PRIVATE DOMAINS OF THE KINGS.

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position of the chiefs was altered. Hitherto, in their wandering life, they had lived solely upon rapine; then they possessed two kinds of wealth, moveable booty and lands. They made their companions other presents, which engaged them in another kind of life. These riches, both moveable and fixed, remained for the chiefs, as for all others, as their personal and private property. The Frankish society had not then arrived at any ideas of public property. It consisted only of individuals, powerful by reason of their courage and their talent for war, by the antiquity of their family, and the renown of their name, who collected around them other individuals, who passed their life in the same precarious manner. The republics of antiquity did not commence thus. Rome had soon its public treasure-its ærarium. Till nearly the close of the republic, the ærarium still remained. Augustus established the fiscus, the treasury of the prince, which was destined to absorb the ærarium. The fiscus, at first, received only private gifts to the prince, but it soon usurped all the public revenues, till it became at length the only repository for public wealth. Thus, despotism transformed a public into a private domain. The states founded on the ruins of the Roman empire have followed an opposite course. At their commencement, all property was private property. It is in consequence of the development of civilization, and free institutions, that in almost all monarchies private domains have gradually become public property.

The private domains of the chiefs of bands, and particularly of the Frankish kings, were at first composed of lands taken from the inhabitants of the countries in which they established themselves. I have already stated that they did not take all the lands, but a large number of them. The share of the chief must have been considerable, as is indicated by the numerous domains of the chiefs of the first two races, in Belgium, in Flanders, and on the banks of the Rhine, where they first formed their settlements. Hullmann has given a list of a hundred and twenty-three domains beyond the Meuse belonging to the Carlovingian family.

The private property of the chiefs of conquered peoples were, to a great extent at least, incorporated into the domain of the conquering chief. Clovis subjected to himself successively several petty monarchs in his neighbourhood-Ragna

114

TENURE OF BENEFICES.

chair at Cambray, Chararich in Belgium, and Siegbert at Cologne; and took possession of all their personal property. The substitution of the royalty of one family for that of another, augmented the private domain of the king; the new king would add to his own personal possessions the property of the dethroned king. Thus the large domains possessed by the family of the Pepins, in Belgium, and on the Rhine, became royal domains.

Legal confiscations, as a punishment for crime, cases in which no legal heir was to be found for property, unjust and violent confiscations-were other sources of personal wealth to kings.

In these ways, the private domain of the kings increased rapidly, and it was employed by them especially as a means of attaching their associates to them, and of gaining new ones. Benefices, then, are as ancient as the establishment of the Franks on a fixed territory.

The fundamental question which has divided historians, whether those who are merely scholars or the philosophers, is-were benefices given for a time and revocable at will, or were they for life and yet revertible, or were they hereditary? Montesquieu has aimed at establishing a historical progression among these different modes; he asserts that benefices were at first revocable, being given for a time, then for life, and then hereditary. I believe he is mistaken, and that his mistake arises from an attempt to systematize history, and bring its facts into regular marching order. In the giving and receiving of benefices, two tendencies have always coexisted: on the one hand, those who had received benefices wished to retain them, and even to make them hereditary; on the other hand, the kings who granted them wished to resume them, or to grant them for only a limited period. All the disputes that occurred between kings and their powerful subjects, all the treaties which arose out of these disputes, all the promises which were made with a view to appease the dissatisfaction of malcontents, prove that the kings were in the habit of taking back, by violence, the benefices they had granted, and that the nobles attempted to retain them also by violence. The Mayors of the Palace acquired their power by placing themselves at the head of the large possessors

DISPUTES ABOUT BENEFICES.

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of benefices, and by seconding their pretensions. Under the administration of Pepin the Short and Charlemagne, the struggle appeared to cease, because the kings had for a time great superiority in force; but, in reality, the kings were now the aggressors in their turn, who endeavoured to bring the benefices again into their own hands, and to preserve to themselves the free disposal of them. Under Charles the Bald, the kings again began to get feeble, and, in consequence the treaties and promises became again favourable to the beneficiaries. In fact, the history of benefices, from the time of Clovis till the full establishment of the feudal system, is only a perpetual struggle between these two opposing tendencies. An attentive and accurate examination of the facts will prove that the three modes of conceding benefices did not follow one another in regular chronological succession, but that they are to be found existing and operating simultaneously during the whole course of this period.

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TRANSFERENCE OF BENEFICES.

LECTURE XIV.

Proofs of the co-existence of various modes of conferring benefices, from the fifth to the tenth century. Of benefices that were absolutely and arbitrarily revocable.-Of benefices conceded for a limited time; the precaria. Of benefices granted for life.-Of benefices granted hereditarily.-General character of the concession of benefices.-Their tendency to become hereditary.-Its prevalence under Charles the Bald.-Military service.-Judicial and domestic service.-Origin, meaning, and vicissitudes, of the fidelity due by the vassal to his lord.

FROM the time of the invasion of the Gauls by the Franks up to the moment when the feudal system was definitely constituted, we find during the whole course of this epoch:

I. That benefices were revoked, not only as a consequence of legal condemnation, but also by the arbitrary will of the donor. The power of absolute and arbitrary transference of benefices was practically in existence under the Merovingian kings. It is however very doubtful whether this has ever been recognised as the right of the donors. Such an act possessed a character of suddenness and violence which gave a shock to ideas of natural justice. Few men would consent to receive a favour of which they might legally have been deprived at the first moment of caprice. Montesquieu affirms that benefices were first held on an entirely uncertain tenure. The proofs which he gives are but of little weight. First, the clause contained in the treaty concluded at Andely, in 587, between the two monarchs, Gontran and Childebert, proves the fact but not the right. Secondly, the formula of Marculf again does not prove anything more than a common practice. Besides, the giver of the benefice presents a motive in this formula, namely, the necessity of the exchange. Thirdly, the law of the Lombards merely characterises the benefice as a precarious property, which it indubitably was. Fourthly, the Book of Fiefs compiled in the twelfth century, probably converted the fact into a right. Fifthly, the letter of the bishops to Louis the Germanic

also proves merely the fact. It is evident that the right has always been contested, and that attempts have always been made to prevent the permanency of benefices is a fact also. "Charlemagne," says Eginhard, "did not suffer that every noble should take away from his vassal the benefices which he had granted to him upon any outburst of anger." The capitulary of Louis the Debonnair, which allows a year to the rejected incumbent whose benefice is in a bad condition before it can be finally taken from him, proves likewise that certain forms were observed with this view, and protests against a purely arbitrary disposition. That the patron had a right to take away the benefice, when the occupant had failed to discharge his obligations, is an indisputable fact. Now it would be very easy to abuse this principle of taking away benefices under a pretext of disorderly conduct or infidelity to the trust reposed; accordingly all the protestations that were made, and all the treaties that were enforced, were designed to oppose such a procedure.

Thus we find, from the fifth to the tenth century: First, numerous examples of benefices being arbitrarily taken away; this was the practice of the giver, when his power corresponded to his desire. Secondly, benefices taken away on account of unfaithfulness, disorder, treachery; this was a right.

II. As to benefices granted for a limited time, Montesquieu affirms, after the Book of Fiefs, that they were at first granted for one year. I have not been able to find any positive example of this. It is not however impossible that there may have been such, similar to the precaria belonging to churches. Precarium, among the Romans, signified a grant of property on the tenure of usufruct for a limited time, which was generally pretty short. Under the monarchy of the Franks, we have seen that the churches often consolidated their wealth in this way, in order to secure a permanent revenue. Charles the Bald decreed that the precaria should be held for five years and renewed every five years. The only benefices which appear to me to have been granted for a time, ostensibly so at least, are those which arose out of the ecclesiastical wealth taken by Charles Martel (about A.D. 720), and which were then possessed under the designa