Montesquieu
 

XXX.20 On what has since been called the justice of lords

Besides the com­po­si­tion that had to be paid to the family for mur­ders, harm or inju­ries, there was also a cer­tain duty to pay which the bar­ba­rian law codes call fre­dum.1 We have no term to express it in our modern lan­gua­ges ; never­the­less I shall speak at length about it ; and to com­mu­ni­cate the idea, I shall say it is a recom­pense for the pro­tec­tion gran­ted against the right of ven­geance.

Among these vio­lent nations, dis­pen­sing jus­tice was nothing more than gran­ting someone who had com­mit­ted an offense one’s pro­tec­tion against the ven­geance of the per­son who was its vic­tim, and obli­ging the lat­ter to accept the satis­fac­tion which was owed him ; so among the Germans, unlike all other peo­ples, jus­tice was dis­pen­sed to pro­tect the cri­mi­nal against the man he had offen­ded.

The bar­ba­rian codes of law offer us cases where these freda had to be deman­ded. In those where the family could not take any ven­geance, they give no fre­dum ; indeed, where there was no ven­geance there could be no duty for pro­tec­tion against ven­geance. Thus, in the law of the Lombards, if someone chan­ced to kill a free man, he paid the value of the dead man without the fre­dum, because, having killed him invo­lun­ta­rily, it was not the case where the family had a right to ven­geance.2 Thus in the law of the Ripuarians, when a man was killed by a piece of wood or a man-made arti­fact, the arti­fact or the wood were held guilty, and the family took them for their use, without being able to require any fre­dum.3

Likewise, when an ani­mal had killed a man, the same law esta­bli­shed a com­po­si­tion without the fre­dum, because the dead man’s family were not offen­ded.4

Finally, by the Salic law, a child who had com­mit­ted some fault before the age of twelve paid the com­po­si­tion without the fre­dum5 : as he could not yet bear arms, he was not in the case where the inju­red party or his family could require ven­geance.

It was the guilty party who paid the fre­dum, for the peace and secu­rity which he had lost through the exces­ses he had com­mit­ted, and which he could reco­ver through pro­tec­tion ; but a child did not lose that secu­rity ; he was not a man, and could not be exclu­ded from the society of men.

This fre­dum was a local duty for the man who was judge in the ter­ri­tory.6 The law of the Ripuarians, howe­ver, for­bade him to require it him­self ; it cal­led for the party which had won its case to receive it and take it to the trea­sury, so that peace, says the law, might be eter­nal among Ripuarians.7

The amount of the fre­dum was pro­por­tio­nate to the amount of pro­tec­tion8 : thus the fre­dum for the king’s pro­tec­tion was higher than that gran­ted for the pro­tec­tion of the count and the other jud­ges.

I can already see the begin­ning of the jus­tice of lords. The fiefs took in large ter­ri­to­ries, as can be seen in num­ber­less docu­ments. I have already pro­ven that the kings levied nothing on the lands which had been ceded to the Franks ; even less could they reserve to them­sel­ves duties on the fiefs ; those who obtai­ned them had in this regard the most exten­sive enjoy­ment : they got all the fruits and all the emo­lu­ments from them ; and as one of the most consi­de­ra­ble9 was the judi­cial pro­fits (freda) that one recei­ved through the prac­ti­ces of the Franks, it fol­lo­wed that whoe­ver had the fief also had the jus­tice that was exer­ci­sed only by com­po­si­tions to the fami­lies and pro­fits to the lord ; it was nothing other than assu­ring that the com­po­si­tions of the law were paid, and deman­ding the fines of the law.

We see from the for­mu­las that contain the confir­ma­tion or trans­mis­sion in per­pe­tuity of a fief in favor of a leude or fidèle,10 or of the pri­vi­le­ges of fiefs in favor of chur­ches,11 that the fiefs had this right. That appears again in an infi­nite num­ber of char­ters12 which include a pro­hi­bi­tion to jud­ges or offi­cers of the king to enter the ter­ri­tory to exer­cise any act of jus­tice what­soe­ver, and there demand any emo­lu­ment of jus­tice what­soe­ver. Once the royal jud­ges could no lon­ger require any­thing in a dis­trict, they no lon­ger ente­red that dis­trict ; and those to whom this dis­trict remai­ned exer­ci­sed the func­tions which the for­mer had exer­ci­sed.

Royal jud­ges are for­bid­den to oblige the par­ties to give bail for appea­ring before them : it was thus up to the per­son who recei­ved the ter­ri­tory to require it. It is sta­ted that the king’s envoys could no lon­ger ask for lod­ging ; indeed they no lon­ger had any func­tion there.

Justice was the­re­fore, in the ancient fiefs and in the new fiefs, a right inhe­rent in the fief itself, a lucra­tive right which was part of it. That is why in all times it has been so regar­ded, whence arose the prin­ci­ple that jus­tice in France is patri­mo­nial.

Some have belie­ved that the ori­gin of these juris­dic­tions lay in the freeing of their serfs by the kings and lords. But the Germanic nations and those which have des­cen­ded from them are not the only ones which had eman­ci­pa­ted sla­ves, and they are the only ones which esta­bli­shed patri­mo­nial courts. Moreover, the for­mulæ of Marculfus show us free men depen­dent on these courts in the early time13 ; the serfs were then sub­ject to them, because they found them­sel­ves in the ter­ri­tory ; and they were not at the ori­gin of fiefs just because they were absor­bed into the fief.

Others have taken a shor­ter path : the lords have usur­ped the juris­dic­tions, they said, and that is all there is to say. But are the peo­ples des­cen­ded from Germania the only ones on earth who have usur­ped the rights of prin­ces ? History tea­ches us suf­fi­ciently that other peo­ples have made enter­pri­ses against their sove­rei­gns ; but we do not see ari­sing from them what have been cal­led the courts of lords. It was the­re­fore in the stock of prac­ti­ces and cus­toms of the Germans that their ori­gin was to be sought.

I beg the rea­der to look at the man­ner in which Loyzeau sup­po­ses the lords to have pro­cee­ded to form and usurp their various courts.14 They would have to have been the most refi­ned men on earth, and to have sto­len, not as war­riors pillage, but as vil­lage jud­ges and pro­se­cu­tors rob each other. We would have to say that these war­riors, in all the sepa­rate pro­vin­ces of the realm, and in so many realms, had made a gene­ral poli­ti­cal sys­tem. Loyseau makes them rea­son the way he him­self rea­so­ned in his study.

I shall repeat : if jus­tice was not a depen­dency of the fief, why do we see eve­ryw­here that the ser­vice of the fief was to serve the king or the lord, both in their courts and in their wars ?15

When the law did not set it, it was ordinarily the third of what was given for composition, as appears in the law of the Ripuarians, ch. lxxxix, which is explained by capitulary III of the year 813, Baluze ed., vol. I, p. 512.

Book I, tit. 9, §17, Lindembrock ed.

Tit. 70.

Tit. 46. See also Leges Langobardoroum, book I, ch. xxi, §3, Lindembrock ed. : si caballus cum pede, etc.

Tit. 28, §6.

As appears from the decree of Clotaire II in the year 595. Fredus tamen Judici in cujus Pago est, reservetur.

Tit. 89.

Capitulare incerti anni, ch. lvii, in Baluze, vol. I, p. 515. And we must note that what is called fredum or faidi in documents of the first dynasty is called bannum in the second, as appears in the capitulary De partibus Saxoniæ of the year 789.

See Capitulary of Charlemagne, De villis, where he lists these freda among the grand revenues of what he calls villæ or domaines du roi.

See formulæ 3, 4, and 17, book I of Marculfus.

Ibid., formulæ 2, 3, and 4.

See collections of these charters, especially the one which is at the end of the fifth volume of Historiens de France of the Benedictine Fathers.

See 3rd, 4th, and 14th of book I and the charter of Charlemagne, in the year 771, in Martenne, vol. I, Anecdot. Collect., 11. Præcipientes jubemus ut ullus Judex publicus ….. homines ipsius ecclesiæ and monasterii ipsius morbacensis tam ingenuos quam and servos, and qui super eorum terras manere, etc.

Traité des Justices de Village.

See Mr. du Cange, at the word Hominium.