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: * 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 com- parison which may be made between the Treaty of Andely,; by Gontram, Childebert, and Queen Brunehaut, and the partition made by Charlemagne among his children, as well as a like par- tition by Louis the Debonnaire.^ 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.
e See the Capitulary of Charles the g See the Synod of Pistes in the year Bald, " apud Saponarias," in the year 862, art. 4, and the Capitulary of Louis 859, art. 3: " Venilon, whom I made II, " apud vernis palatium," m the year Archbishop of Sens, has consecrated 883, arts. 4 and 5.
me; and I ought not to be expelled the A Capitulary of the year 876, under kingdom by anybody," " saltern sine Charles the Bald, " in Synodo Pontiaudientia et judicio episcoporum, quo- gonensi," Baluzius's edition, art. 12.
rum ministeno in regem sum consecra- t See what has been said already, tus, et qui throni Dei sunt dicti, in Book XXX., last chapter towards the Suibus Deus sedet, et per quos sua end.
ecernit judicia, quorum paternis cor- j In the year 587, in Gregory of Tours, rectionibus et castigatoriis judiciis me book ix.
subdere fui paratus et in praesenti sum k See the following chapter, where I subditus." shall speak more diffusely of those parf See the Capitulary of Charles the titions; and the notes in which they are Bald, " de Cansiaco, in the year 857. quoted. Baluzius's edition, tom. ii. p. 88, sees.
THE SPIRIT OF LAWS 253 But as to what concerns the freemen there is a vital difference. The Treaty of Andely 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 Andely, whereby the freemen had become capable of this great privilege.
This must have happened when Charles Martel, after distribut- ing 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 / 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; w whereas they may keep their allodial estates in any of their dominions.** But he adds,o that every freeman might, after the death of his lord, do homage in any of the 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 freemen 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 intro- / In the year 806, between Charles, o In Baluzius, torn. i. p. 174. " Licen- Pepin, and Louis, it is quoted by tiam habeat unusquisque liber homo Goldast, and by Baluzius, torn. ii. p. qui seniorum non habuerit, cuicumque 439. ex his tribus fratribus voluerit, se comm Art. IX. p. 443, which is agreeable mendandi," art. 9. See also the division to the Treaty of Andely, in Gregory of made by the same Emperor, in the year Tours, book IX. 837, art. 6, Baluzius's edition, p. 686.
n Art. 10^ and there is no mention made of this in the Treaty of Andely.
254 MONTESQUIEU duced upon this head they were redressed, as appears by the constitutions of Charlemagne,/' and by that of Pepin, King of Italy, which explain each other.5 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, Lotharius, Louis, and Charles made a treaty,»* wherein I find some clauses which must have altered the whole political system of the French government.
In the declaration s 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,^ whether the king or any of the nobihty. 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 jurisdic- tion; 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 not 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 perpetu- ity 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: m it was made by Charles the Bald, one of the three contracting princes.
p In the year 8ii, Baluzius's edition, of the Lombards, book HI. tit. 9, torn. i. p. 486, arts. 7 and 8, and that of chap. ix.
the year 812, ibid. p. 490, art. i. " Ut r In the year 84;;, quoted by Aubert omnis liber homo qui quatuor mansos le Mire, and Baluzius, tom. ii. page 42.
vestitos de proprio suo, sive de alicujus " Conventus apud Marsnam."
beneficio, habet, ipse se prseparet, et s " Adnunciatio."
ipse in hostem pergat sive cum seniore t " Ut unusquisque liber homo in suo," etc. See also the Capitulary of nostro regno seniorem quern voluerit the year 807, Baluzius's edition, tom. i. in nobis et in nostris fidelibus accipiat," p. 458. art. 2, of the Declaration of Charles.
q In the year 793, inserted in the law « Capitulary of the year 877, tit. 53, THE SPIRIT OF LAWS 255' What has been said concerning the Hberty every freeman had in the monarchy, after the treaty of the three brothers, of choos- ing 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,^' when the vassal had received a present of a lord, were it worth only a sou, he could not after- wards quit him. But under Charles the Bald, the vassals might follow what was agreeable to their interests or their inclination with entire safety; w and so strongly does this prince explain himself on the subject that seems rather to encourage them in the enjoyment of this liberty than to restrain it. In Charle- magne's time, benefices were rather personal than real; after- wards 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 Compiegne,.*^ 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 re- voked 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 forever 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 pleas- ure; and such was it also while they were for life. This was al- tered 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 arts. 9 and 10, " apud Carisiacum," edition, torn. ii. p. 83, in which the " similiter et de nostris vassallis faci- King, together with the lords spiritual endum est," etc. This capitulary re- and temporal, agreed to this: " Et si lates to another of the same year, and aliquis de vobis talis est cui suus senioof the same place, art. 3. ratus non placet, et illi simulat ut ad V Capitulary of Aix-la-Chapelle, in alium seniorem melius quam ad ilium the year 813, art. 16, " quod nullus acaptare possit, veniat ad ilium, et ipse seniorem suum dimittat post quam ab tranquillo et pacifico animo donet ilH eo acceperit valente solidum unum"; commeatum...et quod Deus illi and the Capitulary of Pepin, in the cupierit et ad alium seniorem acaptare year 783, art. s. potuerit, pacifice habeat."
w See the Capitulary de Carisiaco, in x In the year 757, art. 6, Baluzius's 856 MONTESQUIEU back, as it were, one degree, sometimes two; and oftentimes more.
We find in the books of fiefs,j' 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 vavassors could not give also in fief; so that whatever they had given, they might always resume. Be- sides, 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.^ But when those Senators wrote, such general exceptions had been made to this rule as had almost aboHshed it. For if a per- son who had received a fief of a rear-vassal happened to follow him upon an expedition to Rome, he was entitled to all the priv- ileges of a vassal.o In Hke 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.ft 2^. — Another change which happened in the Fiefs In Charlemagne's time they were obliged,^ under great penal- ties, to repair to the general meeting in case of any war what- soever; they admitted of no excuses, and if the count exempted anyone he was liable himself to be punished. But the treaty of the three brothers d 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.^ In others, they were at liberty to follow their lord, or to mind their own business. This treaty relates to another,/" concluded five years before between the two brothers, y Book I. chap. i. homo in cujuscumque regno sit, cum z At least in Italy and Germany. seniore suo in hostem, vel aliis suis a Book I. of fiefs, chap. i. utilitatibus, pergat, nisi talis regni inb Ibid. vasio quam Lantuveri dicunt, quod c Capitulary of the year 802, art. 7, absit, acciderit, ut omnis populus illius Baluzius's edition, p. 365. regni ad eam repellendam communiter d " Apud Marsnam, m the year 847, pergat," art. 5, ibid. p. 44.
e " Volumus ut cujuscumque nostrum zius. Capitularies, torn. ii. p. 39.
28 THE SPIRIT OF LAWS 257 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 agree- ment 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 Fon- tenay, 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.g . — 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 cor- ruption. I noticed that in the beginning several fiefs had been aUenated 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, like- wise, that the crown had never alienated the great offices in per- petuity./* But Charles the Bald made a general regulation, which equally aflfected the great offices and the fiefs. He ordained, in his Capit- ularies, 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.* We shall see presently that this regulation received a wider ex- tension, 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 g See the law of Guy, King of the to some circumstances which might Romans, among those which were have been an inducement to choose tfie added to the Salic law, and to that of Counts of Toulouse from among tlie the Lombards, tit. 6, sec. 2, in Echard. children of the last possessor.
h Some authors pretend that the t See his Capitulary of the year 877, County of Toulouse had been given tit. 53, arts. 9 and 10, " apud Carisiaway by Charles Martel, and passed by acum." This capitulary bears relation inheritance down to Raymond, the last to another of the same year and place, count; but, if this be true, it was owing art. 3.
2s8 MONTESQUIEU 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 further oflf another degree.
Again, it appears from the Capitularies,; 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 al- ready under them enabled them to procure others.
In order to be convinced how much the monarchy was there- by 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 k that when the elder brothers had given shares to their younger brothers the latter paid hom- age to the elder; so that those shares were held of the lord para- mount only as a rear-fief. PhiHp Augustus, the Duke of Bur- gundy, the Counts of Nevers, Boulogne, St. Paul, Dampierre, and other lords declared / that henceforward, whether the iiefs were divided by succession or otherwise, the whole should be always of the same lord, without any intermediation. This or- dinance 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 oflfice or of a fief left a son at his death, the oflfice 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 / The third Capitulary of the year 812, k As appears from Otho of Frisitigcn, art. 7, and that of the year 815, art. 6, " of the actions of Frederic," book II.
on the Spaniards. The collection of chap. xxix.
the Capitularies, book 5, art. 223, and /See the ordinance of Philip Augusthe Capitulary of the year 869, art. 2, tus in the year 1209, in the new collecand that of the year 877, art. 13, Balu- tion. zius's edition.
THE SPIRIT OF LAWS 259 in the hooks of fiefs,wi 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:» thus the fiefs were given by a kind of election, which the lord made among the children.
In the seventeenth chapter of this book we have explained in what manner the crown was in some respects elective, and in others hereditary under the second race. It was hereditary, be- cause the kings were always taken from that family, and because the children succeeded; it was elective, by reason that the people chose from among the children. As things proceed step by step, and one political law has constantly some relation to another political law, the same spirit was followed in the suc- cession of fiefs, as had been observed in the succession to the crown.o Thus the fiefs were transmitted to the children by the right of succession, as well as of election; and each fief became both elective and hereditary, like the crown.
This right of election P in the person of the lord was not sub- sisting at the time of the authors g of the book of fiefs, that is, in the reign of the Emperor Frederick I.
30. — The same Subject continued It is mentioned in the books of fiefs, that when the Emperor Conrad set out for Rome, the vassals in his service presented a petition to him that he would please to make a law that the fiefs which descended to the children should descend also to the grandchildren; and that he whose brother died without legiti- mate heirs might succeed to the fief which had belonged to their common father.'' This was granted.
In the same place it is said (and we are to remember that those writers lived at the time of the Emperor Frederick I) s " that the ancient jurists had always been of opinion t that the succesw Book I. tit. I. ficisceretur, petitum est a fidelibus qui n " Sic progressum est, ut ad filios in ejus erant servitio, ut, lege ab eo deveniret in quem Dominus hoc vellet promulgata, hoc etiam ad nepotes ex beneficium confirmare." — Ibid. iilio producere dignaretur, et ut frater 0 At least in Italy and Germany. fratri sine legitime haerede defuncto in /" Quod hodie ita stabilitum est, ut beneficio quod eorum patris fuit, sucomnes sequaliter veniat." — Book I. cedat." — Book I. of fiefs, tit. i.
of the fiefs, tit. I. * Cujas has proved it extremely well.
q Gerardus Niger and Aubertus de * " Sciendum est quod beneficium Orto. advenientes ex latere, ultra fratres pa r Cum vero Conradus Romam pro- trueles non progreditur successione al 26o MONTESQUIEU sion of fiefs in a collateral line did not extend further than to brothers-german, though of late it was carried as far as the sev- enth degree, and by the new code they had extended it in a di- rect line in infinitum." It is thus that Conrad's law was insensi- bly extended.
All these things being supposed, the bare perusal of the his- tory of France is sufficient to demonstrate that the perpetuity of fiefs was established earlier in this kingdom than in Germany. Towards the commencement of the reign of the Emperor Con- rad II in 1024, things were upon the same footing still in Ger- many, as they had been in France during the reign of Charles the Bald, who died in 877. But such were the changes made in this kingdom after the reign of Charles the Bald, that Charles the Simple found himself unable to dispute with a foreign house his incontestable rights to the empire; and, in fine, that in Hugh Capet's time the reigning family, stripped of all its demesnes, was no longer in a condition to maintain the crown.
The weak understanding of Charles the Bald produced an equal weakness in the French monarchy. But as his brother, Louis, King of Germany, and some of that prince's successors were men of better parts, their government preserved its vigor much longer.
But what do I say? Perhaps the phlegmatic constitution, and, if I dare use the expression, the immutabihty of spirit peculiar to the German nation made a longer stand than the volatile tem- per of the French against that disposition of things, which per- petuated the fiefs by a natural tendency, in families.
Besides, the Kingdom of Germany was not laid waste and an- nihilated, as it were, like that of France, by that particular kind of war with which it had been harassed by the Normans and Saracens. There were less riches in Germany, fewer cities to plunder, less extent of coast to scour, more marshes to get over, more forest to penetrate. As the dominions of those princes were less in danger of being ravaged and torn to pieces they had less need of their vassals and consequently less dependence on them. And in all probability, if the emperors of Germany had not been obliged to be crowned at Rome, and to make conantiquis sapientibus constitutum, licet culis descendentibus novo jure in in- moderno tempore usque ad septimum finitum extenditur." — Ibid, geniculum sit usurpatum, quod in mas- THE SPIRIT OF LAWS 261 tinual expeditions into Italy, the fiefs would have preserved their primitive nature much longer in that country.
31. — In what Manner the Empire was transferred front the Family of Charlemagne The empire, which, in prejudice to the branch of Charles the Bald, had been already given to the bastard line of Louis, King of Germany," was transferred to a foreign house by the election of Conrad, Duke of Franconia, in 912. The reigning branch in France being hardly able to contest a few villages was much less in a situation to contest the empire. We have an agreement en- tered into between Charles the Simple, and the Emperor Henry I, who had succeeded to Conrad. It is called the Compact of Bonn.f These two princes met in a vessel which had been placed in the middle of the Rhine, and swore eternal friendship. They used on this occasion an excellent middle term. Charles took the title of King of West France, and Henry that of King of East France. Charles contracted with the King of Germany, and not with the Emperor.
32. — In what Manner the Crown of France was transferred to the House of Hugh Capet The inheritance of the fiefs, and the general establishment of rear-fiefs, extinguished the political and formed a feudal govern- ment. Instead of that prodigious multitude of vassals who 'were formerly under the king, there were now a few only, on whom the others depended. The kings had scarcely any longer a di- rect authority; a power which was to pass through so many other and through such great powers either stopped or was lost before it reached its term. Those great vassals would no longer obey; and they even made use of their rear- vassals to withdraw their obedience. The kings, deprived of their demesnes and re- duced to the cities of Rheims and Laon were left exposed to their mercy; the tree stretched out its branches too far, and the head was withered. The kingdom found itself without a de- mesne, as the empire is at present. The crown was, therefore, given to one of the most potent vassals.
The Normans ravaged the kingdom; they sailed in open boats M Arnold and his son Louis IV. le Mire, " Cod. donationum piarum," V In the year 926, quoted by Aubert chap, xxvii.
262 MONTESQUIEU or small vessels, entered the mouths of rivers, and laid the coun- try waste on both sides. The cities of Orleans and Paris put a stop to those plunderers, so that they could not advance farther, either on the Seine, or on the Loire.w Hugh Capet, who was master of those cities, held in his hands the two keys of the un- happy remains of the kingdom; the crown was conferred upon him as the only person able to defend it. It is thus the empire was afterwards given to a family whose dominions form so strong a barrier against the Turks.
The empire went from Charlemagne's family at a time when the inheritance of fiefs was established only as a mere conde- scendence. It even appears that this inheritance obtained much later among the Germans than among the French; x which was the reason that the empire, considered as a fief, was elective. On the contrary, when the crown of France went from the family of Charlemagne, the fiefs were really hereditary in this kingdom; and the crown, as a great fief, was also hereditary.
But it is very wrong to refer to the very moment of this revo- lution all the changes which happened, either before or after- wards. The whole was reduced to two events; the reigning family changed, and the crown was united to a great fief.
33. — Some Consequences of the Perpetuity of Fiefs From the perpetuity of fiefs it followed, that the right of senior- ity or primogeniture was established among the French. This right was quite unknown under the first race; y the crown was divided among the brothers, the allodia were shared in the same manner; and as the fiefs, whether precarious or for life, were not an object of succession, there could be no partition in regard to those tenures.
Under the second race, the title of Emperor, which Louis the Debonnaire enjoyed, and with which he honored his eldest son, Lotharius, made him think of giving this prince a kind of su- periority over his younger brothers. The two kings were obliged to wait upon the Emperor every year, to carry him presents, and to receive much greater from him; they were also to consult tt» See the Capitulary of Charles the x See above, chap. 30.
Bald, in the year 877, " apud Carisi- 31 See the Salic Law, and the law of acum," on the importance of Paris, St. the Ripuarians, in the title of " al- Denis, and the castles on the Loire, in lodia." those days.
THE SPIRIT OF LAWS 263 with him upon common affairs.^ This is what inspired Lotharius with those pretences which met with such bad success. When Agobard wrote in favor of this prince,o he alleged the Emperor's own intention, who had associated Lotharius with the empire after he had consulted the Almighty by a three days' fast, by the celebration of the holy mysteries, and by prayers and almsgiving; after the nation had sworn allegiance to him which they could not refuse without perjuring themselves; and after he had sent Lo- tharius to Rome to be confirmed by the Pope. Upon all this he lays a stress, and not upon his right of primogeniture. He says, indeed, that the Emperor had designed a partition among the younger brothers, and that he had given the preference to the elder; but saying he had preferred the elder was saying at the same time that he might have given the preference to his younger brothers.
But as soon as the fiefs became hereditary, the right of senior- ity was established in the feudal succession; and for the same reason in that of the crown, which was the great fief. The an- cient law of partitions was no longer subsisting; the fiefs being charged with a service, the possessor must have been enabled to discharge it. The law of primogeniture was established, and the right of the feudal law was superior to that of the political or civil institution.
As the fiefs descended to the children of the possessor, the lords lost the liberty of disposing of them; and, in order to in- demnify themselves, they established what they called the right of redemption, whereof mention is made in our customs, which at first was paid in a direct line, and by usage came afterwards to be paid only in a collateral line.
The fiefs were soon rendered transferable to strangers as a patrimonial estate. This gave rise to the right of lord's dues, which were established almost throughout the kingdom. These rights were arbitrary in the beginning; but when the practice of granting such permissions became general they were fixed in every district.
The right of redemption was to be paid at every change of heir, and at first was paid even in a direct line.& The most general