No More Learning

The monarch first exercised authority over
large districts so far as they were not settled, next he laid claim to that
which was not regarded as appendage to the land itself—animals, rivers,
the hidden treasures of the soil which were not agricultural products.
Although these privileges were not developed into definite rights—to
mountain, salt, and hunting rights—till the age after Charles, yet the
beginnings of financial profit are to be found in his day.
By no means inconsiderable were the royal revenues derived from
presents from foreigners, from the tribute of subjects, and from plunder
taken in war. Through no war, says the historian Einhard, were so
great riches acquired as through the subjugation of the Avars. A good
part of the immense treasures, it is certain, fell to the king himself.
Moreover, the amount of fines must have been considerable, and the
count had by law to transmit two-thirds of these receipts to the king's
court. The unusual frequency of the punishment of the king's ban, the
sixty shilling fine, was owing to the wish to increase the royal revenues.
A general money tax, however, was not levied from the subjects. The
Roman system of taxes, which the Franks found in Gaul, fell more and
more into disuse, and even Charles did not try to extend it. The
offering of gifts on the occasion of the great annual assembly, a custom
connected with old Germanic practices, was, it is true, maintained, but it
did not lead to the development of a tax in the proper sense. It only
paved the way for definite imposts where—as in the case of the
monasteries—a closer relation of dependence was created, exceeding
simple subjection to the State. The king's tribute also, which is more
frequently thought of as a due payable by individual freemen, is not to
be regarded as a proper tax, and in particular not as a general personal
tax. It seems rather to have arisen from a special payment for pro-
tection, and in any case it was rendered by many classes of the popula-
tion, on the ground of special, not general, circumstances of dependence.
The subjects are seen under obligations not to pay taxes but to
render service. This is a characteristic element in the national life of
that age. The State demanded much, very much from the resources
of the individual, in the form hot of a tax but of personal service.
These services were extraordinarily various. In a certain sense they
were unlimited. In the ordinances of Charles reference is made to
custom, and the officials are strictly enjoined not to demand services
CH. XXI. /
n


## p. 666 (#698) ############################################

666 Military Service
beyond that; but this was only to afford protection against arbitrary
acts on the part of the officials and against their making use of obliga-
tions to service for their own purposes. This service (servitium)
embraced obligations of the most different kinds—the boarding, lodging,
and forwarding of those travelling or working on state business, the
acceptance of duties as envoys, and also co-operation in work, and
buildings in the public interest, fortifications, dikes, bridges, and the like.
Definite limitations of this obligatory service were not drawn. Varying
custom formed the standard and was often the only restriction on the
power of the provincial officials who exacted it. But two obligations of
the most general kind may be regarded as the most important and
probably also as the most oppressive—military and judicial service.
In the time of Charles, when warlike undertakings were frequent,
military service must have seemed a heavy burden. It is true that
special military regulations are found. In them, mention is made of
those to whom crown endowments were given, who were bound to
service in war as horsemen, who dwelt scattered over the land and who
were always at the disposal of the central authority ; and in addition we
find troopers, the mounted vassals, on whom royal lands were bestowed,
and who were bound to serve as mounted messengers and in the army.
But the great mass of freemen remained liable to military service1. The
organisation of the army even in the time of Charles was doubtless
the special care of the upper classes, for the supply of the necessary
material of war was entrusted to the nobles capable of furnishing it, and
those bound to service already Used to assemble under the leadership
of their own lords. But nevertheless the principle was maintained
that military service is a national duty of the freeman. The service
was equal for all in spite of the utterly different positions of those
liable. All were obliged to equip and keep themselves. When the call
to arms, the bamiitio in hostem, was raised, all freemen were obliged to
obey under the leadership of their lord or the count. The negligent
were liable to the severe punishment for disregard of the royal command,
the sixty shilling fine, while anyone who left the army without leave
was guilty of herisliz and lost his life as a traitor.
It was in the king's power to allow modifications in particular cases,
in the Merovingian period. The result of the extension of the Empire
was that only partial levies were made. The king could therefore take
into consideration the needs of different districts, and could spare many
classes. The Carlovingians still more than the Merovingians, Charles in
particular, sought to lighten the hardships of universal military service.
These attempts were attached to older measures, but yet they proceeded
1 Few now hold the opinion of Waitz (Verfassungsgeschichte, iv. pp. 533 ff. )
that the possession of land was regarded as a condition of military service in
Merovingian and Carlovingian times, and that the laws of Charles which neglect
this principle are to be regarded as an innovation.
■N


## p. 667 (#699) ############################################

Military Service 667
from new principles. At any rate Charles issued no absolute ordinance,
no law which was to furnish a new basis of service. As in all spheres of
social life, so here too Charles contented himself with measures to meet
particular cases, with ordinances arising from the needs of the moment,
and only valid for certain districts. His reform of the army took shape
through many single rules. But yet it proceeds from the uniform
principle that liability to military service is to be measured by the
circumstances of the one liable. The principle of equal liability of all
freemen, dating back to the old German times, was originally founded
on the assumption of the fairly equal economic position of the free
Germans. This assumption had long been set aside through the forma-
tion of private property and through the immense difference in the
possessions of individuals, but the principle of universal equal liability
to military service had remained. Charles now sought to co-ordinate
this duty to the altered circumstances. This was the new and significant
point in his regulations. Those liable to serve were formally classed
according to their means, a minimum of property being fixed for full
liability. But, as may easily be understood, in the East, only posses-
sions in land were taken into account, while in the more advanced
West, movable goods were also reckoned. A capitulary issued in 807
for the south Prankish district assumes three hides as the minimum for
full personal service, and allows the less wealthy to supply one man for
every three hides, but requires contributions for the equipment and
maintenance of a warrior even from the possessors of only movable
chattels. In the case of the Saxons another capitulary fixed the
standard for furnishing a warrior at six hides when a military under-
taking in Spain or against the Avars was in question; at three hides
when the campaign was directed against Bohemia; but makes no
minimum when the army is to march against the Sorbs. In a further
law, of perhaps general validity, five hides are taken as the unit for
computation of liability. These are all bases, varying in detail, but
all proceeding from a uniform principle. And these principles had a
lasting effect which influenced military organisation of succeeding ages
outside the limits of the Frankish Empire. Other judicial reforms tended
to the relief of the small man from a heavy and oppressive state duty.
The judicial official, especially the count, summoned the freeman of
his Gau, or district, to judicial assemblies. The giving of judgment was
universally the business of the people. Where too frequently used, this
summoning of the people to general assemblies pressed very heavily on
those in more straitened circumstances.
Charles was the first king who protected the small freeman against
too frequent calls. In different ordinances, he directed that the people
should be summoned to judicial assemblies only two or three times in
the year, and that at other assemblies, meeting in case of need, only
those interested in the case were to appear. And in all districts of


## p. 668 (#700) ############################################

668 The Judicial System
the Empire, and indeed beyond it, these measures led to an institution
that lasted for centuries—the unbidden or genuine " Things," the general
assemblies, usually held three times a year, of all those liable to serve,
which stood in contrast to the bidden "Things,11 the judicial assemblies,
which occurred more frequently and doubtless according to need.
This arrangement of three general assemblies a year for judicial
purposes was probably directly connected with the introduction by
Charles of the office of judge. In the Merovingian period it was
already the custom to choose a select number out of the whole body,
who had to propose a verdict, the Rachinburgi who presumably were
appointed for each case. In connexion with this institution Charles
created in the first year of his reign the office of judges (scabini). His
officials appointed from among the prominent men in the county a
somewhat large number, who were officially responsible to the king,
and acted as assistants to the count or one of the judges subordinate to
the king, and on them rested in the first place the duty of pronouncing
judgment. Although there was not the least intention of excluding the
purely popular element from the judicial system, yet through the newly
created office and its judicial work the possibility was opened of dis-
pensing with further participation of the people in all judicial assemblies,
so that popular gatherings should only be summoned three times a year,
and yet the administration of justice not be neglected.
Charles'1 important reform of the judicial system certainly proceeded
from the same intention as is to be observed in the military reforms,
and indeed generally in Charles1 labours—protection for the weak and
oppressed. Not that the monarch sought to hinder the great process
which was bringing the small freeman more and more into dependence
upon a private noble and which in consequence of economic and social
conditions was reducing the class of such freemen. But these measures
manifest a^fconsiderable basis of social and political principle, like those
of every executive which considers in a wide sense the well-being of the
citizens.
Before we examine more minutely the activities and organ of the
State, we must consider the question whether the royal authority was
dependent on the co-operation of the people or certain classes of the
people, and if so, in what manner.
As a Frankish king, Charles was monarch in the true sense of the
word, but he held meetings with people and nobles. Does that then
denote a constitutional limitation of the royal powers?
An account is given of national gatherings by Hincmar of Rheims.
In his work, De Ordine Palatii, he wished to draw a picture of the happy
conditions at the court of Charles the Great for the youthful West
Frankish king Carloman, the grandson of Charles the Bald, and besides
the accounts of men of the older generation, he used a book by Adelhard,
abbot of Corvey, on the Order of the Central Government of Charles.


## p. 669 (#701) ############################################

Assemblies 669
It was the custom, so he relates, for national gatherings to be held not
oftener than twice a year—once to arrange affairs of the Empire for the
current year, the other time for preliminary deliberations for the following
year. In the first all temporal and spiritual nobles took part, but in the
other only the higher nobles and selected councillors. Hincmars account
in so far finds confirmation in contemporary records, that authors and
documents of the end of the eighth and the beginning of the ninth
century speak on the one hand of general national gatherings (conventus
generates, pladta generalia) and on the other of gatherings simply. The
latter are assemblies of the nobles of the whole Empire or particular
districts, but the former are assemblies of the people under arms, military
gatherings, the great general annual meetings, connected with the old
Frankish Marchfield.
The Marchfield originated in the Frankish tribal gatherings. It sur-
vived all changes of constitution in the sixth and seventh centuries, and
maintaining itself at any rate in the Germanic East of the Frankish
Empire, it awoke to new life under the Carlovingian mayors of the
palace.
Pepin postponed the annual assembly of the army to the 1st of May
for military and economic reasons, making it a Campus Madius instead
of a Campus Martins. Charles, however, did not keep to May, but
according to need often chose a later date. Of course the great annual
gathering had long ceased to be a gathering of all the warriors of the
whole Empire. It was a gathering of the levy of the particular time
and of the aristocracy. From the Mayfield the army often marched
immediately to war, but a Mayfield might be held without any military
expedition following, for at the Mayfield business of all kinds was to
be discussed. "Let the Mayfield be summoned," so it runs on one
occasion, "to treat of the safety of the Fatherland and the well-being
of the Franks. " But the assembled people were only there to express
wishes, to bring forward grievances, and to receive decisions. Only the
nobles deliberated with the monarch. In truth, the great annual
assembly was not the organ of a constitutional participation of the
people themselves. The participation of the people was but a fiction.
Important business was to be performed by king and empire, by
king and people in common. This, since the rise of the Carlovingian
dynasty, had been a formal principle, and still was so under Charles
the Great. But in what manner the people were called to co-operate,
who constituted or represented the people, was not laid down. If we
may suppose that in the first days of Carlovingian rule the Marchfield
or Mayfield was regarded as the organ of popular participation, and that
thus a broad popular foundation was desired for the most important
decisions of the Empire, yet in course of time that became less and less
the case, and, at first perhaps occasionally, but later on generally, it was
neglected.
CB. XXI.


## p. 670 (#702) ############################################

670 Decline of the Assemblies
Pepin's Law of Succession of 768 and the elevation of Carloman and
Charles to the throne took place at small gatherings of nobles, and so
did Charles1 proclamation as successor of his brother in 771 and the
important settlement of the Empire in 806. Even important acts of
legislation were not taken in hand at the great annual gatherings, but
at assemblies of nobles, for instance the decrees of the Capittdare
Heristallense of 779, and the incisive rules of the Saxon Law of 797,
and perhaps also the comprehensive legislative measures of 802. It was
therefore no innovation when under Louis the Pious important laws in
the year 816, and the extensive legislation of the year 819, were
debated, not at general assemblies of the Empire, but at small meetings
of nobles1. Without doubt, there was no longer any true participation
by the people. Even if it was customary under Charles also to hold a
general assembly every year and there to discuss all important affairs of
the Empire, especially questions of legislation, yet the monarch was
perfectly free to deal with even the most important questions at only a
small meeting of nobles.
If we keep these facts in view, we must ask to what purpose was the
clumsy institution of the Mayfield? Now that the requirement of the
constitution that the people should meet annually to co-operate with
the central government was enfeebled, and was now regarded as satisfied
if the monarch consulted a considerable number of nobles and took their
advice, the sole justification for the perpetuation of the Mayfield lay in
military matters; to assemble the army and prepare for a campaign.
For this reason, too, Charles chose different dates for holding the May-
field, holding it amongst other times in the autumn, just as military
needs required. The advantage of holding an annual review of the
available forces could not outbalance the heavy sacrifice imposed upon
the small man. Even the one very important purpose of affording all
classes of the population the opportunity of a personal connexion with
the centre of government, was no longer of great weight. Owing to
the great extension of the Empire it was no longer possible, and it was
besides satisfied by the institution of the king's envoys (mUri dominici).
Thus in the nintb century in times of peace the important reasons for
the assembling of the people in arms were lacking. In other words, the
Mayfield lost its justification from the moment that war was no longer
a regular expression of the life of the State. The Mayfield necessarily
disappeared when the great regular military expeditions ceased. This
was already the case in the latter years of the reign of Charles the Great
and under Louis the Pious. There still occurs for a time the contrast of
placita generalia and placita in the old sense, that is in the sense that
by the one was meant the assembly of the people equipped for war, and
by the other the meetings of the nobles. But even in the latter part of
1 Cf. the proof in Seeliger, Volksrecht und KSnigsrecht, pp. 336 ff.


## p. 671 (#703) ############################################

Decline of the Assemblies 671
the reign of Charles the former no longer took place annually, and instead
of the people, only the nobles were summoned.
The transition from the old assembly of the army to the meetings
of the nobles was easily and smoothly accomplished in the following
manner. The spiritual and temporal nobles who acted at the Mayfields
as the representatives of the people were responsible for the carrying
out of the royal summons to the great annual gatherings. To them
the command was issued to appear fully equipped—hostiliter. That
implied the mobilisation of the forces as well as the call to the great
annual assembly. Inasmuch as the command to the nobles now was to
appear in the royal presence not hostiliter but simpliciter, i. e. not with
the people under arms but with a simple escort, the change required
by circumstances was brought about. The great annual gatherings
which in earlier times had been gatherings of the nation under arms
(Marchfield, Mayfield), became general meetings of nobles. There still
existed a difference between the general and the little assembly, but it
meant by this time a distinction between general and special meetings
of nobles. And Hincmar, who lived two generations later than Charles,
knew, as may easily be understood, only national gatherings of an
aristocratic character. He understood the difference between the great
and the little assembly in the sense of his own time, namely as between
two kinds of meetings of nobles. If he then attributes only pre-
liminary deliberations to the smaller gatherings, the composition of
which was, as a matter of fact, dependent on the will of the monarch,
and ascribes real decisions only to the general meetings of nobles, this
arises from his aristocratic conception of the constitution and from his
desire to assign to the aristocracy the position of a second independent
power beside the monarch. But the age of Charles the Great knew
nothing of this.
Thus the genuinely Germanic participation of the people in the
government of the State appears strongly repressed under Charles
the Great. In the Merovingian period it already seemed occasionally
quite subdued, while with the rise of the Germanic dynasty of the
Carlovingians it made a vigorous struggle to the front again, but it
was really checked by the great personality of Charles and at the same
time by the advance of the theocratic element in the monarchical
authority. Charles the Great did not bind himself to ask the assent
of a national assembly of definite organisation, but transacted the most
important state business only at small gatherings of nobles, and thus
made any visible limitation of his monarchical power by people or
aristocracy illusory, and reduced the participation of the people as a
matter of fact to a consultation of those classes of the people whose
co-operation seemed to him desirable according to the occasion. At one
time he laid the matter before the great annual gathering, at another
before a small meeting of nobles, at another before the representatives


## p. 672 (#704) ############################################

672 Law
of the tribe concerned in the new laws. But in spite of this, there
remains the peculiar fact that reference is always made to participation
by the subjects and that it was clearly regarded as necessary. Thus we
can say that the idea of participation by the people was not fully over-
come even by the violent effort of the monarchy under Charles the Great.
It was greatly hindered, but it lived on to attain new force in favourable
circumstances.
Is a similar relation of king and people to be observed in connexion
with the formation of Law and with legislation?
Law is • formed by custom and legislation. For a long time the
formation of Law through custom preponderated among the Germanic
peoples. Though many a precept had been given in old times, and
many a sage had acted as lawgiver, the systematic development of Law
through legislation belongs to a later stage of civilisation, to the time
when the Germanic races had come under the influence of the superior
Roman civilisation. From the fifth century the Germanic peoples in
the mass, the West Goths, the Franks, the Burgundians, the Alemanni,
the Bavarians, the Frisians, the Saxons, attained step by step to a
written form of their Laws as they came into immediate contact with
Roman civilisation. These great systematic codices, called the "Folk-
rights," were intended for the most part only to formulate the Right
already existing among the people, but naturally they frequently
advanced consciously or unconsciously to new statutes. And then
in the Frankish kingdoms, from the sixth century onwards, appended
to the Folkright, came special laws, royal regulations which supple-
mented or modified the outlines of the Folkright, or dealt with new
spheres of law. From the eighth decade of the ninth century these
special edicts of the kings, on account of their divisions into smaller
sections (capitula), were called Capitularies, an expression which has been
generally adopted by modern historians. Folkright and Capitularies
are the two great sources of the Frankish period which afford informa-
tion regarding the laws of corporate life on all sides. They are the
result of those new demands of a more definite corporate life with
common aims, demands which were already arising in the older Mero-
vingian period and reached the summit of their development and their
fullest satisfaction through Charles the Great.
In the year 802—so relate the Annates Laureshamenses—the Emperor
Charles summoned the dukes, counts, and the rest of the people with
the legislators, recited and amended the different Folkrights and caused
them when so amended to be written down, and issued the rule that the
judges should judge only according to the written Law. This account,
freed from its exaggerations, agrees with the report of the historian
Einhard, "When Charles the Great, after accepting the imperial dignity,
observed that there were many defects in the laws of the people and that
the Franks have two Laws differing from each other in many points,


## p. 673 (#705) ############################################

The Assembly of 802 673
he intended supplying what was lacking, harmonising what was con-
tradictory, improving what was bad and useless. But of all this he only
carried through the addition to the laws of some chapters, and even
these incomplete. The still unwritten Laws of all the peoples who
were subject to his rule, he caused to be written down. " The trans-
mission of the laws entirely confirms the accuracy of these accounts.
Numerous manuscripts of the Salic and Ripuarian Folkrights testify
that in the Carlovingian period, and apparently at Charles the Great's
instigation, steps were taken towards re-writing the old laws, but only
verbal improvements were intended, not the removal of clauses that had
long ceased to be effective. We know further that Charles caused
hitherto unwritten Laws to be written down—perhaps portions of
the Frisian Folkright, certainly those of the Saxons, Thuringians, and
the Chamavi. The Assembly of Aachen of 802 must be regarded as
the scene of these legislative efforts. Hither were summoned those
familiar with the Laws of the different tribes in order to procure the
material.
But the great Emperor's comprehensive scheme of reform remained
unaccomplished, and it was necessary to issue numerous regulations on
particular points to correct and to supplement the old copies in order to
satisfy the need for a development of the Law. It was through the
Capitularies that this was accomplished. They had long been known in
the kingdom of the Franks, but under Charles the Great they attained
the vast extent to which the remains that have come down to us
testify.
Year by year prescripts of every possible kind were issued, decrees
which claimed validity either in the whole kingdom or in single districts,
rules of a general or special character, explanations of existing regula-
tions of these Laws, supplements to correct conspicuous deficiencies in
previous laws, and in addition directions for the state officials in their
government.
Are we to separate these laws and ordinances into two groups,
according to the difference of the authorities, summoned conformably
to the constitution and concerned in their origin, and according to the
difference in their contents and the period of their validity? Are we
to oppose Folkright to the King's Law?
In the period before the founding of the Frankish Empire the
different German tribes had developed their Law mainly according
to custom and popularity. To do so was a matter for the people.
But when the rule of the Merovingian kings had extended over the
different Germanic tribes, this purely popular method began to be
disused and another to be followed as well. Although their own
hereditary right was to remain to the members of the different tribes
and what is called the Principle of Personality was recognised, yet a
great change in the tribal Law was unavoidable, due to the Empire
C. MED. H. VOL. II. CH. XXI. 43


## p. 674 (#706) ############################################

674 Folkright and King's Law
and to the royal power representing the Empire. For the Empire laid
claim to the supreme power of making laws quite generally and uncon-
ditionally. It of course regulated the Right of the people chiefly in
reference to the authority of the Empire, but it by no means renounced
influence on the laws of the members of the tribe amongst themselves,
on penal, legal, and private Law. And so on the one hand stands
the Right of the tribe which still continued to be developed in the
local courts—the Folkright, while on the other hand are the laws
issued by the imperial authority which in a special way supplement the
Folkright and develop or often contradict it. These are the King's
Law, issuing directly from the king, the creator and upholder of the
Empire. In fact two powers take part in the formation of the law—
king and people. For the historical understanding of social institutions,
it is of interest to seek their different origins, and in the case of many
laws it is of importance to determine whether they issued from the
judicial consciousness of the people themselves whom they concerned or
whether they were dictated by the royal authority. In a certain sense
the working of two different forces in the formation of the Law is rightly
recognised in the assertion of a legal dualism, in the contrast of Folk-
right and King's Law1.
But only in a certain sense. Any deeper systematic distinction is
erroneous. Erroneous is the assumption that according to the constitu-
tion the king could exercise no influence on the Right of the tribes united
in the Empire, and that only in virtue of his Banright, that is, his
power of command, essentially contrary to law, did he decree new laws,
which as King's Right entered into rivalry and competition with the
Folkright. It is erroneous to assume that Folkright is to be understood
merely as Customary Right and the King's Right as Right of legislation.
Erroneous are all further theories about the constitution founded on
this idea. Not by virtue of a power of coercion, but by virtue of the
power of making laws inherent in the monarchy did the king influence
the development of Law; not only through laws but also through his
officials, on occasion of delivery of judgment, did he bring into use new
aims of the King's Law. The opinion must be rejected that in the
Frankish period, afterwards as before, the people continued to develop
their Right by themselves and for themselves according to custom, while
the king on the contrary issued ordinances resembling laws and so created
a second system of Law in opposition to the Folkright2.
But another attempt also to systematise the dualism of Folkright
and King's Law3 must be looked upon as unsuccessful, the attempt
namely to discover the characteristic difference between Folkright and
the King's Law of the Frankish monarchy even in the existing laws
1 This dualism was first, with great clearness, emphasised by Sohm.
2 This is Sohm's view.
3 So Boretius, Bruimer, Schroeder, and several others.


## p. 675 (#707) ############################################

The Capitularies 675
and to divide the laws into two groups according to their force, and
more especially according to the powers responsible for their origin—
one group, that of laws approved by the people and formally accepted—
laws according to Folkright—and the other group, that of laws issued
without any decision of the people—laws according to King's Law.
Of such a division the ancient authorities know nothing. An assent to
certain laws by the people gathered in the Hundred Court was not
constitutionally necessary. Even though the principle was effective
that laws were not to be made without the co-operation of those
classes for whom they were intended, the summons to a Diet of those
concerned was clearly sufficient. For the participation of the people
ended with participation of the subjects in Diets. That is the fixed
principle of the Frankish State to which all accounts of the legislation
of the Frankish kings point.
In connexion with the contrast of Folkright and King's Law, the
Carlovingian Capitularies which deal with secular matters, and from
which only Capitularies containing ecclesiastical regulations are to be
separated, are commonly divided into three groups according to contents,
origin, and period of validity: (1) Capitula legibus addenda, (2) Capitula
per se scribenda, (3) Capitula missorum. The first are said to contain
those decrees which modify or supplement laws of the Folkright; the
second to refer to such ordinances as concerned the relation of the
subjects to the Empire; the third to be instructions for the king's
envoys. The first, according to the usual view, were raised to law by
a decision of the people; the second were called into existence on the
ground of an agreement of king and Diet and did not claim lasting
validity; the third owed their origin to the personal decision of the
monarch alone and were of merely temporary validity. The first
embrace Folkright; the second King's Law; the third administrative
measures.
This favourite differentiation1 proceeds from modern legal conceptions
and reads them into an age that knew nothing of such legal differences,
and could not know. When several explanations were necessary at the
same time for one Folkright—the Lex Salica, Ripuaria, or the Lex Baiu-
varwrum, or when numerous supplements to the leges generally were to be
issued, it was the custom at the king's court to combine them in special
ordinances, in Capitula legibus addenda. If, however, there were only
a few points of the law in question to be explained, while other legal
measures were to be taken at the same time, they were all combined in
one ordinance. But of a different origin and of a different validity there
is no trace. Whether the penal or judicial clauses occur in a capitulary
which simply contains analogous regulations supplementing the rules of
a Folkright, or whether they occur in a law referring to matters of a
1 Started by Boretius, adopted by many investigators.
ch. xxi. 43—2


## p. 676 (#708) ############################################

676 The Capitularies
different character, there is no hint of a different origin, and scarcely of
a difference in validity, for this was quite independent of the intrinsic
significance of the law. That was merely the consequence of a purely
external method of legislating applied according to circumstances. It
was only applied according to circumstances, for the great mass of extant
capitularies shew that the Carlovingians did not and could not know
anything of the principles of a threefold division. If we disregard the
not very numerous Carlovingian capitularies that can be reckoned a*
Capitula legibus addenda, and if we also disregard those ordinances
which are evidently instructions for the king's envoys, there remains
the great mass of the capitularies, containing regulations of the most
different kinds, judicial and administrative regulations, ordinances for
the army, for the administration of justice, for the Church, and in civil
matters. That is characteristic of the whole government under Charles
the Great—the needs of the moment are satisfied. To the king's court
came complaints, requests, inquiries, which were dealt with by the king
and councillors or in some cases by the assembled Diet. As ecclesi-
astical regulations were frequently grouped together in independent
ordinances, so occasionally—when the subject required or permitted it—
were single groups of secular ordinances: instructions, supplements, or
modifications of leges. But what had by chance been jointly debated
and decided could also just as well be comprehended in a law. This
was carried out on no intentional system. Rather, the want of a
system was characteristic. Significant is the attempt of the State to
provide for the development of the Law by numerous disconnected
measures to meet special needs of the moment. There was nothing
like a principle of difference between law and prescript, nor even a
clear difference between legislation and administration.
Two powers were in operation: King and People. They worked in
harmony, they also worked in opposition. A conflict between popular
influence and royal influence necessarily manifested itself in the restricted
sphere of the Frankish tribe from the moment that the monarchy in
its excessive strength arose as a new independent power. But it was
seen still more significantly in the districts of those other Germanic
tribes which had been brought into subjection by the Frankish king and
possessed a copious system of Law independently developed, and which
were now to be embraced in the unity of the Frankish Empire. But the
conflict of popular and royal influences was not limited to the sphere of
legislation. It naturally became prominent in all spheres of corporate
life. The consideration of the administration of the provinces under
Charles will also shew this—the ancient popular institutions on the one
hand, the new desired by the central authority on the other.
The Carlovingian government of the provinces was based upon the
system of counties. The whole Empire was divided into districts, at
the head of which stood counts, an old institution already known under


## p. 677 (#709) ############################################

Local Govei-nment 677
the Merovingians, but first consistently and fully used by Charles the
Great. Thereby a long process was brought to a close, a process of
competition between the institutions desired by the Frankish govern-
ment and the ancient institutions of the different tribes and districts
incorporated into the Frankish State. We are often no longer able to
recognise what existed before the Frankish conquest, and how it was
overcome by institutions of the Frankish kingdom. But there had
been a long struggle between the two forces—between the old popular
institutions on the one hand, and those proceeding from the Frankish
authority on the other. In this sense there was a significant opposition
of popular and royal influences, of Folkright and King's Law. Gradually
we can observe the advance of what was desired by the central authority.
When the Merovingians conquered Gaul and extended their rule
over different tribes of the Germanic East, they did not abolish the
national institutions altogether. Just as they left to the different
peoples their own Law, so they left them also their national insti-
tutions. The tribal authorities largely remained, and were merely
brought into a condition of dependence, looser or closer. But the
process of centralisation was continued by the Carlovingians and per-
fected by Charles the Great. The old institution of Herzog, or Duke,
partly local ruler, partly local official, was set aside—a characteristic piece
of internal policy. Duke Tassilo of Bavaria was the last representative
of the internal ducal authority. After his deposition in the year 788,
the Bavarian district was linked on to the usual Frankish county
administration. Only among the Basques in Vasconia and the Bretons
in Brittany are the native dukes, in the old Merovingian sense, still
to be found, even under Charles. Elsewhere dukes are met with, but
not as independent representatives of local popular authority. They are
merely officials of the king, furnished with extraordinary military power,
to whom—sometimes only temporarily—larger provincial districts were
assigned or special full powers on the borders of the Empire. Their
office, however, as a regular part of the constitution was unknown
under Charles. The provincial division of the land rested upon one
indispensable basis—the division into counties.
Naturally, on the introduction of this system, former divisions of the
people and land were utilised. In Roman Gaul, the old town districts,
the civitates, became the Frankish counties, Gaue or districts; in the
purely German parts, the old divisions of people and land which some-
times corresponded to the old German tribes. How far old divisions
were utilised or new ones created is, from the nature of the case, not
open to investigation in particular instances. One thing must be
clearly kept in mind in all examinations of the territorial division
of the Frankish as of the later States—the designation Gau (i. e. District,
Latin Pagus) very often refers to the county, but not always. It would
be a mistake, though it has often been made, to regard every Gau as a
CH. XXI.


## p. 678 (#710) ############################################

678 Gaue. Comites
future county. Gau also occurs from the very beginning as the name
of other administrative districts besides those of the county. It
occurs moreover as a purely geographical description without reference
to a definite administrative district. Gau and county were frequently
synonymous, but occasionally were different from the beginning.
Under Charles the Great the county is the administrative district
simply, the natural base of all state activities. Wherever this system
of counties was wanting in Charles' Empire, the imperial authority
purposely abstained from a real incorporation of that district into the
Empire. We may say definitely that the measure of the realisation of
the system of counties shews us the measure of acceptance of the imperial
power itself.
The garafio {gerefa, greva) the Franks had already possessed before
the foundation of the Empire. Comites were already known in the
Merovingian age as powerful officials of the Gaulish civitates. For
some time graf and comes stood side by side in the Merovingian
kingdom. Not certainly in the same gau. The relation is rather to be
so understood as that the Roman districts in connexion with older
arrangements possessed comites, while the purely Frankish districts had
graf8. The distinction soon disappeared. The comes adopted much from
the graf, the graf much from the comes, and there arose the single office
of graf under the Frankish monarchy. The graf is the definite organ of
royal government in judicial, fiscal, military, and administrative respects.
The usual official title for the graf is under Charles the Great the
Latin word comes, and more rarely the less definite expressions prae-
fectus, praeses, rector, and also consul.
Charles disposed of the office as he thought fit. No general uniform
principle directed the choice of men. Largely it was eminent Franks
who were placed in important posts of trust, whether in Franconia
itself or in conquered districts to maintain the authority of the Empire
in face of the native chiefs. Occasionally, however, Charles sought to
win the most eminent men of the conquered race to himself by conferring
upon them the most important provincial posts, and in this way to render
possible the gradual reduction of the new people to an integral part of
the Empire. Then again, it is reported to us that he bestowed the
office of count on men who were not noble, even upon freedmen. In
fact, in the bestowal of offices, only the one principle prevailed, that
those were to be placed at the head of the district from whom the best
service for the good of the Empire might be expected.
The office was bestowed for life, but of course in case of disloyalty,
or even of bad government, it might be withdrawn without hesitation.
That Charles always reserved a free hand for himself is testified beyond
doubt, and therefore the allusions to the count's owing his office to the
grace of God are not so much emphasis of independence as a confession
of the humility due to God.


## p. 679 (#711) ############################################

The authority of the Count 679
The authority of the count himself was unusually extensive. It
embraced everything that concerned the State. The count is the king's
representative in his district. Just as the authority of the State mani-
fested itself primarily in military and judicial matters, so also did the
activities of the count. The count was the supreme administrator of
justice in his district. Usually he had to hold the general assemblies
of the gau, which, according to the regulations of Charles, brought
together all the freemen of the gau two or three times a year in what
were afterwards called the regular "Things. '" Difficult law cases, it
was specially enjoined by Charles the Great, the count was to determine
himself and not to leave to his subordinate officials. In the court of
the centenarius or subordinate judge, it runs in one law, no man may be
condemned to death, loss of freedom, or forfeiture of land or slaves—
that was reserved for the count or for the king's envoy. It was not
intended that this higher jurisdiction should be restricted to the three
great annual "Things," but only that the transfer of the most important
cases into the hands of the subordinate officials should be prevented1.
It was a principle of the constitution that the count was the ordinary
judge in the gau.
The organisation of the army was also in the hands of the count.
By him the levies were led or superintended, and he himself went on
campaign with the vassals of his district—one of his most important
functions. On him it further rested to summon to the royal service and
to exact state requirements from the freemen of the gau. He had to
represent in himself the special defensive authority of the king, just as
he had to see to the general peace. And just as the State in Carlo-
vingian times extended its power in different directions, the powers of
the count also, the representative of the State in the gau, seem unusually
extensive, particularly in the direction of matters of police.
In ecclesiastical affairs, also, the count is to help, as though assistant
to the bishop. Just as things secular and spiritual converged in Charles'
kingship, so willing co-operation was desired on the part of local bearers
of ecclesiastical and secular authority. The counts were directed to be
obedient to the bishops and to support them in all things. Rivalry
often disturbed the harmony, and Charles caused inquiry to be made
how an exact definition of the count's powers in spiritual matters and
of the bishop's in secular could be accomplished. But there was never
any doubt that bishops and counts were to be equally regarded as
important officials of the State. Louis the Pious caused the bishops
regularly to make reports concerning the counts, and the counts con-
cerning the bishops, so that he could exercise exact control. Naturally,
the count was furnished with the coercive powers indispensable to all
rulers. Such power under Charles the Great was so regulated that
1 Such is the view of Waitz, Verfassungsgesch. iv. pp. 381 ff. , to which for the
most part sufficient attention is not paid.
CH. XXI.


## p. 680 (#712) ############################################

680 The Marches
punishments were even fixed for disobedience to official orders, varying
according to the nature of the order, in such a way that the official was
allowed to determine a penalty independently of the object of the orders,
and graduated according to his personal authority1. According to the
Alemannic Law the count's " ban" amounted to six shillings, according
to the Saxon Capitulary of Charles the Great, for smaller transgressions
it was fifteen, and for more serious cases of disobedience sixty shillings.
Not till later, when the sixty shilling penalty was more generally used
and had become the punishment for disregard of a royal order, was the
official who was looked upon as essentially the king's official, the count,
regarded as holder of this king's ban.
Only a peculiar form of the system of government by counts, not an
abrogation of it, is seen in the organisation of the marches, which may
justly be looked on as the personal work of the great Emperor. That
the counties situated on the border of the Empire were provided with
arrangements for the defence and protection of the Empire is natural.
We must distinguish from these border counties the march district
proper, the newly conquered border land or else that specially arranged
for border defence, provided with numerous fortifications and forming
a bulwark before the counties of the Empire itself. So arose under
Charles himself, or at any rate at his instance, the Spanish, Breton,
Saxon or Danish, Sorbian, Avarian, and Friulian marks. Those at the
head of them were called graf, also margrave, markherzog, and by
similar titles. Sometimes border counties were in connexion with the
marches, and so arose a specially strong power, predominantly military,
which obtained for its owner the proud title of duke. Thus we can
understand when the Monk of St Gall, at the end of the ninth century,
relates how on the borders of the Empire Charles departed from the
rule that to one person only one county should be assigned.
If we see a thoroughgoing uniformity in the division into counties,
and only those districts were freed from it which had not been com-
pletely incorporated into the Empire, we cannot trace a similar
uniformity in the case of the subordinate officials. Here there were
great differences. And that is perfectly intelligible. In the first place,
if the Empire laid great weight on the carrying out of the county system
and sought to put aside everything that resisted the Frankish arrange-
ments, of course the old popular officials could no longer be left in the
lower places. Thus many differences are due to a continuation of
the old popular system or to a connexion of it with Frankish arrange-
ments. And moreover districts in private ownership became more and
more important, and the officials of the private owners more and more
assumed public functions, dispossessed the lower state officials and took
their place. Hence, in the dominions of Charles the Great we observe
1 Cf. Seeliger, Voiksrecht und KSnigsrecht, pp. 366 ff.


## p. 681 (#713) ############################################

Subordinate Officials 681
different officials acting in the subordinate positions side by side, and
the same official titles occur among those holding different official
positions.
The officials working under the counts are for the most part to be
divided into three classes: (1) Assistants and representatives of the
count not restricted to one part of his district. (2) Superintendents of
a subdivision of the county. (3) Different officials of private landowners,
local superintendents, or town officials for special, particularly military,
matters. In the first group the missi of the counts and the "viscounts"
can be reckoned, although a definite office of this kind can hardly be
assumed. We must rather suppose that a count frequently appointed
one of his subordinate officials, a centenarius and "vicar" to take his
place, but only temporarily, and that in such cases this subordinate
appeared as missus or "viscount. " To the second group belongs above
all the centenarius, the old Frankish official, who must be identified1 with
the "Thunginus" of the Salic "Volksrecht," the old national judge,
who was forced into dependence upon the king's officials, the counts, and
restricted to the administration of justice in minor matters, in order to
leave the higher entirely to the count. To the centenarius corresponds
the vicar. It is quite clear that under Charles the Great a division of
the counties into centenaries and vicariates was everywhere carried out,
at least in the middle and western counties of the Empire. To these
subdivisions of the West corresponded the Goe of Saxony, and to the
Frankish centenarii and vicars the Saxon Gogrqfen. To the third group
belong not only the superintendents of the royal domains called
Judices and other officials of these domains like the vUlici, who later
were found everywhere, but above all the tribunes (tribuni) and mayors
(scultheti), who are found in smaller districts as executive officials.
Tribuni and scultheti are, from the first, not names for a uniform
lower office but for different, though similar, subordinate officials—
there were scultheti of the king, the count, the private landowner, and
others.
But great as were the differences among the officials in the State,
and great as was the concession made to the peculiarities of the different
peoples and to different local needs, yet Charles knew how to retain in
his own hands perfect control over the whole. Indeed it was characteristic
of his government that all who had public duties to perform, or who had
to provide for the maintenance of Law and Order even in the smallest
districts, were controlled by the State and made responsible to the State.
The authority of the State did not draw back before private ownership.
It pressed forward everywhere. The counts supervised not only their
own subordinates but also the officials of ecclesiastical and secular lords.
1 That is the general older view which H. Brunner has tried to set aside, but in
my opinion unsuccessfully. He wishes to make a sharp distinction between the
Centenariu* and the Thunginut.


## p. 682 (#714) ############################################

682 The missi dominici
All belonged to the one great organism, to the universal State, in the
centre of which stood the monarch himself.
But how could the centre remain in living connexion with distant
parts and with the provincial officers? To solve this problem was the
task of the missi dominici, perhaps the most peculiar of all the Carlo-
vingian institutions.
The summit of the Carlovingian constitution was the organisation
of the office of the king's envoys, the missi dominici. These were not
intended to take the place of the dukes removed by the Carlovingians,
nor to be bearers of a provincial authority, but to bring the king's
will into the provinces, and to render possible an immediate connexion
of the people with the supreme government of the Empire. As in
all institutions, so here too Charles made a link with what had long
existed, while transforming it into something essentially new. The
Merovingians had already employed missi in different kinds of state
business, military, judicial, administrative, fiscal. But it was always
particular and special duty which the missus had to perform by the
king's commission. In the later Merovingian period this institution
fell into disuse, and it was not till the time of the Carlovingian mayors
of the palace that it was revived. From the time of Charles Martel
occurs the designation missi discurrentes. Whether that really signifies
that missi were sent out to travel over a definite district, to control
all officials and supplement their work, and whether the missi then
possessed full powers generally, cannot be decided. But it was certainly
so in the first years in the reign of Charles the Great, who made the
missi discurrentes, the travelling envoys, a regular institution of the
State. From 779 the missi appear with the quite general function
adjustitiasfaciendas, i. e. to preserve the right in every direction. They
acted with the counts, and eventually against them, for the adminis-
tration of justice; they watched the work of the judges, and themselves
held a court; they took steps for the improvement of ecclesiastical
affairs with or without the bishop, they inspected the monasteries,
and they superintended all officials.
Extensive as were the duties of these missi even at the beginning of
Charles' reign, and essential as was their work for the organisation of
the Empire, yet the whole institution only reached its full development
after Charles' coronation as emperor through edicts of the Diet held
at Aachen in the year 802'. Charles no longer wished, so report the
Annals of Lorsch, to send out as missi vassals who possessed no lands.
He appointed rather archbishops, bishops, and abbots, with dukes and
counts, in whose case bribery need not be feared.
On broad lines, their duties were characterised generally in a
capitulary of 802, the particulars being appended in a long list. The
1 The result of the investigations of Waitz (cf. m. p. 451) remains unshaken,
even after the further work of Krause.


## p. 683 (#715) ############################################

The missi dominici 683
whole institution, which had long established itself, now appears raised
and made permanent. The Empire was divided into large fixed districts
(missatica, legatUmes), perhaps partly already in such a way as is testified
for the time of Louis the Pious, or perhaps the missatka then corre-
sponded to the metropolitan provinces.
Every year these envoys were sent out, generally two or three
together, under Charles frequently an ecclesiastic and a layman. They
received instructions, directions arranged in sections respecting their
official duties, in which too were included general orders to be com-
municated to the officials and people of the Missaticum (capitvla
missorum). They had to give a report of their work, as a rule
probably at a meeting of the Empire, to make inquiries in case of
doubt and to obtain new decisions from the monarch or the meeting.
The missus was to enter into communication both with the officials and
also with the people themselves, for to afford assistance against oppres-
sion and violence even of the officials was the most important duty of
the royal envoys. For this reason they were required to hold general
meetings. According to a decree of Louis the Pious, this general meeting
was to take place in the middle of May, but of course in case of need it
could be divided into several meetings to be held in different places.
Here the bishops, abbots, counts, royal stewards, and representatives
of the abbesses had to appear, and every count had to bring with him
his vicars, centenars, and three or four of the judges.