Montesquieu

The chur­ches acqui­red very consi­de­ra­ble pro­per­ties. We see that the kings gave them large trea­su­ries, which is to say large fiefs, and we first find the admi­nis­tra­tion of jus­tice esta­bli­shed in the domains of these chur­ches. What could have been the ori­gin of such an extra­or­di­nary pri­vi­lege ? It was in the nature of the thing given : Church pro­perty had that pri­vi­lege because it was not taken away. One gave a trea­sury to the Church, and left to it the pre­ro­ga­ti­ves it would have had if it had been given to a leude ; it was also sub­ject to the ser­vice which the state would have deri­ved from it had it been gran­ted to a lay­man, as we have already seen.

Thus the chur­ches had the right to make peo­ple pay com­po­si­tions in their ter­ri­tory, and to demand the fre­dum from them ; and as these rights neces­sa­rily entai­led the right of pre­ven­ting royal offi­cers from ente­ring the ter­ri­tory to demand these freda and exer­cise all acts of jus­tice, the right which the eccle­sias­tics had of dis­pen­sing jus­tice in their ter­ri­tory was cal­led immu­nity, in the style of the for­mu­las,1 char­ters, and capi­tu­la­ries.

The law of the Ripuarians2 pro­hi­bits the men freed3 by the chur­ches from hol­ding the assem­bly4 where jus­tice is dis­pen­sed elsew­here than in the church where they were freed. The chur­ches the­re­fore had juris­dic­tions, even over free men, and were hol­ding their plaids from the ear­liest times of the monar­chy.

I find in the Lives of the Saints that Clovis gave to a holy per­so­nage autho­rity over a ter­ri­tory of six lea­gues of land, and that he wan­ted him to be free from any juris­dic­tion wha­te­ver.5 I believe this to be false, but it is a very old fal­se­hood ; the essence of the life and the lies relate to the ways and laws of the time, and it is those ways6 and those laws that I am sear­ching for here.

Chlothar II com­mands the bishops and gran­dees who own lands in dis­tant coun­tries to choose on the site itself who should dis­pense jus­tice or receive the emo­lu­ments.7

The same prince deter­mi­nes the juris­dic­tion bet­ween the church jud­ges and his offi­cers.8 Charlemagne’s capi­tu­lary of the year 802 pres­cri­bes to bishops and abbés the qua­li­ties that their offi­cers of jus­tice must pos­sess. Another9 by the same prince for­bids royal offi­cers to exer­cise any juris­dic­tion over those who farm eccle­sias­ti­cal lands, unless they have assu­med this condi­tion frau­du­lently and in order to evade public char­ges.10 Another assi­gns to chur­ches cri­mi­nal and civil jus­tice over all those who live in their ter­ri­tory.11 Finally, the capi­tu­lary of Charles the Bald dis­tin­gui­shes bet­ween the juris­dic­tions of the king, the lords, and the chur­ches12 ; and I shall say no more about it.13

See 3rd and 4th formulæ if Marculfus, book I.

Ne aliubi nisi ad ecclesiam, ubi relaxati sunt, mallum teneant, tit. 58, §1. See also §19, Lindenbrog ed.

Tabulariis.

Mallum.

Vita S. Germeri episcopi Tolosani, apud Bollandianos, 16. maii.

See also Life of St. Melanius and that of St. Deicole.

In Council of Paris, year 615. Episcopi vel potentes, qui in aliis possident regionibus, judices vel missos siscussores de aliis provinciis non instituant, nisi de loco, qui justitiam percipiant and aliis reddant, art. 19. See also art. 12.

Ibid., art. 5.

In Leges Langobardoroum, book II, tit. 44, ch. ii, Lindenbrog ed.

Servi Aldiones, Libellarii antiqui, vel alii noviter facti (ibid.).

Capitulary of the year 806 ; it is appended to the law of the Bavarians, art. 7. See also art. 3, Lindembrock ed., p. 444. Imprimis omnium jubendum est ut habeant ecclesiæ earum justitias, and in vita illorum qui habitant in ipsis ecclesiis and post, tam in pecuniis quam and in substantiis earum.

Of the year 857, in Synodo apud Carisiacum, art. 4, Baluze ed., p. 96.

See letter of the bishops assembled in Reims of the year 858, art. 7, in the capitularies, Baluze ed., p. 108. Sicut illæ res and facultates in quibus vivunt clerici, ita and illæ sub consecratione immunitatis sunt de quibus debent militare vassalli, etc.