TWENTY-FIFTH LECTURE.

History of legislation from the death of Charlemagne to the accession of Hugh Capet-Necessity of precisely determining the general characteristics of the legislation at the two terms of this epoch, in order to understand properly its progress during its course-1. State of the legislation under Charlemagne-It is personal, and varies according to races-The church and the imperial power give it some unity-2. State of the legislation after Hugh Capet-It is territorial; local customs have replaced national laws-All central legislative power has disappeared-3. History of legislation in Frankish Gaul between these two terms-Analytical tables of the capitularies of Louis le Debonnaire, Charles le Chauve, Louis le Begue, Carloman, Eudes, and Charles le Simple-Comparison of these tables according to the figures onlyComparison of the provisions of the capitularies-General results of this inquiry.

I HAVE Sought the progress and the causes of the dismemberment of the empire of Charlemagne, in events, in history, properly so called. I have endeavoured to distinguish what transformation Gallo-Frankish society underwent, and why. I have shown that, of the various explanations which people have attempted to give of it, none is satisfactory; that that even which contains the most truth, the diversity of races, is exclusive, incomplete, does not account for all the facts. It seemed to me that the impossibility of a sole and extensive society, in the state in which social relations and minds then were, alone fully explains this great and so rapid metamorphosis; that the formation of a multitude of small societies, that is to say, the establishment of the feudal system, was the necessary consequence, the natural course of events; that since their meeting, Roman and German society had tended

towards this end, and that they had, in fact, attained it at the end of the tenth century, when the dismemberment of the empire of Charlemagne was definitively accomplished.

If this explanation is established, if such was the progress of facts from Charlemagne to Hugh Capet, we ought to find it in the history of laws as in the history of events. Between the development of legislation and that of society, there is an intimate correspondence; the same revolutions are accomplished therein, and in an analogous order. Let us now study the history of the laws during the same epoch, and let us see if they will lead us to the same result, if we shall see the same explanation arise from it.

The history of laws is more difficult to understand thoroughly than that of events, properly so called. Laws, from their very nature, are monuments more incomplete, less explicit, and consequently more obscure. Besides, nothing is more difficult, and yet more indispensable, than to take fast hold of and never lose the chronological thread. When we give an account of external facts, wars, negotiations, invasions, &c., their chronological concatenation is simple, palpable; each event bears, as it were, its date written on its face. The actual date of laws is often correctly known; it is often known at what epoch they were decreed; but the facts which they were designed to regulate, the causes which made them to be written in one year rather than another, the necessities and social revolutions to which the legislation corresponds, this is what is almost always unknown, at least, not understood, and which it is still necessary to follow step by step. It is from this study having been neglected, from the not having rigorously observed the chronological progress of laws in their relation with that of society, that confusion and falsehood have so often been thrown into their history. For example, you constantly hear speak of the feudal laws as already in vigour at the sixth century, immediately after the conquest, and of barbarous laws as being still in vigour at the eleventh century, under the feudal system. The resemblance of certain facts, of certain words, which are equally met with in the two epochs, causes this mistake: a little more attention to the chronological development of laws and of the social state, would have prevented it. Numerous errors in this matter, some of them the result of mere ignorance, many systematic and learned, have no other origin.

In order to prevent falling into it in the study with which we have now to occupy ourselves, one means only seems to me efficacious, that is, to determine precisely the two terms between which this study is comprised, that is, the general state of Gallo-Frankish society, first at the death of Charlemagne, and then at the accession of Hugh Capet. When we correctly know these two facts, when we know what the legislation was throughout its progress, we shall not be so liable to deceive ourselves concerning the route which it had followed in the interval; and if the study which we make of its history, between the two terms, gives a clear account of its transition from one to the other, we shall be justified in confiding in it.

It will be understood that I only intend here to point out the general characteristics of legislation under Charlemagne and under Hugh Capet; but that will suffice for our purpose.

At the first epoch, at the commencement of the ninth century, the essential characteristic feature of the legislation is that it is personal and not territorial; that is to say, that each people, each race, has its law, and that wherever men, of such or such a race, live, they follow its law, and not that of the territory which they inhabit. The Romans are governed by the Roman law; the Franks by the Salic or the Ripuarian law; the Burgundians by the Burgundian law; the Lombards by the Lombard law; the Saxons by the Saxon law, &c. Nationality is inherent in the legislation; in the diversity of races, and not in that of places, resides the principle of the variety of laws.

Above this variety hover certain principles of unity. And first, the canonical legislation is one, the same for all people, whatever their origin or name. The religious society is essentially one; unity is the standard of the church; hence the unity of the ecclesiastical legislation, in the midst of the most various national laws.

Civil legislation itself, taking this word in its most extensive sense, and as opposed to religious legislation, is not devoid of all unity. The king, the emperor, with or without the concurrence of the national assemblies, decrees certain laws applicable to all the inhabitants of his empire, Romans, Franks, Lombards, Burgundians, &c. There is evidently

universality in many of the capitularies of Charlemagne; they are addressed to the whole territory, and are obligatory upon all.

To speak in a general way, and leaving aside exceptions, it is more especially in respect to civil and penal law that diversity according to races pervades the legislation of this period. Unity is complete in the religious legislation, and tends to prevail in the political legislation, which comes under the influence of the central power.

Such are the general characteristics of legislation at the commencement of the ninth century. I pass at once to the commencement of the eleventh, the term at which the epoch which we are studying stops, and when the feudal system had taken her definitive consistency in France, and truly possessed society. What metamorphosis is brought about in the laws?

Their diversity, according to races, has disappeared. There still remain some traces of it; we still find the Saxon, Salic, Lombard law spoken of; but these are only rare instances, the faint echo of an order of things becoming extinct. The laws vary, not according to races, but, on the one hand, according to conditions; on the other, according to places. The social legislation, from being personal, has become territorial. There are different laws for different kinds of property, different degrees of liberty. Accordingly, in each small state formed by the feudal subdivision of the territory, arise peculiar laws. The diversity of races has been replaced by that of classes and of places. To the national laws have succeeded privileges and customs. This is the first characteristic, the essential feature of the new physiognomy that legislation has taken.

Another great change also took place. You have just seen that in the beginning of the ninth century, the unity of the imperial power was, notwithstanding the variety of the na tional laws, a principle of unity in the laws. In the commencement of the eleventh century, nothing of the kind existed; there was no longer any central, general legislative power; the variety of laws established according to places, to circumstances—that is to say, the variety of privileges and customs was no longer combated or modified by any principle of unity derived from a higher sphere. There was no unity existing

but in the legislation of the church, which alone remained superior to all diversities.

The great revolutions, then, which occurred in the legislation from the ninth to the tenth century, may be thus stated: 1. Legislation, according to races, had given way to legislation according to social conditions, to local circumstances. 2. Central legislative power, and the unity thence resulting to certain branches of legislation, more especially in political legislation, had disappeared.

This is the transformation which the history of legislation from the ninth to the eleventh century has to describe. Let us exhibit its course.

I have already spoken to you of the legislative monuments which remain of this period, the capitularies of the Carlovingian kings. You remember the analysis to which I subjected those of Charlemagne, and the results I derived from that analysis. I classed them, as you recollect, under eight principal heads: 1. Moral legislation; 2. Political legislation; 3. Penal legislation; 4. Civil legislation; 5. Religious legislation; 6. Canonical legislation; 7. Domestic legislation; 8. Occasional legislation. I have applied the same method to the capitularies of Charlemagne's successors, with these results:

Analytical Table of the Capitularies of Louis le Debonnaire.