Montesquieu

The man­ner of chan­ging an allod into a fief is found in a for­mula of Marculfus1 One gave his land to the king ; he gave back it as usu­fruct or bene­fice to the donor, and the donor named his heirs to the king.

To dis­co­ver the rea­sons they had for thus dena­tu­ring one’s allod, I have to search as if in the deep the ancient pre­ro­ga­ti­ves of that nobi­lity which is cove­red in ele­ven cen­tu­ries of dust, blood, and sweat.

Those who held fiefs had some very great advan­ta­ges. Composition for the inju­ries done to them was grea­ter than that of free men. It appears in the for­mu­las of Marculfus that it was a pri­vi­lege of the king’s vas­sal that anyone who killed him would pay six hun­dred sous in com­po­si­tion. This pri­vi­lege was esta­bli­shed by the Salic law2 and by the Ripuarian law ; and while these two laws were direc­ting six hun­dred sous for the death of the king’s vas­sal, they were awar­ding3 only two hun­dred for the death of a free­born, Frank, bar­ba­rian, or man living under the Salic law, and only one hun­dred for a Roman.

That was not the only pri­vi­lege of the king’s vas­sals. We have to rea­lize that when4 a man was sum­mo­ned to trial and did not show up or obey the jud­ges’ ordi­nan­ces, he was chal­len­ged before the king ; and if he per­sis­ted in his contu­macy he was exclu­ded from the king’s pro­tec­tion,5 and no one could take him in, nor even give him bread ; now if he was of ordi­nary sta­tion, his pro­perty was confis­ca­ted6 ; but if he was a vas­sal of the king, it was not.7 The first, by his contu­macy, was assu­med to be convic­ted of the crime, and not the lat­ter ; the for­mer in the sligh­test cri­mes was sub­jec­ted to the ordeal of boi­ling water,8 to which the lat­ter was condem­ned only in the case of mur­der9 ; finally, a vas­sal of the king could not be for­ced to swear in court against ano­ther vas­sal.10 These pri­vi­le­ges always increa­sed ; and the capi­tu­lary of Carloman does this honor to vas­sals of the king, that they can­not them­sel­ves be obli­ged to swear, but only through the mouth of their own vas­sals.11 Moreover, when a man who had the honors had fai­led to join the army, his punish­ment was to abs­tain from flesh and wine for as long as he had been absent from the ser­vice ; but the free man12 who had fai­led to fol­low the count paid a com­po­si­tion of sixty sous,13 and was pla­ced in ser­vi­tude until he had paid it.

It is thus easy to think that the Franks, and even more the Romans, tried to become vas­sals of the king if they were not ; and in order not to be depri­ved of their domains, they thought up the prac­tice of giving their allod to the king, recei­ving it from him as a fief, and naming their heirs to him. This prac­tice conti­nued on, and was espe­cially per­ti­nent in the disor­ders of the second dynasty, where eve­ryone nee­ded a pro­tec­tor, and wan­ted to ally with other lords,14 and enter, so to speak, into the feu­dal monar­chy, because they no lon­ger had a poli­ti­cal monar­chy.

This conti­nued into the third dynasty, as we see from seve­ral char­ter,15 either by dona­ting one’s allod, and taking it back in the same act, or by decla­ring it an allod, and having it reco­gni­zed as a fief. Such fiefs were cal­led fiefs of resump­tion.

That does not signify that those who held fiefs gover­ned them as good patres­fa­mi­lias ; and while free men eagerly sought to have fiefs, they trea­ted this sort of asset as usu­fructs are admi­nis­te­red today. That is what led Charlemagne, the most vigi­lant and atten­tive prince we have had, to make many sta­tu­tes to pre­vent fiefs from being degra­ded in favor of one’s pro­per­ties.16 That pro­ves only that in his time most of the bene­fi­ces were still for life, and that conse­quently men took bet­ter care of their allods than of their bene­fi­ces ; but that does not mean they did not pre­fer even more being a vas­sal of the king than a free man. One could have rea­sons for dis­po­sing of a cer­tain par­ti­cu­lar por­tion of a fief, but no one wan­ted to lose his very dignity.

I also quite rea­lize that Charlemagne com­plains in one capi­tu­lary that in some pla­ces there were men who dona­ted their fiefs as pro­perty, and then bought them back as pro­perty.17 But I am not saying that they did not pre­fer a pro­perty to an usu­fruct ; I am saying only that when one could make an allod into a fief that would pass on to one’s heirs, which is the case of the for­mula of which I have spo­ken, there were great advan­ta­ges in doing so.

Book I, formula 13.

Tit. 44. See also titles 66, §3–4 and title 74.

See Lex Ribuaria, tit. 7, and Lex Salica, tit. 44, art. 1 and 4.

Salic law, tit. 59 and 76.

Extra sermonem Regis (Lex Salica, tit. 59 and 76).

Ibid., tit. 59, §1.

Ibid., tit. 76, §1.

Ibid., tit. 56 and 59.

Ibid., tit. 76, §1.

Ibid., tit. 76, §2.

Apud Vernis Palatium, year 883, art. 4 and 11.

Capitulary of Charlemagne, year 812, art. 1 and 3.

Heribannum.

Non infirmis reliquit hæredibus, says Lambert d’Ardres in Du Cange, at the word Alodis.

See those that Du Cange cites at the word Alodis and those related by Galland, Traité du franc alleu, p. 14 ss.

Capitulaire ii of the year 802, art. 10, and capitul. vii of the year 803, art. 3, and capitulary i, incerti anni, art. 49, capitulary v of the year 806, art. 7, capitul. of the year 779, art. 29, and capitulary of Louis the Debonaire, year 829, art. 1.

The fifth of the year 806, art. 8.