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 vassals into despair.
It was a custom of the kingdom190 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 declared191 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,192 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:193 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.194 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 election195 in the person of the lord was not subsisting at the time of the authors196 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 vassals in his service presented a petition 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.197 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）198 "that the ancient jurists had always been of opinion199 that the succession of fiefs in a collateral line did not extend farther 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. All these things being supposed, the bare perusal of the history of France is sufficient to demonstrate that the perpetuity of fiefs was established earlier in this kingdom than in Germany. Towards the commencement of the reign of the Emperor Conrad II in 1024, things were upon the same footing still in Germany, as they had been in France during the reign of Charles the Bald, who died in 877. But such were the changes made in this kingdom after the reign of Charles the Bald, that Charles the Simple found himself unable to dispute with a foreign house his incontestable rights to the empire; and, in fine, that in Hugh Capet's time the reigning family, stripped of all its demesnes, was no longer in a condition to maintain the crown.
The weak understanding of Charles the Bald produced an equal weakness in the French monarchy. But as his brother, Louis, King of Germany, and some of that prince's successors were men of better parts, their government preserved its vigour much longer.
But what do I say? Perhaps the phlegmatic constitution, and, if I dare use the expression, the immutability of spirit peculiar to the German nation made a longer stand than the volatile temper of the French against that disposition of things, which perpetuated the fiefs by a natural tendency, in families.
Besides, the kingdom of Germany was not laid waste and annihilated, as it were, like that of France, by that particular kind of war with which it had been harassed by the Normans and Saracens. There were less riches in Germany, fewer cities to plunder, less extent of coast to scour, more marshes to get over, more forests to penetrate. As the dominions of those princes were less in danger of being ravaged and torn to pieces, they had less need of their vassals and consequently less dependence on them. And in all probability, if the Emperors of Germany had not been obliged to be crowned at Rome, and to make continual expeditions into Italy, the fiefs would have preserved their primitive nature much longer in that country.
31. In what Manner the Empire was transferred from the Family of Charlemagne. The empire, which, in prejudice to the branch of Charles the Bald had been already given to the bastard line of Louis, King of Germany,200 was transferred to a foreign house by the election of Conrad, Duke of Franconia, in 912. The reigning branch in France, being hardly able to contest a few villages, was much less in a situation to contest the empire. We have an agreement entered into between Charles the Simple and the Emperor Henry I, who had succeeded to Conrad, It is called the Compact of Bonn.201 These two princes met in a vessel which had been placed in the middle of the Rhine, and swore eternal friendship. They used on this occasion an excellent middle term. Charles took the title of King of West France, and Henry that of King of East France. Charles contracted with the King of Germany, and not with the Emperor.
32. In what Manner the Crown of France was transferred to the House of Hugh Capet. The inheritance of the fiefs, and the general establishment of rear-fiefs, extinguished the political and formed a feudal government. Instead of that prodigious multitude of vassals who were formerly under the king, there were now a few only, on whom the others depended. The kings had scarcely any longer a direct authority; a power which was to pass through so many other and through such great powers either stopped or was lost before it reached its term. Those great vassals would no longer obey; and they even made use of their rear-vassals to withdraw their obedience. The kings, deprived of their demesnes and reduced to the cities of Rheims and Laon, were left exposed to their mercy; the tree stretched out its branches too far, and the head was withered. The kingdom found itself without a demesne, as the empire is at present. The crown was, therefore, given to one of the most potent vassals.
The Normans ravaged the kingdom; they sailed in open boats or small vessels, entered the mouths of rivers, and laid the country waste on both sides. The cities of Orleans and Paris put a stop to those plunderers, so that they could not advance farther, either on the Seine, or on the Loire.202 Hugh Capet, who was master of those cities, held in his hands the two keys of the unhappy remains of the kingdom; the crown was conferred upon him as the only person able to defend it. It is thus the empire was afterwards given to a family whose dominions form so strong a barrier against the Turks.
The empire went from Charlemagne's family at a time when the inheritance of fiefs was established only as a mere condescendence. It even appears that this inheritance obtained much later among the Germans than among the French;203 which was the reason that the empire, considered as a fief, was elective. On the contrary, when the crown of France went from the family of Charlemagne, the fiefs were really hereditary in this kingdom; and the crown, as a great fief, was also hereditary.
But it is very wrong to refer to the very moment of this revolution all the changes which happened, either before or afterwards. The whole was reduced to two events; the reigning family changed, and the crown was united to a great fief.
33. Some Consequences of the Perpetuity of Fiefs. From the perpetuity of fiefs it followed that the right of seniority or primogeniture was established among the French. This right was quite unknown under the first race;204 the crown was divided among the brothers, the allodia were shared in the same manner; and as the fiefs, whether precarious or for life, were not an object of succession, there could be no partition in regard to those tenures.
Under the second race, the title of emperor, which Louis the Debonnaire enjoyed, and with which he honoured his eldest son, Lotharius, made him think of giving this prince a kind of superiority over his younger brothers. The two kings were obliged to wait upon the emperor every year, to carry him presents, and to receive much greater from him; they were also to consult with him upon common affairs.205 This is what inspired Lotharius with those pretences which met with such bad success. When Agobard wrote in favour of this prince,206 he alleged the emperor's own intention, who had associated Lotharius with the empire after he had consulted the Almighty by a three days' fast, by the celebration of the holy mysteries, and by prayers and almsgiving; after the nation had sworn allegiance to him, which they could not refuse without perjuring themselves; and after he had sent
Lotharius to Rome to be confirmed by the Pope. Upon all this he lays a stress, and not upon his right of primogeniture. He says, indeed, that the emperor had designed a partition among the younger brothers, and that he had given the preference to the elder; but saying he had preferred the elder was saying at the saine time that he might have given the preference to his younger brothers.
But as soon as the fiefs became hereditary, the right of seniority was established in the feudal succession; and for the same reason in that of the crown, which was the great fief. The ancient law of partitions was no longer subsisting; the fiefs being charged with a service, the possessor must have been enabled to discharge it. The law of primogeniture was established, and the right of the feudal law was superior to that of the political or civil institution.
As the fiefs descended to the children of the possessor, the lords lost the liberty of disposing of them; and, in order to indemnify themselves, they established what they called the right of redemption, whereof mention is made in our customs, which at first was paid in a direct line, and by usage came afterwards to be paid only in a collateral line.
The fiefs were soon rendered transferable to strangers as a patrimonial estate. This gave rise to the right of lord's dues, which were established almost throughout the kingdom. These rights were arbitrary in the beginning; but when the practice of granting such permissions became general, they were fixed in every district.
The right of redemption was to be paid at every change of heir, and at first was paid even in a direct line.207 The most general custom had fixed it to one year's income. This was burdensome and inconvenient to the vassal, and affected in some measure the fief itself, It was often agreed in the act of homage that the lord should no longer demand more than a certain sum of money for the redemption, which, by the changes incident to money, became afterwards of no manner of importance.208 Thus the right of redemption is in our days reduced almost to nothing, while that of the lord's dues is continued in its full extent. As this right concerned neither the vassal nor his heirs, but was a fortuitous case which no one was obliged to foresee or expect, these stipulations were not made, and they continued to pay a certain part of the price.
When the fiefs were for life, they could not give a part of a fief to hold in perpetuity as a rear-fief; for it would have been absurd that a person who had only the usufruct of a thing should dispose of the property of it. But when they became perpetual, this was permitted.209 with some restrictions made by the customs, which was what they call dismembering their fief.210
The perpetuity of feudal tenures having established the right of redemption, the daughters were rendered capable of succeeding to a fief, in default of male issue. For when the lord gave the fief to his daughter, he multiplied the cases of his right of redemption, because the husband was obliged to pay it as well as the wife.211 This regulation could not take place in regard to the crown, for as it was not held of any one, there could be no right of redemption over it.
The daughter of William V, Count of Toulouse, did not succeed to the county. But Eleanor succeeded to Aquitaine, and Matilda to Normandy; and the right of the succession of females seemed so well established in those days, that Louis the Young, after his divorce from Eleanor, made no difficulty in restoring Guienne to her. But as these two last instances followed close on the first, the general law by which the women were called to the succession of fiefs must have been introduced much later into the county of Toulouse than into the other provinces of France.212
The constitution of several kingdoms of Europe has been directed by the state of feudal tenures at the time when those kingdoms were founded. The women succeeded neither to the crown of France nor to the empire, because at the foundation of those two monarchies they were incapable of succeeding to fiefs. But they succeeded in kingdoms whose foundation was posterior to that of the perpetuity of the fiefs, such as those founded by the Normans, those by the conquests made on the Moors, and others, in fine, which were beyond the limits of Germany, and in later times received in some measure a second birth by the establishment of Christianity.
When these fiefs were at will, they were given to such as were capable of doing service for them, and, therefore, were never bestowed on minors; but when they became perpetual, the lords took the fief into their own hands, till the pupil came of age, either to increase their own emoluments, or to train the ward to the use of arms.213 This is what our customs call the guardianship of a nobleman's children, which is founded on principles different from those of tutelage, and is entirely a distinct thing from it.
When the fiefs were for life, it was customary to vow fealty for a fief; and the real delivery, which was made by a sceptre, confirmed the fief, as it is now confirmed by homage. We do not find that the counts, or even the king's commissaries, received the homage in the provinces; nor is this ceremony to be met with in the commissions of those officers which have been handed down to us in the Capitularies. They sometimes, indeed, made all the king's subjects take an oath of allegiance;214 but so far was this oath from being of the same nature as the service afterwards established by the name of homage, that it was only a cere-money of less solemnity, occasionally used, either before or after that act of obeisance; in short, it was quite a distinct thing from homage.215
Th, e counts and the king's commissaries further made those vassals whose fidelity was suspected give occasionally a security, which was called firmitas,216 but this security could not be an homage, since kings gave it to each other.217
And though the Abbot Suger218 makes mention of a chair of Dagobert, in which according to the testimony of antiquity, the kings of France were accustomed to receive the homage of the nobility, it is plain that he expresses himself agreeably to the ideas and language of his own time.
When the fiefs descended to the heirs, the acknowledgment of the vassal, which at first was only an occasional service, became a regular duty. It was performed in a more splendid manner, and attended with more formalities, because it was to be a perpetual memorial of the reciprocal duties of the lord and vassal.
I should be apt to think that homages began to be established under King Pepin, which is the time I mentioned that several benefices were given in perpetuity, but I should not think thus without caution, and only upon a supposition that the authors of the ancient annals of the Franks were not ignorant pretenders,219 who in describing the fealty professed by Tassillon, Duke of Bavaria, to King Pepin, spoke according to the usages of their own time.220
34. The same Subject continued. When the fiefs were either precarious or for life, they seldom bore a relation to any other than the political laws; for which reason in the civil institutions of those times there is very little mention made of the laws of fiefs. But when they became hereditary, when there was a power of giving, selling, and bequeathing them, they bore a relation both to the political and the civil laws. The fief, considered as an obligation of performing military service, depended on the political law; considered as a kind of commercial property, it depended on the civil law. This gave rise to the civil regulations concerning feudal tenures.
When the fiefs became hereditary, the law relating to the order of succession must have been in relation to the perpetuity of fiefs. Hence this rule of the French law, estates of inheritance do not ascend,221 was established in spite of the Roman and Salic laws.222 It was necessary that service should be paid for the fief; but a grandfather or a great-uncle would have been too old to perform any service; this rule thus held good at first only in regard to the feudal tenures, as we learn from Boutillier.223
When the fiefs became hereditary, the lords who were to see that service was paid for the fief, insisted that the females who were to succeed to the feudal estate, and I fancy sometimes the males, should not marry without their consent; insomuch that the marriage contracts became in respect to the nobility both of a feudal and a civil regulation.224 In an act of this kind under the lord's inspection, regulations were made for the succession, with the view that the heirs might pay service for the fief: hence none but the nobility at first had the liberty of disposing of successions by marriage contract, as Boyer225 and Aufrerius226 have observed.
It is needless to mention that the power of redemption, founded on the old right of the relatives, a mystery of our ancient French jurisprudence I have not time to unravel, could not take place with regard to the fiefs till they became perpetual.
Italiam, Italiam . . .227
I finish my treatise of fiefs at a period where most authors commence theirs.
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1. Gregory of Tours, iv. 42.
2. Chapter 7.
3. Fredegarius, Chronicle, 42.
4. Clotharius II, son of Chilperic, and the father of Dagobert.
5. Fredegarius, Chronicle, 42.
6. See Gregory of Tours, viii. 31.
7. Fredegarius, Chronicle, 27, in the year 605.
8. Ibid., 28, in the year 607.
9. Ibid., 41, in the year 613.
10. Ibid., 42, in the year 613.
11. Some time after Brunehault's execution, in the year 615. See Baluzius's edition of the Capitularies, p. 21.
12. Ibid., art. 16.
13. Ibid.
14. Ibid., art. 17.
15. Ibid., art. 1.
16. Ibid., art. 8.
17. Ibid., art. 9.
18. Ibid., art. 21.
19. They were orders which the king sent to the judges to do or to tolerate things contrary to law.
20. See Gregory of Tours, iv, p. 227. Both our history and the charters are full of this; and the extent of these abuses appears especially in Clotharius' constitution, inserted in the edition of the Capitularies made to reform them. Baluzius's edition, p. 7.
21. Ibid., art. 22.
22. Ibid., art 6.
23. Ibid., art. 18.
24. In Baluzius's edition of the Capitularies, i. p. 7.
25. In the preceding book I have made mention of these immunities, which were grants of judicial rights, and contained prohibitions to the regal judges to perform any function in the territory, and were equivalent to the erection or grant of a fief.
26. He began to reign towards the year 670.
27. See the Life of St. Leger.
28. Instigante Brunihault, Theodorico jubente, &c. — Fredegarius, 27, in the year 605.
29. Gesta regum Francorum, 36.
30. See Fredegarius, Chronicle, 54, in the year 626, and his anonymous continuator, 101, in the year 695, and 105, in the year 715. Aimoin, iv. 15, Eginhard. Life of Charlemagne, 48. Gesta regum Francorum, 45.
31. See the Law of the Burgundians, pref., and the second supplement to this law, tit. 13.
32. See Gregory of Tours, ix. 36.
33. Fredegarius, Chronicle, 44, in the year 626.
34. Fredegarius, Chronicle, 68, in the year 630.
35. Fredegarius, Chronicle, 75, in the year 632.
36. Fredegarius, Chronicle, 79, in the year 638.
37. Ibid.
38. Ibid., 80, in the year 639.
39. Fredegarius, Chronicle, 89, in the year 641.
40. Ibid.
41. De Majoribus Domus Regi?.
42. De Moribus Germanorum, 7.
43. See Sulpicius Alexander, in Gregory of Tours, ii.
44. In the year 552.
45. Agathias, i. Gregory of Tours, iv. 9.
46. Gontram did not even march against Gondovald, who styled himself son of Clotharius, and claimed his share of the kingdom.
47. Sometimes to the number of twenty. See Gregory of Tours, v. 27, viii. 28 and 30, x. 3. Dagobert, who had no mayor in Burgundy, observed the same policy, and sent against the Gascons ten dukes and several counts who Lad no dukes over them. — Fredegarius, Chronicle, 78, in the year 636.
48. Gregory of Tours, viii. 30, and x. 3.
49. Ibid., viii. 30.
50. See the second supplement to the law of the Burgundians, tit. 13, and Gregory of Tours, ix. 36.
51. See the Annals of Metz, years 687 and 688.
52. Ibid., year 695.
53. Ibid., year 719.
54. Ibid.
55. Ex chronico Centulensi, ii.
56. Annals of Metz, year 691. Annals of Fulda, or of Laurishan, Pippinus dux Francorum obtinuit regnum Francorum per annos 27, cum regibus sibi subjectis.
57. The anonymous continuator of Fredegarius, 104, in the year 714.
58. Cited by Gregory of Tours, ix. See also the edict of Clotharius II, in the year 615, art. 16.
59. See the 24th and the 34th of the first book.
60. See the 14th formula of the first book, which is equally applicable to the fiscal estates given direct in perpetuity, or given at first as a benefice, and afterwards in perpetuity. See also the 17th formula, ibid.
61. Book i, form. 13.
62. Tit. 44. See also tit. 66, §§ 3, 4; and tit. 74.
63. Tit. 11.
64. See also the law of the Ripuarians, tit. 7; and the Salic law, tit. 44, art. 1 and 4.
65. Salic law, tit. 59 and 76.
66. Ibid.
67. Ibid., tit. 59, § 1.
68. Ibid., tit. 76, § 1.
69. Ibid., tit. 56 and 59.
70. Ibid., tit. 76, § 1.
71. Ibid., § 2.
72. Apud vernis palatium, in the year 883, art. 4 and 11.
73. Capitulary of Charlemagne, second of the year 812, art. 1 and 3.
74. Heribannum.
75. Non infirmis reliquit h?redibus, says Lambert d'Ardres in Du Cange, on the word alodis.
76. See those quoted by Du Cange, in the word alodis, and those produced by Galland, in his Treatise on Allodial Lands, p. 14, ff.
77. Second Capitulary of the year 802, art. 10; and the seventh Capitulary of the year 803, art. 3; the first Capitulary, incerti anni, art. 49; the fifth Capitulary of the year 806, art. 7; the Capitulary of the year 779, art. 29; the Capitulary of Louis the Pious, in the year 829, art. 1.
78. The fifth of the year 806, art. 8.
79. In Gregory of Tours, vi. 46.
80. This is what induced him to annul the testaments made in favour of the clergy, and even the donations of his father; Gontram re-established them, and even made new donations. — Gregory of Tours, vii. 7.
81. See the Annals of Metz, year 687.
82. See the Annals of Metz.
83. In Gregory of Tours.
84. From Chronica Centulensi, ii.
85. See the Annals of Metz.
86. Ibid., year 741.
87. Year 858, in Carisiacus; Baluzius's edition, ii, p. 101.
88. Ibid., ii, art. 7, p. 109.
89. Precaria, quod precibus utendum conceditur, says Cujas, in his notes upon the first Book of Fiefs. I find in a diploma of King Pepin, dated the third year of his reign, that this prince was not the first who established these precaria; he cites one made by the Mayor Ebroin, and continued after his time. See the diploma of the king, in the Historians of France by the Benedictines, v, art. 6.
90. In the year 743, see the 5th book of the Capitularies, art. 3, Baluzius's edition, p. 825.
91. That of Metz, in the year 736, art. 4.
92. See his Capitulary, in the year 803, given at Worms; Baluzius's edition, p. 411, where he regulates the precarious contract, and that of Frankfort, in the year 794, p. 267, art. 24, in relation to the repairing of the houses; and that of the year 800, p. 330.
93. As appears by the preceding note, and by the Capitulary of Pepin, King of Italy, where it says, that the king would give the monasteries in fief to those who would swear allegiance for fiefs: it is added to the law of the Lombards, iii, tit. 1, § 30; and to the Salic Law, Collection of Pepin's Laws in Echard, p. 195, tit. 26, art. 4.
94. See the constitution of Lotharius I, in the law of the Lombards, iii. Leg. 1, § 43.
95. Ibid., § 44.
96. Ibid.
97. Given the 28th year of the reign of Charles the Bald, in the year 868. Baluzius's edition, p. 203.
98. Concilium apud Bonoilum, the 16th year of Charles the Bald, in the year 856, Baluzius's edition, p. 78.
99. In the civil wars which broke out at the time of Charles Martel, the lands belonging to the church of Rheims were given away to laymen; "the clergy were left to shift as well as they could," says the life of Remigius, Surius, i, p. 279.
100. Law of the Lombards, iii, tit. 3, §§ 1 and 2.
101. It is that on which I have descanted in the 4th chapter of this book, and which is to be found in Baluzius's edition of the Capitularies, i, art. 11, p. 9.
102. The Capitulary of Charlemagne in the year 800, Baluzius's edition, p. 336, explains extremely well what is meant by that sort of tithe from which the church is exempted by Clotharius; it was the tithe of the swine which were put into the king's forests to fatten; and Charlemagne enjoins his judges to pay it, as well as other people, in order to set an example: it is plain that this was a right of seigniory or economy.
103. Canone 5, ex tomo 1, conciliorum antiquorum Galli? opera Jacobi Sirmundi.
104. Art. 6, Baluzius's edition, p. 332. It was given in the year 800.
105. Held under Charlemagne, in the year 794.
106. Baluzius's edition, p. 267, art. 23.
107. See among the rest the capitulary of Louis the Debonnaire in the year 829, Baluzius's edition, p. 663; against those who, to avoid paying tithes neglected to cultivate the lands, &c., art. 5.
108. Among others, that of Lotharius, iii, tit. 3, cap. vi.
109. In the year 829, art. 7, in Baluzius, i, p. 663.
110. In the law of the Lombards, iii, tit. 3, § 8.
111. It is a kind of codicil produced by Eginhard, and different from the will itself, which we find in Goldastus and Baluzius.
112. See the Capitulary of Charlemagne in the year 803, art. 2, Baluzius's edition, p. 379; and the edict of Louis the Debonnaire in the year 834, in Goldast, Constit. Impérial., i.
113. This is mentioned in the famous canon, ego Ludovicus, which is a palpable forgery; it is Baluzius's edition, p. 591, in the year 817.
114. As appears by his Capitulary, in the year 801, art. 17, in Baluzius, i, p. 360.
115. See his constitution, inserted in the code of the Lombards, iii, tit. 1, § 44.
116. See the above constitution, and the Capitulary of Charles the Bald, in the year 846, cap. xx. in Villa Sparnaco, Baluzius's edition, ii. p. 31, and that of the year 853, cap. iii and v, in the Synod of Soissons, Baluzius's edition, ii, p. 54; and that of the year 854, apud Attiniacum, cap. x. Baluzius's edition, ii, p. 70. See also the first Capitulary of Charlemagne, incerti anni, art. 49 and 56. Baluzius's edition, i, p. 519.
117. See the Capitularies, v. art. 44, and the edict of Pistes in the year 869, art. 8 and 9, where we find the honorary rights of the lords established, in the same manner as they are at this very day.
121. Historians of France by the Benedictines, v, p. 9.
122. Ibid., p. 10.
123. In the year 768.
124. Tom. ii, lectionis antiqu?.
125. Edition of the Capitularies, i, p. 188.
126. In the 1st Capitulary of the year 806. Baluzius's edition, p. 439, art. 5.
127. In Goldast, Constit. Impérial., ii, p. 19.
128. Baluzius's edition, p. 574, art. 14.
129. Capitulary of the year 877. Baluzius's edition, p. 272.
130. In Father Labbe's Councils, ix, col. 424; and in Dumont's Corp. Diplomat., i, art. 36.
131. By the mother's side.
132. See his third Capitulary of the year 811, p. 486, art. 1, 2, 3, 4, 5, 6, 7, and 8; and the first Capitulary of the year 812, p. 490, art. 1; and the Capitulary of the year 812, p. 494, art. 9 and 11, etc.
133. See the Capitulary de Villis in the year 800; his second Capitulary of the year 813, art. 6 and 19; and the fifth book of the Capitularies, art. 303.
134. Capitulary de Villis, art. 39. See this whole Capitulary, which is a masterpiece of prudence, good administration, and economy.
135. See among others the foundation of the Archbishopric of Bremen, in the Capitulary of the year 789. Baluzius's edition, p. 245.
136. For instance, the prohibition of the king's judges against entering upon the territory to demand the freda, and other duties. I have said a good deal concerning this in the preceding book, 20, 21, 22.
137. The anonymous author of the Life of Louis the Debonnaire in Duchesne's Collection, tom. ii, p. 295.
138. See his trial and the circumstances of his deposition, in Duchesne's Collection, tom. ii, p. 333.
139. He directed him to show unlimited clemency （indeficientem misericordiam） to his sisters, his brothers, and his nephews. Tegan in the collection of Duchesne, ii, p. 276.
140. See his letters.
141. See his trial and the circumstances of his deposition, in Duchesne's Collection, ii, p. 331. See also his life written by Tegan: "Tanto enim odio laborabat, ut t?deret eos vita ipsius," says this anonymous author in Duchesne, ii, p. 307.
142. The anonymous author of the Life of Louis the Debonnaire in Duchesne's Collection, ii, p. 298.
143. Tegan says that what seldom happened under Charlemagne was a common practice under Louis.
144. Being desirous to check the nobility, he promoted one Bernard to the place of chamberlain, by which the great lords were exasperated to the highest pitch.
145. Tegan, De Gestis Ludovici pii.
146. Nitard, iv, prope finem.
147. Ibid.
148. See book xxx. 13.
149. Hincmar, let. 1, to Louis the Stammerer.
150. See the fragment of the Chronicle of the Monastery of St. Sergius of Angers, in Duchesne, ii, p. 401.
151. See what the bishops say in the synod of the year 845, apud Teudonis villam, art. 4.
152. See the synod in the year 845, apud Teudonis villam, art. 3 and 4, which gives a very exact description of things; as also, that of the same year, held at the palaces of Vernes, art. 12, and the synod of Beauvais, also in the same year, art. 3, 4, and 6, in the Capitulary in villa Sparnaco, in the year 846, art. 20, and the letter which the bishops assembled at Rheims wrote in 858, to Louis, King of Germany, art. 8.
153. See the Capitulary in villa Sparnaco, in the year 846. The nobility had set the King against the bishops, insomuch that he expelled them from the assembly; a few of the canons enacted in council were picked out, and the prelates were told that these were the only ones which should be observed; nothing was granted them that could be refused. See art. 20, 21 and 22. See also the letter which the bishops assembled at Rheims wrote in the year 858 to Louis, King of Germany, art. 8, and the edict of Pistes, in the year 864, art. 5.
154. See this very Capitulary in the year 846, in villa Sparnaco. See also the Capitulary of the assembly held apud Marsnam in the year 847, art. 4, wherein the clergy reduced themselves to demand only the restitution of what they had been possessed of under Louis the Debonnaire. See also the Capitulary of the year 851, apud Marsnam, art. 6, and 7, which confirms the nobility and clergy in their several possessions, and that apud Bonoilum, in the year 856, which is a remonstrance of the bishops to the king, because the evils, after so many laws, had not been redressed; and, in fine, the letter which the bishops assembled at Rheims wrote in the year 858, to Louis, King of Germany, art. 8.
155. Art. 8.
156. See the Capitulary of the year 851, art. 6 and 7.
157. Charles the Bald, in the Synod of Soissons, says, that he had promised the bishops not to issue any more precepts relating to church-lands. Capitulary of the year 853, art. 11, Baluzius's edition. ii, p. 56.
158. See the Capitulary of Charles the Bald, apud Saponarias, in the year 859, art. 3. "Venilon, whom I made Archbishop of Sens, has consecrated me; and I ought not to be expelled the kingdom by anybody."
159. See the Capitulary of Charles the Bald, De Carisiaco, in the year 857, Baluzius's edition, ii, p. 88, §§ 1, 2, 3, 4, and 7.
160. See the synod of Pistes in the year 862, art. 4, and the Capitulary of Lewis II, apud Vernis palatium, in the year 883, art. 4 and 5.
161. Capitulary of the year 876, under Charles, the Bald, in synodo Pontigonensi, Baluzius's edition, art. 12.
162. See what has been said already, book xxx, last chapter, towards the end.
163. In the year 587, in Gregory of Tours, ix.
164. See the following chapter, where I shall speak more diffusely of those partitions; and the notes in which they are quoted.
165. In the year 806, between Charles, Pepin, and Louis, it is quoted by Goldast, and by Baluzius, ii, p. 439.
166. Art. 9, p. 443, which is agreeable to the treaty of Andelot, in Gregory of Tours, ix.
167. Art. 10, and there is no mention made of this in the treaty of Andelot.
168. In Baluzius, i, p. 174, art. 9. See also the division made by the same emperor in the year 837, art. 6, Baluzius's edition, p. 686.
169. In the year 811, Baluzius's edition, i, p. 486, art. 7 and 8, and that of the year 812, ibid. p. 490, art. 1. See also the Capitulary of the year 807, Baluzius's edition, i, p. 458.
170. In the year 793, inserted in the law of the Lombards, iii, tit. 9, cap. ix.
171. In the year 847, quoted by Aubert le Mire, and Baluzius, ii, page 42.
172. Adnunciatio.
173. Art. 2, of the Declaration of Charles.
174. Capitulary of the year 877, tit. 53, art. 9 and 10, apud Carisiacum, similiter et de nostris vassallis faciendum est, &c. This Capitulary relates to another of the same year, and of the same place, art. 3.
175. Capitulary of Aix la Chapelle, in the year 813, art. 16, and the Capitulary of Pepin, in the year 783, art. 5.
176. See the capitulary de Carisiaco, in the year 856, art. 10 and 13. Baluzius's edition, tom. ii, p. 83, in which the king, together with the lords spiritual and temporal, agreed to this.
177. In the year 757, art. 6, Baluzius's edition, p. 181.
178. Book i, 1.
179. At least in Italy and Germany.
180. Book i, of fiefs, 1.
181. Ibid.
182. Capitulary of the year 802, art. 7, Baluzius's edition, p. 365.
183. Apud Marsnam, in the year 847, Baluzius's edition, p. 42.
184. Art. 5, ibid., p. 44.
185. Apud Argentoratum, in Baluzius, Capitularies, ii, p. 39.
186. See the law of Guy, King of the Romans, among those which were added to the Salic law, and to that of the Lombards, tit. 6, § 2 in Echard.
187. Some authors pretend that the County of Toulouse had been given away by Charles Martel, and passed by inheritance down to Raymond, the last count; but, if this be true, it was owing to some circumstances which might have been an inducement to choose the Counts of Toulouse from among the children of the last possessor.
188. See his Capitulary of the year 877, tit. 53, art. 9 and 10, apud Carisiacum. This Capitulary bears relation to another of the same year and place, art. 3.
189. The third Capitulary of the year 812, art. 7, and that of the year 815, art. 6, on the Spaniards. The collection of the Capitularies, book 5, art. 288, and the Capitulary of the year 869, art. 2, and that of the year 877, art. 13, Baluzius's edition.
190. As appears from Otho of Frissingue, Of the Actions of Frederic, ii. 29.
191. See the ordinance of Philip Augustus in the year 1209, in the new collection.
192. Book i, tit. 1.
193. Ibid.
194. At least in Italy and Germany.
195. Book i, of fiefs, tit. 1.
196. Gerardus Niger and Aubertus de Orto.
197. Book i, of fiefs, tit. 1.
198. Cujas has proved it extremely well.
199. Ibid.
200. Arnold and his son Louis IV.
201. In the year 926, quoted by Aubert le Mire, Cod. donationum piarum, 27.
202. See the Capitulary of Charles the Bald, in the year 877, apud Carisiacum, on the importance of Paris, St. Denis, and the castles on the Loire, in those days.
203. See above, chapter 30.
204. See the Salic law, and the law of the Ripuarians, in the title of Allodia.
205. See the Capitulary of the year 817, which contains the first partition made by Louis the Debonnaire among his children.
206. See his two letters upon this subject, the title of one of which is De Divisione imperii.
207. See the ordinance of Philip Augustus, in the year 1209, on the fiefs.
208. We find several of these conventions in the charters, as in the register book of Vend?me, and that of the abbey, in St. Cyprian in Poitou, of which Mr. Galland has given some extracts, p. 55.
209. But they could not abridge the fiefs, that is, abolish a portion of it.
210. They fixed the portion which they could dismember.
211. This was the reason that the lords obliged the widow to marry again.
212. Most of the great families had their particular laws of succession. See what M. de la Thaumassière says concerning the families of Berri.
213. We see in the Capitulary of the year 817, apud Carisiacum, art. 3, Baluzius's edition, ii, p. 269, the moment in which the kings caused the fiefs to be administered in order to preserve them for the minors; an example followed by the lords, and which gave rise to what we have mentioned by the name of the guardianship of a nobleman's children.
214. We find the formula thereof in the second Capitulary of the year 802. See also that of the year 854, art. 13, and others.
215. M. Du Cange in the word hominium, p. 1163, and in the word fidelitas, p. 474, cites the charters of the ancient homages where these differences are found, and a great number of authorities which may be seen. In paying homage, the vassal put his hand on that of his lord, and took his oath; the oath of fealty was made by swearing on the gospels. The homage was performed kneeling, the oath of fealty standing. None but the lord could receive homage, but his officers might take the oath of fealty. — See Littleton, §§ 91, 92, faith and homage, that is, fidelity and homage.
216. Capitularies of Charles the Bald, in the year 860, post reditum a Conftuentibus, art. 3, Baluzius's edition, p. 145.
217. Ibid., art. 1.
218. Suger, Lib. de administratione sua.
219. Year 757, cap. xvii.
220. One would think that here was an homage and an oath of fealty. See note 6, p. 314.
221. Book iv, de fendis, tit. 59.
222. In the title of Allodia.
223. Somme Rurale, i, tit. 76, p. 447.
224. According to an ordinance of St. Louis, in the year 1246 to settle the customs of Anjou and Maine; those who shall have the care of the heiress of a fief shall give security to the lord, that she shall not be married without his consent.
225. Decision 155, No. 8; and 204, No. 38.
226. In Capell. Thol., decision 453.
227. Æneid, iii, 523.
It was a custom of the kingdom190 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 declared191 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,192 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:193 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.194 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 election195 in the person of the lord was not subsisting at the time of the authors196 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 vassals in his service presented a petition 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.197 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）198 "that the ancient jurists had always been of opinion199 that the succession of fiefs in a collateral line did not extend farther 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. All these things being supposed, the bare perusal of the history of France is sufficient to demonstrate that the perpetuity of fiefs was established earlier in this kingdom than in Germany. Towards the commencement of the reign of the Emperor Conrad II in 1024, things were upon the same footing still in Germany, as they had been in France during the reign of Charles the Bald, who died in 877. But such were the changes made in this kingdom after the reign of Charles the Bald, that Charles the Simple found himself unable to dispute with a foreign house his incontestable rights to the empire; and, in fine, that in Hugh Capet's time the reigning family, stripped of all its demesnes, was no longer in a condition to maintain the crown.
The weak understanding of Charles the Bald produced an equal weakness in the French monarchy. But as his brother, Louis, King of Germany, and some of that prince's successors were men of better parts, their government preserved its vigour much longer.
But what do I say? Perhaps the phlegmatic constitution, and, if I dare use the expression, the immutability of spirit peculiar to the German nation made a longer stand than the volatile temper of the French against that disposition of things, which perpetuated the fiefs by a natural tendency, in families.
Besides, the kingdom of Germany was not laid waste and annihilated, as it were, like that of France, by that particular kind of war with which it had been harassed by the Normans and Saracens. There were less riches in Germany, fewer cities to plunder, less extent of coast to scour, more marshes to get over, more forests to penetrate. As the dominions of those princes were less in danger of being ravaged and torn to pieces, they had less need of their vassals and consequently less dependence on them. And in all probability, if the Emperors of Germany had not been obliged to be crowned at Rome, and to make continual expeditions into Italy, the fiefs would have preserved their primitive nature much longer in that country.
31. In what Manner the Empire was transferred from the Family of Charlemagne. The empire, which, in prejudice to the branch of Charles the Bald had been already given to the bastard line of Louis, King of Germany,200 was transferred to a foreign house by the election of Conrad, Duke of Franconia, in 912. The reigning branch in France, being hardly able to contest a few villages, was much less in a situation to contest the empire. We have an agreement entered into between Charles the Simple and the Emperor Henry I, who had succeeded to Conrad, It is called the Compact of Bonn.201 These two princes met in a vessel which had been placed in the middle of the Rhine, and swore eternal friendship. They used on this occasion an excellent middle term. Charles took the title of King of West France, and Henry that of King of East France. Charles contracted with the King of Germany, and not with the Emperor.
32. In what Manner the Crown of France was transferred to the House of Hugh Capet. The inheritance of the fiefs, and the general establishment of rear-fiefs, extinguished the political and formed a feudal government. Instead of that prodigious multitude of vassals who were formerly under the king, there were now a few only, on whom the others depended. The kings had scarcely any longer a direct authority; a power which was to pass through so many other and through such great powers either stopped or was lost before it reached its term. Those great vassals would no longer obey; and they even made use of their rear-vassals to withdraw their obedience. The kings, deprived of their demesnes and reduced to the cities of Rheims and Laon, were left exposed to their mercy; the tree stretched out its branches too far, and the head was withered. The kingdom found itself without a demesne, as the empire is at present. The crown was, therefore, given to one of the most potent vassals.
The Normans ravaged the kingdom; they sailed in open boats or small vessels, entered the mouths of rivers, and laid the country waste on both sides. The cities of Orleans and Paris put a stop to those plunderers, so that they could not advance farther, either on the Seine, or on the Loire.202 Hugh Capet, who was master of those cities, held in his hands the two keys of the unhappy remains of the kingdom; the crown was conferred upon him as the only person able to defend it. It is thus the empire was afterwards given to a family whose dominions form so strong a barrier against the Turks.
The empire went from Charlemagne's family at a time when the inheritance of fiefs was established only as a mere condescendence. It even appears that this inheritance obtained much later among the Germans than among the French;203 which was the reason that the empire, considered as a fief, was elective. On the contrary, when the crown of France went from the family of Charlemagne, the fiefs were really hereditary in this kingdom; and the crown, as a great fief, was also hereditary.
But it is very wrong to refer to the very moment of this revolution all the changes which happened, either before or afterwards. The whole was reduced to two events; the reigning family changed, and the crown was united to a great fief.
33. Some Consequences of the Perpetuity of Fiefs. From the perpetuity of fiefs it followed that the right of seniority or primogeniture was established among the French. This right was quite unknown under the first race;204 the crown was divided among the brothers, the allodia were shared in the same manner; and as the fiefs, whether precarious or for life, were not an object of succession, there could be no partition in regard to those tenures.
Under the second race, the title of emperor, which Louis the Debonnaire enjoyed, and with which he honoured his eldest son, Lotharius, made him think of giving this prince a kind of superiority over his younger brothers. The two kings were obliged to wait upon the emperor every year, to carry him presents, and to receive much greater from him; they were also to consult with him upon common affairs.205 This is what inspired Lotharius with those pretences which met with such bad success. When Agobard wrote in favour of this prince,206 he alleged the emperor's own intention, who had associated Lotharius with the empire after he had consulted the Almighty by a three days' fast, by the celebration of the holy mysteries, and by prayers and almsgiving; after the nation had sworn allegiance to him, which they could not refuse without perjuring themselves; and after he had sent
Lotharius to Rome to be confirmed by the Pope. Upon all this he lays a stress, and not upon his right of primogeniture. He says, indeed, that the emperor had designed a partition among the younger brothers, and that he had given the preference to the elder; but saying he had preferred the elder was saying at the saine time that he might have given the preference to his younger brothers.
But as soon as the fiefs became hereditary, the right of seniority was established in the feudal succession; and for the same reason in that of the crown, which was the great fief. The ancient law of partitions was no longer subsisting; the fiefs being charged with a service, the possessor must have been enabled to discharge it. The law of primogeniture was established, and the right of the feudal law was superior to that of the political or civil institution.
As the fiefs descended to the children of the possessor, the lords lost the liberty of disposing of them; and, in order to indemnify themselves, they established what they called the right of redemption, whereof mention is made in our customs, which at first was paid in a direct line, and by usage came afterwards to be paid only in a collateral line.
The fiefs were soon rendered transferable to strangers as a patrimonial estate. This gave rise to the right of lord's dues, which were established almost throughout the kingdom. These rights were arbitrary in the beginning; but when the practice of granting such permissions became general, they were fixed in every district.
The right of redemption was to be paid at every change of heir, and at first was paid even in a direct line.207 The most general custom had fixed it to one year's income. This was burdensome and inconvenient to the vassal, and affected in some measure the fief itself, It was often agreed in the act of homage that the lord should no longer demand more than a certain sum of money for the redemption, which, by the changes incident to money, became afterwards of no manner of importance.208 Thus the right of redemption is in our days reduced almost to nothing, while that of the lord's dues is continued in its full extent. As this right concerned neither the vassal nor his heirs, but was a fortuitous case which no one was obliged to foresee or expect, these stipulations were not made, and they continued to pay a certain part of the price.
When the fiefs were for life, they could not give a part of a fief to hold in perpetuity as a rear-fief; for it would have been absurd that a person who had only the usufruct of a thing should dispose of the property of it. But when they became perpetual, this was permitted.209 with some restrictions made by the customs, which was what they call dismembering their fief.210
The perpetuity of feudal tenures having established the right of redemption, the daughters were rendered capable of succeeding to a fief, in default of male issue. For when the lord gave the fief to his daughter, he multiplied the cases of his right of redemption, because the husband was obliged to pay it as well as the wife.211 This regulation could not take place in regard to the crown, for as it was not held of any one, there could be no right of redemption over it.
The daughter of William V, Count of Toulouse, did not succeed to the county. But Eleanor succeeded to Aquitaine, and Matilda to Normandy; and the right of the succession of females seemed so well established in those days, that Louis the Young, after his divorce from Eleanor, made no difficulty in restoring Guienne to her. But as these two last instances followed close on the first, the general law by which the women were called to the succession of fiefs must have been introduced much later into the county of Toulouse than into the other provinces of France.212
The constitution of several kingdoms of Europe has been directed by the state of feudal tenures at the time when those kingdoms were founded. The women succeeded neither to the crown of France nor to the empire, because at the foundation of those two monarchies they were incapable of succeeding to fiefs. But they succeeded in kingdoms whose foundation was posterior to that of the perpetuity of the fiefs, such as those founded by the Normans, those by the conquests made on the Moors, and others, in fine, which were beyond the limits of Germany, and in later times received in some measure a second birth by the establishment of Christianity.
When these fiefs were at will, they were given to such as were capable of doing service for them, and, therefore, were never bestowed on minors; but when they became perpetual, the lords took the fief into their own hands, till the pupil came of age, either to increase their own emoluments, or to train the ward to the use of arms.213 This is what our customs call the guardianship of a nobleman's children, which is founded on principles different from those of tutelage, and is entirely a distinct thing from it.
When the fiefs were for life, it was customary to vow fealty for a fief; and the real delivery, which was made by a sceptre, confirmed the fief, as it is now confirmed by homage. We do not find that the counts, or even the king's commissaries, received the homage in the provinces; nor is this ceremony to be met with in the commissions of those officers which have been handed down to us in the Capitularies. They sometimes, indeed, made all the king's subjects take an oath of allegiance;214 but so far was this oath from being of the same nature as the service afterwards established by the name of homage, that it was only a cere-money of less solemnity, occasionally used, either before or after that act of obeisance; in short, it was quite a distinct thing from homage.215
Th, e counts and the king's commissaries further made those vassals whose fidelity was suspected give occasionally a security, which was called firmitas,216 but this security could not be an homage, since kings gave it to each other.217
And though the Abbot Suger218 makes mention of a chair of Dagobert, in which according to the testimony of antiquity, the kings of France were accustomed to receive the homage of the nobility, it is plain that he expresses himself agreeably to the ideas and language of his own time.
When the fiefs descended to the heirs, the acknowledgment of the vassal, which at first was only an occasional service, became a regular duty. It was performed in a more splendid manner, and attended with more formalities, because it was to be a perpetual memorial of the reciprocal duties of the lord and vassal.
I should be apt to think that homages began to be established under King Pepin, which is the time I mentioned that several benefices were given in perpetuity, but I should not think thus without caution, and only upon a supposition that the authors of the ancient annals of the Franks were not ignorant pretenders,219 who in describing the fealty professed by Tassillon, Duke of Bavaria, to King Pepin, spoke according to the usages of their own time.220
34. The same Subject continued. When the fiefs were either precarious or for life, they seldom bore a relation to any other than the political laws; for which reason in the civil institutions of those times there is very little mention made of the laws of fiefs. But when they became hereditary, when there was a power of giving, selling, and bequeathing them, they bore a relation both to the political and the civil laws. The fief, considered as an obligation of performing military service, depended on the political law; considered as a kind of commercial property, it depended on the civil law. This gave rise to the civil regulations concerning feudal tenures.
When the fiefs became hereditary, the law relating to the order of succession must have been in relation to the perpetuity of fiefs. Hence this rule of the French law, estates of inheritance do not ascend,221 was established in spite of the Roman and Salic laws.222 It was necessary that service should be paid for the fief; but a grandfather or a great-uncle would have been too old to perform any service; this rule thus held good at first only in regard to the feudal tenures, as we learn from Boutillier.223
When the fiefs became hereditary, the lords who were to see that service was paid for the fief, insisted that the females who were to succeed to the feudal estate, and I fancy sometimes the males, should not marry without their consent; insomuch that the marriage contracts became in respect to the nobility both of a feudal and a civil regulation.224 In an act of this kind under the lord's inspection, regulations were made for the succession, with the view that the heirs might pay service for the fief: hence none but the nobility at first had the liberty of disposing of successions by marriage contract, as Boyer225 and Aufrerius226 have observed.
It is needless to mention that the power of redemption, founded on the old right of the relatives, a mystery of our ancient French jurisprudence I have not time to unravel, could not take place with regard to the fiefs till they became perpetual.
Italiam, Italiam . . .227
I finish my treatise of fiefs at a period where most authors commence theirs.
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1. Gregory of Tours, iv. 42.
2. Chapter 7.
3. Fredegarius, Chronicle, 42.
4. Clotharius II, son of Chilperic, and the father of Dagobert.
5. Fredegarius, Chronicle, 42.
6. See Gregory of Tours, viii. 31.
7. Fredegarius, Chronicle, 27, in the year 605.
8. Ibid., 28, in the year 607.
9. Ibid., 41, in the year 613.
10. Ibid., 42, in the year 613.
11. Some time after Brunehault's execution, in the year 615. See Baluzius's edition of the Capitularies, p. 21.
12. Ibid., art. 16.
13. Ibid.
14. Ibid., art. 17.
15. Ibid., art. 1.
16. Ibid., art. 8.
17. Ibid., art. 9.
18. Ibid., art. 21.
19. They were orders which the king sent to the judges to do or to tolerate things contrary to law.
20. See Gregory of Tours, iv, p. 227. Both our history and the charters are full of this; and the extent of these abuses appears especially in Clotharius' constitution, inserted in the edition of the Capitularies made to reform them. Baluzius's edition, p. 7.
21. Ibid., art. 22.
22. Ibid., art 6.
23. Ibid., art. 18.
24. In Baluzius's edition of the Capitularies, i. p. 7.
25. In the preceding book I have made mention of these immunities, which were grants of judicial rights, and contained prohibitions to the regal judges to perform any function in the territory, and were equivalent to the erection or grant of a fief.
26. He began to reign towards the year 670.
27. See the Life of St. Leger.
28. Instigante Brunihault, Theodorico jubente, &c. — Fredegarius, 27, in the year 605.
29. Gesta regum Francorum, 36.
30. See Fredegarius, Chronicle, 54, in the year 626, and his anonymous continuator, 101, in the year 695, and 105, in the year 715. Aimoin, iv. 15, Eginhard. Life of Charlemagne, 48. Gesta regum Francorum, 45.
31. See the Law of the Burgundians, pref., and the second supplement to this law, tit. 13.
32. See Gregory of Tours, ix. 36.
33. Fredegarius, Chronicle, 44, in the year 626.
34. Fredegarius, Chronicle, 68, in the year 630.
35. Fredegarius, Chronicle, 75, in the year 632.
36. Fredegarius, Chronicle, 79, in the year 638.
37. Ibid.
38. Ibid., 80, in the year 639.
39. Fredegarius, Chronicle, 89, in the year 641.
40. Ibid.
41. De Majoribus Domus Regi?.
42. De Moribus Germanorum, 7.
43. See Sulpicius Alexander, in Gregory of Tours, ii.
44. In the year 552.
45. Agathias, i. Gregory of Tours, iv. 9.
46. Gontram did not even march against Gondovald, who styled himself son of Clotharius, and claimed his share of the kingdom.
47. Sometimes to the number of twenty. See Gregory of Tours, v. 27, viii. 28 and 30, x. 3. Dagobert, who had no mayor in Burgundy, observed the same policy, and sent against the Gascons ten dukes and several counts who Lad no dukes over them. — Fredegarius, Chronicle, 78, in the year 636.
48. Gregory of Tours, viii. 30, and x. 3.
49. Ibid., viii. 30.
50. See the second supplement to the law of the Burgundians, tit. 13, and Gregory of Tours, ix. 36.
51. See the Annals of Metz, years 687 and 688.
52. Ibid., year 695.
53. Ibid., year 719.
54. Ibid.
55. Ex chronico Centulensi, ii.
56. Annals of Metz, year 691. Annals of Fulda, or of Laurishan, Pippinus dux Francorum obtinuit regnum Francorum per annos 27, cum regibus sibi subjectis.
57. The anonymous continuator of Fredegarius, 104, in the year 714.
58. Cited by Gregory of Tours, ix. See also the edict of Clotharius II, in the year 615, art. 16.
59. See the 24th and the 34th of the first book.
60. See the 14th formula of the first book, which is equally applicable to the fiscal estates given direct in perpetuity, or given at first as a benefice, and afterwards in perpetuity. See also the 17th formula, ibid.
61. Book i, form. 13.
62. Tit. 44. See also tit. 66, §§ 3, 4; and tit. 74.
63. Tit. 11.
64. See also the law of the Ripuarians, tit. 7; and the Salic law, tit. 44, art. 1 and 4.
65. Salic law, tit. 59 and 76.
66. Ibid.
67. Ibid., tit. 59, § 1.
68. Ibid., tit. 76, § 1.
69. Ibid., tit. 56 and 59.
70. Ibid., tit. 76, § 1.
71. Ibid., § 2.
72. Apud vernis palatium, in the year 883, art. 4 and 11.
73. Capitulary of Charlemagne, second of the year 812, art. 1 and 3.
74. Heribannum.
75. Non infirmis reliquit h?redibus, says Lambert d'Ardres in Du Cange, on the word alodis.
76. See those quoted by Du Cange, in the word alodis, and those produced by Galland, in his Treatise on Allodial Lands, p. 14, ff.
77. Second Capitulary of the year 802, art. 10; and the seventh Capitulary of the year 803, art. 3; the first Capitulary, incerti anni, art. 49; the fifth Capitulary of the year 806, art. 7; the Capitulary of the year 779, art. 29; the Capitulary of Louis the Pious, in the year 829, art. 1.
78. The fifth of the year 806, art. 8.
79. In Gregory of Tours, vi. 46.
80. This is what induced him to annul the testaments made in favour of the clergy, and even the donations of his father; Gontram re-established them, and even made new donations. — Gregory of Tours, vii. 7.
81. See the Annals of Metz, year 687.
82. See the Annals of Metz.
83. In Gregory of Tours.
84. From Chronica Centulensi, ii.
85. See the Annals of Metz.
86. Ibid., year 741.
87. Year 858, in Carisiacus; Baluzius's edition, ii, p. 101.
88. Ibid., ii, art. 7, p. 109.
89. Precaria, quod precibus utendum conceditur, says Cujas, in his notes upon the first Book of Fiefs. I find in a diploma of King Pepin, dated the third year of his reign, that this prince was not the first who established these precaria; he cites one made by the Mayor Ebroin, and continued after his time. See the diploma of the king, in the Historians of France by the Benedictines, v, art. 6.
90. In the year 743, see the 5th book of the Capitularies, art. 3, Baluzius's edition, p. 825.
91. That of Metz, in the year 736, art. 4.
92. See his Capitulary, in the year 803, given at Worms; Baluzius's edition, p. 411, where he regulates the precarious contract, and that of Frankfort, in the year 794, p. 267, art. 24, in relation to the repairing of the houses; and that of the year 800, p. 330.
93. As appears by the preceding note, and by the Capitulary of Pepin, King of Italy, where it says, that the king would give the monasteries in fief to those who would swear allegiance for fiefs: it is added to the law of the Lombards, iii, tit. 1, § 30; and to the Salic Law, Collection of Pepin's Laws in Echard, p. 195, tit. 26, art. 4.
94. See the constitution of Lotharius I, in the law of the Lombards, iii. Leg. 1, § 43.
95. Ibid., § 44.
96. Ibid.
97. Given the 28th year of the reign of Charles the Bald, in the year 868. Baluzius's edition, p. 203.
98. Concilium apud Bonoilum, the 16th year of Charles the Bald, in the year 856, Baluzius's edition, p. 78.
99. In the civil wars which broke out at the time of Charles Martel, the lands belonging to the church of Rheims were given away to laymen; "the clergy were left to shift as well as they could," says the life of Remigius, Surius, i, p. 279.
100. Law of the Lombards, iii, tit. 3, §§ 1 and 2.
101. It is that on which I have descanted in the 4th chapter of this book, and which is to be found in Baluzius's edition of the Capitularies, i, art. 11, p. 9.
102. The Capitulary of Charlemagne in the year 800, Baluzius's edition, p. 336, explains extremely well what is meant by that sort of tithe from which the church is exempted by Clotharius; it was the tithe of the swine which were put into the king's forests to fatten; and Charlemagne enjoins his judges to pay it, as well as other people, in order to set an example: it is plain that this was a right of seigniory or economy.
103. Canone 5, ex tomo 1, conciliorum antiquorum Galli? opera Jacobi Sirmundi.
104. Art. 6, Baluzius's edition, p. 332. It was given in the year 800.
105. Held under Charlemagne, in the year 794.
106. Baluzius's edition, p. 267, art. 23.
107. See among the rest the capitulary of Louis the Debonnaire in the year 829, Baluzius's edition, p. 663; against those who, to avoid paying tithes neglected to cultivate the lands, &c., art. 5.
108. Among others, that of Lotharius, iii, tit. 3, cap. vi.
109. In the year 829, art. 7, in Baluzius, i, p. 663.
110. In the law of the Lombards, iii, tit. 3, § 8.
111. It is a kind of codicil produced by Eginhard, and different from the will itself, which we find in Goldastus and Baluzius.
112. See the Capitulary of Charlemagne in the year 803, art. 2, Baluzius's edition, p. 379; and the edict of Louis the Debonnaire in the year 834, in Goldast, Constit. Impérial., i.
113. This is mentioned in the famous canon, ego Ludovicus, which is a palpable forgery; it is Baluzius's edition, p. 591, in the year 817.
114. As appears by his Capitulary, in the year 801, art. 17, in Baluzius, i, p. 360.
115. See his constitution, inserted in the code of the Lombards, iii, tit. 1, § 44.
116. See the above constitution, and the Capitulary of Charles the Bald, in the year 846, cap. xx. in Villa Sparnaco, Baluzius's edition, ii. p. 31, and that of the year 853, cap. iii and v, in the Synod of Soissons, Baluzius's edition, ii, p. 54; and that of the year 854, apud Attiniacum, cap. x. Baluzius's edition, ii, p. 70. See also the first Capitulary of Charlemagne, incerti anni, art. 49 and 56. Baluzius's edition, i, p. 519.
117. See the Capitularies, v. art. 44, and the edict of Pistes in the year 869, art. 8 and 9, where we find the honorary rights of the lords established, in the same manner as they are at this very day.
121. Historians of France by the Benedictines, v, p. 9.
122. Ibid., p. 10.
123. In the year 768.
124. Tom. ii, lectionis antiqu?.
125. Edition of the Capitularies, i, p. 188.
126. In the 1st Capitulary of the year 806. Baluzius's edition, p. 439, art. 5.
127. In Goldast, Constit. Impérial., ii, p. 19.
128. Baluzius's edition, p. 574, art. 14.
129. Capitulary of the year 877. Baluzius's edition, p. 272.
130. In Father Labbe's Councils, ix, col. 424; and in Dumont's Corp. Diplomat., i, art. 36.
131. By the mother's side.
132. See his third Capitulary of the year 811, p. 486, art. 1, 2, 3, 4, 5, 6, 7, and 8; and the first Capitulary of the year 812, p. 490, art. 1; and the Capitulary of the year 812, p. 494, art. 9 and 11, etc.
133. See the Capitulary de Villis in the year 800; his second Capitulary of the year 813, art. 6 and 19; and the fifth book of the Capitularies, art. 303.
134. Capitulary de Villis, art. 39. See this whole Capitulary, which is a masterpiece of prudence, good administration, and economy.
135. See among others the foundation of the Archbishopric of Bremen, in the Capitulary of the year 789. Baluzius's edition, p. 245.
136. For instance, the prohibition of the king's judges against entering upon the territory to demand the freda, and other duties. I have said a good deal concerning this in the preceding book, 20, 21, 22.
137. The anonymous author of the Life of Louis the Debonnaire in Duchesne's Collection, tom. ii, p. 295.
138. See his trial and the circumstances of his deposition, in Duchesne's Collection, tom. ii, p. 333.
139. He directed him to show unlimited clemency （indeficientem misericordiam） to his sisters, his brothers, and his nephews. Tegan in the collection of Duchesne, ii, p. 276.
140. See his letters.
141. See his trial and the circumstances of his deposition, in Duchesne's Collection, ii, p. 331. See also his life written by Tegan: "Tanto enim odio laborabat, ut t?deret eos vita ipsius," says this anonymous author in Duchesne, ii, p. 307.
142. The anonymous author of the Life of Louis the Debonnaire in Duchesne's Collection, ii, p. 298.
143. Tegan says that what seldom happened under Charlemagne was a common practice under Louis.
144. Being desirous to check the nobility, he promoted one Bernard to the place of chamberlain, by which the great lords were exasperated to the highest pitch.
145. Tegan, De Gestis Ludovici pii.
146. Nitard, iv, prope finem.
147. Ibid.
148. See book xxx. 13.
149. Hincmar, let. 1, to Louis the Stammerer.
150. See the fragment of the Chronicle of the Monastery of St. Sergius of Angers, in Duchesne, ii, p. 401.
151. See what the bishops say in the synod of the year 845, apud Teudonis villam, art. 4.
152. See the synod in the year 845, apud Teudonis villam, art. 3 and 4, which gives a very exact description of things; as also, that of the same year, held at the palaces of Vernes, art. 12, and the synod of Beauvais, also in the same year, art. 3, 4, and 6, in the Capitulary in villa Sparnaco, in the year 846, art. 20, and the letter which the bishops assembled at Rheims wrote in 858, to Louis, King of Germany, art. 8.
153. See the Capitulary in villa Sparnaco, in the year 846. The nobility had set the King against the bishops, insomuch that he expelled them from the assembly; a few of the canons enacted in council were picked out, and the prelates were told that these were the only ones which should be observed; nothing was granted them that could be refused. See art. 20, 21 and 22. See also the letter which the bishops assembled at Rheims wrote in the year 858 to Louis, King of Germany, art. 8, and the edict of Pistes, in the year 864, art. 5.
154. See this very Capitulary in the year 846, in villa Sparnaco. See also the Capitulary of the assembly held apud Marsnam in the year 847, art. 4, wherein the clergy reduced themselves to demand only the restitution of what they had been possessed of under Louis the Debonnaire. See also the Capitulary of the year 851, apud Marsnam, art. 6, and 7, which confirms the nobility and clergy in their several possessions, and that apud Bonoilum, in the year 856, which is a remonstrance of the bishops to the king, because the evils, after so many laws, had not been redressed; and, in fine, the letter which the bishops assembled at Rheims wrote in the year 858, to Louis, King of Germany, art. 8.
155. Art. 8.
156. See the Capitulary of the year 851, art. 6 and 7.
157. Charles the Bald, in the Synod of Soissons, says, that he had promised the bishops not to issue any more precepts relating to church-lands. Capitulary of the year 853, art. 11, Baluzius's edition. ii, p. 56.
158. See the Capitulary of Charles the Bald, apud Saponarias, in the year 859, art. 3. "Venilon, whom I made Archbishop of Sens, has consecrated me; and I ought not to be expelled the kingdom by anybody."
159. See the Capitulary of Charles the Bald, De Carisiaco, in the year 857, Baluzius's edition, ii, p. 88, §§ 1, 2, 3, 4, and 7.
160. See the synod of Pistes in the year 862, art. 4, and the Capitulary of Lewis II, apud Vernis palatium, in the year 883, art. 4 and 5.
161. Capitulary of the year 876, under Charles, the Bald, in synodo Pontigonensi, Baluzius's edition, art. 12.
162. See what has been said already, book xxx, last chapter, towards the end.
163. In the year 587, in Gregory of Tours, ix.
164. See the following chapter, where I shall speak more diffusely of those partitions; and the notes in which they are quoted.
165. In the year 806, between Charles, Pepin, and Louis, it is quoted by Goldast, and by Baluzius, ii, p. 439.
166. Art. 9, p. 443, which is agreeable to the treaty of Andelot, in Gregory of Tours, ix.
167. Art. 10, and there is no mention made of this in the treaty of Andelot.
168. In Baluzius, i, p. 174, art. 9. See also the division made by the same emperor in the year 837, art. 6, Baluzius's edition, p. 686.
169. In the year 811, Baluzius's edition, i, p. 486, art. 7 and 8, and that of the year 812, ibid. p. 490, art. 1. See also the Capitulary of the year 807, Baluzius's edition, i, p. 458.
170. In the year 793, inserted in the law of the Lombards, iii, tit. 9, cap. ix.
171. In the year 847, quoted by Aubert le Mire, and Baluzius, ii, page 42.
172. Adnunciatio.
173. Art. 2, of the Declaration of Charles.
174. Capitulary of the year 877, tit. 53, art. 9 and 10, apud Carisiacum, similiter et de nostris vassallis faciendum est, &c. This Capitulary relates to another of the same year, and of the same place, art. 3.
175. Capitulary of Aix la Chapelle, in the year 813, art. 16, and the Capitulary of Pepin, in the year 783, art. 5.
176. See the capitulary de Carisiaco, in the year 856, art. 10 and 13. Baluzius's edition, tom. ii, p. 83, in which the king, together with the lords spiritual and temporal, agreed to this.
177. In the year 757, art. 6, Baluzius's edition, p. 181.
178. Book i, 1.
179. At least in Italy and Germany.
180. Book i, of fiefs, 1.
181. Ibid.
182. Capitulary of the year 802, art. 7, Baluzius's edition, p. 365.
183. Apud Marsnam, in the year 847, Baluzius's edition, p. 42.
184. Art. 5, ibid., p. 44.
185. Apud Argentoratum, in Baluzius, Capitularies, ii, p. 39.
186. See the law of Guy, King of the Romans, among those which were added to the Salic law, and to that of the Lombards, tit. 6, § 2 in Echard.
187. Some authors pretend that the County of Toulouse had been given away by Charles Martel, and passed by inheritance down to Raymond, the last count; but, if this be true, it was owing to some circumstances which might have been an inducement to choose the Counts of Toulouse from among the children of the last possessor.
188. See his Capitulary of the year 877, tit. 53, art. 9 and 10, apud Carisiacum. This Capitulary bears relation to another of the same year and place, art. 3.
189. The third Capitulary of the year 812, art. 7, and that of the year 815, art. 6, on the Spaniards. The collection of the Capitularies, book 5, art. 288, and the Capitulary of the year 869, art. 2, and that of the year 877, art. 13, Baluzius's edition.
190. As appears from Otho of Frissingue, Of the Actions of Frederic, ii. 29.
191. See the ordinance of Philip Augustus in the year 1209, in the new collection.
192. Book i, tit. 1.
193. Ibid.
194. At least in Italy and Germany.
195. Book i, of fiefs, tit. 1.
196. Gerardus Niger and Aubertus de Orto.
197. Book i, of fiefs, tit. 1.
198. Cujas has proved it extremely well.
199. Ibid.
200. Arnold and his son Louis IV.
201. In the year 926, quoted by Aubert le Mire, Cod. donationum piarum, 27.
202. See the Capitulary of Charles the Bald, in the year 877, apud Carisiacum, on the importance of Paris, St. Denis, and the castles on the Loire, in those days.
203. See above, chapter 30.
204. See the Salic law, and the law of the Ripuarians, in the title of Allodia.
205. See the Capitulary of the year 817, which contains the first partition made by Louis the Debonnaire among his children.
206. See his two letters upon this subject, the title of one of which is De Divisione imperii.
207. See the ordinance of Philip Augustus, in the year 1209, on the fiefs.
208. We find several of these conventions in the charters, as in the register book of Vend?me, and that of the abbey, in St. Cyprian in Poitou, of which Mr. Galland has given some extracts, p. 55.
209. But they could not abridge the fiefs, that is, abolish a portion of it.
210. They fixed the portion which they could dismember.
211. This was the reason that the lords obliged the widow to marry again.
212. Most of the great families had their particular laws of succession. See what M. de la Thaumassière says concerning the families of Berri.
213. We see in the Capitulary of the year 817, apud Carisiacum, art. 3, Baluzius's edition, ii, p. 269, the moment in which the kings caused the fiefs to be administered in order to preserve them for the minors; an example followed by the lords, and which gave rise to what we have mentioned by the name of the guardianship of a nobleman's children.
214. We find the formula thereof in the second Capitulary of the year 802. See also that of the year 854, art. 13, and others.
215. M. Du Cange in the word hominium, p. 1163, and in the word fidelitas, p. 474, cites the charters of the ancient homages where these differences are found, and a great number of authorities which may be seen. In paying homage, the vassal put his hand on that of his lord, and took his oath; the oath of fealty was made by swearing on the gospels. The homage was performed kneeling, the oath of fealty standing. None but the lord could receive homage, but his officers might take the oath of fealty. — See Littleton, §§ 91, 92, faith and homage, that is, fidelity and homage.
216. Capitularies of Charles the Bald, in the year 860, post reditum a Conftuentibus, art. 3, Baluzius's edition, p. 145.
217. Ibid., art. 1.
218. Suger, Lib. de administratione sua.
219. Year 757, cap. xvii.
220. One would think that here was an homage and an oath of fealty. See note 6, p. 314.
221. Book iv, de fendis, tit. 59.
222. In the title of Allodia.
223. Somme Rurale, i, tit. 76, p. 447.
224. According to an ordinance of St. Louis, in the year 1246 to settle the customs of Anjou and Maine; those who shall have the care of the heiress of a fief shall give security to the lord, that she shall not be married without his consent.
225. Decision 155, No. 8; and 204, No. 38.
226. In Capell. Thol., decision 453.
227. Æneid, iii, 523.