sals. We ought to know that when a man was summoned in court, and did not make his appearance nor obey the judge's orders, he was called before the king; 0 and if he persisted in his contumacy, he was excluded from the royal protection,/' and no one was allowed to entertain him, nor even to give him a morsel of bread. Now, if he was a person of an ordinary condition, his goods were confiscated; Q. but if he was the king's vassal, they were not.^ The first by his contumacy was deemed sufficiently convicted of the crime, the second was not; the former for the smallest crimes was obliged to undergo the trial by boiling water,'^ the latter was condemned to this trial only in the case of murder.^ In fine, the king's vassal could not be compelled to swear in court against another vassal." These privileges were continually increasing, and the Capitulary of Carloman does this honor to the king's vassals, that they should not be obliged to swear in person, but only by the mouth of their own vassals.'^ Moreover, when a person, hav- ing these honors, did not repair to the army, his punishment was to abstain from flesh-meat and wine as long as he had been absent from the service; but a freeman w who neglected to follow his count was fined sixty sous,-^ and was reduced to a state of servitude till he had paid it.
It is very natural, therefore, to believe that those Franks who were not the king's vassals, and much more the Romans, became fond of entering into the state of vassalage: and that they might not be deprived of their demesnes, they devised the usage of giving their allodium to the king, of receiving it from him afterwards as a fief, and of nominating their heirs. This usage was continued, and took place especially during the times of confusion under the second race, when every man be- ing in want of a protector was desirous of incorporating him- self with the other lords, and of entering, as it were, into the feudal monarchy, because the political no longer existed.^ This continued under the third race, as we find by several o Salic law, tits. 59 and 76. v " Apud vernis palatium," in the p " Extra sermonem regis." — Salic year 883, arts. 4 and 11.
law, tits. 59 and 76. w Capitulary of Charlemagne, in the q Salic law, tit. 59, sec. i. year 812, arts, i and 3.
r Ibid. tit. 76, sec. t.;ir " Heribannum."
* Ibid. tits. 56 and 59. y " Non infirmis reliquit hseredibtis," ( Ibid. tit. 76, sec. 1. says Lambert d'Ardres in Ducange, on « Ibid. tit. 76, sec. 2. the word " alodis."
232 MONTESQUIEU charters;-s whether they gave their allodium, and resumed it by the same act; or whether it was declared an allodium, and afterwards acknowledged as a fief. These were called fiefs of resumption.
This does not imply that those who were seized of fiefs ad- ministered them as a prudent father of a family would; for though the freemen grew desirous of being possessed of fiefs, yet they managed this sort of estates as usufructs are managed in our days. This is what induced Charlemagne, the most vigilant and considerate prince we ever had, to make a great many regulations in order to hinder the fiefs from being de- meaned in favor of allodial estates.a It proves only that in his time most benefices were but for life, and consequently that they took more care of the freeholds than of the benefices; and yet for all that they did not choose rather to be the king's vassals than freemen. They might have reasons for disposing of some particular part of a fief, but they were not willing to be stripped of their dignity likewise.
I know, likewise, that Charlemagne laments in a certain Capitulary, that in some places there were people who gave away their fiefs in property, and redeemed them afterwards in the same manner.^ But I do not say that they were not fonder of the property than of the usufruct; I mean only, that when they could convert an allodium into a fief, which was to descend to their heirs, as is the case of the formulary above mentioned, they had very great advantages in doing it.
9. — How the Church Lands were Converted into Fiefs The use of the fiscal lands should have been only to serve as a donation by which the kings were to encourage the Franks to undertake new expeditions, and by which on the other hand these fiscal lands were increased. This, as I have already ob- served, was the spirit of the nation; but these donations took another turn. There is still extant a speech of Chilperic,c grandson of Clovis, in which he complains that almost all these 2 See those quoted by Ducange, in lary of the year 806, art. 7; the Capituthe word " alodis," and those produced lary of the year 779, art. 29; the Caby Galland, in his treatise of allodial pitulary of Louis the Pious, in the lands, p. 14, and the following. year 829, art. i.
a Second Capitulary of the year 802, h The fifth of the year 806, art. 8.
art. 10; and the 7th Capitulary of the c In Gregory of Tours, book VI.
year 803, art. 3; the ist Capitulary, chap. xlvi. " incerti anni," art. 49; the sth Capitu- THE SPIRIT OF LAWS 233 lands had been already given away to the Church, " Our ex- chequer," says he, " is impoverished, and our riches are trans- ferred to the clergy; d none reign now but the bishops, who live in grandeur while we are quite eclipsed."
This was the reason that the mayors, who durst not attack the lords, stripped the churches; and one of the motives al- leged by Pepin for entering Neustria e was, his having been invited thither by the clergy, to put a stop to the encroachments of the kings, that is, of the mayors, who deprived the Church of all her possessions.
The mayors of Austrasia, that is the family of the Pepins, had behaved towards the clergy with more moderation than those of Neustria and Burgundy. This is evident from our chronicles,^ in which we see the monks perpetually extolling the devotion and liberality of the Pepins. They themselves had been possessed of the first places in the Church. " One crow does not pull out the eyes of another; " as Chilperic said to the bishops.g Pepin subdued Neustria and Burgundy; but as his pretence for destroying the mayors and kings was the grievances of the clergy, he could not strip the latter without acting incon- sistently with his cause, and showing that he made a jest of the nation. However, the conquest of two great kingdoms and the destruction of the opposite party afforded him sufficient means of satisfying his generals.
Pepin made himself master of the monarchy by protecting the clergy; his son, Charles Martel, could not maintain his power but by oppressing them. This prince, finding that part of the regal and fiscal lands had been given either for life, or in perpetuity, to the nobility, and that the Church by receiving both from rich and poor had acquired a great part even of the allodial estates, he resolved to strip the clergy; and as the fiefs of the first division were no longer in being, he formed a second./t He took for himself and for his officers the church dThis is what induced him to annul adierunt ut pro sublatis injuste patrithe testaments made in favor of the moniis," etc.
clergy, and even the donations of his f See the " Annals of Metz."
father; Gontram re-established them, gin Gregory of Tours, and even made new donations.— Greg- h " Karolus plurima juri ecclesiastico ory of Tours, book VII. chap. vii. detrahens praedia fisco sociavit, ac e See the " Annals of Metz," year deinde militibus dispertivit." — " Ex 689. " Excitor imprimis querelis sacer- Chronico Centulensi," lib. II. dotum et servorum Dei, qui me ssepius 234 MONTESQUIEU lands and the churches themselves; thus he remedied an evil which differed from ordinary diseases, as its extremity ren- dered it the more easy to cure.
10. — Riches of the Clergy So great were the donations made to the clergy that under the three races of our princes they must have several times received the full property of all the lands of the kingdom. But if our kings, the nobility, and the people found the way of giving them all their estates, they found also the method of getting them back again. The spirit of devotion established a great number of churches under the first race; but the mil- itary spirit was the cause of their being given away afterwards to the soldiery, who divided them, among their children. What a number of lands must have then been taken from the clergy's mensalia! The kings of the second race opened their hands, and made new donations to them; but the Normans, who came afterwards, plundered and ravaged all before them, wreaking their vengeance chiefly on the priests and monks, and devoting every religious house to destruction. For they charged those ecclesiastics with the destruction of their idols, and with all the oppressive measures of Charlemagne by which they had been successively obliged to take shelter in the North. These were animosities which the space of forty or fifty years •had not been able to obliterate. In this situation what losses must the clergy have sustained! There were hardly ecclesiastics left to demand the estates of which they had been deprived. There remained, therefore, for the religious piety of the third race, foundations enough to make, and lands to bestow. The opinions which were spread abroad and believed in those days would have deprived the laity of all their estates, if they had been but virtuous enough. But if the clergy were actuated by ambition, the laity were not without theirs; if dying persons gave their estates to the Church, their heirs would fain resume them. We meet with continual quarrels between the lords and the bishops, the gentlemen and the abbots; and the clergy must have been very hard pressed, since they were obliged to put themselves under the protection of certain lords, who granted them a momentary defence, and afterwards joined their oppressors.
THE SPIRIT OF LAWS 235 But a better administration having been established under the third race gave the clergy leave to augment their posses- sions; when the Calvinists started up, and having plundered the churches, they turned all the sacred plate into specie. How could the clergy be sure of their estates, when they were not even safe in their persons? They were debating on con- troversial subjects while their archives were in flames. What did it avail them to demand back of an impoverished nobility those estates which were no longer in possession of the latter, but had been conveyed into other hands by different mort- gages? The clergy have been long acquiring, and have often refunded, and still there is no end of their acquisitions.
II. — State of Europe at the Time of Charles M artel Charles Martel, who undertook to strip the clergy, found himself in a most happy situation. He was both feared and beloved by the soldiery, he worked for them, having the pre- text of his wars against the Saracens. He was hated, indeed, by the clergy, but he had no need of their assistance.* The Pope, to whom he was necessary, stretched out his arms to him. Everyone knows the famous embassy he received from Greg- ory HI.;" These two powers were strictly united, because they could not do without each other: the Pope stood in need of the Franks to assist him against the Lombards and the Greeks; Charles Martel had occasion for the Pope, to humble the Greeks, to embarrass the Lombards, to make himself more re- spectable at home, and to guarantee the titles which he had, and those which he or his children might take. It was im- possible, therefore, for his enterprise to miscarry.
St. Eucherius, Bishop of Orleans, had a vision which fright- ened all the princes of that time. I shall produce on this occa- sion the letter written by the bishops assembled at Rheims to Louis, King of Germany, who had invaded the territories of Charles the Bald; k because it will give us an insight into the situation of things in those times, and the temper of the peo- ple. They say,^ " That St. Eucherius, having been snatched up » See the " Annals of Metz." set."—" Annals of Metz," year 741.
;' " Epistolam quoque, decreto Roma- " Eo pacto oatrato, ut a partibus imnorum principum, sibi prsedictus prae- peratoris recederet. — Fredegarius.
sul Gregorius miserat, quod sese k Anno 858, " apud Carisiacum "; populus _ Romanus, relicta imperatoris Baluzius's edition, torn. i. p. loi.
dominatione, ad suam defensionem et / Ibid. p. 109. invictam clementiam convertere voluis- 236 MONTESQUIEU into heaven, saw Charles Martel tormented in the bottom of hell by order of the saints, who are to sit with Christ at the last judgment; that he had been condemned to this punishment before his time, for having stripped the Church of her posses- sions and thereby charged himself with the sins of all those who founded these livings; that King Pepin held a council upon this occasion, and had ordered all the church lands he could recover to be restored; that as he could get back only a part of them, because of his disputes with Vaifre, Duke of Aquitaine, he issued letters called precaria m for the remainder, and made a law that the laity should pay a tenth part of the church lands they possessed, and twelve deniers for each house; that Charlemagne did not give the church lands away; on the contrary, that he published a Capitulary, by which he engaged both for himself and for his successors never to make any such grant; that all they say is committed to writing, and that a great many of them heard the whole related by Louis the Debonnaire, the father of those two kings."
King Pepin's regulation, mentioned by the bishops, v/as made in the Council held at Leptines.w The Church found this advantage in it, that such as had received those lands held them no longer but in a precarious manner; and, moreover, that she received the tithe or tenth part, and twelve deniers for every house that had belonged to her. But this was only a pal- liative, and did not remove the disorder.
Nay, it met with opposition, and Pepin was obliged to make another Capitulary,0 in which he enjoins those who held any of those benefices to pay this tithe and duty, and even to keep up the houses belonging to the bishopric or monastery, under the penalty of forfeiting those possessions. Charlemagne re- newed the regulations of Pepin./' That part of the same letter which says that Charlemagne promised both for himself and for his successors never to divide m " Precaria, quod precibus utendum n In the year 743, see the sth book of conceditur," says Cujus, in his notes the Capitularies, art. 3, Baluzius's ediupon the first " Book of Fiefs." I find tion, p. 825.
in a diploma of King Pepin, dated the o That of Metz, in the year 736, art. 4.
third year of his reign, that this prince p See his Capitulary, in the year 803, was not the first who established these given at Worms; Baluzius's edition, p.
"precaria"; he cites one made by the 411, where he regulates the precarious Mayor Ebroin, and continued after his contract, and that of Frankfort, in the time. See the diploma of the king, in year 794, p. 267, art 24, in relation to the sth tome of the " Historians of the repairing of the houses; and that of France " by the Benedictins, art. 6. the year 800, p. 330.
THE SPIRIT OF LAWS 237 again the church lands among the soldiery is agreeable to the Capitulary of this prince, given at Aix-la-Chapelle in the year 803, with a view of removing the apprehensions of the clergy upon this subject. But the donations already made were still in force.g The bishops very justly add, that Louis the Debon- naire followed the example of Charlemagne, and did not give away the church lands to the soldiery.
And yet the old abuses were carried to such a pitch, that the laity under the children of Louis the Debonnaire preferred ecclesiastics to benefices, or turned them out of their livings r without the consent of the bishops. The benefices were divided among the next heirs,-? and when they were held in an indecent manner the bishops had no other remedy left than to remove the relics.^ By the Capitulary of Compiegne « it is enacted that the king's commissary shall have a right to visit every monastery, together with the bishop, by the consent and in presence of the person who holds it; "v and this shows that the abuse was gen- eral.
Not that there were laws wanting for the restitution of the church-lands. The Pope having reprimanded the bishops for their neglect in regard to the re-establishment of the monas- teries, they wrote to Charles the Bald, that they were not af- fected by this reproach, because they were not culpable; w and they reminded him of what had been promised, resolved, and decreed in so many national assemblies. In point of fact they quoted nine.
Still they went on disputing; till the Normans came and made them all agree.
12. — Establishment of the Tithes The regulations made under King Pepin had given the Church rather hopes of relief than eflfectually relieved her; and as Charles Martel found all the landed estates of the kingdom q As appears by the preceding note, j Ibid. sec. 44.
and by the Capitulary of Pepin, King / Ibid.
of Italy, where it says that the King u Given the 28th year of the reign of would give the monasteries in fief to Charles the Bald, in the year 868. Bathose who would swear allegiance for luzius's edition, p. 203.
fiefs: it is added to the law of the Lom- v " Cum consilio et consensu ipsius bards, book III. tit. i, sec. 30; and to qui locum retinet."
the Salic laws. Collection of Pepin's w " Concilium apud Bonoilum," the laws in Echard, p. 19s, tit. 26, art. 4. i6th year of Charles the Bald, in the r See the constitution of Lotharius I, year 856, Baluzius's edihion, p. 78. in the law of the Lombards, book III.
238 MONTESQUIEU in the hands of the clergy, Charlemagne found all the church lands in the hands of the soldiery. The latter could not be com- pelled to restore a voluntary donation; and the circumstances of that time rendered the thing still more impracticable than it seemed to be of its own nature. On the other hand, Christian- ity ought not to have been lost for want of ministers, churches, and instruction.-*^ This was the reason of Charlemagne's establishing the tithes,y a new kind of property which had this advantage in favor of the clergy, that as they were given particularly to the Church, it was easier in process of time to know when they were usurped.
Some have attempted to make this institution of a still re- moter date, but the authorities they produce seem rather, I think, to prove the contrary. The constitution of Clotharius says s only, that they shall not raise certain tithes on church- lands; a so far then was the Church from exacting tithes at that time, that its whole pretension was to be exempted from pay- ing them. The second council of Macon,& which was held in 585, and ordains the payment of tithes, says, indeed, that they were paid in ancient times, but it says also that the custom of paying them was then abolished.
No one questions but that the clergy opened the Bible be- fore Charlemagne's time, and preached the gifts and offerings of Leviticus. But I say, that before that prince's reign, though the tithes might have been preached, they were never estab- lished.
I noticed that the regulations made under King Pepin had subjected those who were seized of church lands in fief to the payment of tithes, and to the repairing of the churches. It was X In the civil wars which broke out aetor aut decimator in rebus ecclesiae at the time of Charles Martel, the lands nullus ascedat." The Capitulary of belonging to the Church of Rheims Charlemagne in the year 800, Baluzius's were given away to laymen; " the clergy edition, p. 336, explains extremely well were left to shift as well as they could," what is meant by that sort of tithe from says the " Life of Remigius," Surius, which the Church is exempted by Clotom. i. p. 279. tharius; it was the tithe of the swine _ y Law of the Lombards, book III. which were put into the king's forests tit. 3, sees. I and 2._ to fatten; and Charlemagne enjoins his a It is that on which I have descanted judges to pay it, as well as other peoin the 4th chapter of this book, and pie, in order to set an example: it is which is to be found in Baluzius's edi- plain that this was a right of seigniory tion of the Capitularies, tom. i. art. 11, or economy, a " Agraria et pascuaria, vel decimas antiquorum Galliae opera Jacobi Sirporcorum ecclesiae concedimus, ita at mundi."
THE SPIRIT OF LAWS a great deal to induce by a law, whose equity could not be dis- puted, the principal men of the nation to set the example.
Charlemagne did more; and we find by the Capitulary de Villis c that he obliged his own demesnes to the payment of the tithes; this was a still more striking example.
But the commonalty are rarely influenced by example to sacrifice their interests. The Synod of Frankfort furnished them with a more cogent motive to pay the tithes.^ A Capitu- lary was made in that Synod, wherein it is said, that in the last famine the spikes of corn were found to contain no seed,^ the infernal spirits having devoured it all, and that those spirits had been heard to reproach them with not having paid the tithes; in consequence of which it was ordained that all those who were seized of church lands should pay the tithes; and the next consequence was that the obligation extended to all.
Charlemagne's project did not succeed at first, for it seemed too heavy a burden./^ The payment of the tithes among the Jews was connected with the plan of the foundation of their republic; but here it was a burden quite independent of the other charges of the establishment of the monarchy. We find by the regulations added to the law of the Lombards g the dif- ficulty there was in causing the tithes to be accepted by the civil laws; and as for the opposition they met with before they were admitted by the ecclesiastic laws, we may easily judge of it from the different canons of the councils.
The people consented at length to pay the tithes, upon condi- tion that they might have the power of redeeming them. This the constitution of Louis the Debonnaire,^ and that of the Em- peror Lotharius, his son, would not allow.* The laws of Charlemagne, in regard to the establishment of tithes, were a work of necessity, not of superstition — a work, in short, in which religion only was concerned.
His famous division of the tithes into four parts, for the rewas given in the year 800. those who, to avoid paying tithes negd Held under Charlemagne, in the lected to cultivate the lands, etc., art.
year 794. 5. " Nonis quidem et decimis, unde et e " Experimento enim didicimus in genitor noster et nos frequenter in dianno quo ilia valida fames irrepsit, versis placitis admonitionem fecimus."
ebullire vacuas annonas a daemonibus g Among others, that of Lotharius.
devoratas, et voces exprobrationis audi- book III. tit. 3, chap. vi.
tas," etc.— Baluzius's edition, p. 267, h In the year 829, art. 7, in Baluzius, f See among the rest the Capitulary i In the law of the Lombards, book of Louis the Debonnaire, in tne year III. tit. 3, sec. 8.
240 MONTESQUIEU pairing of the churches, for the poor, for the bishop, and for the clergy, manifestly proves that he wished to give the Church that fixed and permanent status which she had lost.
His will shows that he was desirous of repairing the mis- chief done by his grandfather, Charles Martel./ He made three equal shares of his movable goods; two of these he would have divided each into one-and-twenty parts, for the one-and- twenty metropolitan sees of his empire; each part was to be subdivided between the metropolitan and the dependent bishoprics. The remaining third he distributed into four parts; one he gave to his children and grandchildren, another was added to the two-thirds already bequeathed, and the other two were assigned to charitable uses. It seems as if he looked upon the immense donation he was making to the Church less as a religious act than as a political distribution.
13. — Of the Election of Bishops and Abbots As the Church had grown poor, the kings resigned the right of nominating to bishoprics and other ecclesiastic benefices.^ The princes gave themselves less trouble about the ecclesiastic ministers; and the candidates were less solicitous in applying to their authorities. Thus the Church received a kind of com- pensation for the possessions she had lost.
Hence, if Louis the Debonnaire left the people of Rome in ■possession of the right of choosing their popes, it was owing to the general spirit that prevailed in his time; I he behaved in the same manner to the see of Rome as to other bishoprics.
14. — Of the Fiefs of Charles Martel I shall not pretend to determine whether Charles Martel, in giving the church lands in fief, made a grant of them for life or in perpetuity. All I know is, that under Charlemagne «* and Lotharius I n there were possessions of that kind which descended to the next heirs, and were divided among them.
; It is a kind of codicil produced by / This is mentioned in the famous Eginhard, and different from the will canon, " ego Ludovicus," which is a itself, which we find in Goldastus and palpable for§;ery; it is Baluzius's edi- Baluzius. tion, p. 591, in the year 817.
k See the Capitulary of Charlemagne m As appears by his capitulary, in the in the year 803, art. 2, Baluzius's edi- year 801, art. 17, in Baluzius, torn. i.
tion, p. 379; and the Edict of Louis the p. 360.
Debonnaire, in the year 834, in Goldast, n See his constitution, inserted in the " Constit. Imperial, torn. i. code of the Lombards, book III. tit.
THE SPIRIT OF LAWS 241 I find, moreover, that one part of them was given as allodia, and the other as fiefs.o I noticed that the proprietors of the allodia were subject to service all the same as the possessors of the fiefs. This, with- out doubt, was partly the reason that Charles Martel made grants of allodial lands as well as of fiefs.
15. — The same Subject continued We must observe, that the fiefs having been changed into church lands, and these again into fiefs, they borrowed some- thing of each other. Thus the church lands had the privileges of fiefs, and these had the privileges of church lands. Such were the honorary rights of churches, which began at that time.P And as those rights have ever been annexed to the judiciary power, in preference to what is still called the fief, it follows that the patrimonial jurisdictions were established at the same time as those very rights.
16. — Confusion of the Royalty and Mayoralty. The Second Race The connection of my subject has made me invert the order of time, so as to speak of Charlemagne before I had mentioned the famous epoch of the translation of the crown to the Carlo- vingians under King Pepin; a revolution which, contrary to the nature of ordinary events, is more remarked perhaps in our days than when it happened.