History of the Origin of Representative Government in Europe

by François Guizot

Transference Of Benefices.

From the time of the invasion of the Gauls by the Franks up to the moment when the feudal system was definitely constituted, we find during the whole course of this epoch:

I. That benefices were revoked, not only as a consequence of legal condemnation, but also by the arbitrary will of the donor. The power of absolute and arbitrary transference of benefices was practically in existence under the Merovingian kings. It is however very doubtful whether this has ever been recognised as the right of the donors. Such an act possessed a character of suddenness and violence which gave a shock to ideas of natural justice. Few men would consent to receive a favour of which they might legally have been deprived at the first moment of caprice. Montesquieu affirms that benefices were first held on an entirely uncertain tenure. The proofs which he gives are but of little weight. First, the clause contained in the treaty concluded at Andely, in 587, between the two monarchs, Gontran and Childebert, proves the fact but not the right. Secondly, the formula of Marculf again does not prove anything more than a common practice. Besides, the giver of the benefice presents a motive in this formula, namely, the necessity of the exchange. Thirdly, the law of the Lombards merely characterises the benefice as a precarious property, which it indubitably was. Fourthly, the Book of Fiefs compiled in the twelfth century, probably converted the fact into a right. Fifthly, the letter of the bishops to Louis the Germanic also proves merely the fact. It is evident that the right has always been contested, and that attempts have always been made to prevent the permanency of benefices is a fact also. "Charlemagne," says Eginhard, "did not suffer that every noble should take away from his vassal the benefices which he had granted to him upon any outburst of anger." The capitulary of Louis the Debonnair, which allows a year to the rejected incumbent whose benefice is in a bad condition before it can be finally taken from him, proves likewise that certain forms were observed with this view, and protests against a purely arbitrary disposition. That the patron had a right to take away the benefice, when the occupant had failed to discharge his obligations, is an indisputable fact. Now it would be very easy to abuse this principle of taking away benefices under a pretext of disorderly conduct or infidelity to the trust reposed; accordingly all the protestations that were made, and all the treaties that were enforced, were designed to oppose such a procedure.

Thus we find, from the fifth to the tenth century: First, numerous examples of benefices being arbitrarily taken away; this was the practice of the giver, when his power corresponded to his desire. Secondly, benefices taken away on account of unfaithfulness, disorder, treachery; this was a right.

The Precaria.

II. As to benefices granted for a limited time, Montesquieu affirms, after the Book of Fiefs, that they were at first granted for one year. I have not been able to find any positive example of this. It is not however impossible that there may have been such, similar to the precaria belonging to churches. Precarium, among the Romans, signified a grant of property on the tenure of usufruct for a limited time, which was generally pretty short. Under the monarchy of the Franks, we have seen that the churches often consolidated their wealth in this way, in order to secure a permanent revenue. Charles the Bald decreed that the precaria should be held for five years and renewed every five years.

Seizure Of Church Property.

The only benefices which appear to me to have been granted for a time, ostensibly so at least, are those which arose out of the ecclesiastical wealth taken by Charles Martel (about A.D. 720), and which were then possessed under the designation precarious. Before this period we find kings and mayors interposing their authority in order to obtain, under the title of precarious, the enjoyment of certain church wealth for certain persons. It appears that Charles Martel did more at that time than grant or cause the retention of church property, under the title of precaria,—he also completely stripped the churches, in order to confer their wealth as benefices. But, after him, Pepin and Carloman, his sons, while they also took the wealth of churches in order to confer them on their vassals, only took it on the title of precaria. The ecclesiastics protested vigorously against the spoliation of Charles Martel, and it was upon their protestations that Pepin ordained that the wealth which could be restored should be actually returned, and that what could not be so restored, should be held under the title precaria, at fixed rentals, till they could again be transferred to the church. Pepin and Charlemagne used rigorous measures to secure that the holders, in precario, of church wealth should fulfil their obligations to its primitive proprietors; and we may gather, from the frequency of their orders, that these orders were often treated with contempt. It is nevertheless evident that the practice of taking the goods of the church, and placing them in other hands, whether absolutely, or under the title of precarious, continued under even the most feeble and superstitious kings. The bishops said that Charles the Bald suffered himself to be led astray, being often seduced, partly because of his youth, partly through feebleness of character, by evil counsellors, and often constrained by the threats of the occupants, who told him "that if he did not allow them to possess this consecrated property, they would abandon him immediately." It is probable that but little of this property was restored to the churches, and that the greater part of what was held sub precario became, along with the other benefices, the hereditary possession of the occupants.

We see that far from Charles Martel having any claim to be regarded as the first originator of the practice of granting benefices for life, the benefices, on the contrary, which arose either from the act by which he despoiled churches and monasteries, or from acts similar to his, were for a long time more precarious than any others, and even ought legally to have been restored to the churches; certainly at the death of the occupants, and if possible before.