q They levied also some duties on 819, p. 616. They gave likewise this rivers, where there happened to be a name to the carriages furnished by the bridge or a passage. freemen to the king, or to his comr The census was so generical a word, missaries, as appears by the Capitulary that they made use of it to express the of Charles the Bald in the year 865, tolls of rivers, when there was a bridge art. 8.
or ferry to pass. See the third Capitu- j The Abbe du Bos, and his followers.
THE SPIRIT OF LAWS 187 adopted particular systems, having found these words in the writings of those days, imagined that what was then called cen- sus, was exactly the census of the Romans; and thence they inferred this consequence, that our kings of the first two races had put themselves in the place of the Roman emperors, and made no change in their administration,* Besides, as particu- lar duties raised under the second race were by change and by certain restrictions converted into others," they inferred thence that these duties were the census of the Romans; and as, since the modern regulations, they found that the crown demesnes were absolutely unalienable, they pretended that those duties which represented the Roman census, and did not form a part of the demesnes, were mere usurpation. I omit the other con- sequences.
To apply the idea of the present time to distant ages is the most fruitful source of error. To those people who want to modernize all the ancient ages, I shall say what the Egyptian priests said to Solon, " O Athenians, you are mere children! " v 15. — That what they called Census was raised only on the Bondmen and not on the Freemen The king, the clergy, and the lords raised regular taxes, each on the bondmen of their respective demesnes. I prove it with respect to the king, by the Capitulary de Villis; with regard to the clergy, by the codes of the laws of the barbarians w and in relation to the lords, by the regulations which Charlemagne made concerning this subject.-*" These taxes were called census; they were economical and not fiscal claims, entirely private dues and not public taxes.
I affirm, that what they called census at that time was a tax raised upon the bondmen. This I prove by a formulary of Marculfus containing a permission from the king to enter into holy orders, provided the persons be free-born,^ and not en- rolled in the register of the census. I prove it also by a commist See the weakness of the arguments w Law of the Alemans, chap. xxii.; produced by the Abbe du Bos, in the and the law of the Bavarians, tit. i, ' Establishment of the French Mon- chap, xiv., where the regulations are archy," tom. iii. book VI. chap. xiv.; to be found which the clergy made conespecially in the inference he draws cerning their order.
from a passage of Gregory of Tours, x Book sth of the Capitularies, chap.
concerning a dispute between his ccciii.
church and King Charibert. y " Si ille de capite suo bene ingenuus M For instance, by enfranchisements. sit, et in Puletico publico censitus non V " Apud Platonem, in Timaeo, vel de est." — Lib. I. formul. 19.
natura. — Ed.
i88 MONTESQUIEU sion from Charlemagne to a counts whom he had sent into Saxony, which contains the enfranchisement of the Saxons for having embraced Christianity, and is properly a charter of free- dom.o This prince restores them to their former civil liberty,6 and exempts them from paying the census. It was, therefore, the same thing to be a bondman as to pay the census, to be free as not to pay it.
By a kind of letters-patent of the same prince in favor of the Spaniards,^ who had been received into the monarchy, the counts are forbidden to demand any census of them, or to de- prive them of their lands. That strangers upon their coming to France were treated as bondmen is a thing well known; and Charlemagne being desirous they should be considered as freemen, since he would have them be proprietors of their lands, forbade the demanding any census of them.
A Capitulary of Charles the Bald,rf given in favor of those very Spaniards, orders them to be treated like the other Franks, and forbids the requiring any census of them; consequently this census was not paid by freemen.
The thirtieth article of the Edict of Pistes reforms the abuse by which several of the husbandmen belonging to the king or to the church sold the lands dependent on their manors to ecclesiastics or to people of their condition, reserving only a small cottage to themselves; by which means they avoided paying the census; and it ordains that things should be re- stored to their primitive situation: the census was, therefore, a tax peculiar to bondmen.
Thence also it follows, that there was no general census in the monarchy; and this is clear from a great number of pas- sages. For what could be the meaning of this capitulary,^ " We ordain that the royal census should be levied in all places, where formerly it was lawfully levied "If What could be the meaning of that in which Charlemagne g orders his commiss In the year 789, edition of the e Third Capitulary of the year 80s, Capitularies by Baluzius, vol. i. p. 250. arts. 20 and 23, inserted in the Collecfl " Et ut ista in^enuitatis pagina tion of Angezise, book III. art. xv.
firma stabilisque consistat." — Ibid. This is agreeable to that of Charles the h "_ Pristinaeque libertati donatos, et Bald, in the year 854, " apud Attiniomni nobis debito censu solutos." — acum," art. 6.
Ibid. / " Undecunque legitime exigebatur. ' c " Praeceptum pro Hispanis," in the — Ibid, year 812, edition of Baluzius, torn. i. g In the year 812, arts. 10 and 11, edid In the year 844, edition of Baluzius, THE SPIRIT OF LAWS 189 saries in the provinces to make an exact inquiry into all the census that belonged in former times to the king's demesne? ^ And of that » in which he disposes of the census paid by those / of whom they are demanded? What can that other capitulary mean k in which we read, " If any person has acquired a tribu- tary land I on which we were accustomed to levy the census "? And that other, in fine,w in which Charles the Bald n makes mention of feudal lands whose census had from time imme- morial belonged to the king?
Observe that there are some passages which seem at first sight to be contrary to what I have said, and yet confirm it. We have already seen that the freemen in the monarchy were obliged only to furnish particular carriages; the capitulary just now cited gives to this the name of census,^ and opposes it to the census paid by the bondmen.
Besides, the Edict of Pistes P notices those fre. men who are obliged to pay the royal census for their head and for their cot- tages,? and who had sold themselves during the famine. The king orders them to be ransomed. This is because those who were manumitted by the king's letters r did not, generally speaking, acquire a full and perfect liberty,■? but they paid cen- sum in capite; and these are the people here meant.
We must, therefore, waive the idea of a general and universal census, derived from that of the Romans, from which the rights of the lords are also supposed to have been derived by usurpation. What was called census in the French monarchy, independently of the abuse made of that word, was a particular tax imposed on the bondmen by their masters.
I beg the reader to excuse the trouble I must give him with such a number of citations. I should be more concise did I h " Undecunque antiquitus ad partem o " Censibus vel paraveredis quos regis venire solebant.— Capitulary of Franci homines ad regiam potestatem the year 812, arts. 10 and 11. exsoivere debent."
t In the year 813, art. 6, edition of p In the year 864, art. 34, edition of j " De illis unde censa exigunt." — g " De illis francis hominibus qui Capitulary of the year 813, art. 6. censum regium de suo capite et de suis k Book IV. of the Capitularies, art. recellis debeant." — Ibid.
37, and inserted in the law of the Lorn- r The 28th article of the same edict bards. explains this extremely well; it even / " Si quis terram tributariam, unde makes a distinction between a Roman census ad partem nostram exire solebat, freedman and a Frank freedman: and susceperit." — Book IV., of the Capitu- we likewise see there that the census laries, art. 37. was not general; it deserves to be read.
m In the year 805, art. 8. _ s As appears by the Capitulary of n " Unde census ad partem regis Charlemagne in the year 813, which we cxivit antiquitus."— Capitulary of the have already quoted, I90 MONTESQUIEU not meet with the Abbe du Bos's book on the estabhshment of the French monarchy in Gaul, continually in my way. Noth- ing is a greater obstacle to our progress in knowledge, than a bad performance of a celebrated author; because, before we instruct we must begin with undeceiving.
i6. — Of the feudal Lords or Vassals I have noticed those volunteers among the Germans, who have followed their princes in their several expeditions. The same usage continued after the conquest. Tacitus mentions them by the name of companions; t the Salic law by that of men who have vowed fealty to the king; « the formularies of Marculfus v by that of the king's " antrustios," w the earliest French historians by that of " leudes," x faithful and loyal; and those of later date by that of vassals and lords.y In the Salic and Ripuarian laws we meet with an infinite number of regulations in regard to the Franks, and only with a few for the antrustios. The regulations concerning the an- trustios are different from those which were made for the other Franks; they are full of what relates to the settling of the property of the Franks but mention not a word concerning that of the antrustios. This is because the property of the latter was regulated rather by the political than by the civil law, and v/as the share that fell to an army, and not the patrimony of a family.
The goods reserved for the feudal lords were called fiscal goods, benefices, honors, and fiefs, by different authors, and in different times.^ There is no doubt but the fiefs at first were at will.o We find in Gregory of Tours,& that Sunegisilus and Gallomanus were deprived of all they held of the exchequer, and no more was left them than their real property. When Gontram raised his nephew Childebert to the throne, he had a private confer- ence with him, in which he named the persons who ought to * " Comites." tioned in the " Life of St. Maur," « " Qui sunt in truste regis," tit. 44, " dedit fiscum unum "; and in the art. 4. " Annals of Metz " in the year 747, V Book I. formulary 18. " dedit illi comitatus et fiscos pluriw From the word " trew," which sig- mos." The goods designed for the nifies " faithful " among the Germans. support of the royal family were called X " Leudes," " fideles." regalia.
y" Vassalh," " seniores." o See the ist book, tit. i, of the fiefs; a " Fiscalia." See the 14th formu- and Cuias on that book.
fery of Marculfus, book I. It is men- h Book IX. chap, xxxviii.
THE SPIRIT OF LAWS 191 be honored with, and those who ought to be deprived of, the fiefs.c In a formulary of Marculfus,^^ the king gives in ex- change, not only the benefices held by his exchequer, but like- wise those which had been held by another. The law of the Lombards opposes the benefices to property.^ In this, our historians, the formularies, the codes of the different barbar- ous nations, and all the monuments of those days are unani- mous. In fine, the writers of the book of fiefs inform us/ that at first the lords could take them back when they pleased, that afterwards they granted them for the space of a year,g and that at length they gave them for life.
17. — Of the military Service of Freemen Two sorts of people were bound to military service; the great and lesser vassals, who were obliged in consequence of their fiefs; and the freemen, whether Franks, Romans, or Gauls, who served under the count and were commanded by him and his officers.
The name of freemen was given to those, who on the one hand had no benefits or fiefs, and on the other were not sub- ject to the base services of villanage; the lands they possessed were what they called allodial estates.
The counts assembled the freemen,^ and led them against the enemy; they had officers under them who were called vicars; i and as all the freemen were divided into hundreds, which constituted what they called a borough, the counts had also officers under them, who were denominated centenarii, and led the freemen of the borough, or their hundreds, to the field./ This division into hundreds is posterior to the establishment of the Franks in Gaul. It was made by Clotharius and Childe- bert, with a view of obliging each district to answer for the robc Quos honoraret muneribus, quos ab g It was a kind of precarious tenure honore depelleret." — Ibid. lib. VII. which the lord consented or refused to d " Vel reliquis quibuscumque bene- renew every year^ as Cujas has obficiis, quodcumque ille, vel fiscus nos- served.
ter, in ipsis locis tenuisse noscitur."— h See the Capitulary of Charlemagne Lib. I. formul. 30. in the year 812, arts. 3 and 4, edition of e Liv. III. tit. 8, sec. 3. _ Baluzius, torn. i. p. 491; and the Edict / " Antiquissimo enim tempore sic of Pistes in the year 864, art. 26, tom.
erat in Dominorum potestate connex- ii. p. 186.
um, ut quando vellent possent auferre t Et habebat unusquisque comes rem in feudum a se datam; postea vero Vicarios et Centenarios secum." — Book conventum est ut per annum tantum II. of the Capitularies, art. 28. firmitatem haberent, deinde statutum; They were called " compagenses."
est ut usque ad vitam fidelis produce- retur." — " Feudorum," lib. I. tit. i.
192 MONTESQUIEU beries committed in their division; this we find in the decrees of those princes.^ A regulation of this kind is to this very day observed in England.
As the counts led the freemen against the enemy, the feudal lords commanded also their vassals or rear- vassals; and the bishops, abbots, or their advocates I likewise commanded theirs.w The bishops were greatly embarrassed and inconsistent with themselves; " they requested Charlemagne not to oblige them any longer to military service; and when he granted their re- quest, they complained that he had deprived them of the public esteem; so that this prince was obliged to justify his intentions upon this head. Be that as it may, when they were exempted from marching against the enemy I do not find that their vas- sals were led by the counts; on the contrary, we see that the kings or the bishops chose one of their feudatories to conduct them.o In a Capitulary of Louis the Debonnaire,/* this prince dis- tinguishes three sorts of vassals, those belonging to the king, those to the bishops, and those to the counts. The vassals of a feudal lord were not led against the enemy by the count, ex- cept some employment in the king's household hindered the lord himself from commanding them,9 But who is it that led the feudal lords into the field? No doubt the king himself, who was always at the head of his faith- ful vassals. Hence we constanly find in the Capitularies a dis- tinction made between the king's vassals and those of the bishops.*" Such brave and magnanimous princes as our kings did not take the field to put themselves at the head of an eccle- siastic militia; these were not the men they chose to conquer or to die with.
k Published in the year 595, art. i. p The sth Capitulary of the year 819, See the Capitularies, edition of Balu- art. 27, edition of Baluzius, p. 618. zius, p. 20. I'hese regulations were un- q " De vassis dominicis qui adhuc doubtedly made by agreement. intra casam serviunt et tamen beneficia / " Advocati." habere noscuntur, statutum est ut qui- nt Capitulary of Charlemagne in the cumque ex eis cum domino imperatore year 812, arts, i and s, edition of domi remanserint, vassallos suos casa- Baluzius, tom. i. p. 490. tos secum non retineant; sed cum n See the Capitulary of the year 803, comite, cujus pagenses sunt, ire permit- published at Worms, edition of Balu- tant."— Second Capitulary in the year zius, pp. 408 and 410. 812, art. 7, edition of Baluzius, tom. i.
o Capitulary of Worms in the year p. 494.
803, edition of Baluzius, page 409; and r First Capitul. of the year 812, art. s, the Council in the year 845, under " de hominibus nostris, et episcoporum Charles the Bald, " in verno palatio," et abbatum qui vel beneficia vel talia edition of Baluzius, tom. ii. p. 17, art. 8. propria habent," etc., edition of Balu- THE SPIRIT OF LAWS 193 But these lords likewise carried their vassals and rear-vas- sals with them, as we can prove by the Capitulary in which Charlemagne ordains that every freeman who has four manors, either in his own property or as a benefice from somebody else, should march against the enemy or follow his lord.^ It is evi- dent, that Charlemagne means, that the person who had a manor of his own should march under the count and he who held a benefice of a lord should set out along with him.
And yet the Abbe du Bos pretends,^ that when mention is made in the Capitularies of tenants who depended on a par- ticular lord, no others are meant than bondmen; and he grounds his opinion on the law of the Visigoths and the prac- tice of that nation. It is much better to rely on the Capitu- laries themselves; that which I have just quoted says expressly the contrary. The treaty between Charles the Bald and his brothers notices also those freemen who might choose to fol- low either a lord or the king; and this regulation is conform- able to a great many others.
We may, therefore, conclude, that there were three sorts of military services; that of the king's vassals, who had other vassals under them; that of the bishops or of the other clergy and their vassals, and, in fine, that of the count, who com- manded the freemen.
Not but the vassals might be also subject to the count; as those who have a particular command are subordinate to him who is invested with a more general authority.
We even find that the count and the king's commissaries might oblige them to pay the fine when they had not fulfilled the engagements of their fief. In like manner, if the king's vassals committed any outrage u they were subject to the cor- rection of the count, unless they choose to submit rather to that of the king.
18. — Of the double Service It was a fundamental principle of the monarchy that who- soever was subject to the military power of another person was subject also to his civil jurisdiction. Thus the Capitulary of 5 In the year 812, chap, i, edition of t Tom. iii. book VI. chap. iv. p. 299, Baluzius, p. 490, " ut omnis homo liber " Establishment of the French Monquatuor mansos vestitos de proprio suo, archy."_ sive de alicujus beneficio habet, ipse se m Capitulary of the year 882, art. 11, praeparet, et ipse in hostem pergat, sive " apud vernis palatium," edition of oum seniore suo." Baluzius, torn. ii. p. 289.
194 MONTESQUIEU Louis the Debonnaire,^ in the year 815, makes the military power of the count and his civil jurisdiction over the freemen keep always an equal pace. Thus the placita w of the count who carried the freemen against the enemy were called the placita of the freemen; -«^ whence undoubtedly came this maxim, that the questions relating to liberty could be decided only in the count's placita, and not in those of his oflficers. Thus the count never led the vassals y belonging to the bishops or to the ab- bots, against the enemy, because they were not subject to his civil jurisdiction. Thus, he never commanded the rear-vassals belonging to the king's vassals. Thus the glossary of the Eng- lish laws informs us,s that those to whom the Saxons gave the name of copies a were by the Normans called counts, or com- panions, because they shared the justiciary fines with the king. Thus we see, that at all times the duty of a vassal towards his lord b was to bear arms,c and to try his peers in his court.
One of the reasons which produced this connection between the judiciary right and that of leading the forces against the enemy was because the person who led them exacted at the same time the payment of the fiscal duties, which consisted in some carriage services due by the freemen, and in general in certain judiciary profits, of which we shall treat hereafter.
The lords had the right of administering justice in their fief, by the same principle as the counts had it in their counties. And, indeed, the counties in the several variations that hap- pened at different times always followed the variations of the fiefs; both were governed by the same plan, and by the same principles. In a word, the counts in their counties were lords, and the lords in their seigniories were counts.
It has been a mistake to consider the counts as civil officers, and the dukes as military commanders. Both were equally civil and military officers: d the whole difference consisted in I/Arts. I, 2, and the Council "in a In the word " satrapia."
verno palatio " of the year 845, art. 8, b This is well explained by the assizes edition of Baluzius, torn. ii. p. 17. of Jerusalem, chaps, ccxxi. and ccxxii.
w Or assizes. c The advowees of the church (" ad- X Capitularies, book 4th of the Col- vocati ") were equally at the head of lection of Angezise, art. 57; and the their placita and of their militia.
Sth Capitulary of Louis the Debonnaire d See the 8th formulary of Marculfus, in the year 819, art. 14, edition of Balu- book I., which contains the letters zius, torn. i. p. 615. given to a duke, patrician, or count; y See note 0, page 192. and invests them with the civil juris- 2 It is to be found in the Collection diction, and the fiscal administration, of William Lambard, " de priscis Anglorum legibus."
THE SPIRIT OF LAWS 195 the duke's having several counts under him, though there were counts who had no duke over them, as we learn from Frede- garius.^ It will be imagined, perhaps, that the government of the Franks must have been very severe at that time, since the same officers were invested with a military and civil power, nay, even with a fiscal authority, over the subjects; which in the pre- ceding books I have observed to be distinguishing marks of despotism.
But we must not believe that the counts pronounced judg- ment by themselves, and administered justice in the same man- ner as the bashaws in Turkey; in order to judge affairs, they assembled a kind of assizes, where the principal men appeared.
To the end we may thoroughly understand what relates to the judicial proceedings in the formulas, in the laws of the bar- barians and in the Capitularies, it is proper to observe that the functions of the count, of the grafio or fiscal judge, and the centenarhis were the same; that the judges, the rathimburghers, and the aldermen were the same persons under different names. These were the count's assistants, and were generally seven in number; and as he was obliged to have twelve persons to judge/ he filled up the number with the principal men.g But whoever had the jurisdiction, the king, the count, the grafio, the centenarhis, the lords, or the clergy, they never tried causes alone; and this usage, which derived its origin from the forests of Germany, was still continued even after the fiefs had assumed a new form.
With regard to the fiscal power, its nature was such that the count could hardly abuse it. The rights of the prince in re- spect to the freemen were so simple that they consisted only, as we have already observed, in certain carriages which were demanded of them on some public occasions.^ And as for the judiciary rights, there were laws which prevented misde- meanors.* e " Chronicle," chap. Ixxviii., in the there were none but principal men.
year 636.. See the appendix to the formularies of / See concerning this subject the Marculfus, chap. li.
Capitularies of Louis the Debonnaire, h And some tolls on rivers, of which added to the Salic law, art. 2, and the I have spoken already, formula of judgments given by Du t See the law of the Ripuarians. tit.
Cange in the words " boni homines." 89; and the law of the Lomtjards, book g Per bones homines," sometimes II. tit. 52, sec. g.
196 MONTESQUIEU 19. — Of Compositions among the barbarous Nations Since it is impossible to gain any insight into our political law unless we are thoroughly acquainted with the laws and manners of the German nations, I shall, therefore, pause here awhile, in order to inquire into those manners and laws.
It appears by Tacitus, that the Germans knew only two capital crimes; they hanged traitors, and drowned cowards; these were the only public crimes among that people. When a man had injured another, the relatives of the person injured took share in the quarrel, and the offence was cancelled by a satisfaction./ This satisfaction was made to the person of- fended, when capable of receiving it; or to the relatives if they had been injured in common, or if by the decease of the party aggrieved or injured the satisfaction had devolved to them.
In the manner mentioned by Tacitus, these satisfactions were made by the mutual agreement of the parties; hence in the codes of the barbarous nations these satisfactions are called compositions.
The law of the Frisians k is the only one I find that has left the people in that situation in which every family at variance was in some measure in the state of nature, and in which being unrestrained either by a political or civil law they might give freedom to their revenge till they had obtained satisfaction. Even this law was moderated; a regulation was made I that the person whose life was sought after should be unmolested in his own house, as also in going and coming from church and the court where causes were tried.
The compilers of the Salic law wi cite an ancient usage of the Franks, by which a person who had dug a corpse out of the ground, in order to strip it, should be banished from society till the relatives had consented to his being readmitted. And as before that time strict orders were issued to everyone, even to the offender's own wife, not to give him a morsel of bread, or to receive him under their roofs, such a person was in rei " Suscipere tam inimicitias, seu k See this law in the 2d title on murpatris, seu propiiKjui, quam amicitias, ders; and Vulemar's addition on robnecesse est: nee implacabiles durant; beries.
luitur enim etiam homicidium certo / " Additio sapientum," tit. i. sec. i.
armentorutn _ac pecorum numero, re- m Salic law, tit. 57, sec. s, tit. 17, cipitque satisfactionem universa do- sec. 2. mus." — Tacitus, " de Moribus Germa- norum," THE SPIRIT OF LAWS 197 spect to Others, and others in respect to him, in a state of sav- agery till an end was put to this state by a composition.
This excepted, we find that the sages of the different bar- barous nations thought of determining by themselves what would have been too long and too dangerous to expect from the mutual agreement of the parties. They took care to fix the value of the composition which the party wronged or in- jured was to receive. All those barbarian laws are in this re- spect most admirably exact; the several cases are minutely distinguished,^ the circumstances are weighed, the law sub- stitutes itself in the place of the person injured and insists upon the same satisfaction as he himself would have demanded in cold blood.
By the establishing of those laws, the German nations quitted that state of nature in which they seemed to have lived in Taci- tus's time.
Rotharis declares, in the law of the Lombards,^ that he had increased the compositions allowed by ancient custom for wounds, to the end that the wounded person being fully sat- isfied, all enmities should cease. And, indeed, as the Lom- bards, from a very poor people had grown rich by the conquest of Italy, the ancient compositions had become frivolous, and reconcilements prevented. I do not question but this was the motive which obliged the other chiefs of the conquering na- tions to make the different codes of laws now extant.
The principal composition was that which the murderer paid to the relatives of the deceased. The difference of conditions produced a difference in the compositions./* Thus in the law of the Angli, there was a composition of six hundred sous for the murder of an adding, two hundred for that of a freeman, and thirty for killing a bondman. The largeness, therefore, of the composition for the life of a man was one of his chief privileges; for besides the distinction it made of his person, it likewise established a greater security in his favor among rude and boisterous nations.