The Normans.
V. The Normans. This is the generic name of the German and Scandinavian tribes, who inhabited the shores of the Baltic. Their maritime expeditions may be traced back to a very remote period. We meet with them under the first dynasty of Frankish kings; they frequently occur towards the end of the reign of Charlemagne, and under Louis the Debonnair; and they continually appear under Charles the Bald. They constituted a fresh cause of the dismemberment of the empire, and of the royal authority. In the ninth century, the Frankish Gauls present the same appearance which the Roman Gauls had offered four centuries before: that of a government incapable of defending the country, and expelled or retiring in every direction, and of barbarians pillaging, imposing tribute, withdrawing on payment of large sums of money, and continually reappearing to levy fresh contributions. Nevertheless, a notable difference is to be remarked between these two epochs. In both, the central government was equally incapable and worn out; but, in the ninth century, there existed within the Frankish territory a host of chieftains, who, though lately barbarian invaders themselves, had become independent, and were surrounded by warriors who defended themselves against the new invaders with far greater energy than the Roman magistrates had done, and who took advantage of the disturbed state of society to consolidate firmly their own individual sovereignties. Among these chieftains, we meet with Robert the Strong, the ancestor of the Capetian family, who became Duke of Neustria, in 861, and was killed in 866, while defending Neustria against the Normans. The Normans definitively established themselves in Neustria, in 912, under Charles the Simple, who yielded the province to their chief Rollo, and gave him his daughter Grisella in marriage.
VI. Charles the Fat. In 884, Charles the Fat, son of Louis the Germanic, temporarily collected under his rule nearly all the dominions of Charlemagne. The maintenance of this new concentration of territory and power was impossible, and it was dissolved even before the death of Charles the Fat.
VII. In 888, Eudes, and in 923, Raoul, made themselves kings. The first, a count of Paris, was the son of Robert the Strong, and assumed the title of king, at the national assembly held at Compiègne. The second was Duke of Burgundy, and husband of Emma, the grand-daughter of Robert the Strong, and sister of Hugo the Great, Duke of France. These kings were not, like the Mayors of the Palace at the termination of the first dynasty, the representatives of a powerful aristocracy. The landed aristocracy of the tenth century had no further need of representation; no power could struggle effectively against them. Every great landowner was absolute master in his own estates, and the kings were only great barons, who, having become independent, assumed the title of kings, with the aid of their vassals. A portion of the lords who had thus become independent, remained indifferent to quarrels which did not disturb their rights and their power. They cared little whether there was a king, or who was king. The descendants of Charlemagne retained for some considerable time a party of adherents, for the idea and feeling of the rightfulness of a hereditary succession to the crown, that is, of legitimacy, were already powerful; but in 987, the conflict ceased, and Hugh Capet became king.
Tendency To Dissolution.
The general fact which characterizes this epoch,—a tendency to dismemberment and dissolution,—is frequently met with in the course of the history of the human race. At first, we see the interests, forces, and ideas which exist in society, labouring to become united, to concentrate themselves, and to produce a suitable form of government. When this concentration has been once effected, and this government has been once produced, we find that, at the end of a certain time, it becomes exhausted and incapable of maintaining it entirely; new interests, new forces, and new ideas, which do not harmonize with each other, arise and come into action; then the dissolution begins, the elements of society become separated, and the bonds of government are relaxed. A conflict commences between the forces which tend to separation, and the authority which strives to maintain union. When the dissolution shall be consummated, then will begin a new work of concentration.
Formation And Dissolution.
This occurred after the fall of the second dynasty in France. The prevalence of the feudal system had caused the dissolution of the government and the state; the government and the state laboured to reconstitute themselves, and to regain their unity and consistency. This great work was not definitively accomplished until the reign of Louis XIV.; the social forces had then become once more concentrated in the hands of royalty. Our own times have witnessed a fresh dissolution.
What we observe, then, during the years from 481 to 987, is a general phenomenon, characteristic of the progress of the human race. This phenomenon occurs not only in the political history of societies, but also in every occupation in which the activity of man finds exercise. In intellectual order, for example, we find at first that chaos reigns; the most divergent attempts to resolve the great questions of the nature and destiny of man, are made in the midst of the universal ignorance. By degrees, opinions become assimilated, a school is formed, founded by a superior man; it is joined by almost all men of mind. Ere long, in the midst of this very school, diverse opinions arise, contend, and become separated; dissolution begins once again in intellectual order, and will continue until a new unity is formed, and regains the empire.
Such, also, is the course of nature herself in her great and mysterious operations. This continual alternation of formation and dissolution, of life and death, recurs in all things, and under all forms. Spirit gathers matter together and gives it animation,—uses, and then abandons it. It falls a prey to some fermentation, after which it will reappear under a new aspect, to receive once more that spirit which alone can impart to it life, order, and unity.
Lecture XII.
Ancient institutions of the Franks.
They are more difficult of study than those of the
Anglo-Saxons.
Three kinds of landed property; allodial, beneficiary,
and tributary lands.
Origin of allodial lands.
Meaning of the word allodium.
Salic land amongst the Franks.
Essential characteristics of the allods.
Primitive Institutions Of The Franks.
The primitive institutions of the Franks are much more difficult of study than those of the Anglo-Saxons.
I. In the Frankish monarchy, the old Gallo-Roman people still subsisted; they in part retained their laws and customs; their language even predominated; Gaul was more civilised, more organised, more Romanised than Great Britain, in which nearly all the original inhabitants of the country were either destroyed or dispersed.
II. Gaul was divided among various barbarian peoples, each of whom had its own laws, its own kingdom, its own history; the Franks, the Visigoths, the Burgundians; and the continual alternations of the Frankish monarchy between dislocation and re-union, long destroyed all unity in its history.
III. The conquerors were dispersed over a much larger extent of territory; and central institutions were weaker, more diverse, and more complicated.
IV. Of the two systems of social and political order, contained in the cradle of modern nations—I mean the feudal system and the representative system—the latter has long prevailed in England, while the former long maintained its sway in France. The ancient national institutions of the Franks were absorbed into the feudal system, in whose train came absolute power. Those of the Saxons, on the other hand, were more or less maintained and perpetuated, to end at length in the representative system, which rendered them clear by giving them due development.
Perhaps, also, the difficulty of the study of the ancient Frankish institutions arises in some measure from the fact that we possess more documents respecting the Franks than respecting the Saxons. Because we are acquainted with more facts, we have greater trouble in harmonizing them. We believe we are better informed because we know less.
Such being the case, I wish to state with precision the object of my researches, so as not to lose time in useless digressions. I do not propose that we should study together either the state of Frankish society in all its departments, or the history of all its vicissitudes. I am desirous to investigate and explain to you, first, what constituted in France, from the fifth to the tenth century, the political part of the nation, possessing political rights and liberties; and secondly, by what institutions these rights were exercised, and these liberties guaranteed. We shall frequently be obliged to make excursions beyond these limits in search of the facts necessary to the solution of the questions contained therein; but we shall not dwell long upon such extraneous matter.
In the pursuit of this study, we shall find the works of German authors of incontestable utility. A principal cause of the errors of the leading French writers who have treated of the subject, is that they have attempted to derive all our institutions from Germany, from the condition of the Franks before the invasion, and that, at the same time, they have been unacquainted with the language, the history, and the learned researches of the purely German peoples, that is, of the nations which have most thoroughly retained the primitive elements of Frankish society, and which formed a considerable portion of the Frankish monarchy.
Views Of Hullmann.
Dr. Hullmann, a professor at the University of Bonn, has written a book on the origin of the various social states or conditions, the object of which is to prove that all modern social order, political as well as civil, derives its origin from the circumstance, that the peoples of modern times have been agriculturists, devoted to the possession and fixed cultivation of land. This view, although incomplete, is of much importance. It is certain that, in the history of Europe, ever since the fall of the Roman Empire, the condition of persons has been closely connected with that of landed property, and that the one throws light upon the other. Though all history would not prove that this has been the case from the beginning, yet the long-continued predominance of the feudal system, which consists precisely in the intimate connection and amalgamation of the relations of lands with those of persons, would alone be sufficient to demonstrate it unquestionably.
Condition Of Lands.
At the outset, the condition of persons gave rise to that of lands; according as a man was more or less free, more or less powerful, the land which he possessed or cultivated assumed a corresponding character. The condition of lands afterwards became the symbol of the condition of persons; according as a man possessed or cultivated such and such a domain, he was more or less free and more or less important in the State. Originally, the man gave its character to the estate; in the sequel, the estate gave his character to the man: and as symbols quickly become causes, the condition of persons was at length not only indicated, but determined by, and consequent upon, the condition of lands. Social conditions became in some degree incorporated with the soil: and a man found himself possessed of a certain rank and of a certain degree of liberty and social importance, corresponding to the character of the land which he occupied. In studying modern history, we must not for a moment lose sight of these vicissitudes in the condition of lands, and of the varied influence they exerted upon the condition of persons.
There is some advantage in first studying the condition of lands, in so far as it was a symbol of the condition of persons, because the former is somewhat more determinate than the latter. It is also less complicated; the condition of persons frequently varied upon lands of the same condition; and the same persons have possessed lands of different conditions. Our information, respecting the condition of lands, is also more than exact.
In studying the condition of landed property and its vicissitudes, I do not propose to investigate its civil condition, or to consider property in all its civil relations, such as successions, bequests, and alienations. I intend to consider it only in its relation to the condition of persons, and as a symbol or cause of the various conditions of society. In the period which we are about to study, from the fifth to the tenth century, we have this advantage: that it contains a complete system, both as regards landed property, and also with respect to the condition of persons and the political institutions of the nation.
Allodial Lands.
At this period, we meet with three kinds of landed property: 1st. Allodial lands; 2nd. Beneficiary lands; and 3rd. Tributary lands.
1st. Of allodial lands or Allods.—These were lands possessed in absolute right, which the proprietor held from no one, on account of which he owed nothing to any superior, and of which he had full liberty to dispose. The lands taken or received as booty by the Franks, at the time of the conquest of Gaul, or in their subsequent conquests, were originally allodial. At a later period it was said that a man held an allodium, only from God and his sword. Hugh Capet said that he held the crown of France in this manner, because he had received it from no one. Such tenures were mementos of conquest.
The word alode itself indicates that the first allods were lands, which fell to the conquerors either by lot or division; loos, lot; allotted, allotment; whence also came the French word, loterie. Among the Burgundians, Visigoths, Lombards, and others, we find positive traces of this division of the lands allotted to the conquerors. They took possession of two-thirds of the land, that is, not of the whole extent of the country, but of the land in any locality, where a barbarian of any importance took up his residence. The lands which thus fell to the barbarians, were called Sortes Burgundionum, Gothorum, and so on. We do not find among the Franks positive traces of such a division of the land; but we know, nevertheless, that they divided their booty by lot.
The word alode, then, was probably applied at first only to the lands taken by the victors in virtue of their conquests. Another proof of this is that allodial property, properly so called, was long distinguished from the lands held also in absolute right, and entailing no acknowledgment of a superior, but which had been acquired by purchase or in any other way. A distinction was also made among allodial lands, of salic land, which could be inherited only by males. This was probably the original allod, the land acquired at the time of the conquest, and which thereupon became the primitive and principal establishment of the head of the family. Terra salica is the terra aviatica of the Ripuarian Franks, the terra sortis titulo adquisita of the Burgundians, the hæreditas of the Saxons, and the terra paterna of the formulas of Marculf.
Salic Land.
Various explanations have been given of the term salic land. Montesquieu thinks that it was the land belonging to the house, from the word, sal, hall. This explanation is supported by Hullmann. It would thus be the in-land of the Anglo-Saxons. It is probable that originally the terra salica was in fact the land connected with the house, the residence of the chieftain. The two explanations would thus coincide; but the former is more complete and historical than the latter.
The name of allod was extended by degrees to all lands possessed in absolute right, and held from no superior, whether they were the original allods or not. The words proprium, possessio, prædium, hæreditas, were then employed as synonyms of allodium. It was probably at this period also that the rigorous interdict which excluded females from succession to salic land, fell into desuetude. It would have been too harsh to exclude them from succession to all allodial property. There were some doubts entertained on this point as early as the time when the salic law was drawn up; and Marculf has transmitted to us a formula which proves that, although it was the common law to deprive females of all succession to primitive allods, a father might, nevertheless, by his will, give his daughter an equal share with his sons in the division of all his property, of whatever nature.
The essential and primitive characteristic of the allodium, consisted in the absoluteness of the property; the right to give it away, to alienate it, to bequeath it by inheritance or will, &c. Its second characteristic was that it depended upon no superior, and involved no service or tribute of any kind to any individual. But although allodial lands were exempt from all private charges towards individuals, does it follow that they were also exempt from all public charges as regarded the state, or the king as head of the State? This question has been differently answered by learned men.
At the period to which we allude, there were no public charges properly so called, no obligations imposed and fulfilled as regarded the State, or its head. All was limited to personal relations between individuals; and from the relations of man with man arose the mutual relations of landed property, which were not carried further than those of persons.
Charges On Allodial Lands.
We have already seen this; the position of the Franks after the conquest resulted from the combination of their anterior relations with their new position. The freeman, who held his land from no one, had no obligations or charges to fulfil to any one on account of his land. In such a state of civilization, liberty is the appanage of force. The Franks who possessed allodial lands, and were strong enough to be under no obligation of duty to any more powerful individual, would not have comprehended the necessity of owing service to an abstract being like the State, with which, moreover, they had no personal relation.
However, as society cannot exist in such a state of dissolution, arising from the isolation of individuals, new relations were progressively formed between the proprietors of allodial lands, which relations imposed certain charges on them.
1st. The gifts presented to the kings either at the holding of the Champs de Mars or Mai, or when they come to pass any time in any particular province. The kings had no fixed habitation. These gifts, though at first purely voluntary, became gradually converted into a sort of obligation, from which allodial lands were not exempt. That these gifts had become obligatory is proved by a list drawn up at Aix-la-Chapelle in 817, during the reign of Louis the Debonnair, which enumerates the monasteries which had to pay them, and those which had not.
2nd. The supply of provisions and means of transport to the king's ambassadors, and to the foreign envoys, on their passage through the country.
3rd. Of the various barbarian nations which were successively incorporated into the kingdom of the Franks, several paid tribute to the Frankish kings; and of this tribute it is probable that the free or allodial lands, possessed by these nations, contributed their share. It consisted of a certain number of cows, hogs, and horses. The nature of these tributes proves that they were not distributed among the lands, but imposed upon the nation as a whole.
4th. A more important charge, namely, military service, was imposed upon allodial lands. In our next lecture, we shall see how this charge was introduced.
Lecture XIII.
Origin of military service; its cause and limits.
It was made a general obligation by Charlemagne.
Allodial lands were originally exempt from taxation.
Origin of benefices.
Change in the position of the German chiefs in consequence of
their territorial settlement.
Their wealth.
No public treasury.
The œrarium and fiscus of the old Roman republic.
Formation of the private domain of the kings of France.
Character of benefices.
Error of Montesquieu on this subject.
Origin Of Military Service.
I have indicated some of the new relations which became progressively established between the proprietors of allodial lands and the services that resulted from them. I have to occupy you to-day with the consideration of military service and benefices.
Originally, military service was imposed on a man by virtue of his quality, his nationality before the conquest, and not by reason of his wealth. After the conquest, there was no legal obligation to it whatever; it was a natural result of the position occupied by the Franks,—who were constantly called upon to defend what they had conquered,—and of their taste for warlike expeditions, and for pillage. It was, also, a kind of moral obligation which each man owed to the chief whom he had chosen. This connexion continued the same as in Germany; the chief proposed an expedition to his men, and if they approved of it, they set out. Thus, we find Theodoric proposed to the Austrasian Franks an expedition against Thuringia. Often the warriors themselves summoned their chief to conduct them on some particular expedition, threatening to forsake him, and seek another chief, in the event of his refusal. Under the Merovingians, a kind of regularity, some sort of legal obligation, was introduced into the military convocations, and a penalty was inflicted upon those who did not present themselves. The obligation was imposed, and the penalty inflicted, even in cases where no movement was required in defence of the country. The proprietors ol allodial lands were not exempted; many, doubtless, went on their own free choice, but the feeble were constrained. This was, however, an obligation attached rather to the quality of a free man, a Frank, or an associate, than to property.
Not until the reign of Charlemagne, do we see the obligation to military service imposed on all free men, proprietors of freeholds, as well as of benefices, and regulated by property qualifications. This service now appeared no longer as a voluntary act; it was no longer the consequence of the simple relation between a chief and his associates, but a truly public service imposed on every individual of the nation, in proportion to the nature and extent of his territorial possessions. Charlemagne was very vigilant in seeing that the system of recruiting which he had established, should be faithfully carried out; we have a proof of this in his capitulary, issued in the form of instructions to the missi dominici, in the year 812. This is an exceedingly minute account of the particulars and charges of military service. These charges remained under the same conditions during the reigns of Charlemagne's immediate successors. Under Charles the Bald, they were restricted to the case of an invasion of the country by a foreigner (landwehr). The relation of the vassal to his lord, at that time, prevailed completely over that of the citizen to the chief ruler of the state.
Exemption Of Freeholds From Imposts.
Although allodial lands were exempt from imposts, properly so called, more because there were no general imposts whatever than because of any special immunity from them possessed by allodial lands, yet we find the kings used every favourable opportunity to attempt to attach imposts to men and lands, which they believed rightfully exempt from them; complaints were made of these attempts as acts of injustice; they were resisted, and sometimes redress was sought, as under Chilperic, in 578, in Austrasia; under Theodebert, in 547; and under Clovis II., in 615. We find also, that, on the occasion of great and alarming emergencies, the kings imposed certain charges on proprietors, without distinction, requiring them to lend their assistance, either to the poor, or to the state. Thus, Charlemagne, in 779, during a famine, and Charles the Bald, in 877, in order to pay the tribute due to the Normans, made such general claims. In both these cases, the charge was adjusted to the quality of persons and properties.
Distribution Of Lands.
There is reason to believe that, originally, allodial lands did not exist in large numbers, especially among the Franks.
There is no ground for supposing that the Franks took possession of, and shared the lands, wherever they made expeditions and conquests. They rather cared for the booty which they carried off, and the cattle which they took with them, instead of forming a settlement themselves. For a long time, the greater part of the Franks did not often forsake their first habitations on the banks of the Meuse and the Rhine; thither they returned after their expeditions.
We may conclude that lands were most probably distributed in the following manner. Each chief took a portion for himself and his associates, who lived on the land of their chief. It would be absurd to suppose that each band would dissolve itself, and the separated individuals then retire each to his isolated share of land; there were no individual shares, or, certainly, but few. This is sufficiently proved by the fact that the greater number of Franks appear to have been without landed property, living as cultivators on the lands, and in the villæ of a chief, or of the king. Often, even, a man would place himself not only under the protection, but at the disposal of another, to serve him during his life, on condition of being fed and clothed, and yet without ceasing to be free. This kind of contract, the formula for which has been preserved, must have been very common, and explains the circumstance that so large a number of free men are found to have lived and served on lands not belonging to themselves. Probably, the number of Franks who became successively proprietors, by means of benefices, was greater than the number of those who were primitively allodial proprietors.
The larger number ol small allodial proprietors were gradually robbed of their possessions, or reduced to the condition of tributaries, by the usurpation of their neighbours, or of powerful chiefs. Of this, there are innumerable examples. The laws made, from the seventh to the tenth century, give evidence of the tendency of large allodial estates or benefices to absorb small freeholds. The statute of Louis the Debonnair, referring to the complaints of the Spanish refugees in the south, explains pretty accurately the system according to which properties changed hands.
Donations to churches also tended incessantly to reduce the number of allodial estates. They would probably soon have disappeared altogether, had not a cause of an opposite character tended continually to create new ones. As allodial property was sure and permanent, while benefices were precarious and more dependent, the proprietors of benefices constantly sought to convert their benefices into allodial estates. The capitularies which remain to us prove this at every step. It is probable that large new allodial estates were thus created, but small ones tended to disappear.
Beneficiary Lands.
Finally, under Charles the Bald, a singular circumstance presents itself. This was the very time when the system of allodial property was preparing, so to speak, to merge itself in the system of beneficiary property, which is synonymous with feudalism; and precisely at that time the name of Allods is more frequent than ever. We find it applied to properties which are evidently benefices. This name still designated a property more surely hereditary and independent, and as benefices were ordinarily hereditary and independent, they were called allods, just in order to indicate their new character; and the king himself, whose interest it especially was that his benefices should not become allods, gave them this name, as if it had become their conventional designation. Sixty years previously, Charlemagne had made the greatest efforts to prevent benefices from becoming allods.
Having thus explained the nature and changes of allods, I pass on to the consideration of benefices.
Benefices, which constituted the cradle of the feudal system, were a natural result of the relations anciently subsisting in Germany between a chief and his associates. As the power of these chiefs resided only in the strength of their band of associates, all their attention was directed to the means of enlarging the number of these followers. Tacitus relates how, being charged with the maintenance and preservation of their followers, they gained and kept them by means of constant warfare, by dividing to them the spoils of the empire, by gifts of arms and horses. After the conquest, when the territorial establishment took place, the position of the chiefs was altered.
Private Domains Of The Kings.
Hitherto, in their wandering life, they had lived solely upon rapine; then they possessed two kinds of wealth, moveable booty and lands. They made their companions other presents, which engaged them in another kind of life. These riches, both moveable and fixed, remained for the chiefs, as for all others, as their personal and private property. The Frankish society had not then arrived at any ideas of public property. It consisted only of individuals, powerful by reason of their courage and their talent for war, by the antiquity of their family, and the renown of their name, who collected around them other individuals, who passed their life in the same precarious manner. The republics of antiquity did not commence thus. Rome had soon its public treasure—its ærarium. Till nearly the close of the republic, the ærarium still remained. Augustus established the fiscus, the treasury of the prince, which was destined to absorb the ærarium. The fiscus, at first, received only private gifts to the prince, but it soon usurped all the public revenues, till it became at length the only repository for public wealth. Thus, despotism transformed a public into a private domain. The states founded on the ruins of the Roman empire have followed an opposite course. At their commencement, all property was private property. It is in consequence of the development of civilization, and free institutions, that in almost all monarchies private domains have gradually become public property.
The private domains of the chiefs of bands, and particularly of the Frankish kings, were at first composed of lands taken from the inhabitants of the countries in which they established themselves. I have already stated that they did not take all the lands, but a large number of them. The share of the chief must have been considerable, as is indicated by the numerous domains of the chiefs of the first two races, in Belgium, in Flanders, and on the banks of the Rhine, where they first formed their settlements. Hullmann has given a list of a hundred and twenty-three domains beyond the Meuse belonging to the Carlovingian family.
The private property of the chiefs of conquered peoples were, to a great extent at least, incorporated into the domain of the conquering chief. Clovis subjected to himself successively several petty monarchs in his neighbourhood—Ragnachair at Cambray, Chararich in Belgium, and Siegbert at Cologne; and took possession of all their personal property.
The substitution of the royalty of one family for that of another, augmented the private domain of the king; the new king would add to his own personal possessions the property of the dethroned king. Thus the large domains possessed by the family of the Pepins, in Belgium, and on the Rhine, became royal domains.
Legal confiscations, as a punishment for crime, cases in which no legal heir was to be found for property, unjust and violent confiscations—were other sources of personal wealth to kings.
In these ways, the private domain of the kings increased rapidly, and it was employed by them especially as a means of attaching their associates to them, and of gaining new ones. Benefices, then, are as ancient as the establishment of the Franks on a fixed territory.
Tenure Of Benefices.
The fundamental question which has divided historians, whether those who are merely scholars or the philosophers, is—were benefices given for a time and revocable at will, or were they for life and yet revertible, or were they hereditary? Montesquieu has aimed at establishing a historical progression among these different modes; he asserts that benefices were at first revocable, being given for a time, then for life, and then hereditary. I believe he is mistaken, and that his mistake arises from an attempt to systematize history, and bring its facts into regular marching order. In the giving and receiving of benefices, two tendencies have always coexisted: on the one hand, those who had received benefices wished to retain them, and even to make them hereditary; on the other hand, the kings who granted them wished to resume them, or to grant them for only a limited period. All the disputes that occurred between kings and their powerful subjects, all the treaties which arose out of these disputes, all the promises which were made with a view to appease the dissatisfaction of malcontents, prove that the kings were in the habit of taking back, by violence, the benefices they had granted, and that the nobles attempted to retain them also by violence.
Disputes About Benefices.
The Mayors of the Palace acquired their power by placing themselves at the head of the large possessors of benefices, and by seconding their pretensions. Under the administration of Pepin the Short and Charlemagne, the struggle appeared to cease, because the kings had for a time great superiority in force; but, in reality, the kings were now the aggressors in their turn, who endeavoured to bring the benefices again into their own hands, and to preserve to themselves the free disposal of them. Under Charles the Bald, the kings again began to get feeble, and, in consequence the treaties and promises became again favourable to the beneficiaries. In fact, the history of benefices, from the time of Clovis till the full establishment of the feudal system, is only a perpetual struggle between these two opposing tendencies. An attentive and accurate examination of the facts will prove that the three modes of conceding benefices did not follow one another in regular chronological succession, but that they are to be found existing and operating simultaneously during the whole course of this period.
Lecture XIV.
Proofs of the co-existence of various modes of conferring
benefices, from the fifth to the tenth century.
Of benefices that were absolutely and arbitrarily revocable.
Of benefices conceded for a limited time; theprecaria.
Of benefices granted for life.
Of benefices granted hereditarily.
General character of the concession of benefices.
Their tendency to become hereditary.
Its prevalence under Charles the Bald.
Military service.
Judicial and domestic service.
Origin, meaning, and vicissitudes of the fidelity due by the
vassal to his lord.
Transference Of Benefices.
From the time of the invasion of the Gauls by the Franks up to the moment when the feudal system was definitely constituted, we find during the whole course of this epoch:
I. That benefices were revoked, not only as a consequence of legal condemnation, but also by the arbitrary will of the donor. The power of absolute and arbitrary transference of benefices was practically in existence under the Merovingian kings. It is however very doubtful whether this has ever been recognised as the right of the donors. Such an act possessed a character of suddenness and violence which gave a shock to ideas of natural justice. Few men would consent to receive a favour of which they might legally have been deprived at the first moment of caprice. Montesquieu affirms that benefices were first held on an entirely uncertain tenure. The proofs which he gives are but of little weight. First, the clause contained in the treaty concluded at Andely, in 587, between the two monarchs, Gontran and Childebert, proves the fact but not the right. Secondly, the formula of Marculf again does not prove anything more than a common practice. Besides, the giver of the benefice presents a motive in this formula, namely, the necessity of the exchange. Thirdly, the law of the Lombards merely characterises the benefice as a precarious property, which it indubitably was. Fourthly, the Book of Fiefs compiled in the twelfth century, probably converted the fact into a right. Fifthly, the letter of the bishops to Louis the Germanic also proves merely the fact. It is evident that the right has always been contested, and that attempts have always been made to prevent the permanency of benefices is a fact also. "Charlemagne," says Eginhard, "did not suffer that every noble should take away from his vassal the benefices which he had granted to him upon any outburst of anger." The capitulary of Louis the Debonnair, which allows a year to the rejected incumbent whose benefice is in a bad condition before it can be finally taken from him, proves likewise that certain forms were observed with this view, and protests against a purely arbitrary disposition. That the patron had a right to take away the benefice, when the occupant had failed to discharge his obligations, is an indisputable fact. Now it would be very easy to abuse this principle of taking away benefices under a pretext of disorderly conduct or infidelity to the trust reposed; accordingly all the protestations that were made, and all the treaties that were enforced, were designed to oppose such a procedure.
Thus we find, from the fifth to the tenth century: First, numerous examples of benefices being arbitrarily taken away; this was the practice of the giver, when his power corresponded to his desire. Secondly, benefices taken away on account of unfaithfulness, disorder, treachery; this was a right.
The Precaria.
II. As to benefices granted for a limited time, Montesquieu affirms, after the Book of Fiefs, that they were at first granted for one year. I have not been able to find any positive example of this. It is not however impossible that there may have been such, similar to the precaria belonging to churches. Precarium, among the Romans, signified a grant of property on the tenure of usufruct for a limited time, which was generally pretty short. Under the monarchy of the Franks, we have seen that the churches often consolidated their wealth in this way, in order to secure a permanent revenue. Charles the Bald decreed that the precaria should be held for five years and renewed every five years.
Seizure Of Church Property.
The only benefices which appear to me to have been granted for a time, ostensibly so at least, are those which arose out of the ecclesiastical wealth taken by Charles Martel (about A.D. 720), and which were then possessed under the designation precarious. Before this period we find kings and mayors interposing their authority in order to obtain, under the title of precarious, the enjoyment of certain church wealth for certain persons. It appears that Charles Martel did more at that time than grant or cause the retention of church property, under the title of precaria,—he also completely stripped the churches, in order to confer their wealth as benefices. But, after him, Pepin and Carloman, his sons, while they also took the wealth of churches in order to confer them on their vassals, only took it on the title of precaria. The ecclesiastics protested vigorously against the spoliation of Charles Martel, and it was upon their protestations that Pepin ordained that the wealth which could be restored should be actually returned, and that what could not be so restored, should be held under the title precaria, at fixed rentals, till they could again be transferred to the church. Pepin and Charlemagne used rigorous measures to secure that the holders, in precario, of church wealth should fulfil their obligations to its primitive proprietors; and we may gather, from the frequency of their orders, that these orders were often treated with contempt. It is nevertheless evident that the practice of taking the goods of the church, and placing them in other hands, whether absolutely, or under the title of precarious, continued under even the most feeble and superstitious kings. The bishops said that Charles the Bald suffered himself to be led astray, being often seduced, partly because of his youth, partly through feebleness of character, by evil counsellors, and often constrained by the threats of the occupants, who told him "that if he did not allow them to possess this consecrated property, they would abandon him immediately." It is probable that but little of this property was restored to the churches, and that the greater part of what was held sub precario became, along with the other benefices, the hereditary possession of the occupants.
We see that far from Charles Martel having any claim to be regarded as the first originator of the practice of granting benefices for life, the benefices, on the contrary, which arose either from the act by which he despoiled churches and monasteries, or from acts similar to his, were for a long time more precarious than any others, and even ought legally to have been restored to the churches; certainly at the death of the occupants, and if possible before.
III. We find during the whole of the epoch which we are considering, and at its close as much as at its commencement, benefices conferred for life. It is evident that under Pepin and Charlemagne most benefices were given on this tenure. This was owing to the various precautions taken by the kings to prevent their being transformed into allodial estates. Louis the Debonnair took the same precautions. Mabillon quotes a charter of this king containing the formal concession of a benefice to be held for life. In 889, King Eudes conferred a benefice on Ricabod his vassal, "in beneficiary right, and on a tenure of usufruct;" with this addition, that, if he should have a son, the benefice should pass to his son for his life. We see, under Pepin, a vassal die who had a son, and yet his benefice was given immediately to another vassal.
Hereditary Benefices.
IV. We find also, during the whole of this epoch, that benefices were given or held hereditarily. In 587, it was stipulated by the treaty of Andely, with regard to the concessions made by queen Clotilda, that they should be perpetual. The law of the Visigoths (of Chindasuinth, about 540) provides that the concessions made by the princes should not be revoked. Marculf gives the formulary for a hereditary concession. In 765, Charlemagne gave to an individual named Jean, who had conquered the Saracens in the province of Barcelona, a domain (says Fontaines) situated near Narbonne; "in order that he and his posterity may possess it without any fee or trouble, so long as they remain faithful to us or to our children." The same Jean presented himself to Louis the Debonnair, with the gift of Charlemagne, and demanded his confirmation of it. Louis confirmed it, and added to it new lands. In 884, Jean being dead, his son Teutfred presented himself to Charles the Bald with the two donations just mentioned, and asked him to confirm them to him. The king granted this, as it is expressed, "in order that thou mayest possess them, thou and thy posterity, without any fee." These successive demands of confirmation, either at the death of the original bestower, or at that of the original incumbent, prove that the hereditary character of benefices was not then considered as a right, even when it had been promised, and consequently that it rested on no general law that was recognized by the state.