第 101 页

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 Boyer[225] and Aufrerius[226] 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.