Montesquieu

It was a foun­ding prin­ci­ple of the monar­chy that those who were under the someone’s mili­tary autho­rity were also under his civil juris­dic­tion ; thus does the capi­tu­lary of Louis the Debonaire in the year 815 put side by side the count’s mili­tary might and his civil juris­dic­tion over free men1 ; thus were the pla­cite2 of the count who led free men to war cal­led3 the pla­ci­tes of free men, whence no doubt this maxim : that it was only in the pla­ci­tes of the count, and not those of his offi­cers, that ques­tions of free­dom could be jud­ged ; thus the count did not lead the vas­sals4 of bishops or abbés into war, because they were not under his civil juris­dic­tion ; thus he did not lead to war the sub-vas­sals of the leu­des ; thus does the glos­sary5 of English laws tell us6 that those whom the Saxons cal­led coples were by the Normans named com­tes, com­pa­nions, because they sha­red judi­cial fines with the king ; thus do we see in all times that the obli­ga­tion of every vas­sal7 towards his lord was to bear arms and to judge his peers in his court.8

One of the rea­sons that thus atta­ched this right of jus­tice to the right to lead into war was that the man who led into war at the same time made peo­ple pay the duties of the trea­sury, which consis­ted in some ser­vi­ces of conveyance owed by the free men, and in gene­ral in cer­tain judi­cial pro­fits which I shall take up now.

The lords had the right to dis­pense jus­tice in their fief by the same prin­ci­ple that gave counts the right to dis­pense it in their county ; and to be clear, the coun­ties, in the varia­tions that have occur­red at dif­fe­rent times, always fol­lo­wed the varia­tions that had occur­red in the fiefs : in both cases they were gover­ned by the same plan and the same ideas. In a word, the counts in their coun­ties were leu­des, and the leu­des in their sei­gnio­ries were counts.

We have not had it right in regar­ding the counts as offi­cers of jus­tice and the dukes as mili­tary offi­cers. Both were equally mili­tary and civil offi­cers9 : the whole dif­fe­rence was that the duke had seve­ral counts under him, although there were counts who had no duke over them, as we learn from Fredegar.10

It will per­haps be thought that the govern­ment of the Franks was then very harsh, since same offi­cers had at the same time both mili­tary and civil autho­rity, and even fis­cal autho­rity, over the sub­jects, some­thing I have in the pre­vious books cal­led one of the dis­tinc­tive marks of des­po­tism.

But it must not be thought that the counts jud­ged alone11 and dis­pen­sed jus­tice the way pashas do in Turkey : they assem­bled, to judge dis­pu­tes, a kind of day-courts or assi­zes12 to which the nota­bles were convo­ked.

In order to have a clear unders­tan­ding of what concerns judg­ments in the for­mu­las, the laws of the bar­ba­rians, and the capi­tu­la­ries, I will say that the func­tions of the count, of the gra­fio, and of the cen­te­na­rius were the same ; that the jud­ges, the rathim­bur­ghers and the échevins were, under dif­fe­rent names, the same per­sons. They were adjuncts of the count, and ordi­na­rily he had seven of them ; and since he nee­ded no fewer than twelve per­sons to judge,13 he filled out the num­ber with nota­bles.14

But whoe­ver had the juris­dic­tion – the king, the count, the gra­fio, the cen­te­na­rius, the lords, or the eccle­sias­tics – they never jud­ged alone ; and this prac­tice which ori­gi­na­ted in the forests of Germania was still in exis­tence when the fiefs assu­med a new form.

As for the fis­cal power, it was such that the count could hardly abuse it : the rights of the prince with res­pect to free men were so sim­ple that they consis­ted, as I have said, only in cer­tain conveyan­ces15 requi­red on cer­tain public occa­sions ; and with res­pect to judi­ciary rights, there were laws16 that pre­ven­ted misap­pro­pria­tions.

Art. 1–2 and council in Verno Palatio in the year 845, art. 8, Baluze ed., vol. II, p. 17.

Plaids or assises.

Capitularies, book IV in Ansegisi capitularum, art. 57, and capitulary V of Louis the Debonaire, year 819, art. 14, Baluze ed., vol. I, p. 615.

See p. 352, note (d) and p. 354, note (a).

Which we find in Compendium of Guillaume Lambard, de priscis Anglorum legibus.

Under the word satrapia.

Assises de Jérusalem, ch. ccxxi–ccxxii, explain this well.

Church avoués (advocati) were equally at the head of their pleas court and their militia.

See formule 8 of Marculfus, book I, which contains the letters granted to a duke, patrician, or count, giving them civil jurisdiction and fiscal administration.

Chronique, ch. lxxviii on the year 636.

See Gregory of Tours, book V ad annum 580.

Mallum.

On all this see the capitularies of Louis the Debonaire appended to the Salic law, art. 2, and the formula of judgments given by Du Cange at the word Boni homines.

Per bonos homines ; sometimes there were only notables. See appendix to Formula of Marculfus, ch. li.

And some tolls on rivers which I have mentioned.

See law of the Ripuairians, tit. 89, and Leges Langobardoroum, book II, tit. 52, §9.