consumed on the spot; and it is known how carefully Charlemagne regulated the administration of the villae. There were also the free gifts which the great men were bound, according Carolingian fiscal system. to custom, to bring to the conventus, the contributions of this character from the monasteries practically amounting to a tax; the regular personal or territorial dues into which the old taxes had resolved themselves; the profits arising from the courts (the royal bannus, and the fredum, or part of the compensation-money which went to the king); finally, numberless requisitions in kind, a usage which had without doubt existed continuously since Roman times. The Church was loaded with honours and had added a fresh prerogative to her former privileges, namely, the right of levying a real tax in kind, the tithe. Since the 3rd century she had tried to exact the payment of tithes from the faithful, interpreting as applicable to the Christian clergy the texts in the Old Testament bearing on the Levites; Gallican councils had repeatedly proclaimed it as an obligation, though, it appears, with little success. But from the reign of Pippin the Short onwards the civil law recognized and sanctioned this obligation, and the capitularies of Charlemagne and Louis the Debonnaire contain numerous provisions dealing with it. Ecclesiastical jurisdiction The Church under Charlemagne. extended farther and farther, but Charlemagne, the protector of the papacy, maintained firmly his authority over the Church. He nominated its dignitaries, both bishops and abbots, who were true ecclesiastical officials, parallel with the lay officials. In each pagus, bishop and count owed each other mutual support, and the missi on the same circuit were ordinarily a count and a bishop. In the first collection of capitularies, that of Ansegisus, two books out of four are devoted to ecclesiastical capitularies.
What, then, was the private and criminal law of this Frankish monarchy which had come to embrace so many different races? The men of Roman descent continued under the Roman law, and the conquerors could not hope to impose their customs upon them. The authorized expression of The law under the Frank monarchy. the Roman law was henceforth to be found in the Lex romana Wisigothorum or Breviarium Alarici, drawn up by order of Alaric II. in 506. It is an abridgment of the codes, of that of Theodosius especially, and of certain of the writings of the jurists included under the Law of Citations. As to the barbarians, they had hitherto had nothing but customs, and these customs, of which the type nearest to the original is to be found in the oldest text of the Lex Salica, were nothing more than a series of tariffs of compensations, that is to say, sums of money due to the injured party or his family in case of crimes committed against individuals, for which crimes these compensations were the only penalty. They also introduced a barbarous system of trial, that by compurgation, i.e. exculpation by the oath of the defendant supported by a certain number of cojurantes, and that by ordeal, later called judicium Dei. In each new kingdom the barbarians naturally kept their own laws, and when these men of different races all became subject to the Frankish monarchy, there evolved itself a system (called the personnalité des lois) by which every subject had, in principle, the right to be tried by the law of the race to which he belonged by birth (or sometimes for some other reason, such as emancipation or marriage). When the two adversaries were of different race, it was the law of the defendant which had to be applied. The customs of the barbarians had been drawn up in Latin. Sometimes, as in the case of the first text of the Salic law, the system on which they were compiled is not exactly known; but it was generally done under the royal authority. At this period only these written documents bear the name of “law” (leges romanorum; leges barbarorum), and at least the tacit consent of the people seems to have been required for these collections of laws, in accordance with an axiom laid down in a later capitulary; lex fit consensu populi et constitutione regis. It is noteworthy, too, that in the process of being drawn up in Latin, most of the leges barbarorum were very much Romanized.
In the midst of this diversity, a certain number of causes tended to produce a partial unity. The capitularies, which had in themselves the force of law, when there was no question of modifying the leges, constituted a legislation which was the same for all; often they inflicted corporal punishment for grave offences, which applied to all subjects without distinction. Usage and individual convenience led to the same result. The Gallo-Romans, and even the Church itself, to a certain extent, adopted the methods of trial introduced by the Germans, as was likely in a country relapsing into barbarism. On the other hand, written acts became prevalent among the barbarians, and at the same time they assimilated a certain amount of Roman law; for these acts continued to be drawn up in Latin, after Roman models, which were in most cases simply misinterpreted owing to the general ignorance. The type is preserved for us in those collections of Formulae, of which complete and scientific editions have been published by Eugène de Rozière and Carl Zeumer. During this period, too, the Gallican Church adopted the collection of councils and decretals, called later the Codex canonum ecclesiae Gallicanae, which she continued to preserve. This collection was that of Dionysius Exiguus, which was sent to Charlemagne in 774 by Pope Adrian I. But in the course of the 9th century apocryphal collections were also formed in the Gallican Church: the False Capitularies of Benedictus Levita, and the False Decretals of Isidorus Mercator (see Decretals).
All the subjects of the Frankish monarchy were not of equal status. There was, strictly speaking, no nobility, both the Roman and the Germanic nobility having died out; but slavery continued to exist. The Church, however, was preparing the transformation of the slave into the serf, by giving force and validity to their marriages, in cases, at least, when the master had approved of them, and by forbidding the latter unjustly to seize the slave’s peculium. But between the free man (ingenuus) and the slave lay a number of persons of intermediate status; they possessed legal personality but were subject to incapacities of various kinds, and had to perform various duties towards other men. There was, to begin with, the Roman colonist (colonus), a class as to the origin of which there is still a controversy, and of which there is no clear mention in the laws before the 4th century; they and their children after them were attached perpetually to a certain piece of land, which they were allowed to cultivate on payment of a rent. There were, further, the liti (litus or lidus), a similar class of Germanic origin; also the greater number of the freedmen or descendants of freedmen. Many free men who had fled to the great landowners for protection took, by arrangement or by custom, a similar position. Under the Merovingian régime, and especially under the Carolingians, the occupation of the land tended to assume the character of tenure; but free ownership of land continued to exist under the name of alod (alodis), and there is even evidence for the existence of this in the form of small properties, held by free men; the capitularies contain numerous complaints and threats against the counts, who endeavoured by the abuse of their power to obtain the surrender of these properties.
Period of Anarchy and the Rise of Feudalism.—The 10th and
11th centuries were a period of profound anarchy, during which
feudalism was free to develop itself and to take definitive
shape. At that time the French people may be
said to have lived without laws, without even fixed
Anarchy and
feudal origins.
customs and without government. The legislative
power was no longer exercised, for the last Carolingian capitularies
date from the year 884, and the first laws of the Capetian kings
(if they may be called laws) do not appear till during the 12th
century. During this period the old capitularies and leges fell
into disuse and in their place territorial customs tended to grow
up, their main constituents being furnished by the law of former
times, but which were at the outset ill-defined and strictly
local. As to the government, if the part played by the Church
be excepted, we shall see that it could be nothing but the application
of brute force. In this anarchy, as always happens under
similar conditions, men drew together and formed themselves
into groups for mutual defence. A nucleus was formed which
was to become the new social unit, that is to say, the feudal
group. Of this the centre was a chief, around whom gathered
men capable of bearing arms, who commended themselves to
