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194 COMMENCEMENT OF FEUDALISM. [CH. XXXTIIT.
priated 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 armour, each companion, according to his rank, or merit, or favour, 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.f 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 Franks. J
that answers to this. It was probably an outlying hunting-lodge, for he says (p. 273) that every royal seat had many dependencies and was always situated (p. 254) in the neighbourhood of an extensive forest, where the monarch might pursue the pleasures of the chase. Dagobertshaus might be such an appendage either to the villa at Frankfort on the Maine (p. 293,) or to that at Wasal, Wesel, or St. Goar, (p. 356.) —Ed.] * From a passage of the Burgundian law, (tit. 1,
No. 4, in tom, iv, p. 257,) it is evident, that a deserving son might expect to hold the lauds 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 Abbe" de Mably. His accurate distinction of times gives him a merit to which even Montesquieu is a stranger. J See the Salic law (Tit. 62,
in tom.iv, p. 156.) The origin and nature of these Salic lands, which in times of ignorance were perfectly understood, now perplex our most learned and sagacious critics. [The explanation of the disputed terms, benefices,allodial and salic lands, given by Mr. Hallam (vol. i, p. 144—166,) is the most satisfactory and consonant to the course taken by the new occupants. "A people not very numerous," he says, " spread over the spacious provinces of Gaul, wherever lands were assigned to or seized by them;" and he refers to a passage, in which Du Bos maintains that there were not more than three or four thousand Franks in the army of Clovis. Still every soldier, of whatever tribe, had for his reward a considerable estate; and these allotments to the leudcn or people, were called allodial, to distinguish them from the fiscal lands, appropriated to the king. They were independent freeholds, to which
In the bloody discord and silent decay of the Merovingian line a new order of tyrants arose in the provinces, who, under the appellations of Seniors, or Lords, usurped a right to govern, and a licence 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 neighbour. The common or public rights of nature, such as they had always been deemed by the Roman jurisprudence,t 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 ;J but in an age which admitted a slight composition
the owner had an indefeasible right. But "to secure the military service of every proprietor," females were prohibited from inheriting these lands. Few of the Franks having then families, for whom they were interested, this law was adopted by general consent; but it did not extend to any additional properties, which by any means they subsequently acquired. These were also called allodial, and the original grants, in consequence of the rule of descent to which they were subject, received the name of Salic. The benefices were portions of the fiscal lands, distributed at will by the sovereign, as stated by Gibbon, and were the first commencement of the feudal system. But Mr. Hallam (p. 161) shows them to have been hereditary on certain conditions, and only resumable " when some delinquency could be imputed to the vassal."—Ed.] * Many of the two hundred and six
miracles of St. Martin (Greg. Turon. in Maxima Bibliotheca Patrum, tom. xi, p. 896—932,) were repeatedly performed to punish sacrilege. Audite hsec omnes (exclaims the bishop of Tours) potestatem habentes, after relating how some horses ran mad, that had been turned into a sacred meadow. + Heinec. Element. Jur. Germ. 1.2, p. 1, No. 8.
J Jonas, bishop of Orleans (a.d. 821—826. Cave, Hist. Literaria, p. 443,) censures the legal tyranny of the nobles. Pro feris, quas cura hominum non oluit, sed Deus in commune mortalibus ad utendum concessit, pauperes a potentioribus spoliantur, flagellantur, ergastulia 196
PIESONAL SEEVITUDE. [CH. IIXTIII,
for the life of a citizen, it was a capital crime to destroy a Btag or a wild bull within the precincts of the royal forests.* According to the maxims of ancient war, the conqueror became the lawful master of the enemy whom he had subdued and spared ;f 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 ingenuous aspect were set apart for the domestic service; a doubtful situation, which alternately exposed them to the favourable 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 labour, 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.J An abso
dctruduntur, et multa alia patiuntur. Hoc enim qui faciunt, lege mundi se facere juste posse contendant. De Institutione Laicorum, 1 . 2, c. 23. apud Thomassin, Discipline de l'Eglise, tom, iii, p. 1348.
* On a mere suspicion, Chundo, a chamberlain of Gontran, king of Burgundy, was stoned to death. (Greg. Turon. 1. 10, c. 10, in tom, ii, p. 369.) John of Salisbury (Polycrat. 1. 1, c. 4,) asserts the rights of nature, and exposes the cruel practice of the twelfth century. See Heineccius, Elem. Jur, Germ. 1. 2, p. 1, No. 61—57.
+ 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, 1. 3, c. 7,) as well as his commentator Barbeyrac, have laboured to reconcile it with the laws of nature and reason. X The state, professions, &c.,
of the German, Italian, and Gallic slaves, during the middle ages, are explained by Heineccius, (Element. Jur. Germ. 1. 1, No. 28—47); A.D. 536.] POWEE OF THE LOEDS.
lute power of life and death was exercised by these lords; and when they married their daughters, a train of uselul 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, which was familiarly practised, is expressed in terms most disgraceful and afflicting to the dignity of human nature.f The example of the poor, who purchased life by the sacrifice of all that can render life desirable, was gradually imitated by the feeble and the devout, who, in times of public disorder, pusillanimously crowded to shelter themselves under the battlements of a powerful chief, and around the shrine of a popular saint. Their submission was accepted by these temporal or spiritual patrons; and the hasty transaction irrecoverably fixed their own condition, and that of their latest posterity. From the reign of Clovis, daring five successive centuries, the laws and manners of Gaul uniformly tended to promote the increase, and to confirm the duration, of personal servitude. Time and violence almost obliterated the intermediate ranks of society; and left an obscure and narrow interval between the noble and the slave. This arbitrary and recent division has been transformed by pride and prejudice into a national distinction, universally established by the arms and the laws of the Merovingians. The nobles, who claimed their genuine or fabulous descent from the independent and victorious Franks, have asserted and abused the indefeasible right of conquest over a prostrate crowd of slaves and
Muratori (Dissert. 14, 15); Ducange (Gloss. sub. voce Semi); and the Abbe" de Mably (Observations, tom. ii, p. 3, &c., p. 237, &o.)
* Gregory of Tours (1. 6, c. 45, in tom, ii, p. 289) relates a memorable example, in which Chilperic only abused the private rights of a master. Many families which belonged to his domus fiscales in the neighbourhood of Paris, were forcibly sent away into Spain.
+ Licentiam habeatis mihi qualemcunque volueritis disciplinam ponere: vel venumdare, aut quod voois placuerit de me facere. Marculf. Formul. 1. 2, 28, in tom. iv, p. 497. The Formula of Lindenbrogius (p. 559), and that of Anjou (p. 565), are to the same effect. Gregory of Tours (1. 7, c. 45, in tom. ii, p. 311), speaks of many persons, who sold themselves for bread, in a great famine.
plebeians, to whom they imputed the imaginary disgrace of a Gallic or Roman extraction.
The general state and revolutions of France, a name which was imposed by the conquerors, may be illustrated by the particular example of a province, a diocese, or a senatorial family. Auvergne had formerly maintained a just pre-eminence among the independent states and cities of Gaul. The brave and numerous inhabitants displayed a singular trophy; the sword of Ca3sar himself, which he had lost when he was repulsed before the walls of Gergovia.* As the common offspring of Troy, they claimed a fraternal
imitated the courage and loyalty of Auvergne, the fall of the Western empire might have been prevented or delayed. They firmly maintained the fidelity which they had reluctantly sworn to the Visigoths; but when their bravest nobles had fallen in the battle of Poitiers, they accepted without resistance a victorious and Catholic sovereign. This easy and valuable conquest was achieved and possessed by Theodoric, the eldest son of Clovis: but the remote province was separated from his Austrasian dominions by the intermediate kingdoms of Soissons, Paris, and Orleans, which formed, after their father's death, the inheritance of his three brothers. The king of Paris, Childebert, was tempted by the neighbourhood and beauty of Auvergne.J The Upper country, which rises towards the south into the mountains of the Cevennes, presented a rich and various prospect of woods and pastures; the sides of the hills were clothed with vines, and each eminence was crowned with
* When Csesar saw it, he laughed (Plutarch, in Csesar. in tom, i, p. 409); yet he relates his unsueeessful siege of Gergovia with less frankness than we might expect from a great man to whom victory was familiar. He acknowledges, however, that in one attack he lost forty-six centurions and seven hundred men. (De Bell. Gallico, 1. 6, c. 44—53, in tom, i, p. 270—272.) + Audebant se quondam
fratres Latio dicere, et sanguine ab Iliaco populos compntare. (Sidon. Ajaollinar. 1.7, epist. 7, in tom, i, p. 799.) I am not informed of the de grees and circumstances of this fabulous pedigree.
X Either the first, or second, partition among the sons of Clovis, had given Berry to Childebert. (Greg. Turon. 1. 3, c. 12, in tom, ii, p. 192.) Velim (said he) Arvernam Lemanem, quse tanta jocunditatis gratia refulgere dicitur, oculis cernere. (1. 3, c. 9, p. 191.) The face of the country was concealed by a thick fog, when the king of Paris made
and if each province had