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

Toward the close of the reign of Charles the Bald, and from that time forward, there was an end of the disputes of the clergy and laity concerning the restitution of church-lands. The bishops indeed breathed out still a few sighs in their remonstrances to Charles the Bald, which we find in the Capitulary of the year 856, and in the letter they wrote to Louis, King of Germany, in the year 858,[155] but they proposed things, and challenged promises, so often eluded, that we plainly see they had no longer any hopes of obtaining their desire.

All that could be expected then was to repair in general the injuries done both to church and state.[156] The kings engaged not to deprive the nobility of their freemen, and not to give away any more church-lands by precepts,[157] so that the interests of the clergy and nobility seemed then to be united.

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

The authority of our kings diminishing every day, both for the reasons already given and those which I shall mention hereafter, they imagined they had no better resource left, than to resign themselves into the hands of the clergy. But the ecclesiastics had weakened the power of the kings, and these had diminished the influence of the ecclesiastics. In vain did Charles the Bald and his successors call in the church to support the state, and to prevent its ruin; in vain did they make use of the. respect which the commonalty had for that body,[158] to maintain that which they should also have for their prince;[159] in vain did they endeavour to give an authority to their laws by that of the canons; in vain did they join the ecclesiastic with the civil punishments;[160] in vain to counterbalance the authority of the count did they give to each bishop the title of their commissary in the several provinces;[161] it was impossible to repair the mischief they had done; and a terrible misfortune, which I shall presently mention, proved the ruin of the monarchy.

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

The freemen were not allowed at first to do homage for a fief; but in process of time this was permitted:[162] and I find that this change was made during the period that elapsed from the reign of Gontram to that of Charlemagne. This I prove by the comparison which may be made between the treaty of Andelot,[163] by Gontram, Childebert, and Queen Brunehault, and the partition made by Charlemagne among his children, as well as a like partition by Louis the Debonnaire.[164] These three acts contain nearly the same regulations with regard to the vassals; and as they determine the very same points, under almost the same circumstances, the spirit as well as the letter of those three treaties in this respect are very much alike.

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

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

THE PRINCIPAL CAUSE OF THE HUMILIATION OF THE SECOND RACE

25. Changes in the Allodia. Charlemagne in the partition[165] mentioned in the preceding chapter ordained that after his death the vassals belonging to each king should be permitted to receive benefices in their own sovereign's dominion, and not in those of another;[166] whereas they may keep their allodial estates in any of their dominions.[167] But he adds[168] that every freeman might, after the death of his lord, do homage in any of three kingdoms he pleased, as well as he that never had been subject to a lord. We find the same regulations in the partition which Louis the Debonnaire made among his children in the year 817.

But though the freeman had done homage for a fief, yet the count's militia was not thereby weakened: the freeman was still obliged to contribute for his allodium, and to get people ready for the service belonging to it, at the proportion of one man to four manors; or else to procure a man that should do the duty of the fief in his stead. And when some abuses had been introduced upon this head, they were redressed, as appears by the constitutions of Charlemagne,[169] and by that of Pepin, King of Italy, which explain each other.[170]

The remark made by historians that the battle of Fontenay was the ruin of the monarchy, is very true; but I beg leave to cast an eye on the unhappy consequences of that day.

Some time after the battle, the three brothers, Lothairius, Louis, and Charles, made a treaty,[171] wherein I find some clauses which must have altered the whole political system of the French government.

1. In the declaration[172] which Charles made to the people of the part of the treaty relating to them, he says that every freeman might choose whom he pleased for his lord,[173] whether the king or any of the nobility. Before this treaty the freeman might do homage for a fief; but his allodium still continued under the immediate power of the king, that is, under the count's jurisdiction; and he depended on the lord to whom he vowed fealty, only on account of the fief which he had obtained. After that treaty every freeman had a right to subject his allodium to the king, or to any other lord, as he thought proper. The question is riot in regard to those who put themselves under the protection of another for a fief, but to such as changed their allodial into a feudal land, and withdrew themselves, as it were, from the civil jurisdiction to enter under the power of the king, or of the lord whom they thought proper to choose.

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

2. If a man changed an estate which he possessed in perpetuity into a fief, this new fief could no longer be only for life. Hence we see, a short time after, a general law for giving the fiefs to the children of the present possessor:[174] it was made by Charles the Bald, one of the three contracting princes.

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

In the reign of Charlemagne,[175] when the vassal had received a present of a lord, were it worth only a sou, he could not afterwards quit him. But under Charles the Bald, the vassals might follow what was agreeable to their interests or their inclination with entire safety;[176] and so strongly does this prince explain himself on the subject that he seems rather to encourage them in the enjoyment of this liberty than to restrain it. In Charlemagne's time, benefices were rather personal than real; afterwards they became rather real than personal.

26. Changes in the Fiefs. The same changes happened in the fiefs as in the allodia. We find by the Capitulary of Compiègne,[177] under King Pepin, that those who had received a benefice from the king gave a part of this benefice to different bondmen; but these parts were not distinct from the whole. The king revoked them when he revoked the whole; and at the death of the king's vassal, the rear-vassal lost also his rear-fief: and a new beneficiary succeeded, who likewise established new rear-vassals. Thus it was the person and not the rear-fief that depended on the fief; on the one hand, the rear-vassal returned to the king because he was not tied for ever to the vassal; and the rear-fief returned also to the king because it was the fief itself and not a dependence of it.

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

two; and oftentimes more.

We find in the books of fiefs[178] that, though the king's vassals might give away in fief, that is, in rear-fief, to the king, yet these rear-vassals, or petty vavasors, could not give also in fief; so that whatever they had given, they might always resume. Besides, a grant of that kind did not descend to the children like the fiefs, because it was not supposed to have been made according to the feudal laws.

If we compare the situation in which the rear-vassalage was at the time when the two Milanese senators wrote those books, with what it was under King Pepin, we shall find that the rear-fiefs preserved their primitive nature longer than the fiefs.[179]

But when those senators wrote, such general exceptions had been made to this rule as had almost abolished it. For if a person who had received a fief of a rear-vassal happened to follow him upon an expedition to Rome, he was entitled to all the privileges of a vassal.[180] In like manner, if he had given money to the rear-vassal to obtain the fief, the latter could not take it from him, nor hinder him from transmitting it to his son, till he returned him his money: in fine, this rule was no longer observed by the senate of Milan.[181]

27. Another change which happened in the Fiefs. In Charlemagne's time they were obliged,[182] under great penalties, to repair to the general meeting in case of any war whatsoever; they admitted of no excuses, and if the count exempted any one, he was liable himself to be punished. But the treaty of the three brothers[183] made a restriction upon this head which rescued the nobility, as it were, out of the king's hands; they were no longer obliged to serve him in time of war, except when the war was defensive.[184] In others, they were at liberty to follow their lord, or to mind their own business. This treaty relates to another,[185] concluded, five years before, between the two brothers, Charles the Bald and Louis, King of Germany, by which these princes release their vassals from serving them in war, in case they should attempt hostilities against each other; an agreement which the two princes confirmed by oath, and at the same time made their armies swear to it.

The death of a hundred thousand French, at the battle of Fontenay, made the remains of the nobility imagine that by the private quarrels of their kings about their respective shares, their whole body would be exterminated, and that the ambition and jealousy of those princes would end in the destruction of all the best families of the kingdom. A law was therefore passed that the nobility should not be obliged to serve their princes in war unless it was to defend the state against a foreign invasion. This law obtained for several ages.[186]

28. Changes which happened in the great Offices, and in the Fiefs. The many changes introduced into the fiefs in particular cases seemed to spread so widely as to be productive of general corruption. I noticed that in the beginning several fiefs had been alienated in perpetuity; but those were particular cases, and the fiefs in general preserved their nature; so that if the crown lost some fiefs it substituted others in their stead. I observed, likewise, that the crown had never alienated the great offices in perpetuity.[187]

But Charles the Bald made a general regulation, which equally affected the great offices and the fiefs. He ordained, in his capitularies, that the counties should be given to the children of the count, and that this regulation should also take place in respect to the fiefs.[188]

We shall see presently that this regulation received a wider extension, insomuch that the great offices and fiefs went even to distant relatives. Thence it followed that most of the lords who before this time had held immediately of the crown, held now mediately. Those counts who formerly administered justice in the king's placita, and who led the freemen against the enemy, found themselves situated between the king and his freemen; and the king's power was removed farther off another degree.

Again, it appears from the capitularies,[189] that the counts had benefices annexed to their counties, and vassals under them. When the counties became hereditary, the count's vassals were no longer the immediate vassals of the king; and the benefices annexed to the counties were no longer the king's benefices; the counts grew powerful because the vassals whom they had already under them enabled them to procure others.

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

It was a custom of the kingdom[190] 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 declared[191] 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.