Montesquieu
 

XXX.22 That justices were established before the end of the second dynasty

It has been said that it was in the disor­der of the second dynasty that vas­sals appro­pria­ted jus­tice to them­sel­ves in their trea­su­ries ; making a gene­ral pro­po­si­tion was pre­fer­red to exa­mi­ning it : it was sim­pler to say that vas­sals did not pos­sess than to dis­co­ver how they pos­ses­sed. But the courts do not owe their ori­gin to usur­pa­tions ; they derive from the ear­liest set­tle­ment, and not from its cor­rup­tion.

“He who kills a free man,” it is sta­ted in the law of the Bavarians, “shall pay the com­po­si­tion to his family, if he have one ; and if not, he shall pay it to the duke, or to who­me­ver he had peti­tio­ned during his life­time.”1 We know what it meant to peti­tion2 for a bene­fice.

“He whose slave has been abduc­ted,” says the German law, “shall go to the prince who is over the abduc­tor in order to obtain com­po­si­tion from him.”

If a cen­te­na­rius,” it is sta­ted in the decree of Childebert, “finds a thief in ano­thercen­tena than his own, or within the confi­nes of our fidè­les, and does not drive him out, he will stand in for the thief or purge him­self3 by oath.”4 There was the­re­fore some dif­fe­rence bet­ween the ter­ri­tory of the cen­te­na­rii and that of the fidè­les.

This decree of Childebert’s5 explains the cons­ti­tu­tion of Chlothar of the same year, which, issued for the same case and the same situa­tion, dif­fers only in the terms, the cons­ti­tu­tion cal­ling in truste what the decree calls in ter­mi­nis fide­lium nos­tro­rum. Messrs Bignon and Du Cange,6 who have said that in truste refer­red to the domain of ano­ther king, did not get it right.

But to wind up qui­ckly, the second dynasty was nei­ther in disor­der nor dying in the time of Charlemagne : no usur­pa­tions took place under his reign. If in his time patri­mo­nial courts were esta­bli­shed, the conve­nient sys­tem that they are pro­po­sing falls of itself.

In a cons­ti­tu­tion of Pépin, king of Italy,7 made for the Franks as well as the Lombards, that prince, after impo­sing penal­ties on the counts and other royal offi­cers who err in the exer­cise of jus­tice, or who delay in dis­pen­sing it, orders that, should it occur that a Franc or a Lombard hol­ding a fief is unwilling to dis­pense jus­tice, the judge in the dis­trict to which he belongs will sus­pend the exer­cise of his fief, and that in that inter­val he or his envoy will dis­pense jus­tice.8

A capi­tu­lary of Charlemagne pro­ves that the kings did not levy the freda eve­ryw­here.9 Another by the same prince repeals seve­ral arti­cles of the Salic, Burgundian, and Roman laws10 so that each of his fidè­les11 will dis­pense jus­tice simi­larly. Another by the same prince shows us the feu­dal rules and feu­dal court already esta­bli­shed.12 In terms of ano­ther, by Louis the Debonaire, when the hol­der of a fief does not dis­pense jus­tice, or pre­vents its being dis­pen­sed, one should live freely at home until jus­tice is dis­pen­sed.13 I shall fur­ther cite two capi­tu­la­ries of Charles the Bald, one from the year 861, where we see pri­vate juris­dic­tions esta­bli­shed, jud­ges and offi­cers under them14 ; the other from the year 864, where he makes the dis­tinc­tion bet­ween his own sei­gnio­ries and those of pri­vate citi­zens.15

We have no ori­gi­nal conces­sions of fiefs, because they were esta­bli­shed by the divi­sion we know to have been made among the vic­tors. We can the­re­fore not prove with the ori­gi­nal contracts that jus­tice in the begin­nings was atta­ched to fiefs ; but if, in the for­mu­las of the confir­ma­tions or trans­fers of these fiefs in per­pe­tuity, we find, as we have said, that jus­tice was esta­bli­shed there, it must have been that this right of jus­tice was of the nature of the fief and one of its prin­ci­pal pre­ro­ga­ti­ves.

We have a lar­ger num­ber of docu­ments esta­bli­shing the patri­mo­nial jus­tice of the chur­ches in their ter­ri­tory than we have pro­ving that of the bene­fi­ces or fiefs of the leu­des or fidè­les, for two rea­sons. The first is that most of the docu­ments extant have been pre­ser­ved or col­lec­ted by monks for the use of their monas­te­ries. The second, that the patri­mony of the chur­ches having been for­med by indi­vi­dual conces­sions, and a sort of dero­ga­tion to the esta­bli­shed order, it took char­ters to do that ; whe­reas the conces­sions made to the leu­des being conse­quen­ces of the poli­ti­cal order, they were not requi­red to have, and even less to pre­serve, an indi­vi­dual char­ter. Often even the kings were content to make a sim­ple trans­fer by the scep­ter, as appears in the Life of St. Maurus.

But the third for­mula of Marculfus pro­ves to us suf­fi­ciently that the pri­vi­lege of immu­nity, and conse­quently of jus­tice, were com­mon to eccle­sias­tics and secu­lars, since it is made for both kinds.16

Tit. 3, ch. xiii, Lindenbrog ed.

[Se recommander : see XXXI, 24 and XXXI, 33 : “Quand les fiefs étaient à vie, on se recommandait pour un fief.”]

[Se purger : “On se purge par serment à l’audience sur un fait dont il n’y a point de preuve.”]

Of the year 595, art. 11–12, ed. Baluze of capitularies, p. 19. Pari conditione convenit ut si una centena in alia centena vestigium secuta fuerit and invenerit, vel in quibuscumque fidelium nostrorum terminis vestigium miserit, and ipsum in aliam centenam minime expellere potuerit, aut convictus reddat latronem, etc.

Si vestigius comprobatur latronis, tamen præsentia nihil longe mulctando ; aut si persequens latronem suum comprehenderit, integram sibi compositionem accipiat. Quod si in truste invenitur, medietatem compositionis rustis adquirat, and capitale exigat a latrone (art. 2–3).

[See glossary at the word trustis.]

Appended to the Leges Langobardoroum, book II, tit. 52, §14. It is the capitulary of the year 793 in Baluze, p. 544, art. 10.

Et si forsitan Francus aut Langobardus habens beneficium justitiam facere noluerit, ille judex in cujus ministerio fuerit, contradicat illi beneficium suum, interim dum ipse aut missus ejus justitiam faciat. See also in the same Leges Langobardoroum, book II, tit. 52, §2, which related to the capitulary of Charlemagne in the year 779, art. 21.

The third of the year 812, art. 10.

The second of the year 813, Baluze ed., p. 506.

Ut unusquisque fidelis justitias ita faceret (ibid.).

Second capitulary of the year 813.

Capitulare quintum anni 819, art. 23, Baluze ed., p. 617. Ut ubicumque missi, aut episcopum, aut abbatem, aut alium quemlibet honore præditum invenerint, qui justitiam facere noluit vel prohibuit, de ipsius rebus vivant quandiù in eo loco justitias facere debent.

Edictum in Carisiaco, in Baluze, vol. II, p. 152. Unusquisque advocatus pro omnibus de sua advocatione […] in convenientia ut cum ministerialibus de sua advocatione quos invenerit contra hunc bannum nostrum fecisse […] castiget.

Edictum Pistense, art. 18, Baluze ed., vol. II, p. 181. Si in fiscum nostrum, vel in quamcumque immunitatem, aut alicujus potentis potestatem vel proprietatem confugerit, etc.

Book II. Si beneficia opportuna locis ecclesiarum, aut cui voluerit dicere.