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.105 A capitulary was made in that synod, wherein it is said that in the last famine the spikes of corn were found to contain no seed,106 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.107 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 Lombards108 the difficulty 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 condition that they might have the power of redeeming them. This the constitution of Louis the Debonnaire109 and that of the Emperor Lotharius, his son, would not allow.110
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 repairing 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 mischief done by his grandfather, Charles Martel.111 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 sub-divided 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.112 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 compensation 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;113 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 Charlemagne114 and Lotharius I115 there were possessions of that kind which descended to the next heirs, and were divided among them.
I find, moreover, that one part of them was given as allodia, and the other as fiefs.116
I noticed that the proprietors of the allodia were subject to service all the same as the possessors of the fiefs. This, without 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 something 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.117 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 Carlovingians under King Pepin; a revolution, which, contrary to the nature of ordinary events, is more remarked perhaps in our days than when it happened.
The kings had no authority; they had only an empty name. The regal title was hereditary, and that of mayor elective. Though it was latterly in the power of the mayors to place any of the Merovingians on the throne, they had not yet taken a king of another family; and the ancient law which fixed the crown in a particular family was not yet erased from the hearts of the Franks. The king's person was almost unknown in the monarchy; but royalty was not. Pepin, son of Charles Martel, thought it would be proper to confound those two titles, a confusion which would leave it a moot point whether the new royalty was hereditary or not; and this was sufficient for him who to the regal dignity had joined a great power. The mayor's authority was then blended with that of the king. In the mixture of these two authorities a kind of reconciliation was made; the mayor had been elective, and the king hereditary; the crown at the beginning of the second race was elective, because the people chose; it was hereditary, because they always chose in the same family.118
Father le Cointe, in spite of the authority of all ancient records119 denies that the Pope authorised this great change; and one of his reasons is that he would have committed an injustice.120 A fine thing to see a historian judge of that which men have done by that which they ought to have done; by this mode of reasoning we should have no more history.
Be that as it may, it is very certain that immediately after Duke Pepin's victory, the Merovingians ceased to be the reigning family. When his grandson, Pepin, was crowned king, it was only one ceremony more, and one phantom less; he acquired nothing thereby but the royal ornaments; there was no change made in the nation.
This I have said in order to fix the moment of the revolution, that we may not be mistaken in looking upon that as a revolution which was only a consequence of it.
When Hugh Capet was crowned king at the beginning of the third race, there was a much greater change, because the kingdom passed from a state of anarchy to some kind of government; but when Pepin took the crown, there was only a transition from one government to another, which was identical.
When Pepin was crowned king there was only a change of name; but when Hugh Capet was crowned there was a change in the nature of the thing, because by uniting a great fief to the crown the anarchy ceased.
When Pepin was crowned the title of king was united to the highest office; when Hugh Capet was crowned it was annexed to the greatest fief.
17. A particular Circumstance in the Election of the Kings of the Second Race. We find by the formulary of Pepin's coronation that Charles and Carloman were also anointed,121 and blessed, and that the French nobility bound themselves, on pain of interdiction and excommunication, never to choose a prince of another family.122
It appears by the wills of Charlemagne and Louis the Debonnaire, that the Franks made a choice among the king's children, which agrees with the above-mentioned clause. And when the empire was transferred from Charlemagne's family, the election, which before had been restricted and conditional, became pure and simple, so that the ancient constitution was departed from.
Pepin, perceiving himself near his end, assembled the lords, both temporal and spiritual, at St. Denis, and divided his kingdom between his two sons, Charles and Carloman.123 We have not the acts of this assembly, but we find what was there transacted in the author of the ancient historical collection, published by Canisius, and in the writer of the annals of Metz,124 according to the observation of Baluzius.125 Here I meet with two things in some measure contradictory; that he made this division with the consent of the nobility, and afterwards that he made it by his paternal authority. This proves what I said, that the people's right in the second race was to choose in the same family; it was, properly speaking, rather a right of exclusion than that of election.
This kind of elective right is confirmed by the records of the second race. Such is this capitulary of the division of the empire made by Charlemagne among his three children, in which, after settling their shares, he says,126 "That if one of the three brothers happens to have a son, such as the people shall be willing to choose as a fit person to succeed to his father's kingdom, his uncles shall consent to it."
This same regulation is to be met with in the partition which Louis the Debonnaire made among his three children, Pepin, Louis, and Charles, in the year 837, at the assembly of Aix-la-Chapelle;127 and likewise in another partition, made twenty years before, by the same emperor, in favour of Lotharius, Pepin, and Louis.128 We may likewise see the oath which Louis the Stammerer took at Compiègne at his coronation. "I, Louis, by the divine mercy, and the people's election, appointed king, do promise"129 …… What I say is confirmed by the acts of the Council of Valence, held in the year 890, for the election of Louis, son of Bo-on, to the kingdom of Arles.130 Louis was there elected, and the principal reason they gave for choosing him is that he was of the imperial family,131 that Charles the Fat had conferred upon him the dignity of king, and that the Emperor Arnold had invested him by the sceptre, and by the ministry of his ambassadors. The kingdom of Arles, like the other dismembered or dependent kingdoms of Charlemagne, was elective and hereditary.
18. Charlemagne. Charlemagne's intention was to restrain the power of the nobility within proper bounds, and to hinder them from oppressing the freemen and the clergy. He balanced the several orders of the state, and remained perfect master of them all. The whole was united by the strength of his genius. He led the nobility continually from one expedition to another, giving them no time to form conspiracies, but employing them entirely in the execution of his designs. The empire was supported by the greatness of its chief; the prince was great, but the man was greater. The kings, his children, were his first subjects, the instruments of his power and patterns of obedience. He made admirable laws; and, what is more, he took care to see them executed. His genius diffused itself through every part of the empire. We find in this prince's laws a comprehensive spirit of foresight, and a certain force which carries all before it. All pretexts for evading the duties are removed, neglects are corrected, abuses reformed or prevented.132 He knew how to punish, but he understood much better how to pardon. He was great in his designs, and simple in the execution of them. No prince ever possessed in a higher degree the art of performing the greatest things with ease, and the most difficult with expedition. He was continually visiting the several parts of his vast empire, and made them feel the weight of his hand wherever it fell. New difficulties sprang up on every side, and on every side he removed them. Never prince had more resolution in facing dangers; never prince knew better how to avoid them. He mocked all manner of perils, and particularly those to which great conquerors are generally subject, namely, conspiracies. This wonderful prince was extremely moderate, of a very mild character, plain and simple in his behaviour. He loved to converse freely with the lords of his court. He indulged, perhaps, too much his passion for the fair sex; a failing, however, which in a prince who always governed by himself; and who spent his life in a continual series of toils; may merit some allowance. He was wonderfully exact in his expenses, administering his demesnes with prudence, attention, and economy. A father might learn from his laws how to govern his family; and we find in his capitularies the pure and sacred source whence he derived his riches.133 I shall add only one word more: he gave orders that the eggs in the bartons on his demesnes, and the superfluous garden-stuff, should be sold;134 he distributed among his people all the riches of the Lombards, and the immense treasures of those Huns that had plundered the whole world.
19. The same Subject continued. Charlemagne and his immediate successors were afraid lest those whom they placed in distant parts should be inclined to revolt, and thought they should find more docility among the clergy. For this reason they erected a great number of bishoprics in Germany and endowed them with very large fiefs.135 It appears by some charters that the clauses containing the prerogatives of those fiefs were not different from such as were commonly inserted in those grants,136 though at present we find the principal ecclesiastics of Germany invested with a sovereign power. Be that as it may, these were some of the contrivances they used against the Saxons. That which they could not expect from the indolence or supineness of vassals they thought they ought to expect from the sedulous attention of a bishop. Besides, a vassal of that kind, far from making use of the conquered people against them, would rather stand in need of their assistance to support themselves against their own people.
20. Louis the Debonnaire. When Augustus C?sar was in Egypt he ordered Alexander's tomb to be opened; and upon their asking him whether he was willing they should open the tombs of the Ptolemies, he made answer that he wanted to see the king, and not the dead. Thus, in the history of the second race, we are continually looking for Pepin and Charlemagne; we want to see the kings, and not the dead.
A prince who was the sport of his passions, and a dupe even to his virtues; a prince who never understood rightly either his own strength or weakness; a prince who was incapable of making himself either feared or beloved; a prince, in fine, who with few vices in his heart had all manner of defects in his understanding, took into his hands the reins of the empire which had been held by Charlemagne.
At a time when the whole world is in tears for the death of his father, at a time of surprise and alarm, when the subjects of that extensive empire all call upon Charles and find him no more; at a time when he is advancing with all expedition to take possession of his father's throne, he sends some trusty officers before him in order to seize the persons of those who had contributed to the irregular conduct of his sisters. This step was productive of the most terrible catastrophes.137 It was imprudent and precipitate. He began with punishing domestic crimes before he reached the palace; and with alienating the minds of his subjects before he ascended the throne.
His nephew, Bernard, King of Italy, having come to implore his clemency, he ordered his eyes to be put out, which proved the cause of that prince's death a few days after, and created Louis a great many enemies. His apprehension of the consequence induced him to shut his brothers up in a monastery; by which means the number of his enemies increased. These two last transactions were afterwards laid to his charge in a judicial manner,138 and his accusers did not fail to tell him that he had violated his oath and the solemn promises which he had made to his father on the day of his coronation.139
After the death of the Empress Hermengarde, by whom he had three children, he married Judith, and had a son by that princess; but soon mixing all the indulgence of an old husband, with all the weakness of an old king, he flung his family into a disorder which was followed by the downfall of the monarchy.
He was continually altering the partitions he had made among his children. And yet these partitions had been confirmed each in their turn by his own oath, and by those of his children and the nobility. This was as if he wanted to try the fidelity of his subjects; it was endeavouring by confusion, scruples, and equivocation, to puzzle their obedience; it was confounding the different rights of those princes, and rendering their titles dubious, especially at a time when there were but few fortresses, and when the principal bulwark of authority was the fealty sworn and accepted.
The Emperor's children, in order to preserve their shares, courted the clergy, and granted them privileges till then unheard. These privileges were specious; and the clergy in return were made to warrant the revolution in favour of those princes. Agobard140 represents to Louis the Debonnaire his having sent Lotharius to Rome, in order to have him declared emperor; and that he had made a division of his dominions among his children, after having consulted heaven by three days fasting and praying. What defence could such a weak prince make against the attack of superstition? It is easy to perceive the shock which the supreme authority must have twice received from his imprisonment, and from his public penance; they would fain degrade the king, and they degraded the regal dignity.
We find difficulty at first in conceiving how a prince who was possessed of several good qualities, who had some knowledge, who had a natural disposition to virtue, and who in short was the son of Charlemagne, could have such a number of enemies.141 so impetuous and implacable as even to insult him in his humiliation and to be determined upon his ruin: and, indeed they would have utterly completed it, if his children, who in the main were more honest than they, had been steady in their design, and could have agreed among themselves.
21. The same Subject continued. The strength and solidity for which the kingdom was indebted to Charlemagne still subsisted under Louis the Debonnaire in such a degree as enabled the state to support its grandeur, and to command respect from foreign nations. The prince's understanding was weak, but the nation was warlike. His authority declined at home, though there seemed to be no diminution of power abroad.
Charles Martel, Pepin, and Charlemagne were in succession rulers of the monarchy. The first flattered the avarice of the soldiers: the other two that of the clergy. Louis the Debonnaire displeased both.
In the French constitution, the whole power of the state was lodged in the hands of the king, the nobility, and clergy. Charles Martel, Pepin, and Charlemagne joined sometimes their interest with one of those parties to check the other and generally with both; but Louis the Debonnaire could gain the affection of neither. He disobliged the bishops by publishing regulations which had the air of severity, because he carried things to a greater length than was agreeable to their inclination. Very good laws may be ill-timed. The bishops in those days, being accustomed to take the field against the Saracens and the Saxons, had very little of the spirit of religion.142 On the other hand, as he had no longer any confidence in the nobility, he promoted mean people,143 turning the nobles out of their employments at court to make room for strangers and upstarts.144 By this means the affections of the two great bodies of the nobility and clergy were alienated from their prince, the consequence of which was a total desertion.
22. The same Subject continued. But what chiefly contributed to weaken the monarchy was the extravagance of this prince in alienating the crown demesnes.145 And here it is that we ought to listen to the account of Nitard, one of our most judicious historians, a grandson of Charlemagne, strongly attached to Louis the Debonnaire and who wrote his history by order of Charles the Bald.
He says, "that one Adelhard for some time gained such an ascendant over the Emperor, that this prince conformed to his will in everything; that at the instigation of this favourite, he had granted the crown lands to everybody that asked them,146 by which means the state was ruined."147 Thus he did the same mischief throughout the empire as I observed he had done in Aquitaine;148 the former Charlemagne redressed, but the latter was past all remedy.
The state was reduced to the same debility in which Charles Martel found it. upon his accession to the mayoralty; and so desperate were its circumstances that no exertion of authority was any longer capable of saving it.
The treasury was so exhausted that in the reign of Charles the Bald, no one could continue in his employments, nor be safe in his person without paying for it.149 When they had it in their power to destroy the Normans, they took money to let them escape:150 and the first advice which Hincmar gives to Louis the Stammerer is to ask of the assembly of the nation a sufficient allowance to defray the expenses of his household.
23. The same Subject continued. The clergy had reason to repent the protection they had granted to the children of Louis the Debonnaire. This prince, as I have already observed, had never given any of the church-lands by precepts to the laity;151 but it was not long before Lotharius in Italy, and Pepin in Aquitaine, quitted Charlemagne's plan, and resumed that of Charles Martel. The clergy had recourse to the Emperor against his children, but they themselves had weakened the authority to which they appealed. In Aquitaine some condescension was shown, but none in Italy.
The civil wars with which the life of Louis the Debonnaire had been embroiled were the seed of those which followed his death. The three brothers, Lotharius, Louis, and Charles, endeavoured each to bring over the nobility to their party and to make them their tools. To such as were willing therefore to follow them they granted church-lands by precepts; so that to gain the nobility, they sacrificed the clergy.
We find in the Capitularies152 that those princes were obliged to yield to the importunity of demands, and that what they would not often have freely granted was extorted from them: we find that the clergy thought themselves more oppressed by the nobility than by the kings, It appears that Charles the Bald153 became the greatest enemy of the patrimony of the clergy, whether he was most incensed against them for having degraded his father on their account, or whether he was the most timorous. Be that as it may, we meet with continual quarrels in the Capitularies,154 between the clergy who demanded their estates, and the nobility who refused or deferred to restore them; and the kings acting as mediators.
The situation of affairs at that time is a spectacle really deserving of pity. While Louis the Debonnaire made immense donations out of his demesnes to the clergy, his children distributed the church-lands among the laity. The same prince with one hand founded new abbeys and despoiled old ones. The clergy had no fixed state; one moment they were plundered, another they received satisfaction; but the crown was continually losing.
Toward the close of the reign of Charles the Bald, and from that time forward, there was an end of the disputes of the clergy and laity concerning the restitution of church-lands. The bishops indeed breathed out still a few sighs in their remonstrances to Charles the Bald, which we find in the Capitulary of the year 856, and in the letter they wrote to Louis, King of Germany, in the year 858,155 but they proposed things, and challenged promises, so often eluded, that we plainly see they had no longer any hopes of obtaining their desire.
All that could be expected then was to repair in general the injuries done both to church and state.156 The kings engaged not to deprive the nobility of their freemen, and not to give away any more church-lands by precepts,157 so that the interests of the clergy and nobility seemed then to be united.
The dreadful depredations of the Normans, as I have already observed, contributed greatly to put an end to those quarrels.
The authority of our kings diminishing every day, both for the reasons already given and those which I shall mention hereafter, they imagined they had no better resource left, than to resign themselves into the hands of the clergy. But the ecclesiastics had weakened the power of the kings, and these had diminished the influence of the ecclesiastics. In vain did Charles the Bald and his successors call in the church to support the state, and to prevent its ruin; in vain did they make use of the. respect which the commonalty had for that body,158 to maintain that which they should also have for their prince;159 in vain did they endeavour to give an authority to their laws by that of the canons; in vain did they join the ecclesiastic with the civil punishments;160 in vain to counterbalance the authority of the count did they give to each bishop the title of their commissary in the several provinces;161 it was impossible to repair the mischief they had done; and a terrible misfortune, which I shall presently mention, proved the ruin of the monarchy.
24. That the Freemen were rendered capable of holding Fiefs. I said that the freemen were led against the enemy by their count, and the vassals by their lord. This was the reason that the several orders of the state balanced each other, and though the king's vassals had other vassals under them, yet they might be overawed by the count, who was at the head of all the freemen of the monarchy.
The freemen were not allowed at first to do homage for a fief; but in process of time this was permitted:162 and I find that this change was made during the period that elapsed from the reign of Gontram to that of Charlemagne. This I prove by the comparison which may be made between the treaty of Andelot,163 by Gontram, Childebert, and Queen Brunehault, and the partition made by Charlemagne among his children, as well as a like partition by Louis the Debonnaire.164 These three acts contain nearly the same regulations with regard to the vassals; and as they determine the very same points, under almost the same circumstances, the spirit as well as the letter of those three treaties in this respect are very much alike.
But as to what concerns the freemen, there is a vital difference. The treaty of Andelot does not say that they might do homage for a fief; whereas we find in the divisions of Charlemagne and Louis the Debonnaire express clauses to empower them to do homage. This shows that a new usage had been introduced after the treaty of Andelot, whereby the freemen had become capable of this great privilege.
This must have happened when Charles Martel, after distributing the church-lands to his soldiers, partly in fief, and partly as allodia, made a kind of revolution in the feudal laws. It is very probable that the nobility who were seized already of fiefs found a greater advantage in receiving the new grants as allodia; and that the freemen thought themselves happy in accepting them as fiefs.
THE PRINCIPAL CAUSE OF THE HUMILIATION OF THE SECOND RACE
25. Changes in the Allodia. Charlemagne in the partition165 mentioned in the preceding chapter ordained that after his death the vassals belonging to each king should be permitted to receive benefices in their own sovereign's dominion, and not in those of another;166 whereas they may keep their allodial estates in any of their dominions.167 But he adds168 that every freeman might, after the death of his lord, do homage in any of three kingdoms he pleased, as well as he that never had been subject to a lord. We find the same regulations in the partition which Louis the Debonnaire made among his children in the year 817.
But though the freeman had done homage for a fief, yet the count's militia was not thereby weakened: the freeman was still obliged to contribute for his allodium, and to get people ready for the service belonging to it, at the proportion of one man to four manors; or else to procure a man that should do the duty of the fief in his stead. And when some abuses had been introduced upon this head, they were redressed, as appears by the constitutions of Charlemagne,169 and by that of Pepin, King of Italy, which explain each other.170
The remark made by historians that the battle of Fontenay was the ruin of the monarchy, is very true; but I beg leave to cast an eye on the unhappy consequences of that day.
Some time after the battle, the three brothers, Lothairius, Louis, and Charles, made a treaty,171 wherein I find some clauses which must have altered the whole political system of the French government.
1. In the declaration172 which Charles made to the people of the part of the treaty relating to them, he says that every freeman might choose whom he pleased for his lord,173 whether the king or any of the nobility. Before this treaty the freeman might do homage for a fief; but his allodium still continued under the immediate power of the king, that is, under the count's jurisdiction; and he depended on the lord to whom he vowed fealty, only on account of the fief which he had obtained. After that treaty every freeman had a right to subject his allodium to the king, or to any other lord, as he thought proper. The question is riot in regard to those who put themselves under the protection of another for a fief, but to such as changed their allodial into a feudal land, and withdrew themselves, as it were, from the civil jurisdiction to enter under the power of the king, or of the lord whom they thought proper to choose.
Thus it was that those who formerly were only under the king's power, as freemen under 'the count, became insensibly vassals one of another, since every freeman might choose whom he pleased for his lord, the king or any of the nobility.
2. If a man changed an estate which he possessed in perpetuity into a fief, this new fief could no longer be only for life. Hence we see, a short time after, a general law for giving the fiefs to the children of the present possessor:174 it was made by Charles the Bald, one of the three contracting princes.
What has been said concerning the liberty every freeman had in the monarchy, after the treaty of the three brothers, of choosing whom he pleased for his lord, the king or any of the nobility, is confirmed by the acts subsequent to that time.
In the reign of Charlemagne,175 when the vassal had received a present of a lord, were it worth only a sou, he could not afterwards quit him. But under Charles the Bald, the vassals might follow what was agreeable to their interests or their inclination with entire safety;176 and so strongly does this prince explain himself on the subject that he seems rather to encourage them in the enjoyment of this liberty than to restrain it. In Charlemagne's time, benefices were rather personal than real; afterwards they became rather real than personal.
26. Changes in the Fiefs. The same changes happened in the fiefs as in the allodia. We find by the Capitulary of Compiègne,177 under King Pepin, that those who had received a benefice from the king gave a part of this benefice to different bondmen; but these parts were not distinct from the whole. The king revoked them when he revoked the whole; and at the death of the king's vassal, the rear-vassal lost also his rear-fief: and a new beneficiary succeeded, who likewise established new rear-vassals. Thus it was the person and not the rear-fief that depended on the fief; on the one hand, the rear-vassal returned to the king because he was not tied for ever to the vassal; and the rear-fief returned also to the king because it was the fief itself and not a dependence of it.
Such was the rear-vassalage, while the fiefs were during pleasure; and such was it also while they were for life. This was altered when the fiefs descended to the next heirs, and the rear-fiefs the same. That which was held before immediately of the king was held now mediately; and the regal power was thrown back, as it were, one degree, sometimes two; and oftentimes more.
We find in the books of fiefs178 that, though the king's vassals might give away in fief, that is, in rear-fief, to the king, yet these rear-vassals, or petty vavasors, could not give also in fief; so that whatever they had given, they might always resume. Besides, a grant of that kind did not descend to the children like the fiefs, because it was not supposed to have been made according to the feudal laws.
If we compare the situation in which the rear-vassalage was at the time when the two Milanese senators wrote those books, with what it was under King Pepin, we shall find that the rear-fiefs preserved their primitive nature longer than the fiefs.179
But when those senators wrote, such general exceptions had been made to this rule as had almost abolished it. For if a person who had received a fief of a rear-vassal happened to follow him upon an expedition to Rome, he was entitled to all the privileges of a vassal.180 In like manner, if he had given money to the rear-vassal to obtain the fief, the latter could not take it from him, nor hinder him from transmitting it to his son, till he returned him his money: in fine, this rule was no longer observed by the senate of Milan.181
27. Another change which happened in the Fiefs. In Charlemagne's time they were obliged,182 under great penalties, to repair to the general meeting in case of any war whatsoever; they admitted of no excuses, and if the count exempted any one, he was liable himself to be punished. But the treaty of the three brothers183 made a restriction upon this head which rescued the nobility, as it were, out of the king's hands; they were no longer obliged to serve him in time of war, except when the war was defensive.184 In others, they were at liberty to follow their lord, or to mind their own business. This treaty relates to another,185 concluded, five years before, between the two brothers, Charles the Bald and Louis, King of Germany, by which these princes release their vassals from serving them in war, in case they should attempt hostilities against each other; an agreement which the two princes confirmed by oath, and at the same time made their armies swear to it.
The death of a hundred thousand French, at the battle of Fontenay, made the remains of the nobility imagine that by the private quarrels of their kings about their respective shares, their whole body would be exterminated, and that the ambition and jealousy of those princes would end in the destruction of all the best families of the kingdom. A law was therefore passed that the nobility should not be obliged to serve their princes in war unless it was to defend the state against a foreign invasion. This law obtained for several ages.186
28. Changes which happened in the great Offices, and in the Fiefs. The many changes introduced into the fiefs in particular cases seemed to spread so widely as to be productive of general corruption. I noticed that in the beginning several fiefs had been alienated in perpetuity; but those were particular cases, and the fiefs in general preserved their nature; so that if the crown lost some fiefs it substituted others in their stead. I observed, likewise, that the crown had never alienated the great offices in perpetuity.187
But Charles the Bald made a general regulation, which equally affected the great offices and the fiefs. He ordained, in his capitularies, that the counties should be given to the children of the count, and that this regulation should also take place in respect to the fiefs.188
We shall see presently that this regulation received a wider extension, insomuch that the great offices and fiefs went even to distant relatives. Thence it followed that most of the lords who before this time had held immediately of the crown, held now mediately. Those counts who formerly administered justice in the king's placita, and who led the freemen against the enemy, found themselves situated between the king and his freemen; and the king's power was removed farther off another degree.
Again, it appears from the capitularies,189 that the counts had benefices annexed to their counties, and vassals under them. When the counties became hereditary, the count's vassals were no longer the immediate vassals of the king; and the benefices annexed to the counties were no longer the king's benefices; the counts grew powerful because the vassals whom they had already under them enabled them to procure others.
Charlemagne's project did not succeed at first, for it seemed too heavy a burden.107 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 Lombards108 the difficulty 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 condition that they might have the power of redeeming them. This the constitution of Louis the Debonnaire109 and that of the Emperor Lotharius, his son, would not allow.110
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 repairing 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 mischief done by his grandfather, Charles Martel.111 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 sub-divided 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.112 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 compensation 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;113 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 Charlemagne114 and Lotharius I115 there were possessions of that kind which descended to the next heirs, and were divided among them.
I find, moreover, that one part of them was given as allodia, and the other as fiefs.116
I noticed that the proprietors of the allodia were subject to service all the same as the possessors of the fiefs. This, without 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 something 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.117 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 Carlovingians under King Pepin; a revolution, which, contrary to the nature of ordinary events, is more remarked perhaps in our days than when it happened.
The kings had no authority; they had only an empty name. The regal title was hereditary, and that of mayor elective. Though it was latterly in the power of the mayors to place any of the Merovingians on the throne, they had not yet taken a king of another family; and the ancient law which fixed the crown in a particular family was not yet erased from the hearts of the Franks. The king's person was almost unknown in the monarchy; but royalty was not. Pepin, son of Charles Martel, thought it would be proper to confound those two titles, a confusion which would leave it a moot point whether the new royalty was hereditary or not; and this was sufficient for him who to the regal dignity had joined a great power. The mayor's authority was then blended with that of the king. In the mixture of these two authorities a kind of reconciliation was made; the mayor had been elective, and the king hereditary; the crown at the beginning of the second race was elective, because the people chose; it was hereditary, because they always chose in the same family.118
Father le Cointe, in spite of the authority of all ancient records119 denies that the Pope authorised this great change; and one of his reasons is that he would have committed an injustice.120 A fine thing to see a historian judge of that which men have done by that which they ought to have done; by this mode of reasoning we should have no more history.
Be that as it may, it is very certain that immediately after Duke Pepin's victory, the Merovingians ceased to be the reigning family. When his grandson, Pepin, was crowned king, it was only one ceremony more, and one phantom less; he acquired nothing thereby but the royal ornaments; there was no change made in the nation.
This I have said in order to fix the moment of the revolution, that we may not be mistaken in looking upon that as a revolution which was only a consequence of it.
When Hugh Capet was crowned king at the beginning of the third race, there was a much greater change, because the kingdom passed from a state of anarchy to some kind of government; but when Pepin took the crown, there was only a transition from one government to another, which was identical.
When Pepin was crowned king there was only a change of name; but when Hugh Capet was crowned there was a change in the nature of the thing, because by uniting a great fief to the crown the anarchy ceased.
When Pepin was crowned the title of king was united to the highest office; when Hugh Capet was crowned it was annexed to the greatest fief.
17. A particular Circumstance in the Election of the Kings of the Second Race. We find by the formulary of Pepin's coronation that Charles and Carloman were also anointed,121 and blessed, and that the French nobility bound themselves, on pain of interdiction and excommunication, never to choose a prince of another family.122
It appears by the wills of Charlemagne and Louis the Debonnaire, that the Franks made a choice among the king's children, which agrees with the above-mentioned clause. And when the empire was transferred from Charlemagne's family, the election, which before had been restricted and conditional, became pure and simple, so that the ancient constitution was departed from.
Pepin, perceiving himself near his end, assembled the lords, both temporal and spiritual, at St. Denis, and divided his kingdom between his two sons, Charles and Carloman.123 We have not the acts of this assembly, but we find what was there transacted in the author of the ancient historical collection, published by Canisius, and in the writer of the annals of Metz,124 according to the observation of Baluzius.125 Here I meet with two things in some measure contradictory; that he made this division with the consent of the nobility, and afterwards that he made it by his paternal authority. This proves what I said, that the people's right in the second race was to choose in the same family; it was, properly speaking, rather a right of exclusion than that of election.
This kind of elective right is confirmed by the records of the second race. Such is this capitulary of the division of the empire made by Charlemagne among his three children, in which, after settling their shares, he says,126 "That if one of the three brothers happens to have a son, such as the people shall be willing to choose as a fit person to succeed to his father's kingdom, his uncles shall consent to it."
This same regulation is to be met with in the partition which Louis the Debonnaire made among his three children, Pepin, Louis, and Charles, in the year 837, at the assembly of Aix-la-Chapelle;127 and likewise in another partition, made twenty years before, by the same emperor, in favour of Lotharius, Pepin, and Louis.128 We may likewise see the oath which Louis the Stammerer took at Compiègne at his coronation. "I, Louis, by the divine mercy, and the people's election, appointed king, do promise"129 …… What I say is confirmed by the acts of the Council of Valence, held in the year 890, for the election of Louis, son of Bo-on, to the kingdom of Arles.130 Louis was there elected, and the principal reason they gave for choosing him is that he was of the imperial family,131 that Charles the Fat had conferred upon him the dignity of king, and that the Emperor Arnold had invested him by the sceptre, and by the ministry of his ambassadors. The kingdom of Arles, like the other dismembered or dependent kingdoms of Charlemagne, was elective and hereditary.
18. Charlemagne. Charlemagne's intention was to restrain the power of the nobility within proper bounds, and to hinder them from oppressing the freemen and the clergy. He balanced the several orders of the state, and remained perfect master of them all. The whole was united by the strength of his genius. He led the nobility continually from one expedition to another, giving them no time to form conspiracies, but employing them entirely in the execution of his designs. The empire was supported by the greatness of its chief; the prince was great, but the man was greater. The kings, his children, were his first subjects, the instruments of his power and patterns of obedience. He made admirable laws; and, what is more, he took care to see them executed. His genius diffused itself through every part of the empire. We find in this prince's laws a comprehensive spirit of foresight, and a certain force which carries all before it. All pretexts for evading the duties are removed, neglects are corrected, abuses reformed or prevented.132 He knew how to punish, but he understood much better how to pardon. He was great in his designs, and simple in the execution of them. No prince ever possessed in a higher degree the art of performing the greatest things with ease, and the most difficult with expedition. He was continually visiting the several parts of his vast empire, and made them feel the weight of his hand wherever it fell. New difficulties sprang up on every side, and on every side he removed them. Never prince had more resolution in facing dangers; never prince knew better how to avoid them. He mocked all manner of perils, and particularly those to which great conquerors are generally subject, namely, conspiracies. This wonderful prince was extremely moderate, of a very mild character, plain and simple in his behaviour. He loved to converse freely with the lords of his court. He indulged, perhaps, too much his passion for the fair sex; a failing, however, which in a prince who always governed by himself; and who spent his life in a continual series of toils; may merit some allowance. He was wonderfully exact in his expenses, administering his demesnes with prudence, attention, and economy. A father might learn from his laws how to govern his family; and we find in his capitularies the pure and sacred source whence he derived his riches.133 I shall add only one word more: he gave orders that the eggs in the bartons on his demesnes, and the superfluous garden-stuff, should be sold;134 he distributed among his people all the riches of the Lombards, and the immense treasures of those Huns that had plundered the whole world.
19. The same Subject continued. Charlemagne and his immediate successors were afraid lest those whom they placed in distant parts should be inclined to revolt, and thought they should find more docility among the clergy. For this reason they erected a great number of bishoprics in Germany and endowed them with very large fiefs.135 It appears by some charters that the clauses containing the prerogatives of those fiefs were not different from such as were commonly inserted in those grants,136 though at present we find the principal ecclesiastics of Germany invested with a sovereign power. Be that as it may, these were some of the contrivances they used against the Saxons. That which they could not expect from the indolence or supineness of vassals they thought they ought to expect from the sedulous attention of a bishop. Besides, a vassal of that kind, far from making use of the conquered people against them, would rather stand in need of their assistance to support themselves against their own people.
20. Louis the Debonnaire. When Augustus C?sar was in Egypt he ordered Alexander's tomb to be opened; and upon their asking him whether he was willing they should open the tombs of the Ptolemies, he made answer that he wanted to see the king, and not the dead. Thus, in the history of the second race, we are continually looking for Pepin and Charlemagne; we want to see the kings, and not the dead.
A prince who was the sport of his passions, and a dupe even to his virtues; a prince who never understood rightly either his own strength or weakness; a prince who was incapable of making himself either feared or beloved; a prince, in fine, who with few vices in his heart had all manner of defects in his understanding, took into his hands the reins of the empire which had been held by Charlemagne.
At a time when the whole world is in tears for the death of his father, at a time of surprise and alarm, when the subjects of that extensive empire all call upon Charles and find him no more; at a time when he is advancing with all expedition to take possession of his father's throne, he sends some trusty officers before him in order to seize the persons of those who had contributed to the irregular conduct of his sisters. This step was productive of the most terrible catastrophes.137 It was imprudent and precipitate. He began with punishing domestic crimes before he reached the palace; and with alienating the minds of his subjects before he ascended the throne.
His nephew, Bernard, King of Italy, having come to implore his clemency, he ordered his eyes to be put out, which proved the cause of that prince's death a few days after, and created Louis a great many enemies. His apprehension of the consequence induced him to shut his brothers up in a monastery; by which means the number of his enemies increased. These two last transactions were afterwards laid to his charge in a judicial manner,138 and his accusers did not fail to tell him that he had violated his oath and the solemn promises which he had made to his father on the day of his coronation.139
After the death of the Empress Hermengarde, by whom he had three children, he married Judith, and had a son by that princess; but soon mixing all the indulgence of an old husband, with all the weakness of an old king, he flung his family into a disorder which was followed by the downfall of the monarchy.
He was continually altering the partitions he had made among his children. And yet these partitions had been confirmed each in their turn by his own oath, and by those of his children and the nobility. This was as if he wanted to try the fidelity of his subjects; it was endeavouring by confusion, scruples, and equivocation, to puzzle their obedience; it was confounding the different rights of those princes, and rendering their titles dubious, especially at a time when there were but few fortresses, and when the principal bulwark of authority was the fealty sworn and accepted.
The Emperor's children, in order to preserve their shares, courted the clergy, and granted them privileges till then unheard. These privileges were specious; and the clergy in return were made to warrant the revolution in favour of those princes. Agobard140 represents to Louis the Debonnaire his having sent Lotharius to Rome, in order to have him declared emperor; and that he had made a division of his dominions among his children, after having consulted heaven by three days fasting and praying. What defence could such a weak prince make against the attack of superstition? It is easy to perceive the shock which the supreme authority must have twice received from his imprisonment, and from his public penance; they would fain degrade the king, and they degraded the regal dignity.
We find difficulty at first in conceiving how a prince who was possessed of several good qualities, who had some knowledge, who had a natural disposition to virtue, and who in short was the son of Charlemagne, could have such a number of enemies.141 so impetuous and implacable as even to insult him in his humiliation and to be determined upon his ruin: and, indeed they would have utterly completed it, if his children, who in the main were more honest than they, had been steady in their design, and could have agreed among themselves.
21. The same Subject continued. The strength and solidity for which the kingdom was indebted to Charlemagne still subsisted under Louis the Debonnaire in such a degree as enabled the state to support its grandeur, and to command respect from foreign nations. The prince's understanding was weak, but the nation was warlike. His authority declined at home, though there seemed to be no diminution of power abroad.
Charles Martel, Pepin, and Charlemagne were in succession rulers of the monarchy. The first flattered the avarice of the soldiers: the other two that of the clergy. Louis the Debonnaire displeased both.
In the French constitution, the whole power of the state was lodged in the hands of the king, the nobility, and clergy. Charles Martel, Pepin, and Charlemagne joined sometimes their interest with one of those parties to check the other and generally with both; but Louis the Debonnaire could gain the affection of neither. He disobliged the bishops by publishing regulations which had the air of severity, because he carried things to a greater length than was agreeable to their inclination. Very good laws may be ill-timed. The bishops in those days, being accustomed to take the field against the Saracens and the Saxons, had very little of the spirit of religion.142 On the other hand, as he had no longer any confidence in the nobility, he promoted mean people,143 turning the nobles out of their employments at court to make room for strangers and upstarts.144 By this means the affections of the two great bodies of the nobility and clergy were alienated from their prince, the consequence of which was a total desertion.
22. The same Subject continued. But what chiefly contributed to weaken the monarchy was the extravagance of this prince in alienating the crown demesnes.145 And here it is that we ought to listen to the account of Nitard, one of our most judicious historians, a grandson of Charlemagne, strongly attached to Louis the Debonnaire and who wrote his history by order of Charles the Bald.
He says, "that one Adelhard for some time gained such an ascendant over the Emperor, that this prince conformed to his will in everything; that at the instigation of this favourite, he had granted the crown lands to everybody that asked them,146 by which means the state was ruined."147 Thus he did the same mischief throughout the empire as I observed he had done in Aquitaine;148 the former Charlemagne redressed, but the latter was past all remedy.
The state was reduced to the same debility in which Charles Martel found it. upon his accession to the mayoralty; and so desperate were its circumstances that no exertion of authority was any longer capable of saving it.
The treasury was so exhausted that in the reign of Charles the Bald, no one could continue in his employments, nor be safe in his person without paying for it.149 When they had it in their power to destroy the Normans, they took money to let them escape:150 and the first advice which Hincmar gives to Louis the Stammerer is to ask of the assembly of the nation a sufficient allowance to defray the expenses of his household.
23. The same Subject continued. The clergy had reason to repent the protection they had granted to the children of Louis the Debonnaire. This prince, as I have already observed, had never given any of the church-lands by precepts to the laity;151 but it was not long before Lotharius in Italy, and Pepin in Aquitaine, quitted Charlemagne's plan, and resumed that of Charles Martel. The clergy had recourse to the Emperor against his children, but they themselves had weakened the authority to which they appealed. In Aquitaine some condescension was shown, but none in Italy.
The civil wars with which the life of Louis the Debonnaire had been embroiled were the seed of those which followed his death. The three brothers, Lotharius, Louis, and Charles, endeavoured each to bring over the nobility to their party and to make them their tools. To such as were willing therefore to follow them they granted church-lands by precepts; so that to gain the nobility, they sacrificed the clergy.
We find in the Capitularies152 that those princes were obliged to yield to the importunity of demands, and that what they would not often have freely granted was extorted from them: we find that the clergy thought themselves more oppressed by the nobility than by the kings, It appears that Charles the Bald153 became the greatest enemy of the patrimony of the clergy, whether he was most incensed against them for having degraded his father on their account, or whether he was the most timorous. Be that as it may, we meet with continual quarrels in the Capitularies,154 between the clergy who demanded their estates, and the nobility who refused or deferred to restore them; and the kings acting as mediators.
The situation of affairs at that time is a spectacle really deserving of pity. While Louis the Debonnaire made immense donations out of his demesnes to the clergy, his children distributed the church-lands among the laity. The same prince with one hand founded new abbeys and despoiled old ones. The clergy had no fixed state; one moment they were plundered, another they received satisfaction; but the crown was continually losing.
Toward the close of the reign of Charles the Bald, and from that time forward, there was an end of the disputes of the clergy and laity concerning the restitution of church-lands. The bishops indeed breathed out still a few sighs in their remonstrances to Charles the Bald, which we find in the Capitulary of the year 856, and in the letter they wrote to Louis, King of Germany, in the year 858,155 but they proposed things, and challenged promises, so often eluded, that we plainly see they had no longer any hopes of obtaining their desire.
All that could be expected then was to repair in general the injuries done both to church and state.156 The kings engaged not to deprive the nobility of their freemen, and not to give away any more church-lands by precepts,157 so that the interests of the clergy and nobility seemed then to be united.
The dreadful depredations of the Normans, as I have already observed, contributed greatly to put an end to those quarrels.
The authority of our kings diminishing every day, both for the reasons already given and those which I shall mention hereafter, they imagined they had no better resource left, than to resign themselves into the hands of the clergy. But the ecclesiastics had weakened the power of the kings, and these had diminished the influence of the ecclesiastics. In vain did Charles the Bald and his successors call in the church to support the state, and to prevent its ruin; in vain did they make use of the. respect which the commonalty had for that body,158 to maintain that which they should also have for their prince;159 in vain did they endeavour to give an authority to their laws by that of the canons; in vain did they join the ecclesiastic with the civil punishments;160 in vain to counterbalance the authority of the count did they give to each bishop the title of their commissary in the several provinces;161 it was impossible to repair the mischief they had done; and a terrible misfortune, which I shall presently mention, proved the ruin of the monarchy.
24. That the Freemen were rendered capable of holding Fiefs. I said that the freemen were led against the enemy by their count, and the vassals by their lord. This was the reason that the several orders of the state balanced each other, and though the king's vassals had other vassals under them, yet they might be overawed by the count, who was at the head of all the freemen of the monarchy.
The freemen were not allowed at first to do homage for a fief; but in process of time this was permitted:162 and I find that this change was made during the period that elapsed from the reign of Gontram to that of Charlemagne. This I prove by the comparison which may be made between the treaty of Andelot,163 by Gontram, Childebert, and Queen Brunehault, and the partition made by Charlemagne among his children, as well as a like partition by Louis the Debonnaire.164 These three acts contain nearly the same regulations with regard to the vassals; and as they determine the very same points, under almost the same circumstances, the spirit as well as the letter of those three treaties in this respect are very much alike.
But as to what concerns the freemen, there is a vital difference. The treaty of Andelot does not say that they might do homage for a fief; whereas we find in the divisions of Charlemagne and Louis the Debonnaire express clauses to empower them to do homage. This shows that a new usage had been introduced after the treaty of Andelot, whereby the freemen had become capable of this great privilege.
This must have happened when Charles Martel, after distributing the church-lands to his soldiers, partly in fief, and partly as allodia, made a kind of revolution in the feudal laws. It is very probable that the nobility who were seized already of fiefs found a greater advantage in receiving the new grants as allodia; and that the freemen thought themselves happy in accepting them as fiefs.
THE PRINCIPAL CAUSE OF THE HUMILIATION OF THE SECOND RACE
25. Changes in the Allodia. Charlemagne in the partition165 mentioned in the preceding chapter ordained that after his death the vassals belonging to each king should be permitted to receive benefices in their own sovereign's dominion, and not in those of another;166 whereas they may keep their allodial estates in any of their dominions.167 But he adds168 that every freeman might, after the death of his lord, do homage in any of three kingdoms he pleased, as well as he that never had been subject to a lord. We find the same regulations in the partition which Louis the Debonnaire made among his children in the year 817.
But though the freeman had done homage for a fief, yet the count's militia was not thereby weakened: the freeman was still obliged to contribute for his allodium, and to get people ready for the service belonging to it, at the proportion of one man to four manors; or else to procure a man that should do the duty of the fief in his stead. And when some abuses had been introduced upon this head, they were redressed, as appears by the constitutions of Charlemagne,169 and by that of Pepin, King of Italy, which explain each other.170
The remark made by historians that the battle of Fontenay was the ruin of the monarchy, is very true; but I beg leave to cast an eye on the unhappy consequences of that day.
Some time after the battle, the three brothers, Lothairius, Louis, and Charles, made a treaty,171 wherein I find some clauses which must have altered the whole political system of the French government.
1. In the declaration172 which Charles made to the people of the part of the treaty relating to them, he says that every freeman might choose whom he pleased for his lord,173 whether the king or any of the nobility. Before this treaty the freeman might do homage for a fief; but his allodium still continued under the immediate power of the king, that is, under the count's jurisdiction; and he depended on the lord to whom he vowed fealty, only on account of the fief which he had obtained. After that treaty every freeman had a right to subject his allodium to the king, or to any other lord, as he thought proper. The question is riot in regard to those who put themselves under the protection of another for a fief, but to such as changed their allodial into a feudal land, and withdrew themselves, as it were, from the civil jurisdiction to enter under the power of the king, or of the lord whom they thought proper to choose.
Thus it was that those who formerly were only under the king's power, as freemen under 'the count, became insensibly vassals one of another, since every freeman might choose whom he pleased for his lord, the king or any of the nobility.
2. If a man changed an estate which he possessed in perpetuity into a fief, this new fief could no longer be only for life. Hence we see, a short time after, a general law for giving the fiefs to the children of the present possessor:174 it was made by Charles the Bald, one of the three contracting princes.
What has been said concerning the liberty every freeman had in the monarchy, after the treaty of the three brothers, of choosing whom he pleased for his lord, the king or any of the nobility, is confirmed by the acts subsequent to that time.
In the reign of Charlemagne,175 when the vassal had received a present of a lord, were it worth only a sou, he could not afterwards quit him. But under Charles the Bald, the vassals might follow what was agreeable to their interests or their inclination with entire safety;176 and so strongly does this prince explain himself on the subject that he seems rather to encourage them in the enjoyment of this liberty than to restrain it. In Charlemagne's time, benefices were rather personal than real; afterwards they became rather real than personal.
26. Changes in the Fiefs. The same changes happened in the fiefs as in the allodia. We find by the Capitulary of Compiègne,177 under King Pepin, that those who had received a benefice from the king gave a part of this benefice to different bondmen; but these parts were not distinct from the whole. The king revoked them when he revoked the whole; and at the death of the king's vassal, the rear-vassal lost also his rear-fief: and a new beneficiary succeeded, who likewise established new rear-vassals. Thus it was the person and not the rear-fief that depended on the fief; on the one hand, the rear-vassal returned to the king because he was not tied for ever to the vassal; and the rear-fief returned also to the king because it was the fief itself and not a dependence of it.
Such was the rear-vassalage, while the fiefs were during pleasure; and such was it also while they were for life. This was altered when the fiefs descended to the next heirs, and the rear-fiefs the same. That which was held before immediately of the king was held now mediately; and the regal power was thrown back, as it were, one degree, sometimes two; and oftentimes more.
We find in the books of fiefs178 that, though the king's vassals might give away in fief, that is, in rear-fief, to the king, yet these rear-vassals, or petty vavasors, could not give also in fief; so that whatever they had given, they might always resume. Besides, a grant of that kind did not descend to the children like the fiefs, because it was not supposed to have been made according to the feudal laws.
If we compare the situation in which the rear-vassalage was at the time when the two Milanese senators wrote those books, with what it was under King Pepin, we shall find that the rear-fiefs preserved their primitive nature longer than the fiefs.179
But when those senators wrote, such general exceptions had been made to this rule as had almost abolished it. For if a person who had received a fief of a rear-vassal happened to follow him upon an expedition to Rome, he was entitled to all the privileges of a vassal.180 In like manner, if he had given money to the rear-vassal to obtain the fief, the latter could not take it from him, nor hinder him from transmitting it to his son, till he returned him his money: in fine, this rule was no longer observed by the senate of Milan.181
27. Another change which happened in the Fiefs. In Charlemagne's time they were obliged,182 under great penalties, to repair to the general meeting in case of any war whatsoever; they admitted of no excuses, and if the count exempted any one, he was liable himself to be punished. But the treaty of the three brothers183 made a restriction upon this head which rescued the nobility, as it were, out of the king's hands; they were no longer obliged to serve him in time of war, except when the war was defensive.184 In others, they were at liberty to follow their lord, or to mind their own business. This treaty relates to another,185 concluded, five years before, between the two brothers, Charles the Bald and Louis, King of Germany, by which these princes release their vassals from serving them in war, in case they should attempt hostilities against each other; an agreement which the two princes confirmed by oath, and at the same time made their armies swear to it.
The death of a hundred thousand French, at the battle of Fontenay, made the remains of the nobility imagine that by the private quarrels of their kings about their respective shares, their whole body would be exterminated, and that the ambition and jealousy of those princes would end in the destruction of all the best families of the kingdom. A law was therefore passed that the nobility should not be obliged to serve their princes in war unless it was to defend the state against a foreign invasion. This law obtained for several ages.186
28. Changes which happened in the great Offices, and in the Fiefs. The many changes introduced into the fiefs in particular cases seemed to spread so widely as to be productive of general corruption. I noticed that in the beginning several fiefs had been alienated in perpetuity; but those were particular cases, and the fiefs in general preserved their nature; so that if the crown lost some fiefs it substituted others in their stead. I observed, likewise, that the crown had never alienated the great offices in perpetuity.187
But Charles the Bald made a general regulation, which equally affected the great offices and the fiefs. He ordained, in his capitularies, that the counties should be given to the children of the count, and that this regulation should also take place in respect to the fiefs.188
We shall see presently that this regulation received a wider extension, insomuch that the great offices and fiefs went even to distant relatives. Thence it followed that most of the lords who before this time had held immediately of the crown, held now mediately. Those counts who formerly administered justice in the king's placita, and who led the freemen against the enemy, found themselves situated between the king and his freemen; and the king's power was removed farther off another degree.
Again, it appears from the capitularies,189 that the counts had benefices annexed to their counties, and vassals under them. When the counties became hereditary, the count's vassals were no longer the immediate vassals of the king; and the benefices annexed to the counties were no longer the king's benefices; the counts grew powerful because the vassals whom they had already under them enabled them to procure others.