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Part, Two

     State of Ancient Germany - Effects of the Conquest of Gaul by the Franks

- Tenures of Land - Distinction of Laws - Constitution of the Ancient Frank

Monarchy - Gradual Establishment of Feudal Tenures - Principles of a Feudal

Relation - Ceremonies of Homage and Investiture - Military Service - Feudal

Incidents of Relief, Aid, Wardship, etc. - Different Species of Fiefs - Feudal

Law-Books.

     Germany, in the age of Tacitus, was divided among a number of independent

tribes, differing greatly in population and importance.  Their country,

overspread with forests and morasses, afforded no large proportion of arable

land.  Nor did they ever occupy the same land two years in succession, if what

Caesar tells us may be believed, that fresh allotments were annually made by

the magistrates. ^a But this could not have been an absolute abandonment of

land once cultivated, which Horace ascribes to the migratory Scythians.  The

Germans had fixed though not contiguous dwellings; and the inhabitants of the

gau or township must have continued to till the same fields, though it might

be with varying rights of separate property. ^b They had kings elected out of

particular families; and other chiefs, both for war and administration of

justice, whom merit alone recommended to the public choice.  But the power of

each was greatly limited; and the decision of all leading questions, though

subject to the previous deliberation of the chieftains, sprang from the free

voice of a popular assembly. ^c The principal men, however, of a German tribe

fully partook of that estimation which is always the reward of valor and

commonly of birth.  They were surrounded by a cluster of youths, the most

gallant and ambitious of the nation, their pride at home, their protection in

the field; whose ambition was flattered, or gratitude conciliated, by such

presents as a leader of barbarians could confer. These were the institutions

of the people who overthrew the empire of Rome, congenial to the spirit of

infant societies, and such as travellers have found among nations in the same

stage of manners throughout the world.  And although, in the lapse of four

centuries between the ages of Tacitus and Clovis, some change was wrought by

long intercourse with the Romans, yet the foundations of their political

system were unshaken.  If the Salic laws were in the main drawn up before the

occupation of Gaul by the Franks, as seems the better opinion, it is manifest

that lands were held by them in determinate several possession; and in other

respects it is impossible that the manners described by Tacitus should not

have undergone some alteration. ^d

[Footnote a: Magistratus ac principes in annos singulos gentibus

cognationibusque hominum, qui una coierunt, quantum iis, et quo loco visum

est, attribuunt agri, atque anno post alio transire cogunt.  Caesar, 1. vi.

Tacitus confirms this: Arva per annos mutant.  De Mor. Germ. c. 26.]

[Footnote b: Caesar has not written, probably, with accurate knowledge, when

he says, Vita omnis in venationibus et studiis rei militaris consistit. . . .

. . Agriculturae non student, nec quisquam agri modum certum aut fines

proprios habet.  De Bello Gallico, 1. vi.  These expressions may be taken so

as not to contradict Tacitus.  But Luden, who had examined the ancient history

of his country with the most persevering diligence, observes that Caesar knew

nothing of the Germans, except what he had collected concerning the Suevi or

the Marcomanni.  Geschichte der Deutschen Volkes, I. 481.]

[Footnote c: De minoribus rebus principes consultant, de majoribus omnes; ita

tamen, ut ea quoque, quorum penes plebem arbitrium est, apud principes

pertractentur.  Tac. de Mor. Germ. c. xi.  Acidalius and Grotius contend for

pratractentur: which would be neater, but the same sense appears to be

conveyed by the common reading.]

[Footnote d: [Note I.]]

     When these tribes from Germany and the neighboring countries poured down

upon the empire, and began to form permanent settlements, they made a

partition of the lands in the conquered provinces between themselves and the

original possessors.  The Burgundians and Visigoths took two-thirds of their

respective conquests, leaving the remainder to the Roman proprietor. Each

Burgundian was quartered, under the gentle name of guest, upon one of the

former tenants, whose reluctant hospitality confined him to the smaller

portion of his estate. ^e The Vandals in Africa, a more furious race of

plunderers, seized all the best lands. ^f The Lombards of Italy took a third

part of the produce.  We cannot discover any mention of a similar arrangement

in the laws or history of the Franks.  It is, however, clear that they

occupied, by public allotment of individual pillage, a great portion of the

lands of France. ^g

[Footnote e: Leg. Burgund. c. 54, 55.  Sir F. Palgrave has produced a passage

from the Theodosian code, vii. 8, 5; which illustrates this use of the word

hospes.  It was given to the military quartered upon the inhabitants anywhere

in the empire, and thus transferred by analogy to the barbarian occupants.  It

was needless, I should think, for him to prove that these acquisitions,

"better considered as allodial laws," did not contain the germ of feudality.

"There is no Gothic feudality unless the parties be connected by the mutual

bond of vassalage and seigniory." Eng. Commonw. i. 500.]

[Footnote f: Procopius de Bello Vandal, l. i. c. 5.]

[Footnote g: [Note II.]]

     The estates possessed by the Franks as their property were termed

allodial; a word which is sometimes restricted to such as had descended by

inheritance. ^h These were subject to no burden except that of public defence.

They passed to all the children equally, or, in their failure, to the nearest

kindred. ^i But of these allodial possessions there was a particular species,

denominated Salic, from which females were expressly excluded.  What these

lands were, and what was the cause of the exclusion, has been much disputed.

No solution seems more probable than that the ancient lawgivers of the Salian

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 equally bound to the

public defence, were relieved from the severity of this rule, and presumed not

to belong to the class of Salic. ^j Hence, in the Ripuary law, the code of a

tribe of Franks settled upon the banks of the Rhine, and differing rather in

words than in substance from the Salic law, which it serves to illustrate, it

is said that a woman cannot inherit her grandfather's estate (haereditas

aviatica), distinguishing such family property from what the father might have

acquired. ^k And Marculfus uses expressions to the same effect. There existed,

however, a right of setting aside the law, and admitting females to succession

by testament.  It is rather probable, from some passages in the Burgundian

code, that even the lands of partition (sortes Burgundionum) were not

restricted to male heirs. ^l And the Visigoths admitted women on equal terms

to the whole inheritance. ^m

[Footnote h: Allodial lands are commonly opposed to beneficiary or feudal, the

former being strictly proprietary, while the latter depended upon a superior.

In this sense the word is of continual recurrence in ancient histories, laws,

and instruments.  It sometimes, however, bears the sense of inheritance, and

this seems to be its meaning in the famous 62d chapter of the Salic law; de

Alodis.  Alodium interdum opponitur comparato, says Du Cange, in formulis

veteribus.  Hence, in the charters of the eleventh century, hereditary fiefs

are frequently termed alodia.  Recueil des Historiens de France, t. xi.

preface, Vaissette, Hist. de Languedoc, t. ii. p. 109.

     Alodium has by many been derived from All and odh, property.  (Du Cange,

et alii.) But M. Guizot, with some positiveness, brings it from loos, lot;

thus confining the word to lands acquired by lot on the conquest.  But in the

first place this assumes a regular partition to have been made by the Franks,

which he, in another place, as has been seen, does not acknowledge; and

secondly, Alodium, or, in its earlier form, Alodis, is used for all hereditary

lands.  (See Grimm, Deutsche Rechts Alterthumer, p. 492.) In the Orkneys,

where feudal tenures were not introduced, the allodial proprietor is called an

udaller, thus lending probability to the former derivation of alod; since it

is only an inversion of the words all and odh; but it seems also to

corroborate the notion of Luden, as it had been of Leibnitz, that the word

adel or ethel, applied to designate the nobler class of Germans, had

originally the same sense; it distinguished absolute or allodial property from

that which, though belonging to freemen, was subject to some conditions of

dependency. (Gesch. des Deutschen Volkes, vol. i. p. 719.)

     The word sors, which seems to have misled several writers, when applied

to land means only an integral patrimony, as it means capital opposed to

interest when applied to money.  It is common in the civil law, but it had

been peculiarly applied to the lands assigned by the Romans to the soldiery

after a conquest, which some suppose, I know not on what evidence, to have

been by lot.  (Du Cange, voc. Sors.) And hence this term was most probably

adopted by the barbarians, or rather those who rendered their laws into Latin.

If the Teutonic word loos was sometimes used for a mansus or manor, as M.

Guizot informs us, it seems most probable that this was a literal translation

of sors, bearing with it the secondary sense.]

[Footnote i: Leg. Salicae, c. 62.]

[Footnote j: By the German customs, women, though treated with much respect

and delicacy, were not endowed at their marriage.  Dotem non uxor marito, sed

maritus uxori confert.  Tacitus, c. 18.  A similar principle might debar them

of inheritance in fixed possessions.  Certain it is that the exclusion of

females was not unfrequent among the Teutonic nations. We find it in the laws

of the Thuringians and of the Saxons; both ancient codes, though not free from

interpolation.  Leibnitz, Scriptores Rerum Brunswicensium, t. i. pp. 81 and

83.  But this usage was repugnant to the principles of Roman law, which the

Franks found prevailing in their new country, and to the natural feeling which

leads a man to prefer his own descendants to collateral heirs.  One of the

precedents in Marculfus (l. ii. form. 12) calls the exclusion of females,

diuturna et impia consuetudo.  In another a father addresses his daughter:

Omnibus non habetur incognitum, quod, sicut lex Salica continet, de rebus

meis, quod mihi ex alode parentum meorum obvenit, apud germanos tuos filios

meos minime in haereditate succedere poteras.  Formulae Marculfo adjectae, 49.

These precedents are supposed to have been compiled about the latter end of

the seventh century.

     The opinion expressed in the text, that the terra Salica, which females

could not inherit, was the land acquired by the barbarians on their first

conquest, is confirmed by Sismondi (i. 196) and by Guizot (Essais sur l'Hist.

de France, p. 94).  M. Guerard, however, the learned editor of the chartulary

of Chartres (Documens Inedits, 1840, p. 22), is persuaded that Salic land was

that of the domain, from sala, the hall or principal residence, as opposed to

the portion of the estate which was occupied by tenants, beneficiary or

servile.  This, he says, he has proved in another work, which I have not seen.

Till I have done so, much doubt remains to me as to this explanation.

Montesquieu had already started the same theory, which Guizot justly, as it

seems, calls "incomplete et hypothetique." Besides other objections, it seems

not to explain the manifest identity between the terra Salica and the

haereditas aviatica of the Ripuarian law, or the alodis parentum of Marculfus.

I ought, however, to mention a remark of Grimm, that, throughout the Frank

domination, German countries made use of the words terra Salica.  In them it

could not mean lands of partition or assignment, but mere alodia.  And he

thinks that it may, in most cases, be interpreted of the terra dominicalis.

(Deutsche Rechts Alterthumer, p. 493.)

     M. Fauriel maintains (Hist. de la Gaule Meridion. ii. 18) that the Salic

lands were beneficiary, as opposed to the allodial.  But the "haereditas

aviatica" is repugnant to this.  Marculfus distinctly opposes alodia to

comparata, and limits the exclusion of daughters to the former. According to

one of the most recent inquirers, "terra Salica" was all the land held by a

Salian Frank (Lehuerou i. 86).  But the same objections apply to this

solution; in addition to which it may be said that the whole Salic law relates

to that people, while "terra Salica" is plainly descriptive of a peculiar

character of lands.]

[Footnote k: C. 56.]

[Footnote l: I had in former editions asserted the contrary of this, on the

authority of Leg. Burgund. c. 78, which seemed to limit the succession of

estates, called sortes, to male heirs.  But the expressions are too obscure to

warrant this inference; and M. Guizot (Essais sur l'Hist. de France, vol. i.

p. 95) refers to the 14th chapter of the same code for the opposite

proposition.  But this, too, is not absolutely clear, as a general rule.]

[Footnote m: [Note III.]]

     A controversy has been maintained in France as to the condition of the

Romans, or rather the provincial inhabitants of Gaul, after the invasion of

Clovis.  But neither those who have considered the Franks as barbarian

conquerors, enslaving the former possessors, nor the Abbe Dubos, in whose

theory they appear as allies and friendly inmates, are warranted by historical

facts, though more approximation to the truth may be found in the latter

hypothesis.  On the one hand, we find the Romans not only possessed of

property, and governed by their own laws, but admitted to the royal favor and

the highest offices; ^n while the bishop and clergy, who were generally of

that nation, ^o grew up continually in popular estimation, in riches, and in

temporal sway.  Yet it is undeniable that a marked line was drawn at the

outset between the conquerors and the conquered.  Though one class of Romans

retained estates of their own, yet there was another, called tributary, who

seem to have cultivated those of the Franks, and were scarcely raised above

the condition of predial servitude.  But no distinction can be more

unequivocal than that which was established between the two nations, in the

weregild, or composition for homicide.  Capital punishment for murder was

contrary to the spirit of the Franks, who, like most barbarous nations, would

have thought the loss of one citizen ill-repaired by that of another.  The

weregild was paid to the relations of the slain, according to a legal rate.

This was fixed by the Salic law at six hundred solidi for an Antrustion of the

king; at three hundred for a Roman conviva regis (meaning a man of sufficient

rank to be admitted to the royal table); ^p at two hundred for a common Frank;

at one hundred for a Roman possessor of lands; and at forty-five for a

tributary, or cultivator of another's property.  In Burgundy, where religion

and length of settlement had introduced different ideas, murder was punished

with death.  But other personal injuries were compensated, as among the

Franks, by a fine, graduated according to the rank and nation of the aggrieved

party. ^q

[Footnote n: Daniel conjectures that Clotaire I. was the first who admitted

Romans into the army, which had previously been composed of Franks.  From this

time we find many in high military command.  (Hist. de la Milice Francoise, t.

i. p. 11.) It seems by a passage in Gregory of Tours, quoted by Dubos (t. iii.

p. 547), that some Romans affected the barbarian character by letting their

hair grow.  If this were generally permitted, it would be a stronger evidence

of approximation between the two races than any that Dubos has adduced.

Montesquieu certainly takes it for granted that a Roman might change his law,

and thus become to all material intents a Frank.  (Esprit des Loix, l. xxviii.

c. 4.) But the passage on which he relies is read differently in the

manuscripts.  [Note IV.]]

[Footnote o: The barbarians by degrees got hold of bishoprics.  In a list of

thirty-four bishops or priests, present at a council in 506, M. Fauriel (iii.

459), the names are all Roman or Greek.  This was at Agde, in the dominion of

the Visigoths.  In 511 a council at Orleans exhibits one German name.  But at

the fifth council of Paris, in 577, where forty-five bishops attended, the

Romans are indeed much the more numerous, but mingled with barbaric names, six

of whom M. Thierry mentions.  (Recits des Temps Merovingiens, vol. ii. p.

183.) In 585, at Macon, out of sixty-three names but six are German.  Fauriel

asserts that, in a diploma of Clovis II. dated 653, there are but five Roman

names out of forty-five witnesses; and hence he infers that, by this time, the

Franks had seized on the Church as their spoil, filling it with barbarian

prelates.  But on reference to Rec. des Hist. (iv. 636), I find but four of

the witnesses to this instrument qualified as episcopus: and of these two have

Roman names. The majority may have been laymen for any evidence which the

diploma presents.  In one, however, of Clovis III., dated 693 (id. p. 672), I

find, among twelve bishops only three names which appear Roman.  We cannot

always judge by the modernization of a proper name.  St. Leger sounds well

enough; but in his Life we find a "Beatus Leodegarius ex progenie celsa

Francorum ac nobilissima exortus." Greek names are exceedingly common among

the bishops; but these cannot mislead an attentive reader.

     This inroad of Franks into the Church probably accelerated the utter

prostration of intellectual power, at least in its literary manifestation,

which throws so dark a shade over the seventh century.  And it still more

unquestionably tended to the secular, the irregular, the warlike character of

the higher clergy in France and Germany for many following centuries. Some of

these bishops, according to Gregory of Tours, were profligate barbarians.]

[Footnote p: This phrase was borrowed from the Romans.  The Theodosian code

speaks of those qui divinis epulis adhibentur, et adorandi principes

facultatem antiquitus meruerunt.  Garnier, Origine du Gouvernement Francais

(in Leber's Collection des Meilleures Dissertations relatives a l'Histoire de

France, 1838, vol. v. p. 187).  This memoir by Garnier, which obtained a prize

from the Academy of Inscriptions in 1761, is a learned disquisition on the

relation between the Frank monarchy and the usages of the Roman empire;

inclining considerably to the school of Dubos. I only read it in 1851: it puts

some things in a just light; yet the impression which it leaves is that of

one-sidedness.  The author does not account for the continued distinction

between the Franks and Romans, testified by the language of history and of

law.  Garnier never once alludes to the most striking circumstance, the

inequality of composition for homicide.

     To return to the words conviva regis, it seems not probable that they

should be limited to those who actually had feasted at the royal table; they

naturally include the senatorial families, one of whom would receive that

honor if he should present himself at court.]

[Footnote q: Leges Salicae, c. 43; Leges Burgundionum, tit. 2.  Murder and

robbery were made capital by Childebert, King of Paris; but Francus was to be

sent for trial in the royal court, debilior persona in loco pendatur. Baluz,

t. i. p. 17.  I am inclined to think that the word Francus does not absolutely

refer to the nation of the party, but rather to his rank, as opposed to

debilior persona; and consequently, that it had already acquired the sense of

freeman or freeborn (ingenuus), which is perhaps its strict meaning.  Du

Cange, voc. Francus. quotes the passage in this sense. [Note IV.]]

     The barbarous conquerors of Gaul and Italy were guided by notions very

different from those of Rome, who had imposed her own laws upon all the

subjects of her empire.  Adhering in general to their ancient customs, without

desire of improvement, they left the former inhabitants in unmolested

enjoyment of their civil institutions.  The Frank was judged by the Salic or

the Ripuary code; the Gaul followed that of Theodosius. ^r This grand

distinction of Roman and barbarian, according to the law which each followed,

was common to the Frank, Burgundian, and Lombard kingdoms. But the Ostrogoths,

whose settlement in the empire and advance in civility of manners were

earlier, inclined to desert their old usages, and adopt the Roman

jurisprudence. ^s The laws of the Visigoths, too, were compiled by bishops

upon a Roman foundation, and designed as an uniform code, by which both

nations should be governed. ^t The name of Gaul or Roman was not entirely lost

in that of Frenchman, nor had the separation of their laws ceased, even in the

provinces north of the Loire, till after the time of Charlemagne. ^u

Ultimately, however, the feudal customs of succession, which depended upon

principles quite remote from those of the civil law, and the rights of

territorial justice which the barons came to possess, contributed to extirpate

the Roman jurisprudence in that part of France. But in the south, from

whatever cause, it survived the revolutions of the middle ages; and thus arose

a leading division of that kingdom into pays coutumiers and pays du droit

ecrit; the former regulated by a vast variety of ancient usages, the latter by

the civil law. ^v

[Footnote r: Inter Romanos negotia causarum Romanis Legibus praecipimus

terminari.  Edict.  Clotair.  I. circ. 560.  Baluz.  Capitul. t. i. p. 7.]

[Footnote s: Giannone, l. iii. c. 2.]

[Footnote t: Hist. de Languedoc, t. i. p. 242.  Heineccius, Hist. Juris

German.  c. i. s. 15.]

[Footnote u: Suger, in his Life of Louis VI., uses the expression, lex Salica

(Recueil des Historiens, t. xii. p. 24); and I have some recollection of

having met with the like words in other writings of as modern a date.  But I

am not convinced that the original Salic code was meant by this phrase, which

may have been applied to the local feudal customs.  The capitularies of

Charlemagne are frequently termed lex Salica.  Many of these are copied from

the Theodosian code.]

[Footnote v: This division is very ancient, being found in the edict of

Pistes, under Charles the Bald, in 864; where we read, in illis regionibus,

quae legem Romanam sequuntur.  (Recueil des Historiens, t. vii. p. 664.)

Montesquieu thinks that the Roman law fell into disuse in the north of France

on account of the superior advantages, particularly in point of composition

for offences, annexed to the Salic law; while that of the Visigoths being more

equal, the Romans under their government had no inducement to quit their own

code.  (Esprit des Loix, l. xxviii. c. 4.) But it does not appear that the

Visigoths had any peculiar code of laws till after their expulsion from the

kingdom of Toulouse.  They then retained only a small strip of territory in

France, about Narbonne and Montpellier.

     However, the distinction of men according to their laws was preserved for

many centuries, both in France and Italy.  A judicial proceeding of the year

918, published by the historians of Languedoc (t. ii. Appendix, p. 56), proves

that the Roman, Gothic, and Salic codes were then kept perfectly separate, and

that there were distinct judges for the three nations.  The Gothic law is

referred to as an existing authority in a charter of 1070.  Idem, t. iii. p.

274; De Marca, Marca Hispanica, p. 1159.  Women in Italy upon marriage usually

changed their law and adopted that of their husband, returning to their own in

widowhood; but to this there are exceptions.  Charters are found as late as

the twelfth century with the expression, qui professus sum lege Longobardica

[aut] lege Salica [aut] lege Alemannorum vivere.  But soon afterwards the

distinctions were entirely lost, partly through the prevalence of the Roman

law, and partly through the multitude of local statutes in the Italian cities.

Muratori, Antiquitates Italiae Dissertat.  22; Du Cange, v. Lex. Heineccius,

Historia Juris Germanici, c. ii. s. 51.  [Note V.]]

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