Book XXX. Theory of the Feudal Laws among the Franks in the Relation They Bear to the Establishment of the Monarchy

　　1. Of Feudal Laws. I should think my work imperfect were I to pass over in silence an event which never again, perhaps, will happen; were I not to speak of those laws which suddenly appeared over all Europe without being connected with any of the former institutions; of those laws which have done infinite good and infinite mischief; which have suffered rights to remain when the demesne has been ceded; which by vesting several with different kinds of seignory over the same things or persons have diminished the weight of the whole seignory; which have established different limits in empires of too great extent; which have been productive of rule with a bias to anarchy, and of anarchy with a tendency to order and harmony.

　　This would require a particular work to itself; but considering the nature of the present undertaking, the reader will here meet rather with a general survey than with a complete treatise of those laws.

　　The feudal laws form a very beautiful prospect. A venerable old oak raises its lofty head to the skies, the eye sees from afar its spreading leaves; upon drawing nearer, it perceives the trunk but does not discern the root; the ground must be dug up to discover it.1

　　2. Of the Source of Feudal Laws. The conquerors of the Roman empire came from Germany. Though few ancient authors have described their manners, yet we have two of very great weight. C?sar making war against the Germans describes the manners of that nation;2 and upon these he regulated some of his enterprises.3 A few pages of C?sar upon this subject are equal to whole volumes.

　　Tacitus has written an entire work on the manners of the Germans. This work is short, but it , comes from the pen of Tacitus, who was always concise, because he saw everything at one glance.

　　These two authors agree so perfectly with the codes still extant of the laws of the Barbarians, that reading C?sar and Tacitus we imagine we are perusing these codes, and perusing these codes we fancy we are reading C?sar and Tacitus.

　　But if in this research into the feudal laws I should find myself entangled and lost in a dark labyrinth, I fancy I have the clue in my hand, and that I shall be able to find my way through.

　　3. The Origin of Vassalage. C?sar says4 that, "The Germans neglected agriculture; that the greatest part of them lived upon milk, cheese and flesh; that no one had lands or boundaries of his own; that the princes and magistrates of each nation allotted what portion of land they pleased to individuals, and obliged them the year following to remove to some other part." Tacitus says5 that, "Each prince had a multitude of men, who were attached to his service, and followed him wherever he went." This author gives them a name in his language in accordance with their state, which is that of companions.6 They had a strong emulation to obtain the prince's esteem; and the princes had the same emulation to distinguish themselves in the bravery and number of their companions. "Their dignity and power," continues Tacitus, "consist in being constantly surrounded by a multitude of young and chosen people; this they reckon their ornament in peace, this their defence and support in war. Their name becomes famous at home, and among neighbouring nations, when they excel all others in the number and courage of their companions: they receive presents and embassies from all parts. Reputation frequently decides the fate of war. In battle it is infamy in the prince to be surpassed in courage; it is infamy in the companions not to follow the brave example of their prince; it is an eternal disgrace to survive him. To defend him is their most sacred engagement. If a city be at peace, the princes go to those who are at war; and it is thus they retain a great number of friends. To these they give the war horse and the terrible javelin. Their pay consists in coarse but plentiful repasts. The prince supports his liberality merely by war and plunder. You might more easily persuade them to attack an enemy and to expose themselves to the dangers of war, than to cultivate the land, or to attend to the cares of husbandry; they refuse to acquire by sweat what they can purchase with blood."

　　Thus, among the Germans, there were vassals, but no fiefs; they had no fiefs, because the princes had no lands to give; or rather their fiefs consisted in horses trained for war, in arms, and feasting. There were vassals, because there were trusty men who being bound by their word engaged to follow the prince to the field, and did very nearly the same service as was afterwards performed for the fiefs.

　　4. The same Subject continued. C?sar says7 that "when any of the princes declared to the assembly that he intended to set out upon an expedition and asked them to follow him, those who approved the leader and the enterprise stood up and offered their assistance. Upon which they were commended by the multitude. But, if they did not fulfil their engagements, they lost the public esteem, and were looked upon as deserters and traitors."

　　What C?sar says in this place, and what we have extracted in the preceding chapter from Tacitus, are the substance of the history of our princes of the first race.

　　We must not therefore be surprised that our kings should have new armies to raise upon every expedition, new troops to encourage, new people to engage; that to acquire much they were obliged to incur great expenses; that they should be constant gainers by the division of lands and spoils, and yet give these lands and spoils incessantly away: that their demesne should continually increase and diminish; that a father upon settling a kingdom on one of his children8 should always give him a treasure with it: that the king's treasure should be considered as necessary to the monarchy; and that one king could not give part of it to foreigners, even in portion with his daughter, without the consent of the other kings.9 The monarchy moved by springs, which they were continually obliged to wind up.

　　5. Of the Conquests of the Franks. It is not true that the Franks upon entering Gaul took possession of the whole country to turn it into fiefs. Some have been of this opinion because they saw the greatest part of the country towards the end of the second race converted into fiefs, rear-fiefs, or other dependencies; but such a disposition was owing to particular causes which we shall explain hereafter.

　　The consequence which sundry writers would infer thence, that the barbarians made a general regulation for establishing in all parts the state of villainage is as false as the principle from which it is derived. If at a time when the fiefs were precarious, all the lands of the kingdom had been fiefs, or dependencies of fiefs; and all the men in the kingdom vassals or bondmen subordinate to vassals; as the person that has property is ever possessed of power, the king, who would have continually disposed of the fiefs, that is, of the only property then existing; would have had a power as arbitrary as that of the Sultan is in Turkey; which is contradictory to all history.

　　6. Of the Goths, Burgundians, and Franks. Gaul was invaded by German nations. The Visigoths took possession of the province of Narbonne, and of almost all the south; the Burgundians settled in the east; and the Franks subdued very nearly all the rest.

　　No doubt but these Barbarians retained in their respective conquests the manners, inclinations, and usages of their own country; for no nation can change in an instant their manner of thinking and acting. These people in Germany neglected agriculture. It seems by C?sar and Tacitus that they applied themselves greatly to a pastoral life; hence the regulations of the codes of Barbarian laws almost all relate to their flocks. Roricon, who wrote a history among the Franks, was a shepherd.

　　7. Different Ways of dividing the Land. After the Goths and Burgundians had, under various pretences, penetrated into the heart of the empire, the Romans, in order to put a stop to their devastations, were obliged to provide for their subsistence. At first they allowed them corn,10 but afterwards chose to give them lands. The emperors, or the Roman magistrates, in their name, made particular conventions with them concerning the division of lands,11 as we find in the chronicles and in the codes of the Visigoths12 and Burgundians.13

　　The Franks did not follow the same plan. In the Salic and Ripuarian laws, we find not the least vestige of any such division of lands; they had conquered the country, and so took what they pleased, making no regulations but among themselves.

　　Let us, therefore, distinguish between the conduct of the Burgundians and Visigoths in Gaul, of those same Visigoths in Spain, of the auxiliary troops under Augustulus and Odoacer in ltaly,14 and that of the Franks in Gaul, as also of the Vandals in Africa.15 The former entered into conventions with the ancient inhabitants, and in consequence thereof made a division of lands between them; the latter did no such thing.

　　8. The same Subject continued. What has induced some to think that the Roman lands were entirely usurped by the Barbarians is their finding in the laws of the Visigoths and the Burgundians that these two nations had two-thirds of the lands; but this they took only in certain quarters or districts assigned them.

　　Gundebald says, in the law of the Burgundians, that his people at their establishment had two-thirds of the lands allowed them;16 and the second supplement to this law notices that only a moiety would be allowed to those who should hereafter come to live in that country.17 Therefore, all the lands had not been divided in the beginning between the Romans and the Burgundians.

　　In those two regulations we meet with the same expressions in the text, consequently they explain one another; and as the latter cannot mean a universal division of lands, neither can this signification be given to the former.

　　The Franks acted with the same moderation as the Burgundians; they did not strip the Romans wherever they extended their conquests. What would they have done with so much land? They took what suited them, and left the remainder.

　　9. A just Application of the Law of the Burgundians, and of that of the Visigoths, in relation to the Division of Lands. It is to be considered that those divisions of land were not made with a tyrannical spirit; but with a view of relieving the reciprocal wants of two nations that were to inhabit the same country.

　　The law of the Burgundians ordains that a Burgundian shall be received in an hospitable manner by a Roman. This is agreeable to the manners of the Germans, who, according to Tacitus,18 were the most hospitable people in the world.

　　By the law of the Burgundians, it is ordained that the Burgundians shall have two-thirds of the lands, and one-third of the bondmen. In this it considered the genius of two nations, and conformed to the manner in which they procured their subsistence. As the Burgundians kept herds and flocks, they wanted a great deal of land and few bondmen, and the Romans, from their application to agriculture, had need of less land, and of a greater number of bondmen. The woods were equally divided, because their wants in this respect were the same.

　　We find in the code of the Burgundians19 that each Barbarian was placed near a Roman. The division therefore was not general; but the Romans who gave the division were equal in number to the Burgundians who received it. The Roman was injured least. The Burgundians as a martial people, fond of hunting and of a pastoral life, did not refuse to accept of the fallow grounds; while the Romans kept such lands as were properest for culture: the Burgundian's flock fattened the Roman's field.

　　10. Of Servitudes. The law of the Burgundians notices20 that when those people settled in Gaul, they were allowed two-thirds of the land, and one-third of the bondmen. The state of villainage was therefore established in that part of Gaul before it was invaded by the Burgundians.21

　　The law of the Burgundians, in points relating to the two nations, makes a formal distinction in both, between the nobles, the freeborn and the bondmen.22 Servitude was not therefore a thing peculiar to the Romans; nor liberty and nobility to the Barbarians.

　　This very same law says,23 that if a Burgundian freedman had not given a certain sum to his master, nor received a third share of a Roman, he was always supposed to belong to his master's family. The Roman proprietor was therefore free, since he did not belong to another person's family; he was free, because his third portion was a mark of liberty.

　　We need only open the Salic and Ripuarian laws to be satisfied that the Romans were no more in a state of servitude among the Franks than among the other conquerors of Gaul.

　　The Count de Boulainvilliers is mistaken in the capital point of his system: he has not proved that the Franks made a general regulation which reduced the Romans into a kind of servitude.

　　As this author's work is penned without art, and as he speaks with the simplicity, frankness, and candour of that ancient nobility whence he descends, every one is capable of judging of the good things he says, and of the errors into which he has fallen. I shall not, therefore, undertake to criticise him; I shall only observe that he had more wit than enlightenment, more enlightenment than learning; though his learning was not contemptible, for he was well acquainted with the most valuable part of our history and laws.

　　The Count de Boulainvilliers and the Abbé du Bos have formed two different systems, one of which seems to be a conspiracy against the commons, and the other against the nobility. When the sun gave leave to Ph?ton to drive his chariot, he said to him, "If you ascend too high, you will burn the heavenly mansions; if you descend too low, you will reduce the earth to ashes; do not drive to the right, you will meet there with the constellation of the Serpent; avoid going too much to the left, you will there fall in with that of the Altar: keep in the middle."24

　　11. The same Subject continued. What first gave rise to the notion of a general regulation made at the time of the conquest was our meeting with an immense number of forms of servitude in France, towards the beginning of the third race; and as the continual progression of these forms of servitude was not perceived, people imagined in an age of obscurity a general law which was never framed.

　　Towards the commencement of the first race we meet with an infinite number of freemen, both among the Franks and the Romans; but the number of bondmen increased to that degree, that at the beginning of the third race all the husbandmen and almost all the inhabitants of towns had become bondmen:25 and whereas, at the first period, there was very nearly the same administration in the cities as among the Romans, namely, a corporation, a senate, and courts of judicature; at the other we hardly meet with anything but a lord and his bondmen.

　　When the Franks, Burgundians, and Goths made their several invasions, they seized upon gold, silver, movables, clothes, men, women, boys, and whatever the army could carry; the whole was brought to one place, and divided among the army.26 History shows that after the first settlement, that is, after the first devastation, they entered into an agreement with the inhabitants, and left them all their political and civil rights. This was the law of nations in those days; they plundered everything in time of war, and granted everything in time of peace. Were it not so, how should we find both in the Salic and Burgundian laws such a number of regulations absolutely contrary to a general servitude of the people?

　　But though the conquest was not immediately productive of servitude, it arose nevertheless from the same law of nations which subsisted after the conquest.27 Opposition, revolts and the taking of towns were followed by the slavery of the inhabitants. And, not to mention the wars which the conquering nations made against one another, as there was this peculiarity among the Franks, that the different partitions of the monarchy gave rise continually to civil wars between brothers or nephews, in which this law of nations was constantly practised, servitudes, of course, became more general in France than in other countries: and this is, I believe, one of the causes of the difference between our French laws and those of Italy and Spain, in respect to the right of seigniories.

　　The conquest was soon over, and the law of nations then in force was productive of some servile dependences. The custom of the same law of nations, which obtained for many ages, gave a prodigious extent to those servitudes.

　　Theodoric28 imagining that the people of Auvergne were not faithful to him, thus addressed the Franks of his division: "Follow me, and I will carry you into a country where you shall have gold, silver, captives, clothes, and flocks in abundance; and you shall remove all the people into your own country."

　　After the conclusion of the peace between Gontram and Chilperic, the troops employed in the siege of Bourges, having had orders to return, carried such a considerable booty away with them that they hardly left either men or cattle in the country.