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jurisprudence was imposed on the provincials of Gaul, who complained of any injuries in their persons and property. Whatever might be the strength, or courage, of individuals. the victorious-Barbarians excelled in the love and exercise of arms; and the vanquished Roman was unjustly summoned to repeat, in his own person, the bloody contest which had been already decided against his country.” A devouring host of one hundred and twenty thousand Germans had formerly passed the Rhine under the command of Ariovistus. One third part of the fertile lands of the Sequani was appropriated to their use; and the conqueror soon repeated his oppressive demand of another third, for the accommodation of a new colony of twenty-four thousand Barbarians, whom he had invited to share the rich harvest of Gaul.” At the distance of five hundred years, the Visigoths and Burgundians, who revenged the defeat of Ariovistus, usurped the same unequal proportion of two-thirds of the subject lands. But this distribution, instead of spreading over the province, may be reasonably confined to the peculiar districts where the victorious people had been olanted by their own choice, or by the policy of their leader. n these districts, each Barbarian was connected by the ties of hospitality with some Roman provincial. To this unwelcome guest, the proprietor was compelled to abandon twothirds of his patrimony; but the German, a shepherd and a hunter, might sometimes content himself with a spacious range of wood and pasture, and resign the smallest, though most valuable, portion, to the toil of the industrious husbandman.” The silence of ancient and authentic testimony has encouraged an opinion, that the rapine of the Franks was not moderated, or disguised, by the forms of a legal division; that they dispersed themselves over the provinces of Gaul, without order or control; and that each victorious robber, according to his wants, his avarice, and his strength, measured with his sword the extent of his new inheritance. At a distance from their sovereign, the Barbarians might indeed be tempted to exercise such arbitrary depredation; but the firm and artful policy of Clovis must curb a licentious spirit, which would aggravate the misery of the vanquished, whilst it corrupted the union and discipline of the conquerors." The memorable vase of Soissons is a monument and a pledge of the regular distribution of the Gallic spoils. It was the duty and the interest of Clovis to provide rewards for a successful army, and settlements for a numerous people; without inflicting any wanton or superfluous injuries on the loyal Catholics of Gaul. The ample fund, which he might lawfully acquire, of the Imperial patrimony, vacant lands, and Gothic usurpations, would diminish the cruel necessity of seizure and confiscation, and the humble provincials would more patiently acquiesce in the equal and regular distribution of their loss.” The wealth of the Merovingian princes consisted in their extensive domain. After the conquest of Gaul, they still delighted in the rustic simplicity of their ancestors; the cities were abandoned to solitude and decay; and their coins, their charters, and their synods, are still inscribed with the names of the villas, or rural palaces, in which they successively resided. One hundred and sixty of these palaces, a title which need not excite any unreasonable ideas of art or luxury, were scattered through the provinces of their kingdom; and if some might claim the honors of a fortress, the far greater part could be esteemed only in the st It is singular enough that the president de Montesquieu (Esprit des Loix, l. xxx. c. 7) and the Abbé de Mably (Observations, tom. i. pp. 21, 22) agree in this strange supposition of arbitrary and private rapine. The Count de Boulainvil. light of profitable farms. The mansion of the long-haired kings was surrounded with convenient yards and stables, for the cattle and the poultry; the garden was planted with useful vegetables; the various trades, the labors of agriculture, and even the arts of hunting and fishing, were exercised by servile hands for the emolument of the sovereign; his magazines were filled with corn and wine, either for sale. or consumption; and the whole administration was conducted by the strictest maxims of private economy.” This ample patrimony was appropriated to supply the hospitable plenty of Clovis and his successors; and to reward the fidelity of their brave companions, who, both in peace and war, were devoted to their personal service. Instead of a horse, or a suit of armor, each companion, according to his rank, or merit, or favor, was invested with a benefice, the primitive name, and most simple form, of the feudal possessions. These gifts might be resumed at the pleasure of the sovereign ; and his feeble prerogative derived some support from the influence of his liberality.” But this dependent tenure was gradually abolished " by the independent and rapacious nobles of France, who established the perpetual property, and hereditary succession, of their benefices; a revolution salutary to the earth, which had been injured, or neglected, by its precarious masters.” Besides these royal and beneficiary estates, a large proportion had been assigned, in the division of Gaul, of allodial and Salic lands; they were exempt from tribute, and the Salic lands were equally shared among the male descendants of the In the bloody discord and silent decay of the Merovin. gian line, a new order of tyrants arose in the provinces, who, under the appellation of Seniors, or Lords, usurped a right to govern, and a license to oppress, the subjects of their peculiar territory. Their ambition might be checked by the hostile resistance of an equal: but the laws were extinguished; and the sacrilegious Barbarians, who dared to provoke the vengeance of a saint or bishop,” would seldom respect the landmarks of a profane and defenceless neighbor. The common or public rights of nature, such as they had always been deemed by the Roman jurisprudence,” were severely restrained by the German conquerors, whose amusement, or rather passion, was the exercise of hunting. The vague dominion which MAN has assumed over the wild inhabitants of the earth, the air, and the waters, was confined to some fortunate individuals of the human species. Gaul was again overspread with woods; and the animals, who were reserved for the use or pleasure of the lord, might ravage with impunity the fields of his industrious vassals. The chase was the sacred privilege of the nobles and their domestic servants. Plebeian transgressors were legally chastised with stripes and imprisonment;” but in an age which admitted a slight composition for the life of a citizen, it was a capital crime to destroy a stag or a wild bull within the precincts of the royal forests.”
* Montesquieu (Esprit des Loix, xxviii. c. 14), who understands why the judi. cial combat was admitted by the Burgundians, Ripuarians, Alemanni, #. Lombards, Thuringians, Frisons, and Saxons, is satisfied (and Agobard seems to countenance the assertion) that it was not allowed by the Salić law. Yet the same custom, at least in case of treason, is mentioned by Ermoldus, Nigellus (l. iii. 543, in tom. vi. p. 48), and the anonymous biographer of Lewis the Pious & 46, in tom. vi. p. 112), as the “mos antiquus Francorum, more Francis solito,”
c., expressions too general to exclude the noblest of their tribes.
85 Caesar de Bell. Gall. l. i. c. 31, in tom. i. p. 213.
86 The obscure hints of a division of lands occasionally scattered in the laws of the Burgundians (tit. liv. No. 1, 2, 1n tom. iv. pp. 271. 272), and Visigoths (1.x. tit.1. No. 8, 9, 16, in tom. iv. pp. 428,42), 430), are skilfully explained by the pres ident Montesquieu (Esprit des Loix, l. xxx. c. 7, 8, 9). I shall, only add, that, among the Goths, the division seems to have been ascertained by the Judgment of the neighborhood; that the Barbarians frequently usurped the remaining third, and that the Romans might recover their right, unless they were barred by a prescription of fifty years.
fiers (État'de la France, tom. 1. pp. 22, 23) shows a strong understanding through a cloud of ignorance and prejudice.f
* Sismondi (Hist, des Français, vol. i. p. 197) observes, that the Franks were not a conquering people, who had emigrated with their families, like the Goths or Burgundians. The women, the children, the old; had not followed Cloyis they remained in their ancient possessions on the Waal, and the Rhine. 'I he adventurers alone had formed the invading force, and they always considered themselves as an army, not as a colony, Hence their laws retained no troo of the partition of the Roman properties. It is curious to observe the recoil from the national vanity of the French historians of the last century. , M. Sismondi compares the position of the Franks with regard to the conquered people with that of the Dey of Algiers and his corsair troops to the peaceful inhabitants Cf that province". M. Thierry (Lettres sur l’Histoire de France, p. 117) with that of the Turks towards the Raias or Phanariotes, the mass of the Greeks.--M.
+ Sismondi supposes that the Barbarians, if a farm were conveniently situated, would show no great respect for the laws of property; but in general there would have been vacan, land enough for the lots assigned to old worn-out warriors (Hist. des Français, vol. i. p. 196).-M.
* See the rustic edict, or rather code, of Charlemagne, which contains seventy distinct and minute regulations of that great monarch (in tom. v. pp. 652–657). He requires an account of the horns and skins of the goats, allows his fish to be Sold, and carefully directs, that the larger villas (Capitaneae) shall maintain one hundred hens and thirty geese; and the smaller (Mansionales) fifty hens and twelve geese., Mabillon (de Re Diplomatică) has investigated the names, the number, and the situation of the Merovingian villas. -* From a passage of the Burgundian law (tit. i. No. 4, in tom. iv. p. 257) it is evident, that a deserving son might expect to hold the lands which his father had received from the royal bounty of Gundobald. The Burgundians would firmly maintain their privilege, and their example might encourage the Beneficiaries of France. * The revolutions of the benefices and fiefs are clearly fixed by the Abbé de Mably. His accurate distinction of times gives him a merit to which even Montesquieu is a stranger. * See the Salic law (tit. lxii. in tom. iv. p. 156). The origin and nature of
* The resumption of benefices at the pleasure of the sovereign (the general theory slown to his time), is ably contested by Mr. Hallam, “for this resumption some delinquency must be imputed to the vassal.” Middle Ages, vol. i. p. 162. The reader will be interested by the singular analogies with the beneficial and . felidal system of Europe in a remote part of the world, indicated by Col. Todin bis splendid work on Raja'sthan, vol. i. c. i. p. 129, &c.–M.
these Salic lands, which, in times of ignorance, were perfectly understood, now perplex our most learned and sagacious critics.” * Many of the two hundred and six miracles of St. Martin (Greg. Turon. in Maximá Bibliotheca Patrum, tom. xi. pp. 896–932) were repeatedly performed to }. sacrilege. Audite hac omnes (exclaims the '..." of Tours) protestatem abentes, after relating, how some horses ran mad, that had been turned into a Sacred meadow. 93 Heinec. Element. Jur. German. 1. ii. p. 1, No. 8. 94 Jonas, bishop of Orleans (A. D. 821-826. Cave, Hist. Litteraria, p. 443) censures the legal tyranny of the nobles, Pro foris, quas cura hominum mon aluit, sed Deus in commone mortalibus ad utendum concessit, pauperes a potentiorious spoliantur, flagellant ur ergastulis detruduntur, et multa alia patiumtur. Hoc enim qui faciunt, lege mundi se facere juste posse contendant. De Institutione Laicorum, l. ii. c. 23, apud Thomassin, Discipline de l'Eglise, tom. iii. p. 1348. 95 On a mere suspicion, Chundo, a chamberlain of Gontram, king of Burgundy, was stoned to death (Greg. Turon. 1, x. c. 10, in tom. ii. p. 369). John of Salisbury (Policrat. l. i. c. 4) asserts the rights of nature, and exposes the cruel practice of the twelfth century. See Heineccius, Elem. Jur. Germ. l. ii. p. 1, No. 51-57
* No solution seems more probable, than that the ancient lawgivers of the Salic Franks prohibited females from inheriting the lands assigned to the nation, upon its conquest of Gaul, both in compliance with their ancient usages, and in order to secure the military service of every proprietor. But lands subsequently acquired by purchase or other means, though fo bound to the public defence, were relieved from the severity of this rule, and presumed not to belong to *: ‘. oSalic. Hallam's Middle Ages, vol. i. p. 145. Compare Sismondi, vol.
p. 196.-Ml. - - -
According to the maxims of ancient war, the conqueror became the lawful master of the enemy whom he had subdued and spared : " and the fruitful cause of personal slavery, which had been almost suppressed by the peaceful sovereignty of Rome, was again revived and multiplied by the perpetual hostilities of the independent Barbarians. The Goth, the Burgundian, or the Frank, who returned from a successful expedition, dragged after him a long train of sheep, of oxen, and of human captives, whom he treated with the same brutal contempt. The youths of an elegant form and an ingenuous aspect were set apart for the domestic service; a doubtful situation, , which alternately exposed them to the favorable or cruel impulse of passion. The useful mechanics and servants (smiths, carpenters, tailors, shoemakers, cooks, gardeners, dyers, and workmen in gold and silver, &c.) employed their skill for the use, or profit, of their master. But the Roman captives, who were destitute of art, but capable of labor, were condemned, without regard to their former rank, to tend the cattle and cultivate the lands of the Barbarians. The number of the hereditary bondsmen, who were attached to the Gallic estates, was continually increased by new supplies; and the servile people, according to the situation and temper of their lords, was sometimes raised by precarious indulgence, and more frequently depressed by capricious despotism.” An absolute power of life and death was exercised by these lords; and when they married their daughters, a train of useful servants, chained on the wagons to prevent their escape, was sent as a nuptial present into a distant country.” The majesty of the Roman laws protected the liberty of each citizen against the rash effects of his own distress or despair. . But the subjects of the Merovingian kings might alienate their personal freedom; and this act of legal suicide, * The custom of enslaving prisoners of war was totally extinguished in the thirteenth century, by the prevailing influence of Christianity; but it might be proved, from frequent passages of Gregory of Tours, &c., that it was practised,
without censure, under the Merovingian race; and even Grotius himself (de Jure Belli et Pacis, l. iii. c. 7), as well as his commentator Barbeyrac, have labored to reconcile it with the laws of nature an i reason. 97 The state, professions, &c., of the German, Italian, and Gallic slave, during the middle ages, are explained by Heineccius (Element Jur. Germ. l. i. No. 2847), Muratori (Dissertat. xiv. xv.), Ducange (Gloss, sub voce Servi) and the Abbé de Mably (Observations, tom. ii. p. 3, &c., p. 237, &c.).” * Gregory of Tours (1. vi. c. 45, in tom. ii. p. 28.9) relates a memorable example, in which Chilpelic only abused the private rights of a master. Many families,
which belonged to his domus fiscales in the neighborhood of Paris, were forcibly sent away into Spain.
* Compare Hallam, vol. i. p. 216.-M.