and those descended from them, are not the only people
who manumitted their bondmen, and yet they are the only people that
established patrimonial jurisdictions. Besides, we find by the formularies
of Marculfus161 that there were
freemen dependent on these jurisdictions in the earliest times: the
bondmen were therefore subject to the jurisdiction, because they were upon
the territory; and they did not give rise to the fiefs for having been
annexed to the fief.
Others have taken a shorter cut; the lords, say they (and this is all
they say), usurped the jurisdictions. But are the nations descended from
Germany the only people in the world that usurped the rights of princes?
We are sufficiently informed by history that several other nations have
encroached upon their sovereigns, and yet we find no other instance of
what we call the jurisdiction of the lords. The origin of it is therefore
to be traced in the usages and customs of the Germans.
Whoever has the curiosity to look into Loyseau162
will be surprised at the manner in which this author supposes the lords to
have proceeded in order to form and usurp their different jurisdictions.
They must have been the most artful people in the world; they must have
robbed and plundered, not after the manner of a military nation, but as
the country justices and the attornies rob one another. Those brave
warriors must be said to have formed a general system of politics
throughout all the provinces of the kingdom, and in so many other
countries in Europe; Loyseau makes them reason as he himself reasoned in
Once more; if the jurisdiction was not a dependence of the fief, how
come we everywhere to find that the service of the fief was to attend the
king or the lord, both in their courts and in the army?163
21. Of the Territorial Jurisdiction of the
Churches. The churches acquired very considerable property. We find
that our kings gave them great seigniories, that is, great fiefs; and we
find jurisdictions established at the same time in the demesnes of those
churches. Whence could so extraordinary a privilege derive its origin? it
must certainly have been in the nature of the grant. The church land had
this privilege because it had not been taken from it. A seigniory was
given to the church; and it was allowed to enjoy the same privileges as if
it had been granted to a vassal, it was also subjected to the same service
as it would have paid to the state if it had been given to a layman,
according to what we have already observed.
The churches had therefore the right of demanding the payment of
compositions in their territory, and of insisting upon the fredum; and as
those rights necessarily implied that of hindering the king's officers
from entering upon the territory to demand these freda and to exercise
acts of judicature, the right which ecclesiastics had of administering
justice in their own territory was called immunity, in the style of the
formularies, of the charters, and of the capitularies.164
The law of the Ripuarians165
forbids the freedom of the churches166
to hold the assembly for administering justice in any other place than in
the church where they were manumitted.167
The churches had therefore jurisdictions even over freemen, and held their
placita in the earliest times of the monarchy.
I find in the Lives of the Saints168
that Clovis gave to a certain holy person power over a district of six
leagues, and exempted it from all manner of jurisdiction. This, I believe,
is a falsity, but it is a falsity of a very ancient date; both the truth
and the fiction contained in that life are in relation to the customs and
laws of those times, and it is these customs and laws we are
Clotharius II orders the bishops or the nobility who are possessed of
estates in distant parts, to choose upon the very spot those who are to
administer justice, or to receive the judiciary emoluments.170
The same prince regulates the judiciary power between the ecclesiastic
courts and his officers.171 The
Capitulary of Charlemagne in the year 802 prescribes to the bishops and
abbots the qualifications necessary for their officers of justice. Another
capitulary of the same prince inhibits the royal officers172
to exercise any jurisdiction over those who are employed in cultivating
church lands, except they entered into that state by fraud, and to exempt
themselves from contributing to the public charges.173
The bishops assembled at Rheims made a declaration that the vassals
belonging to the respective churches are within their im-munity.174
The Capitulary of Charlemagne in the year 806 ordains that the churches
should have both criminal and civil jurisdiction over those who live upon
their lands.175 In fine, as the
capitulary of Charles the Bald176
distinguishes between the king's jurisdiction, that of the lords, and that
of the church, I shall say nothing further upon this subject.
22. That the Jurisdictions were established
before the End of the Second Race. It has been pretended that the
vassals usurped the jurisdiction in their seigniories, during the
confusion of the second race. Those who choose rather to form a general
proposition than to examine it found it easier to say that the vassals did
not possess than to discover how they came to possess. But the
jurisdictions do not owe their origin to usurpations; they are derived
from the primitive establishment, and not from its corruption.
"He who kills a freeman," says the law of the Bavarians, "shall
pay a composition to his relatives if he has any; if not, he shall pay it
to the duke, or to the person under whose protection he had put himself in
his lifetime."177 it is well
known what it was to put oneself under the protection of another for a
"He who had been robbed of his bondman," says the law of the
Alemans, "shall have recourse to the prince to whom the robber is
subject; to the end that he may obtain a composition."178
"If a centenarius," says the decree of Childebert, "finds
a robber in another hundred than his own, or in the limits of our faithful
vassals, and does not drive him out, he shall be answerable for the
robber, or purge himself by oath."179
There was therefore a difference between the district of the centenarii
and that of the vassals.
This decree of Childebert180
explains the constitution of Clotharius of the same year, which being
given for the same occasion and on the same matter differs only in the
terms; the constitution calling in truste what by the decree is
styled in terminis fidelium nostrorum. Messieurs Bignon and
Ducange, who pretend that in truste signified another king's
demesne, are mistaken in their conjecture.181
Pepin, King of Italy, in a constitution that had been made as well for
the Franks as for the Lombards,182
after imposing penalties on the counts and other royal officers for
prevarications or delays in the administration of justice, ordains that if
it happens that a Frank or a Lombard, possessed of a fief, is unwilling to
administer justice, the judge to whose district he belongs shall suspend
the exercise of his fief, and in the meantime, either the judge or his
commissary shall administer justice.183
It appears by a Capitulary of Charlemagne,184
that the kings did not levy the freda in all places. Another
capitulary of the same prince shows the feudal laws185
and feudal court to have been already established. Another of Louis the
Debonnaire ordains that when a person possessed of a fief does not
administer justice,186 or binders
it from being administered, the king's commissaries shall live in his
house at discretion, till justice be administered. I shall likewise quote
two capitularies of Charles the Bald; one of the year 861,187
where we find the particular jurisdictions established, with judges and
subordinate officers; and the other of the year 864,188
where he makes a distinction between his own seigniories and those of
We have not the original grants of the fiefs, because they were
established by the partition which is known to have been made among the
conquerors. It cannot, therefore, be proved by original contracts that the
jurisdictions were at first annexed to the fiefs: but if in the
formularies of the confirmations, or of the translations of those fiefs in
perpetuity, we find, as already has been observed, that the jurisdiction
was there established, this judiciary right must certainly have been
inherent in the fief and one of its chief privileges.
We have a far greater number of records that establish the patrimonial
jurisdiction of the clergy in their districts than there are to prove that
of the benefices or fiefs of the feudal lords; for which two reasons may
be assigned. The first, that most of the records now extant were preserved
or collected by the monks, for the use of their monasteries. The second,
that the patrimony of the several churches having been formed by
particular grants, and by a kind of derogation from the order established,
they were obliged to have charters granted to them; whereas the
concessions made to the feudal lords being consequences of the political
order, they had no occasion to demand, and much less to preserve, a
particular charter. Nay the kings were oftentimes satisfied with making a
simple delivery with the sceptre, as appears from the Life of St.
But the third formulary of Marculfus sufficiently proves that the
privileges of immunity, and consequently that of jurisdiction, were common
to the clergy and the laity, since it is made for both.189
The same may be said of the constitution of Clotharius II.190
23. General Idea of the Abbé du Bos' Book
on the Establishment of the French Monarchy in Gaul. Before I finish
this book, it will not be improper to write a few strictures on the Abbé
du Bos' performance, because my notions are perpetually contrary to his;
and if he has hit on the truth, I must have missed it.
This performance has imposed upon a great many because it is penned with
art; because the point in question is constantly supposed; because the
more it is deficient in proofs the more it abounds in probabilities; and,
in fine, because an infinite number of conjectures are laid down as
principles, and thence other conjectures are inferred as consequences. The
reader forgets he has been doubting in order to begin to believe. And as a
prodigious fund of erudition is interspersed, not in the system but around
it, the mind is taken up with the appendages, and neglects the principal.
Besides, such a vast multitude of researches hardly permits one to imagine
that nothing has been found; the length of the way makes us think that we
have arrived at our journey's end.
But when we examine the matter thoroughly, we find an immense colossus
with earthen feet; and it is the earthen feet that render the colossus
immense. If the Abbé du Bos' system had been well grounded, he
would not have been obliged to write three tedious volumes to prove it; he
would have found everything within his subject, and without wandering on
every side in quest of what was extremely foreign to it; even reason
itself would have undertaken to range this in the same chain with the
other truths. Our history and laws would have told him, "Do not take
so much trouble, we shall be your vouchers."
24. The same Subject continued. Reflection on the
main Part of the System. The Abbé du Bos endeavours by all
means to explode the opinion that the Franks made the conquest of Gaul.
According to his system. Our kings were invited by the people, and only
substituted themselves in the place and succeeded to the rights of the
This pretension cannot be applied to the time when Clovis, upon his
entering Gaul, took and plundered the towns; neither is it applicable to
the period when he defeated Syagrius, the Roman commander, and conquered
the country which he held; it can, therefore, be referred only to the
period when Clovis, already master of a great part of Gaul by open force,
was called by the choice and affection of the people to the sovereignty
over the rest. And it is not enough that Clovis was received, he must have
been called; the Abbé du Bos must prove that the people chose
rather to live under Clovis than under the domination of the Romans or
under their own laws. Now the Romans belonging to that part of Gaul not
yet invaded by the Barbarians were, according to this author, of two
sorts: the first were of the Armorican confederacy, who had driven away
the emperor's officers in order to defend themselves against the
Barbarians, and to be governed by their own laws; the second were subject
to the Roman officers. Now, does the Abbé produce any convincing
proofs that the Romans, who were still subject to the empire, called in
Clovis? Not one. Does he prove that the republic of the Armoricans invited
Clovis; or even concluded any treaty with him? Not at all. So far from
being able to tell us the fate of this republic, he cannot even so much as
prove its existence; and notwithstanding he pretends to trace it from the
time of Honorius to the conquest of Clovis, notwithstanding he relates
with most admirable exactness all the events of those times; still this
republic remains invisible in ancient authors. For there is a wide
difference between proving by a passage of Zozimus191
that under the Emperor Honorius, the country of Armorica192
and the other provinces of Gaul revolted and formed a kind of republic,
and showing us that notwithstanding the different pacifications of Gaul,
the Armoricans formed always a particular republic, which continued till
the conquest of Clovis; and yet this is what he should have demonstrated
by strong and substantial proofs, in order to establish his system. For
when we behold a conqueror entering a country, and subduing a great part
of it by force and open violence, and soon after find the whole country
subdued, without any mention in history of the manner of its being
effected, we have sufficient reason to believe that the affair ended as it
When we find he has mistaken this point, it is easy to perceive that his
whole system falls to the ground; and as often as he infers a consequence
from these principles that Gaul was not conquered by the Franks, but that
the Franks were invited by the Romans, we may safely deny it.
This author proves his principle by the Roman dignities with which
Clovis was invested: he insists that Clovis succeeded to Childeric his
father in the office of magister militiæ. But these two offices are
merely of his own creation. St. Remigius' letter to Clovis, on which he
grounds his opinion, is only a congratulation upon his accession to the
crown.193 When the intent of a
writing is so well known, why should we give it another turn?
Clovis, towards the end of the reign, was made consul by the Emperor
Anastasius: but what right could he receive from an authority that lasted
only one year? it is very probable, says our author, that in the same
diploma the Emperor Anastasius made Clovis proconsul. And, I say, it is
very probable he did not. With regard to a fact for which there is no
foundation, the authority of him who denies is equal to that of him who
affirms. But I have also a reason for denying it. Gregory of Tours, who
mentions the consulate, says never a word concerning the proconsulate. And
even this proconsulate could have lasted only about six months. Clovis
died a year and a half after he was created consul; and we cannot pretend
to make the pro-consulate an hereditary office. In fine, when the
consulate, and, if you will, the proconsulate, were conferred upon him, he
was already master of the monarchy, and all his rights were established.
The second proof alleged by the Abbé du Bos is the renunciation
made by the Emperor Justinian, in favour of the children and grandchildren
of Clovis, of all the rights of the empire over Gaul. I could say a great
deal concerning this renunciation. We may judge of the regard shown to it
by the kings of the Franks, from the manner in which they performed the
conditions of it. Besides, the kings of the Franks were masters and
peaceable sovereigns of Gaul; Justinian had not one foot of ground in that
country; the western empire had been destroyed a long time before, and
the eastern empire had no right to Gaul, but as representing the emperor
of the west. These were rights upon rights; the monarchy of the Franks was
already founded; the regulation of their establishment was made; the
reciprocal rights of the persons and of the different nations who lived in
the monarchy were admitted, the laws of each nation were given and even
reduced to writing. What, therefore, could that foreign renunciation avail
to a government already established?
What can the Abbé mean by making such a parade of the
declamations of all those bishops, who, amidst the confusion and total
subversion of the state, endeavour to flatter the conqueror? What else is
implied by flattering but the weakness of him who is obliged to flatter?
What do rhetoric and poetry prove but the use of those very arts? Is it
possible to help being surprised at Gregory of Tours, who, after
mentioning the assassinations committed by Clovis, says that God laid his
enemies every day at his feet, because he walked in his ways? Who doubts
but the clergy were glad of Clovis's conversion, and that they even reaped
great advantages from it? But who doubts at the same time that the people
experienced all the miseries of conquest and that the Roman government
submitted to that of the Franks? The Franks were neither willing nor able
to make a total change; and few conquerors were ever seized with so great
a degree of madness. But to render all the Abbé du Bos'
consequences true, they must not only have made no change among the
Romans, but they must even have changed themselves.
I could undertake to prove, by following this author's method, that the
Greeks never conquered Persia. I should set out with mentioning the
treaties which some of their cities concluded with the Persians; I should
mention the Greeks who were in Persian pay, as the Franks were in the pay
of the Romans. And if Alexander entered the Persian territories, besieged,
took, and destroyed the city of Tyre, it was only a particular affair like
that of Syagrius. But, behold the Jewish pontiff goes forth to meet him.
Listen to the oracle of Jupiter Ammon. Recollect how he had been predicted
at Gordium. See what a number of towns crowd, as it were, to submit to
him; and how all the satraps and grandees come to pay him obeisance. He
put on the Persian dress; this is Clovis' consular robe. Does not Darius
offer him one half of his kingdom? Is not Darius assassinated like a
tyrant? Do not the mother and wife of Darius weep at the death of
Alexander? Were Quintius Curtius, Arrian, or Plutarch, Alexander's
contemporaries? Has not the invention of printing afforded us great light
which those authors wanted?194
Such is the history of the Establishment of the French Monarchy in
25. Of the French Nobility. The Abbé
du Bos maintains that at the commencement of our monarchy there was only
one order of citizens among the Franks. This assertion, so injurious to
the noble blood of our principal families, is equally affronting to the
three great houses which successively governed this realm. The origin of
their grandeur would not, therefore, have been lost in the obscurity of
time. History might point out the ages when they were plebeian families;
and to make Childeric, Pepin, and Hugh Capet gentlemen, we should be
obliged to trace their pedigree among the Romans or Saxons, that is, among
the conquered nations.
This author grounds his opinion on the Salic law.195
By that law, he says, it plainly appears that there were not two different
orders of citizens among the Franks: it allowed a composition of two
hundred sous for the murder of any Frank whatsoever;196
but among the Romans it distinguished the king's guest, for whose death it
gave a composition of three hundred sous, from the Roman proprietor to
whom it granted a hundred, and from the Roman tributary to whom it gave
only a composition of forty-five. And as the difference of the
compositions formed the principal distinction, he concludes that there was
but one order of citizens among the Franks, and three among the Romans.
It is astonishing that his very mistake did not set him right. And,
indeed, it would have been very extraordinary that the Roman nobility who
lived under the domination of the Franks should have had a larger
composition, and been persons of much greater importance than the most
illustrious among the Franks, and their greatest generals. What
probability is there that the conquering nation should have so little
respect for themselves, and so great a regard for the conquered people?
Besides, our author quotes the laws of other barbarous nations which prove
that they had different orders of citizens. Now it would be a matter of
astonishment that this general rule should have failed only among the
Franks. Hence he ought to have concluded either that he did not rightly
understand or that he misapplied the passages of the Salic law, which is
actually the case.
Upon opening this law, we find that the composition for the death of an
Antrustio.197 that is, of the
king's vassal, was six hundred sous; and that for the death of a Roman,
who was the king's guest, was only three hundred.198
We find there likewise that the composition199
for the death of an ordinary Frank was two hundred sous;200
and for the death of an ordinary Roman, was only one hundred.201
For the death of a Roman tributary,202
who was a kind of bondman or freedman, they paid a composition of
forty-five sous: but I shall take no notice of this, any more than of the
composition for the murder of a Frank bondman or of a Frank freedman,
because this third order of persons is out of the question.
What does our author do? He is quite silent with respect to the first
order of persons among the Franks, that is the article relating to the
Antrustios; and afterwards upon comparing the ordinary Frank, for whose
death they paid a composition of two hundred sous, with those whom he
distinguishes under three orders among the Romans, and for whose death
they paid different compositions, he finds that there was only one order
of citizens among the Franks, and that there were three among the Romans.
As the Abbé is of opinion that there was only one order of
citizens among the Franks, it would have been lucky for him that there had
been only one order also among the Burgundians, because their kingdom
constituted one of the principal branches of our monarchy. But in their
codes we find three sorts of compositions, one for the Burgundians or
Roman nobility, the other for the Burgundians or Romans of a middling
condition, and the third for those of a lower rank in both nations.203
He has not quoted this law.
It is very extraordinary to see in what manner he evades those passages
which press him hard on all sides.204
If you speak to him of the grandees, lords, and the nobility, these, he
says, are mere distinctions of respect, and not of order; they are things
of courtesy, and not legal privileges; or else, he says, those people
belonged to the king's council; nay, they possibly might be Romans: but
still there was only one order of citizens among the Franks. On the other
hand, if you speak to him of some Franks of an inferior rank,205
he says they are bondmen; and thus he interprets the decree of Childebert.
But I must stop here a little, to inquire farther into this decree. Our
author has rendered it famous by availing himself of it in order to prove
two things: the one that all the compositions we meet with in the laws of
the Barbarians were only civil fines added to corporal punishments, which
entirely subverts all the ancient records;206
the other, that all freemen were judged directly and immediately by the
king.207 which is contradicted by
an infinite number of passages and authorities informing us of the
judiciary order of those times.208
This decree, which was made in an assembly of the nation,209
says that, if the judge finds a notorious robber, he must command him to
be tied, in order to be carried before the king, si Francus fuerit;
but if he is a weaker person (debilior persona), he shall be
hanged on the spot. According to the Abbé du Bos, Francus
is a freeman, debilior persona is a bondman. I shall defer
entering for a moment into the signification of the word Francus,
and begin with examining what can be understood by these words, a weaker
person, In all languages whatsoever, every comparison necessarily
supposes three terms, the greatest, the less degree, and the least. If
none were here meant but freemen and bondmen, they would have said a bondman,
and not a man of less power. Therefore debilior persona
does not signify a bondman, but a person of a superior condition to a
bondman. Upon this supposition, Francus cannot mean a freeman, but
a powerful man; and this word is taken here in that acceptation, because
among the Franks there were always men who had greater power than others
in the state, and it was more difficult for the judge or count to chastise
them. This construction agrees very well with many capitularies210
where we find the cases in which the criminals were to be carried before
the king, and those in which it was otherwise.
It is mentioned in the Life of Louis the Debonnaire,211
written by Tegan, that the bishops were the principal cause of the
humiliation of that emperor, especially those who had been bondmen and
such as were born among the Barbarians. Tegan thus addresses Hebo, whom
this prince had drawn from the state of servitude, and made Archbishop of
Rheims: "What recompense did the Emperor receive from you for so many
benefits? He made you a freeman, but did not ennoble you, because he could
not give you nobility after having given you your liberty."212
This passage, which proves so strongly the two orders of citizens, does
not at all confound the Abbé du Bos. He answers thus:213
"The meaning of this passage is not that Louis the Debonnaire was
incapable of introducing Hebo into the order of the nobility. Hebo, as
Archbishop of Rheims, must have been of the first order, superior to that
of the nobility." I leave the reader to judge whether this be not the
meaning of that passage; I leave him to judge whether there be any
question here concerning a precedence of the clergy over the nobility. "This
passage proves only," continues the same writer,214
"that the free-born subjects were qualified as noblemen; in the
common acceptation, noblemen and men who are free-born have for this long
time signified the same thing." What! because some of our burghers
have lately assumed the quality of noblemen, shall a passage of theLife
of Louis the Debonnaire be applied to this sort of people? "And
perhaps," continues he still,215
"Hebo had not been a bondman among the Franks, but among the Saxons,
or some other German nation, where the people were divided into several
orders." Then, because of the Abbé du Bos' "perhaps,"
there must have been no nobility among the nation of the Franks. But he
never applied a "perhaps" so badly. We have seen that Tegan
distinguishes the bishops,216 who
had opposed Louis the Debonnaire, some of whom had been bondmen, and
others of a barbarous nation. Hebo belonged to the former and not to the
latter. Besides, I do not see how a bondman, such as Hebo, can be said to
have been a Saxon or a German; a bondman has no family, and consequently
no nation. Louis the Debonnaire manumitted Hebo; and as bondmen after
their manumission embraced the law of their master, Hebo had become a
Frank, and not a Saxon or German.
I have been hitherto acting offensively; it is now time to defend
myself. It will be objected to me that indeed the body of the Antrustios
formed a distinct order in the state from that of the freemen; but as the
fiefs were at first precarious, and afterwards for life, this could not
form a nobleness of descent, since the privileges were not annexed to an
hereditary fief. This is the objection which induced M. de Valois to think
that there was only one order of citizens among the Franks; an opinion
which the Abbé du Bos has borrowed of him, and which he has
absolutely spoiled with so many bad arguments. Be that as it may, it is
not the Abbé du Bos that could make this objection. For after
having given three orders of Roman nobility, and the quality of the king's
guest for the first, he could not pretend to say that this title was a
greater mark of a noble descent than that of Antrustio. But I must give a
direct answer. The Antrustios or trusty men were not such because they
were possessed of a fief, but that they had a fief given them because they
were Antrustios or trusty men. The reader may please to recollect what has
been said in the beginning of this book. They had not at that time, as
they had afterwards, the same fief: but if they had not that, they had
another, because the fiefs were given at their birth, and because they
were often granted in the assemblies of the nation, and, in fine, because
as it was the interest of the nobility to receive them it was likewise the
king's interest to grant them. These families were distinguished by their
dignity of trusty men, and by the privilege of being qualified to swear
allegiance for a fief. In the following book217
I shall demonstrate how, from the circumstances of the time, there were
freemen who were permitted to enjoy this great privilege, and consequently
to enter into the order of nobility. This was not the case at the time of
Gontram, and his nephew Childebert; but so it was at the time of
Charlemagne. But though in that prince's reign the freemen were not
incapable of possessing fiefs, yet it appears, by the above-cited passage
of Tegan, that the emancipated serfs were absolutely excluded. Will the
Abbé du Bos, who carries us to Turkey to give us an idea of the
ancient French nobility;218 will
he, I say, pretend that they ever complained among the Turks of the
elevation of people of low birth to the honours and dignities of the
state, as they complained under Louis the Debonnaire and Charles the Bald?
There was no complaint of that kind under Charlemagne, because this prince
always distinguished the ancient from the new families; which Louis the
Debonnaire, and Charles the Bald did not.
The public should not forget the obligation it owes to the Abbé
du Bos for several excellent performances. It is by these works, and not
by his history of the Establishment of the French Monarchy, we
ought to judge of his merit. He committed very great mistakes, because he
had more in view the Count of Boulainvilliers' work than his own subject.
From all these strictures I shall draw only one reflection: if so great
a man was mistaken, how cautiously ought I to tread?
1. Quantum vertice ad oras Æthereas,
tantum radice ad Tartara tendit — Virgil, Georg., ii.
292; Æneid, iv. 446.
2. Book iv.
3. For instance, his retreat from
Germany. — Ibid.
4. De Bello Gall., vi. 21;
Tacitus, De Moribus Germanorum, 31.
5. De Moribus Germanorum, 13.
7. De Bello Gall., vi. 22.
8. See the Life of Dagobert.
9. See Gregory of Tours, vi, on the
marriage of the daughter of Chilperic. Childebert sends ambassadors to
tell him that he should not give the cities of his father's kingdom to his
daughter, nor his treasures, nor his bondmen, nor horses, nor horsemen,
nor teams of oxen, &c.
10. The Romans obliged themselves to
this by treaties. See Zozimus, v, upon the distribution of corn demanded
by Alaric. — ED.
11. Marius' Chronicle in the year
12. Book x, tit. 1, §§ 8,
9, & 16.
13. Chapter 54, §§ 1, 2.
This division was still subsisting in the time of Louis the Debonnaire, as
appears by his Capitulary of the year 829, which has been inserted in the
law of the Burgundians, tit. 79, § 1.
14. See Procopius, War of the
15. See Procopius, War of the
16. Law of the Burgundians, tit. 54,
17. Art. 11.
18. De Moribus Germanorum,
19. And in that of the Visigoths.
20. Tit. 54.
21. This is confirmed by the whole
title of the code de Agricolis et Censitis, et Colonis.
22. Tit. 26, §§ 1, a.
23. Tit. 57.
24. Ovid, Met. ii. 134.
25. While Gaul was under the dominion
of the Romans they formed particular bodies; these were generally
freedmen, or the descendants of freedmen.
26. See Gregory of Tours, ii, 27.
Aimoin, i. 12.
27. See the Lives of the Saints,
footnote 7, below.
28. Gregory of Tours, ii.
29. Ibid., vi. 31.
30. Cassiodorus, iii. 43.
31. In the year 763.
32. See the annals of Fuld, in the
year 739, Paulus Diaconus, De gestis Longobardorum, iii. 30, iv.
1, and the Lives of the Saints in the next footnote.
33. See the lives of St. Epiphanius,
St. Eptadius, St. Cæsarius, St. Fidolus, St. Porcian, St. Treverius,
St. Eusichius, and of St. Leger; the miracles of St. Julian, &c.
34. Ovid, Met., i. 293.
35. Even the husbandmen themselves
were not all slaves; see the Leg. 18, 23, Cod. de Agricolis, et
Censitis, et Colonis, and Leg. 20 of the same title.
36. See Gregory of Tours, ii.
37. Ibid., v. 28.
38. Ibid., viii. 36.
39. Life of St. Aridius.
40. Book vii.
41. Establishment of the French
Monarchy, iii. 14, p. 515. See Baluzius, ii, p. 187.
42. Book iii. 36.
43. Book iii, p. 514.
44. Book x, tit. 1, cap. xiv.
45. The Vandals paid none in Africa. —
Procopius, War of the Vandals, i, ii. Historia Miscella,
xvi, p. 106. Observe that the conquerors of Africa were a mixture of
Vandals, Alans, and Franks. Historia Miscella, xiv, p. 94.
46. Establishment of the Franks
in Gaul, iii. 14, p. 510.
47. He lays a stress upon another law
of the Visigoths, x, tit. 1, art. 11, which proves nothing at all; it says
only that he who has received of a lord a piece of land on condition of a
rent or service ought to pay it.
48. Book iii, p. 511.
49. Leg. 3, xi, tit. 74.
50. Establishment of the French
Monarchy, iii. 14, p. 513, where he quotes the 28th article of the
edict of Pistes. See farther on.
51. Ibid. iii. 4, p. 298.
52. In the year 815, cap. i, which is
agreeable to the Capitulary of Charles the Bald, in the year 844, arts. 1,
53. They were not obliged to furnish
any to the count. —Ibid., art. 5.
54. The counts are forbidden to
deprive them of their horses, ut hostem facere, et debitos paraveredos
secundum antequam consuetudinem exsolvere possint. — Edict of
Pistes, in Baluzius, p. 186.
55. Capitulary of Charlemagne, 1, in
the year 812. Edict of Pistes in the year 864, art. 27.
56. Quatuor mansos. I fancy
that what they called Afansus was a particular portion of land belonging
to a farm where there were bondmen; witness the capitulary of the year
853, apud Sylvacum, tit. 14, against those who drove the bondmen
from their Mansus.
57. See below, chapter
20 of this book.
58. In Duchesne, ii, p. 287.
59. Ibid., p. 89.
60. See the Capitulary of the year
858, art. 14.
61. They levied also some duties on
rivers, where there happened to be a bridge or a passage.
62. The census was so
generical a word, that they made use of it to express the tolls of rivers,
when there was a bridge or ferry to pass. See the third Capitulary, in the
year 803, edition of Baluzius, p. 395, art. 1; and the 5th in the year
819, p. 616. They gave likewise this name to the carriages furnished by
the freemen to the king, or to his commissaries, as appeals by the
Capitulary of Charles the Bald in the year 865, art. 8.
63. The Abbé du Bos, and his
64. See the weakness of the arguments
produced by the Abbé du Bos, in the Establishment of the French
Monarchy, iii, book VI. 14; especially in the inference he draws from a
passage of Gregory of Tours, concerning a dispute between his church and
65. For instance, by
66. Plato, Timæus. —
67. Law of the Alemans, cap. xxii;
and the Law of the Bavarians, tit. 1, cap. iv., where the regulations are
to be found which the clergy made concerning their order.
68. Capitularies, v. 303.
69. Book i, form. 19.
70. In the year 789, edition of the
Capitularies by Baluzius, i, p. 250.
73. Præceptum pro Hispanis,
in the year 812, ed. Baluzius, i, p. 500.
74. In the year 844, ed. Baluzius,
ii, arts. 1 and 2, p. 27.
75. Third Capitulary of the year 805,
arts. 20 and 22, inserted in the Collection of Angezise, iii, art. 15.
This is agreeable to that of Charles the Bald, in the year 854, apud
Attiniacum, art. 6.
77. In the year 812, arts. 10 and 11,
ed. Baluzius, i, p. 498.
78. Capitulary of the year 812, arts.
10 and 11.
79. In the year 813, art. 6, ed.
Baluzius, i, p. 508.
80. Capitulary of the year 813, art.
81. Book iv of the Capitularies, art.
37, and inserted in the law of the Lombards.
82. Book iv of the Capitularies, art.
83. In the year 805, art. 8.
84. Capitulary of the year 805, art.
85. In the year 864, art. 34, ed.
Baluzius, p. 192.
87. The 28th article of the same
edict explains this extremely well; it even makes a distinction between a
Roman freedman and a Frank freedman: and we likewise see there that the
census was not general; it deserves to be read.
88. As appears by the Capitulary of
Charlemagne in the year 813, which we have already quoted.
89. Comites. De Moribus
90. Qui sunt in truste regis,
tit. 44, art. 4.
91. Book i, form. 18.
92. From the word trew, which
signifies faithful among the Germans.
93. Leudes, fideles.
94. Vassalli, seniores.
95. Fiscalia. See Marculfus,
i. form. 14. It is mentioned in the Life of St. Maur, dedit fiscum
unum: and in the annals of Metz, in the year 747, dedit illi
comitatus et fiscos plurimos. The goods designed for the support of
the royal family were called regalia.
96. See i, tit. 1, of the fiefs; and
Cujas on that book.
97. Book ix. 38.
98. Ibid., vii.
99. Book i, form. 30.
100. Book iii, tit. 8, § 3.
101. Feudorum, i, tit. 1.
102. It was a kind of precarious
tenure which the lord consented or refused to renew every year; as Cujas
103. See the Capitulary of
Charlemagne in the year 812, arts. 3 and 4, ed. Baluzius, i, p. 491; and
the edict of Pistes in the year 864, art. 26, ii, p. 186.
104. Book ii of the Capitularies,
105. They were called Compagenses.
106. Published in the year 595, art.
1. See the Capitularies, ed. Baluzius, p. 20. These regulations were
undoubtedly made by agreement.
108. Capitulary of Charlemagne, in
the year 812, art. 1 and 5, ed. Baluzius, i, p. 490.
109. See the Capitulary of the year
803, published at Worms, ed Baluzius, pp. 408, 410.
110. Capitulary of Worms in the year
803, edition of Baluzius, p. 409; and the council in the year 845, under
Charles, the Bald, in verno palatio, edition of Baluzius, ii, p.
17, art. 8.
111. The fifth Capitulary of the
year 819, art. 27, edition of Baluzius, p. 618.
112. Capitulary 11 in the year 812,
art. 7, edition of Baluzius, i, p. 494.
113. Capitulary i of the year 812,
art. 5, edition of Baluzius, i, p. 490.
114. In the year 812, cap. i,
edition of Baluzius, p. 490.
115. Establishment of the French
Monarchy, iii, book VI, cap. iv, p. 299.
116. Capitulary of the year 882,
art. 11, apud vernis palatium, edition of Baluzius, ii, p. 289.
117. Art. 1, 2, and the council in
verno palatio of the year 845, art. 8, edition of Baluzius, ii, p.
118. Or assizes.
119. Capitularies, book iv of the
Collection of Angezise, art. 57; and the fifth capitulary of Louis
the Debonnaire, in the year 819, art. 14, edition of Baluzius, i, p. 615.
120. See the 8th note of the
121. It is to be found in the
Collection of William Larabard, De Priscis Anglorum legibus.
122. In the word Satrapia.
123. This is well explained by the
assizes of Jerusalem, 221, 222.
124. The advowees of the church (advocati)
were equally at the head of their placita and of their militia.
125. See Marculfus, i, form. 8,
which contains the letters given to a duke, patrician, or count; and
invests them with the civil jurisdiction, and the fiscal administration.
126. Chronicle, 78, in the
127. See concerning this subject the
capitularies of Louis the Debonnaire added to the Salic law, art. 2, and
the formula of judgments given by Du Cange in the word boni homines.
128. Per bonos homines,
sometimes there were none but principal men. See the appendix to the
formularies of Marculfus, 51.
129. And some tolls on rivers, of
which I have spoken already.
130. See the law of the Ripuarians,
tit. 89; and the law of the Lombards, ii, tit. 52, § 9.
131. Tacitus, De Moribus
132. See this law in the 2nd title
on murders; and Vulemar's addition on robberies.
133. Tit. i, § 1.
134. Salic Law, tit. 8, § 1;
tit. 17, § 3.
135. The Salic laws are admirable in
this respect, see especially the titles 3, 4, 5, 6, and 7, which related
to the stealing of cattle.
136. Book i, tit. 7, § 15.
137. See the law of the Angli, tit.
1, §§ 1,2, and 4; ibid. tit. 5, § 6; the law of the
Bavarians, tit. 1, cap. 8, 9, and the law of the Frisians, tit. 15.
138. Tit. 2, cap. xx.
139. Hozidra, Ozza, Sagana,
Habalingua, Anniena. — Ibid.
140. Thus the law of Ina valued life
by a certain sum of money, or by a certain portion of land. Leges Inæ
regis, titulo de villico regio de priscis Anglorum legibus. —
141. See the law of the Saxons,
which makes this same regulation for several people, cap. xviii. See also
the law of the Ripuarians, tit. 36, § 11; the law of the Bavarians,
tit. 1, §§ 10 and 11.
142. See the law of the Lombards, i,
tit. 25 § 21; ibid., i, tit. 9, §§ 8, 34; ibid.,
§ 38, and the Capitulary of Charlemagne in the year 802, cap. xxxii,
containing an instruction given to those whom he sent into the provinces.
143. See in Gregory of Tours, vii.
47, the detail of a process, wherein a party loses half the composition
that had been adjudged to him, for having done justice to himself, instead
of receiving satisfaction, whatever injury he might have afterwards
144. See the law of the Saxons, cap.
iii, § 4; the law of the Lombards, i, tit. 37, §§ 1 and 2;
and the law of the Alemans, tit. 45, §§ 1 and 2. This last law
gave leave to the party injured to right himself upon the spot, and in the
first transport of passion. See also the Capitularies of Charlemagne in
the year 779, cap. xxii, in the year 802, cap. xxxii, and also that of the
year 805, cap. v.
145. The compilers of the law of the
Ripuarians seem to have softened this. See the 85th title of those laws.
146. See the decree of Tassillon,
De Popularibus legibus, art. 3, 4, 10, 16, 19; the law of the
Angli, tit. vii. § 4.
147. Book i, tit. ix, § 4.
148. Pactus pro tenore pads
inter Childebertum et Clotarium, anno 593, et decretio Clotarii
2 regis, circa annum 595, cap. xi.
149. When it was not determined by
the law, it was generally the third of what was given for the composition,
as appears in the law of the Ripuarians, cap. lxxxix, which is explained
by the third Capitulary of the year 813. — Edition of Baluzius, i, p.
150. Book i, tit. 9, § 17, ed.
151. Tit. 70.
152. Tit. 46. See also the law of
the Lombards, i. cap. xxi, § 3, Lindembrock's edition, si
caballus cum pede, &c.
153. Tit. 28, § 6.
154. As appears by the decree of
Clotharius II in the year 595.
155. Tit. 89.
156. Capitulare incerti anni,
57, in Baluzius, i p. 515, and it is to be observed, that what was called
fredum or faida, in the monuments of the first race, is
known by the name of bannum in those of the second race, as
appears from the Capitulary de partibus Saxoniæ, in the year
157. See the Capitulary of
Charlemagne, de villis, where he ranks these freda among
the great revenues of what was called villa, or the king's
158. See Marculfus, i, form. 3, 4,
159. See Marculfus, i, form. 2, 3,
160. See the Collections of those
charters, especially that at the end of the 5th volume of the historians
of France, published by the Benedictine monks.
161. See the 3rd, 4th, and 14th of
the first book, and the charter of Charlemagne, in the year 771, in
Martene, Anecdot. collect., i, ii.
162. Treatise of village
163. See Du Cange on the word hominium.
164. See Marculfus, i, form. 3, 4.
165. Ne aliubi nisi ad
ecclesiam, ubi relaxati sunt, mallum teneant, tit. 58, § i. See
also § 19. Lindembrock's edition.
168. Vita S. Germeri, Episcopi
Tolosani apud Bollandianos 16 Maii.
169. See also the life of St.
Melanius, and that of St. Deicola.
170. In the council of Paris, in the
year 615, art. 19. See also art. 12.
171. Ibid., art. 5.
172. In the law of the Lombards, ii,
tit. 44, cap ii. Lindembrock's edition.
174. Letter in the year 858, art. 7
in the Capitularies, p. 108.
175. It is added to the law of the
Bavarians, art. 7. See also art. 3. Lindembrock's edition, p. 444.
176. In the year 857, in synodo
apud Carisiacum, art. 4, edition of Baluzius, p. 96.
177. Tit. 3, cap. xiii.
178. Tit. 85.
179. In the year 595, arts. 11 and
12, edition of the Capitularies by Baluzius, p. 19.
180. Arts. 2 and 3.
181. See Du Cange, Glossary,
on the word trustis.
182. Inserted in the Law of the
Lombards, ii. tit. 52, §14. It is the Capitulary of the year 793, in
Baluzius, p. 544, art. 10.
183. See also the same law of the
Lombards, ii, tit. 52, § 2, which relates to the Capitulary of
Charlemagne of the year 779, art. 21.
184. The third of the year 812, art.
185. The second of the year 813,
arts. 14, 20, Baluzius' edition, p. 509.
186. Capitulare quintum anni
819 art. 23, Baluzius' edition, p. 617.
187. Edictum in Carisiaco in
Baluzius, ii, p. 152.
188. Edictum Pistense, art.
18, Baluzius' edition, ii, p. 181.
189. Lib. 1.
190. I have already quoted it in the
preceding chapter, Episcopi vel patentes.
191. History, vi.
193. Vol. ii, book III, 18, p. 270.
194. See the preliminary discourse
of the Abbé du Bos.
195. See the Establishment of
the French Monarchy, iii, book VI, 4, p. 301.
196. He cites the 44th title of this
law, and the law of the Ripuarians, tit. 7 and 36.
197. Qui in truste dominicâ
est, tit. 44, § 4, and this relates to the 13th formulary of
Marculfus, de regis Antrustione. See also tit. 66, of the Salic
law, §§ 3 and 4, and tit. 74; and the law of the Ripuarians,
tit. 11, and the Capitulary of Charles the Bald, apud Carisiacum,
in the year 877, cap. xx.
198. Salic law, tit. 44, § 6.
199. Tit. 44, § 4.
200. Tit. 44, § 1.
201. Tit. 44, § 15.
202. Tit. 44, § 7.
203. Arts. 1, 2, and 3, of tit. 26,
of the law of the Burgundians.
204. Establishment of the French
Monarchy, iii, book VI. 4, 5