The Spirit Of Laws Part 37

In the treaty of Andeli,59 Gontram and his nephew Childebert engage to maintain the donations made to the va.s.sals and churches by the kings their predecessors; and leave is given to the wives, daughters, and widows of kings to dispose by will, and in perpetuity, of whatever they hold of the exchequer.60 Marculfus wrote his formularies at the time of the mayors.61 We find several in which the kings make donations both to the person and to his heirs:62 and as the formularies represent the common actions of life, they prove that part of the fiefs had become hereditary towards the end of the first race. They were far from having in those days the idea of an unalienable demesne; this is a modern thing, which they knew neither in theory nor practice.

In proof hereof we shall presently produce positive facts; and if we can point out a time in which there were no longer any benefices for the army, nor any funds for its support, we must certainly conclude that the ancient benefices had been alienated. The time I mean is that of Charles Martel, who founded some new fiefs, which we should carefully distinguish from those of the earliest date.

When the kings began to make grants in perpetuity, either through the corruption which crept into the government or by reason of the const.i.tution itself, which continually obliged those princes to confer rewards, it was natural they should begin with giving the perpetuity of the fiefs, rather than of the counties. For to deprive themselves of some acres of land was no great matter; but to renounce the right of disposing of the great offices was divesting themselves of their very power.

8.-In what Manner the Allodial Estates were changed into Fiefs The manner of changing an allodial estate into a fief may be seen in a formulary of Marculfus.63 The owner of the land gave it to the king, who restored it to the donor by way of usufruct, or benefice, and then the donor nominated his heirs to the king.

In order to find out the reasons which induced them thus to change the nature of the allodia, I must trace the source of the ancient privileges of our n.o.bility, a n.o.bility which for these eleven centuries has been enveloped with dust, with blood, and with the marks of toil.

They who were seized of fiefs enjoyed very great advantages. The composition for the injuries done them was greater than that of freemen. It appears by the formularies of Marculfus that it was a privilege belonging to a king's va.s.sal, that whoever killed him should pay a composition of six hundred sous. This privilege was established by the Salic law,64 and by that of the Ripuarians;65 and while these two laws ordained a composition of six hundred sous for the murder of a king's va.s.sal, they gave but two hundred sous for the murder of a person freeborn, if he was a Frank or barbarian, or a man living under the Salic law;66 and only a hundred for a Roman.

This was not the only privilege belonging to the king's va.s.sals. We ought to know that when a man was summoned in court, and did not make his appearance nor obey the judge's orders, he was called before the king;67 and if he persisted in his contumacy, he was excluded from the royal protection,68 and no one was allowed to entertain him, nor even to give him a morsel of bread. Now, if he was a person of an ordinary condition, his goods were confiscated;69 but if he was the king's va.s.sal, they were not.70 The first by his contumacy was deemed sufficiently convicted of the crime, the second was not; the former for the smallest crimes was obliged to undergo the trial by boiling waters71 the latter was condemned to this trial only in the case of murder.72 In fine, the king's va.s.sal could not be compelled to swear in court against another va.s.sal.73 These privileges were continually increasing, and the Capitulary of Carloman does this honor to the king's va.s.sals, that they should not be obliged to swear in person, but only by the mouth of their own va.s.sals.74 Moreover, when a person, having these honors, did not repair to the army, his punishment was to abstain from flesh-meat and wine as long as he had been absent from the service; but a freeman75 who neglected to follow his count was fined sixty sous,76 and was reduced to a state of servitude till he had paid it.

It is very natural, therefore, to believe that those Franks who were not the king's va.s.sals, and much more the Romans, became fond of entering into the state of va.s.salage: and that they might not be deprived of their demesnes, they devised the usage of giving their allodium to the king, of receiving it from him afterwards as a fief, and of nominating their heirs. This usage was continued, and took place especially during the times of confusion under the second race, when every man being in want of a protector was desirous of incorporating himself with the other lords, and of entering, as it were, into the feudal monarchy, because the political no longer existed.77 This continued under the third race, as we find by several charters;78 whether they gave their allodium, and resumed it by the same act; or whether it was declared an allodium, and afterwards acknowledged as a fief. These were called fiefs of resumption.

This does not imply that those who were seized of fiefs administered them as a prudent father of a family would; for though the freemen grew desirous of being possessed of fiefs, yet they managed this sort of estates as usufructs are managed in our days. This is what induced Charlemagne, the most vigilant and considerate prince we ever had, to make a great many regulations in order to hinder the fiefs from being demeaned in favor of allodial estates.79 It proves only that in his time most benefices were but for life, and consequently that they took more care of the freeholds than of the benefices; and yet for all that they did not choose rather to be the king's va.s.sals than freemen. They might have reasons for disposing of some particular part of a fief, but they were not willing to be stripped of their dignity likewise.

I know, likewise, that Charlemagne laments in a certain Capitulary, that in some places there were people who gave away their fiefs in property, and redeemed them afterwards in the same manner.80 But I do not say that they were not fonder of the property than of the usufruct; I mean only, that when they could convert an allodium into a fief, which was to descend to their heirs, as is the case of the formulary above mentioned, they had very great advantages in doing it.

9.-How the Church Lands were Converted into Fiefs The use of the fiscal lands should have been only to serve as a donation by which the kings were to encourage the Franks to undertake new expeditions, and by which on the other hand these fiscal lands were increased. This, as I have already observed, was the spirit of the nation; but these donations took another turn. There is still extant a speech of Chilperic,81 grandson of Clovis, in which he complains that almost all these lands had been already given away to the Church. "Our exchequer," says he, "is impoverished, and our riches are transferred to the clergy;82 none reign now but the bishops, who live in grandeur while we are quite eclipsed."

This was the reason that the mayors, who durst not attack the lords, stripped the churches; and one of the motives alleged by Pepin for entering Neustria83 was, his having been invited thither by the clergy, to put a stop to the encroachments of the kings, that is, of the mayors, who deprived the Church of all her possessions.

The mayors of Austrasia, that is the family of the Pepins, had behaved towards the clergy with more moderation than those of Neustria and Burgundy. This is evident from our chronicles,84 in which we see the monks perpetually extolling the devotion and liberality of the Pepins. They themselves had been possessed of the first places in the Church. "One crow does not pull out the eyes of another;" as Chilperic said to the bishops.85 Pepin subdued Neustria and Burgundy; but as his pretence for destroying the mayors and kings was the grievances of the clergy, he could not strip the latter without acting inconsistently with his cause, and showing that he made a jest of the nation. However, the conquest of two great kingdoms and the destruction of the opposite party afforded him sufficient means of satisfying his generals.

Pepin made himself master of the monarchy by protecting the clergy; his son, Charles Martel, could not maintain his power but by oppressing them. This prince, finding that part of the regal and fiscal lands had been given either for life, or in perpetuity, to the n.o.bility, and that the Church by receiving both from rich and poor had acquired a great part even of the allodial estates, he resolved to strip the clergy; and as the fiefs of the first division were no longer in being, he formed a second.86 He took for himself and for his officers the church lands and the churches themselves; thus he remedied an evil which differed from ordinary diseases, as its extremity rendered it the more easy to cure.

10.-Riches of the Clergy So great were the donations made to the clergy that under the three races of our princes they must have several times received the full property of all the lands of the kingdom. But if our kings, the n.o.bility, and the people found the way of giving them all their estates, they found also the method of getting them back again. The spirit of devotion established a great number of churches under the first race; but the military spirit was the cause of their being given away afterwards to the soldiery, who divided them among their children. What a number of lands must have then been taken from the clergy's mensalia! The kings of the second race opened their hands, and made new donations to them; but the Normans, who came afterwards, plundered and ravaged all before them, wreaking their vengeance chiefly on the priests and monks, and devoting every religious house to destruction. For they charged those ecclesiastics with the destruction of their idols, and with all the oppressive measures of Charlemagne by which they had been successively obliged to take shelter in the North. These were animosities which the s.p.a.ce of forty or fifty years had not been able to obliterate. In this situation what losses must the clergy have sustained! There were hardly ecclesiastics left to demand the estates of which they had been deprived. There remained, therefore, for the religious piety of the third race, foundations enough to make, and lands to bestow. The opinions which were spread abroad and believed in those days would have deprived the laity of all their estates, if they had been but virtuous enough. But if the clergy were actuated by ambition, the laity were not without theirs; if dying persons gave their estates to the Church, their heirs would fain resume them. We meet with continual quarrels between the lords and the bishops, the gentlemen and the abbots; and the clergy must have been very hard pressed, since they were obliged to put themselves under the protection of certain lords, who granted them a momentary defence, and afterwards joined their oppressors.

But a better administration having been established under the third race gave the clergy leave to augment their possessions; when the Calvinists started up, and having plundered the churches, they turned all the sacred plate into specie. How could the clergy be sure of their estates, when they were not even safe in their persons? They were debating on controversial subjects while their archives were in flames. What did it avail them to demand back of an impoverished n.o.bility those estates which were no longer in possession of the latter, but had been conveyed into other hands by different mortgages? The clergy have been long acquiring, and have often refunded, and still there is no end of their acquisitions.

11.-State of Europe at the Time of Charles Martel Charles Martel, who undertook to strip the clergy, found himself in a most happy situation. He was both feared and beloved by the soldiery, he worked for them, having the pretext of his wars against the Saracens. He was hated, indeed, by the clergy, but he had no need of their a.s.sistance.87 The Pope, to whom he was necessary, stretched out his arms to him. Everyone knows the famous emba.s.sy he received from Gregory III.88 These two powers were strictly united, because they could not do without each other: the Pope stood in need of the Franks to a.s.sist him against the Lombards and the Greeks; Charles Martel had occasion for the Pope, to humble the Greeks, to embarra.s.s the Lombards, to make himself more respectable at home, and to guarantee the t.i.tles which he had, and those which he or his children might take. It was impossible, therefore, for his enterprise to miscarry.

St. Eucherius, Bishop of Orleans, had a vision which frightened all the princes of that time. I shall produce on this occasion the letter written by the bishops a.s.sembled at Rheims to Louis, King of Germany, who had invaded the territories of Charles the Bald;89 because it will give us an insight into the situation of things in those times, and the temper of the people. They say,90 "That St. Eucherius, having been s.n.a.t.c.hed up into heaven, saw Charles Martel tormented in the bottom of h.e.l.l by order of the saints, who are to sit with Christ at the last judgment; that he had been condemned to this punishment before his time, for having stripped the Church of her possessions and thereby charged himself with the sins of all those who founded these livings; that King Pepin held a council upon this occasion, and had ordered all the church lands he could recover to be restored; that as he could get back only a part of them, because of his disputes with Vaifre, Duke of Aquitaine, he issued letters called precaria91 for the remainder, and made a law that the laity should pay a tenth part of the church lands they possessed, and twelve deniers for each house; that Charlemagne did not give the church lands away; on the contrary, that he published a Capitulary, by which he engaged both for himself and for his successors never to make any such grant; that all they say is committed to writing, and that a great many of them heard the whole related by Louis the Debonnaire, the father of those two kings."

King Pepin's regulation, mentioned by the bishops, was made in the Council held at Leptines.92 The Church found this advantage in it, that such as had received those lands held them no longer but in a precarious manner; and, moreover, that she received the t.i.the or tenth part, and twelve deniers for every house that had belonged to her. But this was only a palliative, and did not remove the disorder.

Nay, it met with opposition, and Pepin was obliged to make another Capitulary,93 in which he enjoins those who held any of those benefices to pay this t.i.the and duty, and even to keep up the houses belonging to the bishopric or monastery, under the penalty of forfeiting those possessions. Charlemagne renewed the regulations of Pepin.94 That part of the same letter which says that Charlemagne promised both for himself and for his successors never to divide again the church lands among the soldiery is agreeable to the Capitulary of this prince, given at Aix-la-Chapelle in the year 803, with a view of removing the apprehensions of the clergy upon this subject. But the donations already made were still in force.95 The bishops very justly add, that Louis the Debonnaire followed the example of Charlemagne, and did not give away the church lands to the soldiery.

And yet the old abuses were carried to such a pitch, that the laity under the children of Louis the Debonnaire preferred ecclesiastics to benefices, or turned them out of their livings96 without the consent of the bishops. The benefices were divided among the next heirs,97 and when they were held in an indecent manner the bishops had no other remedy left than to remove the relics.98 By the Capitulary of Compiegne99 it is enacted that the king's commissary shall have a right to visit every monastery, together with the bishop, by the consent and in presence of the person who holds it;100 and this shows that the abuse was general.

Not that there were laws wanting for the rest.i.tution of the church-lands. The Pope having reprimanded the bishops for their neglect in regard to the re-establishment of the monasteries, they wrote to Charles the Bald, that they were not affected by this reproach, because they were not culpable;101 and they reminded him of what had been promised, resolved, and decreed in so many national a.s.semblies. In point of fact they quoted nine.

Still they went on disputing; till the Normans came and made them all agree.

12.-Establishment of the t.i.thes The regulations made under King Pepin had given the Church rather hopes of relief than effectually relieved her; and as Charles Martel found all the landed estates of the kingdom in the hands of the clergy, Charlemagne found all the church lands in the hands of the soldiery. The latter could not be compelled to restore a voluntary donation; and the circ.u.mstances of that time rendered the thing still more impracticable than it seemed to be of its own nature. On the other hand, Christianity ought not to have been lost for want of ministers, churches, and instruction.102 This was the reason of Charlemagne's establis.h.i.+ng the t.i.thes,103 a new kind of property which had this advantage in favor of the clergy, that as they were given particularly to the Church, it was easier in process of time to know when they were usurped.

Some have attempted to make this inst.i.tution of a still remoter date, but the authorities they produce seem rather, I think, to prove the contrary. The const.i.tution of Clotharius says104 only, that they shall not raise certain t.i.thes on church-lands;105 so far then was the Church from exacting t.i.thes at that time, that its whole pretension was to be exempted from paying them. The second council of Macon,106 which was held in 585, and ordains the payment of t.i.thes, says, indeed, that they were paid in ancient times, but it says also that the custom of paying them was then abolished.

No one questions but that the clergy opened the Bible before Charlemagne's time, and preached the gifts and offerings of Leviticus. But I say, that before that prince's reign, though the t.i.thes might have been preached, they were never established.

I noticed that the regulations made under King Pepin had subjected those who were seized of church lands in fief to the payment of t.i.thes, and to the repairing of the churches. It was a great deal to induce by a law, whose equity could not be disputed, the princ.i.p.al men of the nation to set the example.

Charlemagne did more; and we find by the Capitulary de Villis107 that he obliged his own demesnes to the payment of the t.i.thes; this was a still more striking example.

But the commonalty are rarely influenced by example to sacrifice their interests. The Synod of Frankfort furnished them with a more cogent motive to pay the t.i.thes.108 A Capitulary was made in that Synod, wherein it is said, that in the last famine the spikes of corn were found to contain no seed,109 the infernal spirits having devoured it all, and that those spirits had been heard to reproach them with not having paid the t.i.thes; in consequence of which it was ordained that all those who were seized of church lands should pay the t.i.thes; and the next consequence was that the obligation extended to all.

Charlemagne's project did not succeed at first, for it seemed too heavy a burden.110 The payment of the t.i.thes among the Jews was connected with the plan of the foundation of their republic; but here it was a burden quite independent of the other charges of the establishment of the monarchy. We find by the regulations added to the law of the Lombards111 the difficulty there was in causing the t.i.thes to be accepted by the civil laws; and as for the opposition they met with before they were admitted by the ecclesiastic laws, we may easily judge of it from the different canons of the councils.

The people consented at length to pay the t.i.thes, upon condition that they might have the power of redeeming them. This the const.i.tution of Louis the Debonnaire,112 and that of the Emperor Lotharius, his son, would not allow.113 The laws of Charlemagne, in regard to the establishment of t.i.thes, were a work of necessity, not of superst.i.tion-a work, in short, in which religion only was concerned.

His famous division of the t.i.thes into four parts, for the repairing of the churches, for the poor, for the bishop, and for the clergy, manifestly proves that he wished to give the Church that fixed and permanent status which she had lost.

His will shows that he was desirous of repairing the mischief done by his grandfather, Charles Martel.114 He made three equal shares of his movable goods; two of these he would have divided each into one-and-twenty parts, for the one-and-twenty metropolitan sees of his empire; each part was to be subdivided between the metropolitan and the dependent bishoprics. The remaining third he distributed into four parts; one he gave to his children and grandchildren, another was added to the two-thirds already bequeathed, and the other two were a.s.signed to charitable uses. It seems as if he looked upon the immense donation he was making to the Church less as a religious act than as a political distribution.

13.-Of the Election of Bishops and Abbots As the Church had grown poor, the kings resigned the right of nominating to bishoprics and other ecclesiastic benefices.115 The princes gave themselves less trouble about the ecclesiastic ministers; and the candidates were less solicitous in applying to their authorities. Thus the Church received a kind of compensation for the possessions she had lost.

Hence, if Louis the Debonnaire left the people of Rome in possession of the right of choosing their popes, it was owing to the general spirit that prevailed in his time;116 he behaved in the same manner to the see of Rome as to other bishoprics.

14.-Of the Fiefs of Charles Martel I shall not pretend to determine whether Charles Martel, in giving the church lands in fief, made a grant of them for life or in perpetuity. All I know is, that under Charlemagne117 and Lotharius I118 there were possessions of that kind which descended to the next heirs, and were divided among them.

I find, moreover, that one part of them was given as allodia, and the other as fiefs.119 I noticed that the proprietors of the allodia were subject to service all the same as the possessors of the fiefs. This, without doubt, was partly the reason that Charles Martel made grants of allodial lands as well as of fiefs.

15.-The same Subject continued We must observe, that the fiefs having been changed into church lands, and these again into fiefs, they borrowed something of each other. Thus the church lands had the privileges of fiefs, and these had the privileges of church lands. Such were the honorary rights of churches, which began at that time.120 And as those rights have ever been annexed to the judiciary power, in preference to what is still called the fief, it follows that the patrimonial jurisdictions were established at the same time as those very rights.

16.-Confusion of the Royalty and Mayoralty. The Second Race The connection of my subject has made me invert the order of time, so as to speak of Charlemagne before I had mentioned the famous epoch of the translation of the crown to the Carlovingians under King Pepin; a revolution which, contrary to the nature of ordinary events, is more remarked perhaps in our days than when it happened.

The kings had no authority; they had only an empty name. The regal t.i.tle was hereditary, and that of mayor elective. Though it was latterly in the power of the mayors to place any of the Merovingians on the throne, they had not yet taken a king of another family; and the ancient law which fixed the crown in a particular family was not yet erased from the hearts of the Franks. The king's person was almost unknown in the monarchy; but royalty was not. Pepin, son of Charles Martel, thought it would be proper to confound those two t.i.tles, a confusion which would leave it a moot point whether the new royalty was hereditary or not; and this was sufficient for him who to the regal dignity had joined a great power. The mayor's authority was then blended with that of the king. In the mixture of these two authorities a kind of reconciliation was made; the mayor had been elective, and the king hereditary; the crown at the beginning of the second race was elective, because the people chose; it was hereditary, because they always chose in the same family.121 Father le Cointe, in spite of the authority of all ancient records,122 denies that the Pope authorized this great change; and one of his reasons is that he would have committed an injustice.123 A fine thing to see a historian judge of that which men have done by that which they ought to have done; by this mode of reasoning we should have no more history.

Be that as it may, it is very certain that immediately after Duke Pepin's victory, the Merovingians ceased to be the reigning family. When his grandson, Pepin, was crowned king, it was only one ceremony more, and one phantom less; he acquired nothing thereby but the royal ornaments; there was no change made in the nation.

This I have said in order to fix the moment of the revolution, that we may not be mistaken in looking upon that as a revolution which was only a consequence of it.

When Hugh Capet was crowned king at the beginning of the third race, there was a much greater change, because the kingdom pa.s.sed from a state of anarchy to some kind of government; but when Pepin took the crown there was only a transition from one government to another, which was identical.

When Pepin was crowned king there was only a change of name; but when Hugh Capet was crowned there was a change in the nature of the thing, because by uniting a great fief to the crown the anarchy ceased.

When Pepin was crowned the t.i.tle of king was united to the highest office; when Hugh Capet was crowned it was annexed to the greatest fief.

17.-A particular Circ.u.mstance in the Election of the Kings of the Second Race We find by the formulary of Pepin's coronation that Charles and Carloman were also anointed,124 and blessed, and that the French n.o.bility bound themselves, on pain of interdiction and excommunication, never to choose a prince of another family.125 It appears by the wills of Charlemagne and Louis the Debonnaire, that the Franks made a choice among the king's children, which agrees with the above-mentioned clause. And when the empire was transferred from Charlemagne's family, the election, which before had been restricted and conditional, became pure and simple, so that the ancient const.i.tution was departed from.

Pepin, perceiving himself near his end, a.s.sembled the lords, both temporal and spiritual, at St. Denis, and divided his kingdom between his two sons, Charles and Carloman.126 We have not the acts of this a.s.sembly, but we find what was there transacted in the author of the ancient historical collection, published by Canisius, and in the writer of the Annals of Metz,127 according to the observation of Baluzius.128 Here I meet with two things in some measure contradictory; that he made this division with the consent of the n.o.bility, and afterwards that he made it by his paternal authority. This proves what I said, that the people's right in the second race was to choose in the same family; it was, properly speaking, rather a right of exclusion than that of election.

This kind of elective right is confirmed by the records of the second race. Such is this Capitulary of the division of the empire made by Charlemagne among his three children, in which, after settling their shares, he says,129 "That if one of the three brothers happens to have a son, such as the people shall be willing to choose as a fit person to succeed to his father's kingdom, his uncles shall consent to it."

This same regulation is to be met with in the part.i.tion which Louis the Debonnaire made among his three children, Pepin, Louis, and Charles, in the year 837, at the a.s.sembly of Aix-la-Chapelle;130 and likewise in another part.i.tion, made twenty years before, by the same Emperor, in favor of Lotharius, Pepin, and Louis.131 We may likewise see the oath which Louis the Stammerer took at Compiegne at his coronation: "I, Louis, by the divine mercy, and the people's election, appointed king, do promise..."132 What I say is confirmed by the acts of the Council of Valence, held in the year 890, for the election of Louis, son of Boson, to the kingdom of Arles.133 Louis was there elected, and the princ.i.p.al reason they gave for choosing him is that he was of the imperial family,134 that Charles the Fat had conferred upon him the dignity of king, and that the Emperor Arnold had invested him by the sceptre, and by the ministry of his amba.s.sadors. The kingdom of Arles, like the other dismembered or dependent kingdoms of Charlemagne, was elective and hereditary.

18.-Charlemagne Charlemagne's intention was to restrain the power of the n.o.bility within proper bounds, and to hinder them from oppressing the freemen and the clergy. He balanced the several orders of the state, and remained perfect master of them all. The whole was united by the strength of his genius. He led the n.o.bility continually from one expedition to another, giving them no time to form conspiracies, but employing them entirely in the execution of his designs. The empire was supported by the greatness of its chief; the prince was great, but the man was greater. The kings, his children, were his first subjects, the instruments of his power and patterns of obedience. He made admirable laws; and, what is more, he took care to see them executed. His genius diffused itself through every part of the empire. We find in this prince's laws a comprehensive spirit of foresight, and a certain force which carries all before it. All pretexts for evading the duties are removed, neglects are corrected, abuses reformed or prevented.135 He knew how to punish, but he understood much better how to pardon. He was great in his designs, and simple in the execution of them. No prince ever possessed in a higher degree the art of performing the greatest things with ease, and the most difficult with expedition. He was continually visiting the several parts of his vast empire, and made them feel the weight of his hand wherever it fell. New difficulties sprang up on every side, and on every side he removed them. Never prince had more resolution in facing dangers; never prince knew better how to avoid them. He mocked all manner of perils, and particularly those to which great conquerors are generally subject, namely, conspiracies. This wonderful prince was extremely moderate, of a very mild character, plain and simple in his behavior. He loved to converse freely with the lords of his court. He indulged, perhaps, too much his pa.s.sion for the fair s.e.x; a failing, however, which in a prince who always governed by himself, and who spent his life in a continual series of toils, may merit some allowance. He was wonderfully exact in his expenses, administering his demesnes with prudence, attention, and economy. A father might learn from his laws how to govern his family; and we find in his Capitularies the pure and sacred source whence he derived his riches.136 I shall add only one word more: he gave orders that the eggs in the bartons on his demesnes, and the superfluous garden-stuff, should be sold;137 he distributed among his people all the riches of the Lombards, and the immense treasures of those Huns that had plundered the whole world.

19.-The same Subject continued Charlemagne and his immediate successors were afraid lest those whom they placed in distant parts should be inclined to revolt, and thought they should find more docility among the clergy. For this reason they erected a great number of bishoprics in Germany and endowed them with very large fiefs.138 It appears by some charters that the clauses containing the prerogatives of those fiefs were not different from such as were commonly inserted in those grants,139 though at present we find the princ.i.p.al ecclesiastics of Germany invested with a sovereign power. Be that as it may, these were some of the contrivances they used against the Saxons. That which they could not expect from the indolence or supineness of va.s.sals they thought they ought to expect from the sedulous attention of a bishop. Besides, a va.s.sal of that kind, far from making use of the conquered people against them, would rather stand in need of their a.s.sistance to support themselves against their own people.

20.-Louis the Debonnaire When Augustus Caesar was in Egypt he ordered Alexander's tomb to be opened; and upon their asking him whether he was willing they should open the tombs of the Ptolemies, he made answer that he wanted to see the king, and not the dead. Thus, in the history of the second race, we are continually looking for Pepin and Charlemagne; we want to see the kings, and not the dead.

A prince who was the sport of his pa.s.sions, and a dupe even to his virtues; a prince who never understood rightly either his own strength or weakness; a prince who was incapable of making himself either feared or beloved; a prince, in fine, who with few vices in his heart had all manner of defects in his understanding, took the reins of the empire into his hands which had been held by Charlemagne.

At a time when the whole world is in tears for the death of his father, at a time of surprise and alarm, when the subjects of that extensive empire all call upon Charles and find him no more; at a time when he is advancing with all expedition to take possession of his father's throne, he sends some trusty officers before him in order to seize the persons of those who had contributed to the irregular conduct of his sisters. This step was productive of the most terrible catastrophes.140 It was imprudent and precipitate. He began with punis.h.i.+ng domestic crimes before he reached the palace; and with alienating the minds of his subjects before he ascended the throne.

His nephew, Bernard, King of Italy, having come to implore his clemency, he ordered his eyes to be put out, which proved the cause of that prince's death a few days after, and created Louis a great many enemies. His apprehension of the consequence induced him to shut his brothers up in a monastery; by which means the number of his enemies increased. These two last transactions were afterwards laid to his charge in a judicial manner,141 and his accusers did not fail to tell him that he had violated his oath and the solemn promises which he had made to his father on the day of his coronation.142 After the death of the Empress Hermengarde, by whom he had three children, he married Judith, and had a son by that princess; but soon mixing all the indulgence of an old husband, with all the weakness of an old king, he flung his family into a disorder which was followed by the downfall of the monarchy.

He was continually altering the part.i.tions he had made among his children. And yet these part.i.tions had been confirmed each in their turn by his own oath, and by those of his children and the n.o.bility. This was as if he wanted to try the fidelity of his subjects; it was endeavoring by confusion, scruples, and equivocation, to puzzle their obedience; it was confounding the different rights of those princes, and rendering their t.i.tles dubious, especially at a time when there were but few fortresses, and when the princ.i.p.al bulwark of authority was the fealty sworn and accepted.

The Emperor's children, in order to preserve their shares, courted the clergy, and granted them privileges till then unheard. These privileges were specious; and the clergy in return were made to warrant the revolution in favor of those princes. Agobard143 represents to Louis the Debonnaire as having sent Lotharius to Rome, in order to have him declared emperor; and that he had made a division of his dominions among his children, after having consulted heaven by three days' fasting and praying. What defence could such a weak prince make against the attack of superst.i.tion? It is easy to perceive the shock which the supreme authority must have twice received from his imprisonment, and from his public penance; they would fain degrade the king, and they degraded the regal dignity.

We find difficulty at first in conceiving how a prince who was possessed of several good qualities, who had some knowledge, who had a natural disposition to virtue, and who, in short, was the son of Charlemagne, could have such a number of enemies,144 so impetuous and implacable as even to insult him in his humiliation and to be determined upon his ruin; and, indeed, they would have utterly completed it, if his children, who in the main were more honest than they, had been steady in their design, and could have agreed among themselves.

21.-The same Subject continued The strength and solidity for which the kingdom was imdebted to Charlemagne still subsisted under Louis the Debonnaire, in such a degree as enabled the state to support its grandeur and to command respect from foreign nations. The prince's understanding was weak, but the nation was warlike. His authority declined at home, though there seemed to be no diminution of power abroad.

Charles Martel, Pepin, and Charlemagne were in succession rulers of the monarchy. The first flattered the avarice of the soldiers: the other two that of the clergy. Louis the Debonnaire, displeased both.

In the French const.i.tution, the whole power of the state was lodged in the hands of the king, the n.o.bility, and clergy. Charles Martel, Pepin, and Charlemagne joined sometimes their interest with one of those parties to check the other and generally with both; but Louis the Debonnaire could gain the affection of neither. He disobliged the bishops by publis.h.i.+ng regulations which had the air of severity, because he carried things to a greater length than was agreeable to their inclination. Very good laws may be ill-timed. The bishops in those days, being accustomed to take the field against the Saracens and the Saxons, had very little of the spirit of religion.145 On the other hand, as he had no longer any confidence in the n.o.bility, he promoted mean people,146 turning the n.o.bles out of their employment at court to make room for strangers and upstarts.147 By this means the affection of the two great bodies of the n.o.bility and clergy were alienated from their prince, the consequence of which was a total desertion.

22.-The same Subject continued But what chiefly contributed to weaken the monarchy was the extravagance of this prince in alienating the crown demesnes.148 And here it is that we ought to listen to the account of Nitard, one of our most judicious historians, a grandson of Charlemagne, strongly attached to Louis the Debonnaire, and who wrote his history by order of Charles the Bald.

He says, "that one Adelhard for some time gained such an ascendant over the Emperor, that this prince conformed to his will in everything; that at the instigation of this favorite he had granted the crown lands to everybody that asked them,149 by which means the state was ruined."150 Thus he did the same mischief throughout the empire, as I observed he had done in Aquitaine;151 the former Charlemagne redressed, but the latter was past all remedy.

The state was reduced to the same debility in which Charles Martel found it upon his accession to the mayoralty; and so desperate were its circ.u.mstances that no exertion of authority was any longer capable of saving it.

The treasury was so exhausted that in the reign of Charles the Bald, no one could continue in his employment, nor be safe in his person without paying for it.152 When they had it in their power to destroy the Normans, they took money to let them escape:153 and the first advice which Hincmar gives to Louis the Stammerer is to ask of the a.s.sembly of the nation a sufficient allowance to defray the expenses of his household.

23.-The same Subject continued The clergy had reason to repent the protection they had granted to the children of Louis the Debonnaire. This prince, as I have already observed, had never given any of the church lands by precepts to the laity;154 but it was not long before Lotharius in Italy, and Pepin in Aquitaine, quitted Charlemagne's plan, and resumed that of Charles Martel. The clergy had recourse to the Emperor against his children, but they themselves had weakened the authority to which they appealed. In Aquitaine some condescension was shown, but none in Italy.

The civil wars with which the life of Louis the Debonnaire had been embroiled were the seed of those which followed his death. The three brothers, Lotharius, Louis, and Charles endeavored each to bring over the n.o.bility to their party and to make them their tools. To such as were willing therefore to follow them they granted church lands by precepts; so that to gain the n.o.bility, they sacrificed the clergy.

We find in the Capitularies155 that those princes were obliged to yield to the importunity of demands, and that what they would not often have freely granted was extorted from them: we find that the clergy thought themselves more oppressed by the n.o.bility than by the kings. It appears that Charles the Bald,156 became the greatest enemy of the patrimony of the clergy, whether he was most incensed against them for having degraded his father on their account, or whether he was the most timorous. Be that as it may, we meet with continual quarrels in the Capitularies,157 between the clergy who demanded their estates and the n.o.bility who refused or deferred to restore them; and the kings acting as mediators.

The situation of affairs at that time is a spectacle really deserving of pity. While Louis the Debonnaire made immense donations out of his demesnes to the clergy, his children distributed the church lands among the laity. The same prince with one hand founded new abbeys and despoiled old ones. The clergy had no fixed state; one moment they were plundered, another they received satisfaction; but the crown was continually losing.

Toward the close of the reign of Charles the Bald, and from that time forward, there was an end of the disputes of the clergy and laity, concerning the rest.i.tution of church lands. The bishops, indeed, breathed out still a few sighs in their remonstrances to Charles the Bald, which we find in the Capitulary of the year 856, and in the letter they wrote to Louis, King of Germany, in the year 858:158 but they proposed things, and challenged promises, so often eluded, that we plainly see they had no longer any hopes of obtaining their desire.

All that could be expected then was to repair in general the injuries done both to church and state.159 The kings engaged not to deprive the n.o.bility of their freemen, and not to give away any more church lands by precepts,160 so that the interests of the clergy and n.o.bility seemed then to be united.

The dreadful depredations of the Normans, as I have already observed, contributed greatly to put an end to those quarrels.

The authority of our kings diminis.h.i.+ng every day, both for the reasons already given and those which I shall mention hereafter, they imagined they had no better resource left, than to resign themselves into the hands of the clergy. But the ecclesiastics had weakened the power of the kings, and these had diminished the influence of the ecclesiastics.

In vain did Charles the Bald and his successors call in the Church to support the state, and to prevent its ruin; in vain did they make use of the respect which the commonalty had for that body,161 to maintain that which they should also have for their prince;162 in vain did they endeavor to give an authority to their laws by that of the canons; in vain did they join the ecclesiastic with the civil punishments;163 in vain to counterbalance the authority of the count did they give to each bishop the t.i.tle of their commissary in the several provinces:164 it was impossible to repair the mischief they had done; and a terrible misfortune which I shall presently mention proved the ruin of the monarchy.

24.-That the Freemen were rendered capable of holding Fiefs I said that the freemen were led against the enemy by their count, and the va.s.sals by their lord. This was the reason that the several orders of the state balanced each other, and though the king's va.s.sals had other va.s.sals under them, yet they might be overawed by the count who was at the head of all the freemen of the monarchy.

The freemen were not allowed at first to do homage for a fief; but in process of time this was permitted:165 and I find that this change was made during the period that elapsed from the reign of Gontram to that of Charlemagne. This I prove by the comparison which may be made between the Treaty of Andely,166 by Gontram, Childebert, and Queen Brunehaut, and the part.i.tion made by Charlemagne among his children, as well as a like part.i.tion by Louis the Debonnaire.167 These three acts contain nearly the same regulations with regard to the va.s.sals; and as they determine the very same points, under almost the same circ.u.mstances, the spirit as well as the letter of those three treaties in this respect are very much alike.

But as to what concerns the freemen there is a vital difference. The Treaty of Andely does not say that they might do homage for a fief; whereas we find in the divisions of Charlemagne and Louis the Debonnaire, express clauses to empower them to do homage. This shows that a new usage had been introduced after the treaty of Andely, whereby the freemen had become capable of this great privilege.

This must have happened when Charles Martel, after distributing the church lands to his soldiers, partly in fief, and partly as allodia, made a kind of revolution in the feudal laws. It is very probable that the n.o.bility who were seized already of fiefs found a greater advantage in receiving the new grants as allodia; and that the freemen thought themselves happy in accepting them as fiefs.

THE PRINc.i.p.aL CAUSE OF THE HUMILIATION OF THE SECOND RACE.

25.-Changes in the Allodia Charlemagne in the part.i.tion168 mentioned in the preceding chapter ordained, that after his death the va.s.sals belonging to each king should be permitted to receive benefices in their own sovereign's dominion, and not in those of another;169 whereas they may keep their allodial estates in any of their dominions.170 But he adds,171 that every freeman might, after the death of his lord, do homage in any of the three kingdoms he pleased, as well as he that never had been subject to a lord. We find the same regulations in the part.i.tion which Louis the Debonnaire made among his children in the year 817.

But though the freemen had done homage for a fief, yet the count's militia was not thereby weakened: the freeman was still obliged to contribute for his allodium, and to get people ready for the service belonging to it, at the proportion of one man to four manors; or else to procure a man that should do the duty of the fief in his stead. And when some abuses had been introduced upon this head they were redressed, as appears by the const.i.tutions of Charlemagne,172 and by that of Pepin, King of Italy, which explain each other.173 The remark made by historians that the battle of Fontenay was the ruin of the monarchy is very true; but I beg leave to cast an eye on the unhappy consequences of that day.

Some time after the battle, the three brothers, Lotharius, Louis, and Charles made a treaty,174 wherein I find some clauses which must have altered the whole political system of the French government.

In the declaration175 which Charles made to the people of the part of the treaty relating to them, he says that every freeman might choose whom he pleased for his lord,176 whether the king or any of the n.o.bility. Before this treaty the freeman might do homage for a fief; but his allodium still continued under the immediate power of the King, that is, under the count's jurisdiction; and he depended on the lord to whom he vowed fealty, only on account of the fief which he had obtained. After that treaty every freeman had a right to subject his allodium to the King, or to any other lord, as he thought proper. The question is not in regard to those who put themselves under the protection of another for a fief, but to such as changed their allodial into a feudal land, and withdrew themselves, as it were, from the civil jurisdiction to enter under the power of the King, or of the lord whom they thought proper to choose.

Thus it was, that those who formerly were only under the King's power, as freemen under the count, became insensibly va.s.sals one of another, since every freeman might choose whom he pleased for his lord, the King or any of the n.o.bility.

2. If a man changed an estate which he possessed in perpetuity into a fief, this new fief could no longer be only for life. Hence we see, a short time after, a general law for giving the fiefs to the children of the present possessor:177 it was made by Charles the Bald, one of the three contracting princes.

What has been said concerning the liberty every freeman had in the monarchy, after the treaty of the three brothers, of choosing whom he pleased for his lord, the King or any of the n.o.bility, is confirmed by the acts subsequent to that time.

In the reign of Charlemagne,178 when the va.s.sal had received a present of a lord, were it worth only a sou, he could not afterwards quit him. But under Charles the Bald, the va.s.sals might follow what was agreeable to their interests or their inclination with entire safety;179 and so strongly does this prince explain himself on the subject that seems rather to encourage them in the enjoyment of this liberty than to restrain it. In Charlemagne's time, benefices were rather personal than real; afterwards they became rather real than personal.

26.-Changes in the Fiefs The same changes happened in the fiefs as in the allodia. We find by the Capitulary of Compiegne,180 under King Pepin, that those who had received a benefice from the King gave a part of this benefice to different bondmen; but these parts were not distinct from the whole. The King revoked them when he revoked the whole; and at the death of the King's va.s.sal the rear-va.s.sal lost also his rear-fief: and a new beneficiary succeeded, who likewise established new rear-va.s.sals. Thus it was the person and not the rear-fief that depended on the fief; on the one hand, the rear-va.s.sal returned to the King because he was not tied forever to the va.s.sal; and the rear-fief returned also to the King, because it was the fief itself and not a dependence of it.

Such was the rear-va.s.salage, while the fiefs were during pleasure; and such was it also while they were for life. This was altered when the fiefs descended to the next heirs, and the rearfiefs the same. That which was held before immediately of the King was held now mediately; and the regal power was thrown back, as it were, one degree, sometimes two; and oftentimes more.

We find in the books of fiefs,181 that though the king's va.s.sals might give away in fief, that is, in rear-fief, to the king, yet these rear-va.s.sals, or petty vava.s.sors could not give also in fief; so that whatever they had given, they might always resume. Besides, a grant of that kind did not descend to the children like the fiefs, because it was not supposed to have been made according to the feudal laws.

If we compare the situation in which the rear-va.s.salage was at the time when the two Milanese Senators wrote those books, with what it was under King Pepin, we shall find that the rear-fiefs preserved their primitive nature longer than the fiefs.182 But when those Senators wrote, such general exceptions had been made to this rule as had almost abolished it. For if a person who had received a fief of a rear-va.s.sal happened to follow him upon an expedition to Rome, he was ent.i.tled to all the privileges of a va.s.sal.183 In like manner, if he had given money to the rear-va.s.sal to obtain the fief, the latter could not take it from him, nor hinder him from transmitting it to his son, till he returned him his money: in fine, this rule was no longer observed by the Senate of Milan.184 27.-Another change which happened in the Fiefs In Charlemagne's time they were obliged,185 under great penalties, to repair to the general meeting in case of any war whatsoever; they admitted of no excuses, and if the count exempted anyone he was liable himself to be punished. But the treaty of the three brothers186 made a restriction upon this head which rescued the n.o.bility, as it were, out of the King's hands, they were no longer obliged to serve him in time of war; except when the war was defensive.187 In others, they were at liberty to follow their lord, or to mind their own business. This treaty relates to another,188 concluded five years before between the two brothers, Charles the Bald and Louis, King of Germany, by which these princes release their va.s.sals from serving them in war, in case they should attempt hostilities against each other; an agreement which the two princes confirmed by oath, and at the same time made their armies swear to it.

The death of a hundred thousand French, at the battle of Fontenay, made the remains of the n.o.bility imagine that by the private quarrels of their kings about their respective shares, their whole body would be exterminated, and that the ambition and jealousy of those princes would end in the destruction of all the best families of the kingdom. A law was therefore pa.s.sed, that the n.o.bility should not be obliged to serve their princes in war unless it was to defend the state against a foreign invasion. This law obtained for several ages.189 28.-Changes which happened in the great Offices, and in the Fiefs The many changes introduced into the fiefs in particular cases seemed to spread so widely as to be productive of general corruption. I noticed that in the beginning several fiefs had been alienated in perpetuity; but those were particular cases, and the fiefs in general preserved their nature; so that if the crown lost some fiefs it subst.i.tuted others in their stead. I observed, likewise, that the crown had never alienated the great offices in perpetuity.190 But Charles the Bald made a general regulation, which equally affected the great offices and the fiefs. He ordained, in his Capitularies, that the counties should be given to the children of the count, and that this regulation should also take place in respect to the fiefs.191 We shall see presently that this regulation received a wider extension, insomuch that the great offices and fiefs went even to distant relatives. Thence it followed that most of the lords who before this time had held immediately of the Crown held now mediately. Those counts who formerly administered justice in the King's placita, and who led the freemen against the enemy, found themselves situated between the King and his freemen; and the King's power was removed further off another degree.

Again, it appears from the Capitularies,192 that the counts had benefices annexed to their counties, and va.s.sals under them. When the counties became hereditary, the count's va.s.sals were no longer the immediate va.s.sals of the king; and the benefices annexed to the counties were no longer the king's benefices; the counts grew powerful because the va.s.sals whom they had already under them enabled them to procure others.

In order to be convinced how much the monarchy was thereby weakened towards the end of the second race we have only to cast an eye on what happened at the beginning of the third, when the multiplicity of rear-fiefs flung the great va.s.sals into despair.

It was a custom of the kingdom193 that when the elder brothers had given shares to their younger brothers the latter paid homage to the elder; so that those shares were held of the lord paramount only as a rear-fief. Philip Augustus, the Duke of Burgundy, the Counts of Nevers, Boulogne, St. Paul, Dampierre, and other lords declared194 that henceforward, whether the fiefs were divided by succession or otherwise, the whole should be always of the same lord, without any intermediation. This ordinance was not generally followed; for, as I have elsewhere observed, it was impossible to make general ordinances at that time; but many of our customs were regulated by them.

29.-Of the Nature of the Fiefs after the Reign of Charles the Bald We have observed that Charles the Bald ordained that when the possessor of a great office or of a fief left a son at his death, the office or fief should devolve to him. It would be a difficult matter to trace the progress of the abuses which thence resulted, and of the extension given to that law in each country. I find in the books of fiefs,195 that towards the beginning of the reign of the Emperor Conrad II the fiefs situated in his dominions did not descend to the grandchildren: they descended only to one of the last possessor's children, who had been chosen by the lord:196 thus the fiefs were given by a kind of election, which the lord made among the children.

In the seventeenth chapter of this book we have explained in what manner the crown was in some respects elective, and in others hereditary under the second race. It was hereditary, because the kings were always taken from that family, and because the children succeeded; it was elective, by reason that the people chose from among the children. As things proceed step by step, and one political law has constantly some relation to another political law, the same spirit was followed in the succession of fiefs, as had been observed in the succession to the crown.197 Thus the fiefs were transmitted to the children by the right of succession, as well as of election; and each fief became both elective and hereditary, like the crown.

This right of election198 in the person of the lord was not subsisting at the time of the authors199 of the book of fiefs, that is, in the reign of the Emperor Frederick I.

30.-The same Subject continued It is mentioned in the books of fiefs, that when the Emperor Conrad set out for Rome, the va.s.sals in his service presented a pet.i.tion to him that he would please to make a law that the fiefs which descended to the children should descend also to the grandchildren; and that he whose brother died without legitimate heirs might succeed to the fief which had belonged to their common father.200 This was granted.

In the same place it is said (and we are to remember that those writers lived at the time of the Emperor Frederick I)201 "that the ancient jurists had always been of opinion202 that the succession of fiefs in a collateral line did not extend further than to brothers-german, though of late it was carried as far as the seventh degree, and by the new code they had extended it in a direct line in infinitum." It is thus that Conrad's law was insensibly extended.