The Feudal System.

71

use the phrase, and no longer apprehensive of any foreign enemy, France was prepared, under a monarch flushing with sanguine ambition, to carry her arms into other countries, and to contest the prize of glory and power upon the ample theatre of Europe.1

CHAPTER II.

ON THE FEUDAL SYSTEM, ESPECIALLY IN FRANCE.

PART 1.-FEUDAL SYSTEM.

GERMANY in the age of Tacitus, was divided among a number of independent tribes, differing greatly in population and importance. Their country, overspread with forests and morasses, afforded little arable land, and the cultivation of that little was inconstant. Their Occupations were principally the chase and pasturage; without cities, or even any contiguous dwellings. They had kings, elected out of particular families; and other chiefs, both for war and administration of justice, whom merit alone recommended to the public choice. But the power of each was greatly limited; and the decision of all leading questions, though subject to the previous deliberation of the chiefsuccession being disputed by other claimants, and especially by Louis IX., who had married her eldest sister, she compromised differences by marrying Charles of Anjou, the king's brother. The family of Anjou reigned in Provence, as well as in Naples, till the death of Joan in 1382, who, having no children, adopted Louis duke of Anjou, brother of Charles V., as her successor. This second Angevin líne ended in 1481 by the death of Charles III., though Renier duke of Lorraine, who was descended through a female, had a claim which it does not seem easy to repel by argument. It was very easy, however, for Louis XI., to whom Charles III. had bequeathed his rights, to repel it by force, and he took possession of Provence, which was permanently united to the crown by letters patent of Charles VIII. in 1486. 1 The principal authority, exclusive of original writers, on which I have relied for this chapter, is the History of France by Velly, Villaret, and Garnier; a work which, notwithstanding several defects, has absolutely superseded those of Mezeray and Daniel. The part of the Abbé Velly comes down to the middle of the eighth volume, (12mo edition,) and of the reign of Philip de Valois. His continuator Villaret was interrupted by death in the seventeenth volume, and in the reign of Louis XI. In my references to this history, which for common facts I have not thought it necessary to make, I have merely named the author of the particular volume which I quote. This has made the above explanation convenient, as the reader might imagine that I referred to three distinct works. Of these three historians, Garnier, the last, is the most judicious, and, I believe, the most accurate. His prolixity, though a material defect, and one which has occasioned the work itself to become an immeasurable undertaking, which could never be completed on the same scale, is chiefly occasioned by too great a regard to details, and is more tolerable than a similar fault in Villaret, proceeding from a love of idle declamation and sentiment. Villaret, however, is not without merits. He embraces, perhaps more fully than his predecessor Velly, those collateral branches of history which an enlightened reader requires almost in preference to civil transactions, the laws, manners, literature, and in general the whole domestic records of a nation. These subjects are not always well treated; but the book itself, to which there is a remarkably full index, forms upon the whole a great repository of useful knowledge. Vilaret had the advantage of official access to the French archives, by which he has no doubt enriched his history; but his references are indistinct, and his composition breathes an air of rapidity and want of exactness. Velly's characteristics are not very dissimilar.

72 The Allodial Proprietors-Female: Excluded. tains, sprung from the free voice of a popular assembly.1 The principal men, however, of a German tribe fully partook of that estimation, which is always the reward of valour, and commonly of birth. They were surrounded by a cluster of youths, the most gallant and ambitious of the nation, their pride at home, their protection in the field; whose ambition was flattered, or gratitude conciliated, by such presents as a leader of barbarians could confer. These were the institutions of the people who overthrew the empire of Rome, congenial to the spirit of infant societies, and such as travellers have found among nations in the same stage of manners throughout the world. And, although in the lapse of four centuries between the ages of Tacitus and Clovis, some change may have been wrought by long intercourse with the Romans, yet the foundations of their own political system were unshaken.

When these tribes from Germany and the neighbouring countries poured down upon the empire, and began to form permanent settlements, they made a partition of the lands in the conquered provinces between themselves and the original possessors. The Burgundians and Visigoths took two-thirds of their respective conquests, leaving the remainder to the Roman proprietor. Each Burgundian was quartered, under the gentle name of guest, upon one of the former tenants, whose reluctant hospitality confined him to the smaller portion of his estate. The Vandals in Africa, a more furious race of plunderers, seized all the best lands. The Lombards of Italy took a third part of the produce. We cannot discover any mention of a similar arrangement in the laws or history of the Franks. It is, however, clear, that they occupied, by public allotment, or individual pillage, a great portion of the lands of France.

The estates possessed by the Franks, as their property, were termed allodial; a word which is sometimes restricted to such as had descended by inheritance.2 These were subject to no burden except that of public defence. They passed to all the children equally, or in their failure, to the nearest kindred. But of these allodial possessions, there was a particular species, denominated Salic, from which females were expressly excluded. What these lands were, and what was the cause of the exclusion, has been much disputed. No solution seems more probable, than that the ancient lawgivers of the Salian Franks3 prohibited females from inheriting the lands assigned to the nation upon its conquest of Gaul, both in compliance with their ancient usages, and in order to secure the military service of every proprietor. But

1 De minoribus rebus principes consultant, de majoribus omnes; ita tamen, ut ea quoque, zorum penes plebem arbitrium est, apud principes pertractentur. Tac. de Mor. Germ. c. Acidalius and Grotius contend for prætractentur: which would be neater, but the same sense appears to be conveyed by the common reading.

2 Allodial lands are commonly opposed to beneficiary or feudal; the former being strictly proprietory, while the latter depended upon a superior. In this sense the word is of continual recurrence in ancient histories, laws, and instruments. It sometimes, however, bears the sense of inheritance: and this seems to be its meaning in the famous sixty-second chapter of the Salic law; de Alodis. Alodium interdum opponitur comparato, says Du Cange, in formulis veteribus. Hence, in the charters of the eleventh century, hereditary fiefs are frequently termed allodia.

3 The Salic laws appear to have been framed by a Christian prince, and after the conquest of Gaul. They are therefore not older than Clovis Nor can they be much later, since they were altered by one of his sons.

Ripuary Law. Provincial Inhabitants of Gaul. 73

lands subsequently acquired, by purchase or other means, though equally bound to the public defence, were relieved from the severity of this rule, and presumed not to belong to the class of Salic. Hence, in the Ripuary law, the code of a tribe of Franks settled upon the banks of the Rhine, and differing rather in words than in substance from the Salic law which it serves to illustrate, it is said, that a woman cannot inherit her grandfather's estate (hæreditas aviatica, distinguishing such family property from what the father might have acquired. And Marculfus uses expressions to the same effect. There existed, however, a right of setting aside the law, and admitting females to succession by testament. It is rather probable, from some passages in the Burgundian code, that even the lands of partition (sortes Burgundionum) were not restricted to male heirs. And the Visigoths admitted women on equal terms to the whole inheritance.

A controversy has been maintained in France, as to the condition of the Romans, or rather, the provincial inhabitants of Gaul, after the invasion of Clovis. But neither those who have considered the Franks as barbarian conquerors, enslaving the former possessors, nor the Abbé du Bos, in whose theory they appear as allies and friendly inmates, are warranted by historical facts. On the one hand, we find the Romans not only possessed of property, and governed by their own laws, but admitted to the royal favour, and the highest offices; 2 while the bishops and clergy, who were generally of that nation,3 grew up continually in popular estimation, in riches, and in temporal sway. Yet it is undeniable, that a marked line was drawn at the outset between the conquerors and the conquered. Though one class of Romans retained estates of their own, yet there was another, called tributary, who seem to have cultivated those of the Franks, and were scarcely raised above the condition of predial servitude. But no distinction can be more unequivocal than that which was established between the two nations in the weregild, or composition for homicide. Capital punishment for murder was contrary to the spirit of the Franks, who, like most barbarous nations, would have thought the loss of one citizen

1 By the German customs, women, though treated with much respect and delicacy, were not endowed at their marriage. Dotem non uxor marito, sed maritus uxori confert. Tacitus. A similar principle might debar them of inheritance in fixed possessions. Certain it is, that the exclusion of females was not unfrequent among the Teutonic nations. We find it in the laws of the Thuringians and of the Saxons; both ancient codes, though not free from interpolation. But this usage was repugnant to the principles of Roman law, which the Franks found prevailing in their new country, and to the natural feeling which leads a man to prefer his own descendants to collateral heirs. One of the precedents in Marculfus calls the exclusion of females, diuturna et impia consuetudo. In another, a father addresses his daughter: Omnibus non habetur incognitum, quod, sicut lex Salica continet, de rebus meis, quod mihi ex alode parentum meorum obvenit, apud germanos tuos filios meos minime in hæreditate Succedere poteras. These precedents were compiled about 700 A.D.

2 Daniel conjectures that Clotaire I. was the first who admitted Romans into the army, which had previously been composed of Franks. From this time we find many in high military command. It seems by a passage in Gregory of Tours, by Du Bos, that some Romans affected the barbarian character, by letting their hair grow. If this were generally permitted, it would be a stronger evidence of approximation between the two races, than any that Du Bos has adduced. Montesquieu certainly takes it for granted that a Roman might change his law, and thus become to all material intents a Frank. But the passage on which he relies is read differently in the manuscripts.

3 Some bishops, if we may judge from their barbarous names, and other circumstances, were not Romans. See, for instance, Gregory of Tours. But no distinction was made among them on this account. The composition for the murder of a bishop was nine hundred solidi; for that of a priest, six hurdred of the same coin.

74

The Weregild. Feudal Customs of Succession.

ill repaired by that of another. The weregild was paid to the relations of the slain, according to a legal rate. This was fixed by the Salic law at six hundred solidi for an Antrustion of the king; at three hundred for a Roman conviva regis (meaning a man of sufficient rank to be admitted to the royal table); at two hundred for a common Frank; at one hundred for a Roman possessor of lands; and at forty-five for a tributary, or cultivator of another's property. In Burgundy, where religion and length of settlement had introduced different ideas, murder was punished with death. But other personal injuries were com. pensated, as among the Franks, by a fine, graduated according to the rank and nation of the aggrieved party.1

The barbarous conquerors of Gaul and Italy were guided by notions very different from those of Rome, who had imposed her own laws upon all the subjects of her empire. Adhering in general to their ancient customs without desire of improvement, they left the former inhabitants in unmolested enjoyment of their civil institutions. The Frank was judged by the Salic or the Ripuary code; the Gaul followed that of Theodosius.2 This grand distinction of Roman and barbarian, according to the law which each followed, was common to the Frank, Burgundian, and Lombard kingdoms. But the Ostrogoths, whose settlement in the empire and advance in civility of manners were earlier, inclined to desert their old usages, and adopt the Roman jurisprudence. The laws of the Visigoths, too, were compiled by bishops upon a Roman foundation, and designed as an uniform code, by which both nations should be governed. The name of Gaul or Roman was not entirely lost in that of Frenchman, nor had the separation of their laws ceased, even in the provinces north of the Loire, till after the time of Charlemagne. Ultimately, however, the feudal customs of succession, which depended upon principles quite remote from those of the civil law, and the rights of territorial justice which the barons came to possess, contributed to extirpate the Roman jurisprudence in that part of France. But in the south, from whatever cause, it survived the revolutions of the middle ages; and thus arose a leading division of that kingdom into pays coutumiers and pays du droit écrit; the former regulated by a vast variety of ancient usages, the latter by the civil law.4

1 Murder and robbery were made capital by Childebert, king of Paris; but Francus was to be sent for trial in the loyal court, debilior persona in loco pendatur. I am inclined to think, that the word Francus does not absolutely refer to the nation of the party, but rather to his rank, as opposed to debilior persona; and consequently, that it had already acquired the sense of freeman, or free-born, (ingenuus) which is perhaps its strict meaning.

2 Inter Romanos negotia causarum Romanis legibus præcipimus terminari

3 Suger, in his life of Louis VI., uses the expression, lex Salica; and I have some recollec tion of having met with the like words in other writings of as modern a date. But I am not convinced that the original Salic code was meant by this phrase, which may have been ap plied to the local feudal customs. The capitularies of Charlemagne are frequently termed lex Salica. Many of these are copied from the Theodosian code.

+ This division is very ancient, being found in the edict of Pistes, under Charles the Bald, in 864, where we read, in illis regionibus, quæ legem Romanum sequuntur. Montesquieu thinks, that the Roman law fell into disuse in the north of France on account of the superior advantages, particularly in point of composition for offences, annexed to the Salic law; while that of the Visigoths being more equal, the Romans under their government had no induce ment to quit their own code. But it does not appear that the Visigoths had any peculiar code of laws till after their expulsion from the kingdom of Toulouse. They then retained only a small strip of territory in France, about Narbonne and Montpelier.

However, the distinction of men according to their laws was preserved for many centuries, bota in France and Italy. A judicial proceeding of the year 918, published by the historians

The Merovingian Dynasty-Their Descent.

75

The kingdom of Clovis was divided into a number of districts, each under the government of a count, a name familiar to Roman subjects, by which they rendered the graf of the Germans. The authority of this officer extended over all the inhabitants, as well Franks as natives. It was his duty to administer justice, to preserve tranquillity, to collect the royal revenues, and to lead, when required, the free proprietors into the field. The title of a duke implied a higher dignity, and commonly gave authority over several counties.1 These offices were originally conferred during pleasure; but the claim of a son to succeed his father would often be found too plausible or too formidable to be rejected, and it is highly probable that, even under the Merovingian kings, these provincial governors had laid the foundations of that independence which was destined to change the countenance of Europe.2 The Lombard dukes, those especially of Spoleto and Benevento, acquired very early a hereditary right of governing their provinces, and that kingdom became a sort of feudal aristocracy.

The throne of France was always filled by the royal house of Meroveus. However complete we may imagine the elective rights of the Franks, it is clear that a fundamental law restrained them to this of Languedoc, proves that the Roman, Gothic, and Salic codes were then kept perfectly separate, and that there were distinct judges for the three nations. The Gothic law is referred to as an existing authority in a chaiter of 1070. Every man, both in France and in Italy, seems to have had the right of choosing by what law he would be governed. Volumus, says Lothaire I. in 824, ut cunctus populus Romanus interrogetus, quali lege vult vivere, ut tali, quali professi fuerint vivere velle, vivant. Quod si offensionem contra eandem legem fecerint, eidem legi quum profitentur, subjacebunt. Women upon marriage usually changed their law, and adopted that of their husband, returning to their own in widowhood; but to this there are exceptions. Charters are found, as late as the twelfth century with the expression, qui professus sum lege Longobardicâ [aut] lege Salicâ [aut] lege Alemannorum vivere. But soon afterwards the distinctions were entirely lost, partly through the prevalence of the Roman law, and partly through the multitude of local statutes in the Italian cities.

1 Houard, the learned translator of Littleton, supposes these titles to have been applied indifferently. But the contrary is easily proved, and especially by a line of Fortunatus, quoted by Du Cange and others:

Qui modo dat Comitis, det tibi jura Ducis.

The cause of M. Houard's error may perhaps be worth noticing. In the above cited form of Marculfus, a precedent (in law language) is given for the appointment of a duke, count, or patrician. The material part being the same, it was only necessary to fill up the blanks, as we should call it, by inserting the proper designation of office. It is expressed therefore: actionem comitatus, ducatus, aut patriciatus in pago illo, quam antecessor tuus ille usque nunc visus est egisse, tibi agendum regendumque commisimus. Montesquieu has fallen into a similar mistake, forgetting for a moment, like Houard, that these instruments in Marculfus were not records of real transactions, but general forms for future occasions.

The office of patrician is rather more obscure. It seems to have nearly corresponded with what was afterwards called mayor of the palace, and to have implied the command of all the royal forces. Such at least were Celsus, and his successor Mummolus, under Gontran. This is probable, too, from analogy. The patrician was the highest officer in the Roman empire, from the time of Constantine, and we know how much the Franks themselves, and still more their Gaulish subjects, affected to imitate the style of the imperial court.

2 That the offices of count and duke were originally but temporary, may be inferred from several passages in Gregory of Tours. But it seems by the laws of the Alemanni, that the hereditary succession of their dukes was tolerably established at the beginning of the seventh century, when their code was promulgated. The Bavarians chose their own dukes out of one family, as is declared in their laws. Lindebrog, Codex Legum antiquarum. This the emperor Henry II. confirms in Ditmar. Nonne scitis, he says, Bajuarios ab initio ducem eli. gendi liberam habere potestatem? Indeed, the consent of these German provincial nations, if I may use the expression, seems to have been always required, 23 in an independent mon. archy. Ditmar, a chronicler of the tenth century, says that Eckard was made duke of Thuringia totius populi consensu. With respect to France, properly so called, or the king. doms of Neustria and Burgundy, it may be less easy to prove the existence of hereditary offices under the Merovingians. But the feebleness of their government makes it probable that so natural a symptom of di organisation had not failed to ensue, The Helvetian counts appear to have been nearly independent as early as this period.