1. In the first place, we have to remark that Charles was not in any sense like Justinian or Napoleon, a codifier of laws. On the contrary, the title chosen by him after his capture of Pavia, “Rex Langobardorum,” indicates the general character of his policy, which was to leave the Lombards under Lombard law, the Romans under Roman law; even the Saxons, if they would only accept Christianity, to some extent under Saxon institutions. To turn all the various nationalities over which he ruled into Ripuarian Franks was by no means the object of the conqueror; on the contrary, so long as they loyally obeyed the great central government they might keep their own laws, customs, and language unaltered. As this principle applied not only to tribes and races of men, but also to individuals, we find ourselves in presence of that most peculiar phenomenon of the early Middle Ages which is known as the system of “personal law.” In our modern society, if the citizen of one country goes to reside in the territory of another civilized and well-ordered country, he is bound to conform to the laws of that country. Where this rule does not prevail (as in the case of the rights secured by the “capitulations” to Europeans dwelling in Turkey or Morocco) it is a distinct sign that we are in the presence of a barbarous law to which the more civilized nations will not submit. But quite different from this was the conception of law in the ninth century under Charles the Great and his successors. Then, every man, according to his nationality, or even his profession,—according as he was Frank or Lombard, Alaman or Bavarian, Goth or Roman, layman or ecclesiastic,—carried, so to speak, his own legal atmosphere about with him, and might always claim to be judged secundum legem patriæ suæ.[74] Thus, according to an often-quoted passage, “so great was the diversity of laws that you would often meet with it, not only in countries or cities, but even in single houses. For it would often happen that five men would be sitting or walking together, not one of whom would have the same law with any other.”
But though Charles made no attempt, and apparently had no desire, to reduce all the laws of his subjects to one common denominator, he had schemes for improving, and even to some extent harmonizing, the several national codes which he found in existence. But these schemes were only imperfectly realized. As Einhard says, “After his assumption of the imperial title, as he perceived that many things were lacking in the laws of his people (for the Franks have two systems of law, in many places very diverse from one another), he thought to add those things which were wanting, to reconcile discrepancies, and to correct what was bad and ill expressed. But of all this naught was accomplished by him, save that he added a few chapters, and those imperfect ones, to the laws [of the Salians, Ripuarians, and Bavarians]. All the legal customs, however, that were not already written, of the various nations under his dominion, he caused to be taken down and committed to writing.”
While Charles’s new legislation was in general of an enlightened and civilized character, a modern reader is surprised and pained by the prominence which he gives, or allows, to those barbarous and superstitious modes of determining doubtful causes—wager of battle, ordeal by the cross, and ordeal by the hot ploughshares. As to the first of these especially, the language of the Capitularies seems to show a retrogression from the wise distrust of that manner of arriving at truth expressed half a century earlier by the Lombard king, Liutprand.
2. A question which we cannot help asking, though it hardly admits of an answer, is “What was Charles’s relation to that feudal system which, so soon after his death, prevailed throughout his empire, and which so quickly destroyed its unity?” The growth of that system was so gradual, and it was due to such various causes, that no one man can be regarded as its author, hardly even to any great extent as its modifier. It was not known to early Merovingian times; its origin appears to be nearly contemporaneous with that of the power of the Arnulfing mayors of the palace; it must certainly have been spreading more widely and striking deeper roots all through the reign of Charlemagne, and yet we can hardly attribute either to him or to his ancestors any distinct share in its establishment. It was, so to speak, “in the air,” even as democracy, trades’ unions, socialism, and similar ideas are in the air of the nineteenth century. Feudalism apparently had to be, and it “sprang and grew up, one knoweth not how.”
One of the clearest allusions to the growing feudalism of society is contained in a Capitulary of Charles issued the year before his death, in which it is ordained that no man shall be allowed to renounce his dependence on a feudal superior after he has received any benefit from him, except in one of four cases—if the lord have sought to slay his vassal, or have struck him with a stick, or have endeavored to dishonor his wife or daughter, or to take away his inheritance. In an expanded version of the same decree a fifth cause of renunciation is admitted—if the lord have failed to give to the vassal that protection which he promised when the vassal put his hands in the lord’s, and “commended” himself to his guardianship. Other allusions to the same system are to be found in the numerous Capitularies in which Charles urges the repeated complaint that the vassals of the Crown are either endeavoring to turn their beneficia into allodia or, if possessing property of both kinds,—a beneficium under the Crown and an allodium by purchase or inheritance from their fathers,—are starving and despoiling the royal beneficium for the benefit of their own allodium.
3. An institution which was intended to check these and similar irregularities, and generally to uphold the imperial authority and the rights of the humbler classes against the encroachments of the territorial aristocracy, was the peculiarly Carolingian institution of missi dominici, or (as we may translate the words) “imperial commissioners.” These men may be likened to the emperor’s staff-officers, bearing his orders to distant regions, and everywhere, as his representatives, carrying on his ceaseless campaign against oppression and anarchy. The pivot of provincial government was still, as it had been in Merovingian times, the Frankish comes or count, who had his headquarters generally in one of the old Roman cities, and governed from thence a district which was of varying extent, but which may be fairly taken as equivalent to an English county. Under him were the centenarii, who, originally rulers of that little tract of country known as the Hundred, now had a somewhat wider scope, and acted probably as vicarii or representatives of the count throughout the district subject to his jurisdiction. These governors, especially the count, were doubtless generally men of wealth and great local influence. They had not yet succeeded in making their offices hereditary and transmitting the countship, as a title of nobility is now transmitted, from father to son. The strong hand of the central government prevented this change from taking place in Charles’s day, but it, too, like so much else that had a feudal tendency, was “in the air”; and it may have been partly in order to guard against this tendency and to keep his counts merely life-governors that Charles devised his institution of missi.
But a nobler and more beneficial object aimed at was to ensure that justice should be “truly and indifferently administered” to both rich and poor, to the strong and to the defenceless. It is interesting in this connection to observe what was the so-called “eight-fold ban” proclaimed by the Frankish legislator. Any one who (1) dishonored Holy Church; (2) or acted unjustly against widows; (3) or against orphans; (4) or against poor men who were unable to defend themselves; (5) or carried off a free-born woman against the will of her parents; (6) or set on fire another man’s house or stable; (7) or who committed harizhut—that is to say, who broke open by violence another man’s house, door, or enclosure; (8) or who when summoned did not go forth against the enemy, came under the king’s ban, and was liable to pay for each offence sixty solidi (£36).[75] Here we see that three of the specified offences were precisely those which a powerful local count or centenarius would be tempted to commit against the humbler suitors in his court, and which it would be the business of a missus dominicus to discover and report to his lord.
The missi had, however, a wide range of duties beyond the mere control and correction of unjust judges. It was theirs to enforce the rights of the royal treasury, to administer the oath of allegiance to the inhabitants of a district, to inquire into any cases of wrongful appropriation of church property, to hunt down robbers, to report upon the morals of bishops, to see that monks lived according to the rule of their order. Sometimes they had to command armies (the brave Gerold of Bavaria was such a missus) and to hold placita in the name of the king. Of course the choice of a person to act as missus would largely depend on the nature of the duties that he had to perform: a soldier for the command of armies or an ecclesiastic for the inspection of monasteries. As Charles, in his embassies to foreign courts, was fond of combining the two vocations, and sending a stout layman and a subtle ecclesiastic together to represent him at Cordova or Constantinople, so he may often have duplicated these internal embassies, these roving commissions, to inquire into the abuses of authority in his own domains.
We have, in one of Charles’s later Capitularies, an admirable exhortation which, though put forth in the name of the missi, surely came from the emperor’s own robust intellect:—“Take care,” the missi say to the count whose district they are about to visit, “that neither you nor any of your officers are so evil disposed as to say ‘Hush! hush! say nothing about that matter till those missi have passed by, and afterwards we will settle it quietly among ourselves.’ Do not so deny or even postpone the administration of justice; but rather give diligence that justice may be done in the case before we arrive.”
The institution of missi dominici served its purpose for a time, but proved to be only a temporary expedient. There was an increasing difficulty in finding suitable men for this delicate charge, which required in those who had to execute it both strength and sympathy, an independent position, and willingness to listen to the cry of the humble. Even already in the lifetime of Charles there was a visible danger that the missus might become another oppressor as burdensome to the common people as any of the counts whom he was appointed to superintend. And after all, the missus could only transmit to the distant regions of the empire as much power as he received from its centre. Under the feeble Louis the Pious, his wrangling sons and his inept grandsons, the institution grew ever weaker and weaker. Admirable instructions for the guidance of the missi were drawn up at headquarters, but there was no power to enforce them. With the collapse of the Carolingian dynasty towards the close of the ninth century the missi dominici disappear from view.