Montesquieu
 

XXXI.24 The principal cause of the weakening of the second dynasty. Change in the allods

Charlemagne, in the divi­sion I men­tio­ned in the pre­ce­ding chap­ter,1 deter­mi­ned that after his death the men of each king would receive bene­fi­ces in the realm of their king, and not in the realm of ano­ther,2 whe­reas they would keep their allods in wha­te­ver realm they be. But he adds that any free man could, after the death of his lord, peti­tion for a fief in the three realms to who­me­ver he wished, just as someone who had never had a lord.3 We find the same pro­vi­sions in the divi­sion4 made by Louis the Debonaire to his chil­dren in 817.

But although free men peti­tio­ned for a fief, the count’s mili­tia was not wea­ke­ned by it : the free man still had to contri­bute for his allod, and pre­pare men who did ser­vice for it, in the ratio of one man for four manors, or else he must pre­pare a man to serve the fief for him ; and some abu­ses having crept in on that head, they were cor­rec­ted, as appears from the cons­ti­tu­tions of Charlemagne5 and of Pépin king of Italy,6 which are mutually expla­na­tory.

What the his­to­rians have said about the bat­tle of Fontenay, that it cau­sed the ruin of the monar­chy, is very true ; but allow me to take a look at the bale­ful conse­quen­ces of that day.

Some time after that bat­tle, the three bro­thers Lothaire, Louis, and Charles made a treaty7 in which I find clau­ses that must have chan­ged the whole poli­ti­cal state for the French.

In the decla­ra­tion which Charles made to the peo­ple about the part of this treaty that rela­ted to him,8 he says that any free man could choose as lord who­me­ver he wished, the king or any of the other lords.9 Before this treaty the free man could peti­tion for a fief, but his allod still remai­ned under the imme­diate autho­rity of the king, which is to say under the juris­dic­tion of the count ; and he was a depen­dent of the lord whom he had peti­tio­ned only by dint of the fief he had obtai­ned from him. Since this treaty, any free man could sub­ject his allod to the king, or to ano­ther lord, as he wished. It does not deal with those who were peti­tio­ning for a fief, but with those who were chan­ging their allod into a fief, and thus were, so to speak, lea­ving civil juris­dic­tion to enter into the autho­rity of the king or the lord whom they wished to choose.

Thus, those who for­merly were purely under the autho­rity of the king, as free men under the count, lit­tle by lit­tle became vas­sals of each other, since each free man could choose as lord who­me­ver he wished, whe­ther the king or the other lords.

2nd. With a man chan­ging into a fief an estate he pos­ses­sed in per­pe­tuity, these new fiefs could no lon­ger be for life. Thus do we see a moment later a gene­ral law giving the fiefs to the chil­dren of the pos­ses­sor10 : it is by Charles the Bald, one of the contrac­ting prin­ces.

What I have said about the liberty pos­ses­sed by all the men of the monar­chy since the treaty of the three bro­thers to choose as lord who­me­ver they wished, whe­ther the king or the other lords, is confir­med by the acts enac­ted since that time.

In the time of Charlemagne, when a vas­sal had recei­ved some­thing from a lord, were it worth but a sou, he could no lon­ger leave him.11 But under Charles the Bald, vas­sals were able to fol­low with impu­nity their inte­rests or their whim12 ; and that prince expres­ses him­self so for­ce­fully on this sub­ject that he seems rather to invite them to take advan­tage of this free­dom than to res­train it. In the time of Charlemagne, bene­fi­ces were more per­so­nal than real ; sub­se­quently they became more real than per­so­nal.

Of the year 806, between Charles, Pépin and Louis ; it is recorded by Goldaste and by the Baluze ed., vol. I, p. 439.

Art. 9, p. 443, which is consistent with the treaty of Andely, in Gregory of Tours, book IX.

Art. 10, and this is not mentioned in the treaty of Andely.

In Baluze ed., vol. I. p. 174. Licentiam habeat unusquisque liber homo qui seniorem non habuerit, cuicumque ex his tribus fratribus voluerit, se commendandi, art. 9. See also the divison made by the same emperor in the year 837, art. 6, Baluze ed., p. 686.

Year 811, Baluze ed., vol. I, p. 486, art. 7–8, and that of the year 812, Ibid., p. 490, art. 1. Ut omnis liber homo qui quatuor mansos vestitos de proprio suo, sive de alicujus beneficio habet, ipse se præparet, et ipse in hostem pergat, sive cum seniore suo, etc. See also capit. of the year 807, Baluze ed., vol. I, p. 458.

Of the year 793, appended to the Leges Langobardoroum, book III, tit. 9, ch. ix.

In the year 847, reported by Aubert, le Mire, and Baluze ed., vol. II, p. 42, conventus apud Marsnam.

Adnuntiatio.

Ut unusquisque liber homo in nostro regno seniorem quem voluerit, in nobis et in nostris fidelibus accipiat (art. 2 of the declaration of Charles).

Capitulary of the year 877, tit. 53, art. 9–10, apud Carisiacum : similiter et de nostris vassallis faciendum est, etc. ; this capitulary relates to another of the same year and place, art. 3.

Capitulary of Aix-la-Chapelle, year 813, art. 16. Quod nullus seniorem suum dimittat, postquam ab eo acceperit valente solidum unum ; and the capitulary of Pépin, year 783, art. 5.

See the capitulary of Carisiaco, year 856, art. 10–13, Baluze ed., vol. II, p. 83, in which the king and the ecclesiastical lords and laymen agreed to this : Et si aliquis de vobis sit cui suus senioratus non placet, et illi simulat ad alium seniorem melius quam ad illum acaptare possit, veniat ad illum, et ipse tranquille et pacifico animo donat illi commeatum….. et quod Deus illi cupierit ad alium seniorem acaptare potuerit, pacifice habeat.