In order to rule the Gallo-Romans, the barbarians had had inevitably to ask the help of the Church, which was the representative of Roman civilization. Further, the Merovingian monarch and the Catholic Church had come Position of the Church. into close alliance in their struggle with the Arians. The result for the Church had been that she gained new privileges, but at the same time became to a certain extent dependent. Under the Merovingians the election of the bishop a clero et populo is only valid if it obtains the assent (assensus) of the king, who often directly nominates the prelate. But at the same time the Church retains her full right of acquiring property, and has her jurisdiction partially recognized; that is to say, she not only exercises more freely than ever a disciplinary jurisdiction, but the bishop, in place of the civil power, administers civil and criminal justice over the clergy. The councils had for a long time forbidden the clergy to cite one another before secular tribunals; they had also, in the 6th century, forbidden secular judges under pain of excommunication to cite before them and judge the clergy, without permission of the bishop. A decree of Clotaire II. (614) acknowledged the validity of these claims, but not completely; a precise interpretation of the text is, however, difficult.
The Merovingian dynasty perished of decay, amid increasing anarchy. The crown passed, with the approval of the papacy, to an Austrasian mayor of the palace and his family, one of those mayors of the palace (i.e. chief officer of Carolingian period. the king’s household) who had been the last support of the preceding dynasty. It was then that there developed a certain number of institutions, which offered themselves as useful means of consolidating the political organism, and were in reality the direct precursors of feudalism. One was the royal benefice (beneficium), of which, without doubt, the Church provided both the model and, in the first instance, the material. The model was the precaria, a form of concession by which it was customary for the Church to grant the possession of her lands to free men; this practice she herself had copied from the five-years leases granted by the Roman exchequer. Gradually, however, the precaria had become a concession made, in most cases, free and for life. As regards the material, when Beginnings of the feudal system. the Austrasian mayors of the palace (probably Charles Martel) wished to secure the support of the fideles by fresh benefits, the royal treasury being exhausted, they turned to the Church, which was at that time the greatest landowner, and took lands from her to give to their warriors. In order to disguise the robbery it was decided—perhaps as an afterthought—that these lands should be held as precariae from the Church, or from the monastic houses which had furnished them. Later, when the royal treasury was reorganized, the grants of land made by the kings naturally took a similar form: the beneficium, as a free grant for life. Under the Merovingians royal grants of land were in principle made in full ownership, except, as Brunner has shown, that provision was made for a revocation under certain circumstances. No special services seem to have been attached to the benefice, whether granted by the king or by some other person, but, in the second half of the 9th century at least, the possession of the benefice is found as the characteristic of the military class and the form of their pay. This we find clearly set forth in the treatise de ecclesiis et capellis of Hincmar of Reims. The beneficium, in obedience to a natural law, soon tended to crystallize into a perpetual and hereditary right. Another institution akin to the beneficium was the senioratus; by the commendatio, a form of solemn contract, probably of Germanic origin, and chiefly characterized by the placing of the hands between those of the lord, a man swore absolute fidelity to another man, who became his senior. It became the generally received idea (as expressed in the capitularies) that it was natural and normal for every free man to have a senior. At the same time a benefice was never granted unless accompanied by the commendatio of the beneficiary to the grantor. As the most important seniores were thus bound to the king and received from him their benefices, he expected through them to command their men; but in reality the king disappeared little by little in the senior. The king granted as benefices not only lands, but public functions, such as those of count or dux, which thus became possessions, held, first for life, and later as hereditary properties. The Capitulary of Kiersy-sur-Oise (877), which was formerly considered to have made fiefs legally and generally hereditary, only proves that it was already the custom for benefices of this kind, honores, to pass from the father to one of the sons.
Charlemagne, while sanctioning these institutions, tried to arrest the political decomposition. He reorganized the administration of justice, fixing the respective jurisdictions of the count and the centenarius, substituting for the rachimburgii Reforms of Charlemagne. permanent scabini, chosen by the count in the presence of the people, and defining the relations of the count, as the representative of the central authority, with the advocati or judices of immunitates and potestates. He reorganized the army, determining the obligations and the military outfit of free men according to their means. Finally, he established those regular inspections by the missi dominici which are the subject of so many of his capitularies. From the De ordine palatii of Hincmar of Reims, who follows the account of a contemporary of the great emperor, we learn that he also regularly established two general assemblies, conventus or placita, in the year, one in the autumn, the other in the spring, which were attended by the chief officials, lay and ecclesiastical. It was here that the capitularies (q.v.) and all important measures were first drawn up and then promulgated. The revenues of the Carolingian monarch (which are no longer identical with the finances of the state) consisted chiefly in the produce of the royal lands (villae), which the king and his suite often came and consumed on the spot; and it is known how carefully Charlemagne regulated the administration of the villae. There were also the free gifts which the great men were bound, according Carolingian fiscal system. to custom, to bring to the conventus, the contributions of this character from the monasteries practically amounting to a tax; the regular personal or territorial dues into which the old taxes had resolved themselves; the profits arising from the courts (the royal bannus, and the fredum, or part of the compensation-money which went to the king); finally, numberless requisitions in kind, a usage which had without doubt existed continuously since Roman times. The Church was loaded with honours and had added a fresh prerogative to her former privileges, namely, the right of levying a real tax in kind, the tithe. Since the 3rd century she had tried to exact the payment of tithes from the faithful, interpreting as applicable to the Christian clergy the texts in the Old Testament bearing on the Levites; Gallican councils had repeatedly proclaimed it as an obligation, though, it appears, with little success. But from the reign of Pippin the Short onwards the civil law recognized and sanctioned this obligation, and the capitularies of Charlemagne and Louis the Debonnaire contain numerous provisions dealing with it. Ecclesiastical jurisdiction The Church under Charlemagne. extended farther and farther, but Charlemagne, the protector of the papacy, maintained firmly his authority over the Church. He nominated its dignitaries, both bishops and abbots, who were true ecclesiastical officials, parallel with the lay officials. In each pagus, bishop and count owed each other mutual support, and the missi on the same circuit were ordinarily a count and a bishop. In the first collection of capitularies, that of Ansegisus, two books out of four are devoted to ecclesiastical capitularies.
What, then, was the private and criminal law of this Frankish monarchy which had come to embrace so many different races? The men of Roman descent continued under the Roman law, and the conquerors could not hope to impose their The law under the Frank monarchy. customs upon them. The authorized expression of the Roman law was henceforth to be found in the Lex romana Wisigothorum or Breviarium Alarici, drawn up by order of Alaric II. in 506. It is an abridgment of the codes, of that of Theodosius especially, and of certain of the writings of the jurists included under the Law of Citations. As to the barbarians, they had hitherto had nothing but customs, and these customs, of which the type nearest to the original is to be found in the oldest text of the Lex Salica, were nothing more than a series of tariffs of compensations, that is to say, sums of money due to the injured party or his family in case of crimes committed against individuals, for which crimes these compensations were the only penalty. They also introduced a barbarous system of trial, that by compurgation, i.e. exculpation by the oath of the defendant supported by a certain number of cojurantes, and that by ordeal, later called judicium Dei. In each new kingdom the barbarians naturally kept their own laws, and when these men of different races all became subject to the Frankish monarchy, there evolved itself a system (called the personnalité des lois) by which every subject had, in principle, the right to be tried by the law of the race to which he belonged by birth (or sometimes for some other reason, such as emancipation or marriage). When the two adversaries were of different race, it was the law of the defendant which had to be applied. The customs of the barbarians had been drawn up in Latin. Sometimes, as in the case of the first text of the Salic law, the system on which they were compiled is not exactly known; but it was generally done under the royal authority. At this period only these written documents bear the name of “law” (leges romanorum; leges barbarorum), and at least the tacit consent of the people seems to have been required for these collections of laws, in accordance with an axiom laid down in a later capitulary; lex fit consensu populi et constitutione regis. It is noteworthy, too, that in the process of being drawn up in Latin, most of the leges barbarorum were very much Romanized.
In the midst of this diversity, a certain number of causes tended to produce a partial unity. The capitularies, which had in themselves the force of law, when there was no question of modifying the leges, constituted a legislation which was the same for all; often they inflicted corporal punishment for grave offences, which applied to all subjects without distinction. Usage and individual convenience led to the same result. The Gallo-Romans, and even the Church itself, to a certain extent, adopted the methods of trial introduced by the Germans, as was likely in a country relapsing into barbarism. On the other hand, written acts became prevalent among the barbarians, and at the same time they assimilated a certain amount of Roman law; for these acts continued to be drawn up in Latin, after Roman models, which were in most cases simply misinterpreted owing to the general ignorance. The type is preserved for us in those collections of Formulae, of which complete and scientific editions have been published by Eugène de Rozière and Carl Zeumer. During this period, too, the Gallican Church adopted the collection of councils and decretals, called later the Codex canonum ecclesiae Gallicanae, which she continued to preserve. This collection was that of Dionysius Exiguus, which was sent to Charlemagne in 774 by Pope Adrian I. But in the course of the 9th century apocryphal collections were also formed in the Gallican Church: the False Capitularies of Benedictus Levita, and the False Decretals of Isidorus Mercator (see [Decretals]).
All the subjects of the Frankish monarchy were not of equal status. There was, strictly speaking, no nobility, both the Roman and the Germanic nobility having died out; but slavery continued to exist. The Church, however, was preparing the transformation of the slave into the serf, by giving force and validity to their marriages, in cases, at least, when the master had approved of them, and by forbidding the latter unjustly to seize the slave’s peculium. But between the free man (ingenuus) and the slave lay a number of persons of intermediate status; they possessed legal personality but were subject to incapacities of various kinds, and had to perform various duties towards other men. There was, to begin with, the Roman colonist (colonus), a class as to the origin of which there is still a controversy, and of which there is no clear mention in the laws before the 4th century; they and their children after them were attached perpetually to a certain piece of land, which they were allowed to cultivate on payment of a rent. There were, further, the liti (litus or lidus), a similar class of Germanic origin; also the greater number of the freedmen or descendants of freedmen. Many free men who had fled to the great landowners for protection took, by arrangement or by custom, a similar position. Under the Merovingian régime, and especially under the Carolingians, the occupation of the land tended to assume the character of tenure; but free ownership of land continued to exist under the name of alod (alodis), and there is even evidence for the existence of this in the form of small properties, held by free men; the capitularies contain numerous complaints and threats against the counts, who endeavoured by the abuse of their power to obtain the surrender of these properties.
Period of Anarchy and the Rise of Feudalism.—The 10th and 11th centuries were a period of profound anarchy, during which feudalism was free to develop itself and to take definitive shape. At that time the French people may be Anarchy and feudal origins. said to have lived without laws, without even fixed customs and without government. The legislative power was no longer exercised, for the last Carolingian capitularies date from the year 884, and the first laws of the Capetian kings (if they may be called laws) do not appear till during the 12th century. During this period the old capitularies and leges fell into disuse and in their place territorial customs tended to grow up, their main constituents being furnished by the law of former times, but which were at the outset ill-defined and strictly local. As to the government, if the part played by the Church be excepted, we shall see that it could be nothing but the application of brute force. In this anarchy, as always happens under similar conditions, men drew together and formed themselves into groups for mutual defence. A nucleus was formed which was to become the new social unit, that is to say, the feudal group. Of this the centre was a chief, around whom gathered men capable of bearing arms, who commended themselves to him according to the old form of vassalage, per manus. They owed him fidelity and assistance, the support of their arms but not of their purse, save in quite exceptional cases; while he owed them protection. Some of them lived in his castle or fortified house, receiving their equipment only and eating at his table. Others received lands from him, which were, or later became, fiefs, on which they lived casati. The name fief, feudum, does not appear, however, till towards the end of this period; these lands are frequently called beneficia as before; the term most in use at first, in many parts, is casamentum. The fief, moreover, was generally held for life and did not become generally hereditary till the second half of the 11th century. The lands kept by the chief and those which he granted to his men were for the most part rented from him, or from them, for a certain amount in money or in kind. All these conditions had already existed previously in much the same form; but the new development is that the chief was no longer, as before, merely an intermediary between his men and the royal power. The group had become in effect independent, so organized as to be socially and politically self-sufficient. It constituted a small army, led, naturally, by the chief, and composed of his feudatories, supplemented in case of need by the rustici. It also formed an assembly in which common interests were discussed, the lord, according to custom, being bound to consult his feudatories and they to advise him to the best of their power. It also formed a court of justice, in which the feudatories gave judgment under the presidency of their lord; and all of them claimed to be subject only to the jurisdiction of this tribunal composed of their peers. Generally they also judged the villeins (villani) and the serfs dependent on the group, except in cases where the latter obtained as a favour judges of their own status, which was, however, at that time a very rare occurrence.
Under these conditions a nobility was formed, those men becoming nobles who were able to devote themselves to the profession of arms and were either chiefs or soldiers in one of the groups which have just been described. The term designating a noble, miles, corresponds also to that of knight (Fr. chevalier, Low Lat. caballerius), for the reason that chivalry, of which the origins are uncertain, represents essentially the technical skill and professional duties of this military class. Every noble was destined on coming of age to become a knight, and the knight equally as a matter of course received a fief, if he had not one already by hereditary title. This nobility, moreover, was not a caste but could be indefinitely recruited by the granting of fiefs and admission to knighthood (see [Knighthood and Chivalry]).
The state of anarchy was by now so far advanced that war became an individual right, and the custom of private war arose. Every man had in principle the right of making war to defend his rights or to avenge his wrongs. Later Private war. on, doubtless, in the 13th century, this was a privilege of the noble (gentilhomme); but the texts defining the limits which the Church endeavoured to set to this abuse, namely, the Peace of God and the Truce of God, show that this was at the outset a power possessed by men of all classes. Even a man who had appeared in a court of law and received judgment had the choice of refusing to accept the judgment and of making war instead. Justice, moreover, with its frequent employment of trial by combat, did not essentially differ from private war.
It is unnecessary to go further and to affirm, with certain historians of our time, for example Guilhermoz and Sée, that the only free men at that time, besides the clergy, were the nobles, all the rest being serfs. There are many indications which lead us to assume, not only in the towns but even in the country districts, the existence of a class of men of free status who were not milites, the class later known in the 13th century as vilains, hommes de poeste, and, later, roturiers. The fact more probably was that only the nobles and ecclesiastics were exempt from the exactions of the feudal lords; while from all the others the seigneurs could at pleasure levy the taille (a direct and arbitrary tax), and those innumerable rights then called consuetudines. Free ownership, the allodium, even under the form of small freeholds, still existed by way of exception in many parts.