This we are made sensible of by the law of the Bavarians: q it gives the names of the Bavarian families who received a n The Salic laws are admirable in this p See the law of the Angli, tit. i. sees, respect, see especially the titles 3, 4, 5. i, 2, and 4; ibid. tit. v. sec. 6; the law 6, and 7, which related to the stealing of the Bavarians, tit. i. chaps. 8 and 9, of cattle. and the law of the Frisians, tit. xv.
o Book I. tit. 7, sec. 15. q Tit. 2, chap. xx.
198 MONTESQUIEU double composition, because they were the first after the Agil- olfings.'' The Agilolfings were of the ducal race, and it was customary with this nation to choose a duke out of that family; these had a quadruple composition. The composition for a duke exceeded by a third that which had been established for the Agilolfings. " Because he is a duke," says the law, " a greater honor is paid to him than to his relatives."
All these compositions were valued in money. But as those people, especially when they lived in Germany, had very little specie, they might pay it in cattle, corn, movables, arms, dogs, hawks, lands, etc.-y The law itself frequently determined the value of those thin!_;s; which explains how it was possible for them to have such a number of pecuniary punishments with so very little money.^ These laws were, therefore, employed in exactly determining the difference of wrongs, injuries, and crimes; to the end that everyone might know how far he had been injured or offended, the reparation he was to receive, and especially that he was to receive no more.
In this light it is easy to conceive, that a person who had taken revenge after having received satisfaction was guilty of a heinous crime. This contained a public as well as a private offence; it was a contempt of the law of itself; a crime which the legislators never failed to punish.w There was another crime which above all others was con- sidered as dangerous, when those people lost something of their spirit of independence, and when the kings endeavored to establish a better civil administration; this was, the refusing to give or to receive satisfaction. ■y We find in the different codes of the laws of the barbarians that the legislators were peremptory on this article.^ In effect, a person who refused to rHozidra, Ozza, Sagana, Habalingua, sees. 8 and 34; ibid. sec. 38, and the Anniena.— Ibid. Capitulary of Charlemagne in the year s Thus the law of Ina valued life by 802, chap, xxxii., containing an instruca certain sum of money, or by a certain tion given to those whom he sent into portion of land.—" Leges Inae regis, the provinces.
titulo de villico regio de priscis Anglo- v See in Gregory of Tours, book VII.
rum legibus," Cambridge, 1644. chap, xlvii., the detail of a process, t See the law of the Saxons, which wherein a party loses half the comp9simakes this same regulation for several tion that had been adjudged to him, people, chap, xviii. See also the law for having done justice to himself, inof the Ripuarians, tit. 36, sec. 11, the stead of receiving satisfaction, whatever law of the Bavarians, tit. i. sees. 10 and injury he might have afterwards re- II. " Si aurum non habet, donet aliam ceived.
peeuniam, mancipia, terram," etc. w See the law of the Saxons, chap.
M See the law of the Lombards, book iii. see. 4; the law of the Lombards, I. tit. 2S, sec. 21; ibid, book I. tit. 9. book I. tit. 37, sees, i and 2; and the THE SPIRIT OF LAWS 199 receive satisfaction wanted to preserve his right of prosecution; he who refused to give it left the right of prosecution to the person injured; and this is what the sages had reformed in the institutions of the Germans, whereby people were invited but not compelled to compositions.
I have just now made mention of a text of the Salic law, in which the legislator left the party oflfended at liberty to receive or to refuse satisfaction; it is the law by which a person who had stripped a dead body was expelled from society till the relatives upon receiving satisfaction petitioned for his being readmitted.J^ It was owing to the respect they had for sacred things, that the compilers of the Salic laws did not meddle with the ancient usage.
It would have been absolutely unjust to grant a composition to the relatives of a robber killed in the act, or to the relatives of a woman who had been repudiated for the crime of adultery. The law of the Bavarians allowed no compositions in the like cases, but punished the relatives who sought revenge.y It is no rare thing to meet with compositions for involun- tary actions in the codes of the laws of the barbarians. The law of the Lombards is generally very prudent; it ordained z that in those cases the compositions should be according to the per- son's generosity; and that the relatives should no longer be permitted to pursue their revenge.
Clotharius II made a very wise decree; he forbade the per- son robbed to receive any clandestine composition, and with- out an order from the judge.o We shall presently see the mo- tive of this law.
20. — 0/ what zvas afterwards called the Jurisdiction of the Lords Besides the composition which they were obliged to pay to the relatives for murders or injuries, they were also under a necessity of paying a certain duty which the codes of the bar- law of the Alemans, tit. 45, sees, i arid Ripuarians seem to have softened this. 2. This last law gave leave to the See the 8sth title of those laws, party injured to right himself upon the 31 See the decree of Tassillon, " de spot, and in the first transport of pas- popularibus legibus," arts. 3, 4, 10, 16, sion. See also the Capitularies of 19; the law of the Angli, tit. vii. sec. 4. Charlemagne in the year 779, chap. s Book I. tit. ix. sec. 4.
xxii., in the year 802, chap, xxxii., and o " Pactus pro tenore pacis inter also that of the year 805. chap. v. Childebertum et Clotarium, anno 593, *The compilers of the law of the et decretio Clotarii 2 regis, circa an- num 595," chap. xi.
200 MONTESQUIEU barian laws called fredum.b I intend to treat of it at large; and in order to give an idea of it, I begin with defining it as a recompense for the protection granted against the right of vengeance. Even to this day, fred in the Swedish language signifies peace.
The administration of justice among those rude and un- polished nations was nothing more than granting to the per- son who had committed an ofTence, a protection against the vengeance of the party offended, and obliging the latter to ac- cept of the satisfaction due to him: insomuch that among the Germans, contrary to the practice of all other nations, justice was administered in order to protect the criminal against the party injured.
The codes of the barbarian laws have given us the cases in which the freda might be demanded. When the relatives could not prosecute, they allowed of no frediim; and, indeed, when there was no prosecution there could be no composition for a protection against it. Thus, in the law of the Lombards,^ if a person happened to kill a freeman by accident, he paid the value of the man killed, without the fredvim; because, as he had killed him involuntarily, it was not the case in which the rela- tives were allowed the right of prosecution. Thus in the law of the Ripuarians,d when a person was killed with a piece of wood, or with any instrument made by man, the instrument or the wood were deemed culpable, and the relatives seized upon them for their own use, but were not allowed to demand the frednm.
In like manner, when a beast happened to kill a man, the same law established a composition without the fredum, be- cause the relatives of the deceased were not ofifended.^ In fine, it was ordained by the Salic laWji'' that a child who had committed a fault before the age of twelve should pay the composition without the fredum: as he was not yet able to bear arms he could not be in the case in which the party injured, or his relatives, had a right to demand satisfaction.
b When it was not determined by the c Book I. tit. 9, sec. 17, edition of law it was generally the third of what Lindembrock.
was given for the composition, as ap- d Tit. 70.
pears in the law of the Ripuarians, e Tit. 46. See also the law of the chap. Ixxxix., which is explained by Lombards, book I. chap. xxi. sec. 3, the third Capitulary of the year 813. — Lindembrock's edition, " si caballus Edition of Baluzius, torn. i. p. 512. cum pede," etc. / Tit. 28, sec. 6.
THE SPIRIT OF LAWS 261 It was the criminal that paid the fredum for the peace and security of which he had been deprived by his crime, and which he might recover by protection. But a child did not lose this security, he was not a man; and consequently could not be expelled from human society.
This fredum was a local right in favor of the person who was judge of the district.? Yet the law of the Ripuarians h for- bade him to demand it himself: it ordained that the party who had gained the cause should receive it and carry it to the ex- chequer, to the end that there might be a lasting peace, says the law among the Ripuarians.
The greatness of the fredum was proportioned to the degree of protection: thus the fredum for the king's protection was greater than what was granted for the protection of the count, or of the other judges.* Here I see the origin of the jurisdiction of the lords. The fiefs comprised very large territories, as appears from a vast number of records. I have already proved that the kings raised no taxes on the lands belonging to the division of the Franks; much less could they reserve to themselves any duties on the fiefs. Those who obtained them had in this respect a full and perfect enjoyment, reaping every possible emolument from them. And as one of the most considerable emoluments was the justiciary profits (freda),) which were received according to the usage of the Franks, it followed thence that the person seized of the fief was also seized of the jurisdiction, the exer- cise of which consisted of the compositions made to the rela- tives, and of the profits accruing to the lord; it was nothing more than ordering the payment of the compositions of the law, and demanding the legal fines. We find by the formularies containing confirmation of the perpetuity of a fief in favor of a feudal lord,^ or of the privileges of fiefs in favor of churches,/ that the fiefs were possessed of this right. This appears also g As appears by the decree of Clo- the second race, as appears from the tharius II in the year 595, " fredus Capitulary " de partibus Saxonise," in tamen judici in cujus pago est reser- the year 789.
vetur." } See the Capitulary of Charlemagne, h Tit. 85. _ " de villis," where he ranks these freda i " Capitiilare incerti anni," chap. among the great revenues of what was Ivii., in Baluzius, torn. i. p. 515, and it called " villse," or the king's demesnes is to be observed, that what was called fe See the 3d, 8tl " fredum " or " faida," in the monu- book I. of Marcul ments of the first race, is known by / See the 2d, 3d, the name of " bannum " in those of Marculfus, book I aoa MONTESQUIEU from an infinite number of charters «« mentioning a prohibi- tion to the king's judges or officers of entering upon the ter- ritory in order to exercise any act of judicature whatsoever, or to demand any judiciary emolument. When the king's judges could no longer make any demand in a district they never en- tered it; and those to whom this district was left performed the same functions as had been exercised before by the judges.
The king's judges are forbidden also to oblige the parties to give security for their appearing before them; it belonged, therefore, to the person who had received the territory in fief to demand this security. They mention also that the king's commissaries shall not insist upon being accommodated with a lodging; in effect, they no longer exercised any function in those districts.
The administration, therefore, of justice, both in the old and new fiefs, was a right inherent in the very fief itself, a lucra- tive right which constituted a part of it. For this reason it had been considered at all times in this light; whence this maxim arose, that jurisdictions are patrimonial in France.
Some have thought that the jurisdictions derived their origin from the manumissions made by the kings and lords, in favor of their bondmen. But the German nations, and those de- scended from them, are not the only people who manumitted their bondmen, and yet they are the only people that estab- lished patrimonial jurisdictions. Besides, we find by the formularies of Marculfus « that there were freemen dependent on these jurisdictions in the earliest times: the bondmen were, therefore, subject to the jurisdiction, because they were upon the territory; and they did not give rise to the fiefs for having been annexed to the fief.
Others have taken a shorter cut; the lords, say they, and this is all they say, usurped the jurisdictions. But are the nations descended from Germany the only people in the world that usurped the rights of princes? We are sufficiently informed by history that several other nations have encroached upon their m See the collections of those char- magne, in the year 771, in Martene, ters, especially that at the end of the torn. i. Anecdot. collect.^ 11, " praecipi- Sth volume pi the " Historians of entes jubemus ut ullus judex publicus France," published by the Benedictine...homines ipsius ecclesiae et mo- monks, nasterii ipsius Morbacensis tam ingen See the 3d, 4th, and 14th of the nuos quam et servos, et qui super first book, and the Charter of Charle- eorum terras manere," etc.
THE SPIRIT OF LAWS 203 sovereigns, and yet we find no other instance of what we call the jurisdiction of the lords. The origin of it is, therefore, to be traced in the usages and customs of the Germans.
Whoever has the curiosity to look into Loyseau 0 will be sur- prised at the manner in which this author supposes the lords to have proceeded, in order to form and usurp their different jurisdictions. They must have been the most artful people in the world; they must have robbed and plundered, not after the manner of a military nation, but as the country justices and the attorneys rob one another. Those brave warriors must be said to have formed a general system of politics throughout all the provinces of the kingdom, and in so many other countries in Europe; Loyseau makes them reason as he himself reasoned in his closet.
Once more; if the jurisdiction was not a dependence of the fief, how come we everywhere to find, that the service of the fief was to attend the king or the lord, both in their courts and in the army? p 21. — Of the Territorial Jurisdiction of the Churches The churches acquired very considerable property. We find that our kings gave them great seigniories, that is, great fiefs; and we find jurisdictions established at the same time in the demesnes of those churches. Whence could so extraordinary a privilege derive its origin? It must certainly have been in the nature of the grant. The church land had this privilege be- cause it had not been taken from it. A seigniory was given to the Church; and it was allowed to enjoy the same privileges as if it had been granted to a vassal. It was also subjected to the same service as it would have paid to the state if it had been given to a layman, according to what we have already observed.
The churches had, therefore, the right of demanding the pay- ment of compositions in their territory, and of insisting upon the fredum; and as those rights necessarily implied that of hindering the king's officers from entering upon the territory to demand these freda and to exercise acts of judicature, the right which ecclesiastics had of administering justice in their 0 " Treatise of Village Jurisdictions," p See Mons. Ducange on the word Loyseau. " hominium."
204 MONTESQUIEU own territory was called immunity, in the style of the formu- laries, of the charters, and of the Capitularies.9 The law of the Ripuarians r forbids the freedom of the churches s to hold the assembly for administering justice in any other place than in the church where they were manumitted.* The churches had, therefore, jurisdictions even over freemen, and held their placita in the earliest times of the monarchy.
I find in the " Lives of the Saints," « that Clovis gave to a cer- tain holy person power over a district of six leagues, and ex- empted it from all manner of jurisdiction. This, I believe, is a falsity, but it is a falsity for a very ancient date; both the truth and the fiction contained in that life are in relation to the customs and laws of those times, and it is these customs and laws we are investigating.^ Clotharius II orders the bishops or the nobility who are pos- sessed of estates in distant parts, to choose upon the very spot those who are to administer justice, or to receive the judiciary emoluments.^ The same prince regulates the judiciary power between the ecclesiastic courts and his ofificers.-*" The Capitulary of Charle- magne in the year 802 prescribes to the bishops and abbots the qualifications necessary for their officers of justice. An- other Capitulary of the same prince inhibits the royal officers y to exercise any jurisdiction over those who are employed in cultivating church lands, except they entered into that state by fraud, and to exempt themselves from contributing to the pub- lic charges.^ The bishops assembled at Rheims made a decla- ration that the vassals belonging to the respective churches are within their immunity.0 The Capitulary of Charlemagne in the year 806 ordains that the churches should have both crimq See the 3d and 4th formularies of non instituant, nisi de loco qui justitiam Marculfus, book I. percipiant et aliis reddant," art. 19.
r " Ne aliubi nisi ad ecclesiam, ubi See also the 12th art.
relaxati sunt, mallum teneant," tit. x Ibid. art. 5.
Iviii. sec. i; see also sec. 19; Lindem- jy In the law of the Lombards, book brock's edition. II. tit. 44, chap, ii., Lindembrock's 5 " Tabulariis." edition.
t " Mallum." 2 " Servi Aldiones, libellarii antiqui, u " Vita St. Germeri, Episcopi Tolo- vel alii noviter facti." — Ibid, sani apud Bollandianos 16 Maii." a Letter in the year 858, art. 7, in V See also the life of St. Melanius, the Capitularies, p. 108. " Sicut illae res and that of St. Deicola. et facultates, in quibus vivunt clerici, w In the Council of Paris, in the year ita et illae sub consecratione immuni- 615. " Episcopi vel potentes, qui in tatis, sunt de quibus debent militare aliis possident regionibus, judices vel vassalli." missos discussores de aliis provinciis THE SPIRIT OF LAWS 205 inal and civil jurisdiction over those who live upon their lands.& In fine, as the Capitulary of Charles the Bald c distinguishes between the king's jurisdiction, that of the lords, and that of the church, I shall say nothing further upon this subject.^ 22. — That the Jurisdictions were established before the End of the Second Race It has been pretended that the vassals usurped the jurisdic- tion in their seigniories, during the confusion of the second race. Those who choose rather to form a general proposition than to examine it found it easier to say that the vassals did not possess than to discover how they came to possess. But the jurisdictions do not owe their origin to usurpations; they are derived from the primitive establishment, and not from its corruption.
" He who kills a freeman," says the law of the Bavarians, " shall pay a composition to his relatives if he has any; if not, he shall pay it to the duke, or to the person under whose pro- tection he had put himself in his lifetime." e It is well known what it was to put one's self under the protection of another for a benefice.
" He who had been robbed of his bondman," says the law of the Alemans, " shall have recourse to the prince to whom the robber is subject; to the end that he may obtain a composi- tion." f " If a centenaritis," says the decree of Childebert, " finds a robber in another hundred than his own, or in the limits of our faithful vassals, and does not drive him out, he shall be answer- able for the robber, or purge himself by oath." g There was, therefore, a difference between the district of the centenarii and that of the vassals.
b It is added to the law of the Ba- et illae sub consecratione immunitatis varians, art. 8. See also the 3d art. sunt de quibus debent militare vasprimis omnium jubendum est ut habe- e Tit. iii. chap, xii., Lindembrock's ant ecclesiae earum justitias, et in vita edition, illorum qui habitant in ipsis ecclesiis / Tit. 85.
et post, tam in pecuniis quam et in g- In the year 595, arts. 11 and 12, substantiis eorum. edition of the Capitularies by Baluzius, c In the year 857, "in synodo apud p. 19. " Pari conditione convenit ut si Carisiacum," art. 4, edition of Baluzius, una centena in alia centena vestigium p. 96. _ secuta fuerit et invenerit, vel in quibusd See the letter written by the bish- cunque fidelium nostrorum terminis ops assembled at Rheims, in the year vestigium miserit, et ipsum in aliam 858, art. 7, in the Capitularies, Baluzius's centenam minime expellere potuerit, edition, p. 108. " Sicut illse res et aut convictus reddat latronem, etc, facultates, in quibus vivunt clerici, ita 2o6 MONTESQUIEU This decree of Childebert^ explains the constitution of Clotharius of the same year, which being given for the same occasion and on the same matter diflfers only in the terms; the constitution calling in truste what by the decree is styled in terminis Melium nostrorum. Messieurs Bignon and Ducange, who pretend that in truste signified another king's desmesne, are mistaken in their conjecture.* Pepin, King of Italy, in a constitution that had been made as well for the Franks as for the Lombards,; after imposing penalties on the counts and other royal officers for prevarica- tions or delays in the administration of justice, ordains that if it happens that a Frank or a Lombard, possessed of a fief, is unwilling to administer justice, the judge to whose district he belongs shall suspend the exercise of his fief, and in the mean- time, either the judge or his commissary shall administer jus- tice.fe It appears by a Capitulary of Charlemagne,^ that the kings did not levy the freda in all places. Another Capitulary of the same prince shows the feudal laws m and feudal court to have been already established. Another of Louis the Debonnaire, ordains, that when a person possessed of a fief does not admin- ister justice," or hinders it from being administered, the king's commissaries shall live in his house at discretion, till justice be administered. I shall likewise quote two Capitularies of Charles the Bald, one of the year 86i; o where we find the par- ticular jurisdictions established, with judges and subordinate officers: and the other of the year 864,/* where he makes a dish " Si vestigius comprobatur latronis / The third of the year 812, art. 10.
tamen prsesentia nihil Tonga mulctando; w The second of the year 813, Baluaut si persequens latronem suum com- zius's edition.
prehenderit, integram sibi compositi- n Capitulare quintum anni 819, art.
onem accipiat. Quod si in truste 23,^ Baluzius's edition, p. 617. " Ut invenitur, medietatem compositionis ubicumque missi, aut episcopum, aut trustis adquirat, et capitale exigat a abbatem, aut alium quemlibet honore latrone," arts. 2 and 3. praeditum invenerint, qui justitiam fa- » See the Glossary on the word cere noluit vel prohibuit, de ipsius rebus " trustis." vivant quandiu in eo loco justitias ;■ Inserted in the law of the Lom- facere debent."
bards, book II. tit. lii. sec. 14. It is 0 Edictum in Carisiaco in Baluzius, the Capitulary of the year 793, in Ba- torn. ii. p. 152, " unusquisque advocatus luzius, p. 544, art. 10. pro omnibus de sua advocatione...k " Et si forsitan Francus aut Longo- in conveniente ut cum ministerialibus bardus halaens beneficium justitiam de sua advocatione quos invenerit confacere noluerit, ille judex in cujus tra hunc bannum nostrum fecisse ministerio fuerit, contradicat illi bene-...castiget."
ficium suum, interim, dum ipse aut p Edictum Pistense, art. 18, Baluzius's missus ejus justitiam facial." See also edition, tom. ii. p. 181. " Si in fiscum the same law of the Lombards, book nostrum vel in quamcunque immuni- II. tit. S2, sec. 2, which relates to the tatem aut alicujus potentis potestatem Capitulary of Charlemagne of the year vel proprietatem confugerit," etc.
THE SPIRIT OF LAWS tinction between his own seigniories and those of private per- sons.
We have not the original grants of the fiefs, because they were estabHshed by the partition which is known to have been made among the conquerors. It cannot, therefore, be proved by original contracts, that the jurisdictions were at first annexed to the fiefs: but if in the formularies of the confirmations, or of the translations of those fiefs in perpetuity, we find, as already has been observed, that the jurisdiction was there established; this judiciary right must certainly have been inherent in the fief and one of its chief privileges.
We have a far greater number of records that establish the patrimonial jurisdiction of the clergy in their districts, than there are to prove that of the benefices or fiefs of the feudal lords; for which two reasons may be assigned. The first, that most of the records now extant were preserved or collected by the monks, for the use of their monasteries. The second, that the patrimony of the several churches having been formed by particular grants, and by a kind of derogation from the order established, they were obliged to have charters granted to them; whereas the concessions made to the feudal lords being consequences of the political order, they had no occasion to demand, and much less to preserve, a particular charter. Nay the kings were oftentimes satisfied with making a simple de- livery with the sceptre, as appears from the " Life of St. Maur."
But the third formulary of Marculfus sufficiently proves that the privileges of immunity, and consequently that of jurisdic- tion, were common to the clergy and the laity, since it is made for both.9 The same may be said of the constitution of Clo- tharius II.*" 2;^. — General Idea of the Abbe du Bos's Book on the Establish- ment of the French Monarchy in Gaul Before I finish this book, it will not be improper to write a few strictures on the Abbe du Bos's performance, because my notions are perpetually contrary to his; and if he has hit on the truth I must have missed it.
q Lib. I. " Maximum regni nostri r I have already quoted it in the aupere credimus monimentum, si bene- preceding chapter, " Episcopi vel po- ficia opportuna locis ecclesiarum aut tentes." cui volueris dicere, benevola delibera- tione concedimus."
2o8 MONTESQUIEU This performance has imposed upon a great many because it is penned with art; because the point in question is con- stantly supposed; because the more it is deficient in proofs the more it abounds in probabiHties; and, in fine, because an in- finite number of conjectures are laid down as principles, and thence other conjectures are inferred as consequences. The reader forgets he has been doubting in order to begin to believe. And as a prodigious fund of erudition is interspersed, not in the system but around it, the mind is taken up with the append- ages, and neglects the principal. Besides, such a vast multitude of researches hardly permit one to imagine that nothing has been found; the length of the way makes us think that we have arrived at our journey's end.