THE

CHAPTER XI.

D. THE FRANKISH MONARCHY.

HE German tribe of the Franks founded a great empire Carolinupon Roman soil. Their monarchy, a combination of gian monarchy. Roman and German elements, marks the transition from the organisation of the ancient world to that of the middle ages1. The Frankish king was more powerful than his purely German predecessors, but less absolute than the Roman emperors. The monarchy that existed in the time of Charles the Great was formed by the mixture of the German ideas of freedom and law with the Roman conceptions of the power and supremacy of the state.

of its

Several causes combined to strengthen the power of the Causes Carolingian kings: a remarkable succession of distinguished strength: and fortunate rulers; the rapid increase of their territorial empire, which demanded a powerful and comprehensive government; the necessity of a strong military force always ready for action; the victories achieved by this force; and finally the fact that the majority of their subjects had been brought up under the Roman Empire, and were accustomed to its conceptions and its vigorous institutions.

In one point monarchy took a backward step among the hereditary Franks. The hereditary principle, derived from private succession. property, was applied to the crown, and the old election shrunk up into an almost meaningless form. This gave rise

1 For the stages of the transition in the case of the other German tribes which settled upon Roman soil, see Felix Dahn, Die Könige der Germanen.

Legislation among the

to the division of the empire among several sons, which proved the source of serious harm both to the State and the nation 2. The succession to the throne belongs properly to politics and to public law, which demand the unity of the state, but the Frankish practice treated the function of rule as if it were merely the possession of an individual or family, and thus conformed in this point to what we have called above the patrimonial principle 3.

The following are the chief changes which the Franks introduced into the kingly power:

1. Legislation became much more important in the FrankFranks. ish empire than it had been in the narrow circle of a single German tribe and at the same time it fell more under the influence of the kings than before. The Roman maxim that 'the emperor's will has the force of law' was naturally unacceptable to a nation of German origin. But among the Franks the right of proposing laws, which was generally decisive, passed to the king and his council. The king's sanction was needful to give validity to laws, and they were promulgated in his name.

But it is very important to remember that the counsel and consent of the assembled nobles, both ecclesiastical and secular*,

2 Charles the Great made a slight effort to remedy these evils in his Capitulary on the division of the Empire in 806, c. 6: 'placuit inter praedictos filios nostros statuere atque praecipere, propter pacem quam inter eos perpetuo permanere desideramus, ut nullus eorum fratris sui terminos vel regni limites invadere praesumat, neque fraudulenter ingredi ad conturbandum regnum ejus vel marcas minuendas; sed adjuvet unusquisque illorum fratrem suum, et auxilium illi ferat contra inimicos ejus juxta rationem et possibilitatem, sive inter patriam, sive contra exteras nationes' (in Pertz, Monumenta Germaniae Historica, Legum tom. i. p. 141). C. 5 of the same law mentions election by the people. Comp. Eichhorn, Deutsche Stats- und Rechtsgesch. i. §§ 139 and 159; Guizot, Essais sur l'Histoire de France, pp. 206 ff. See especially Waitz, Deutsche Verfassungsgesch. iii. 274 ff.

3 Thus the succession to the throne was treated on the same principles as the terra salica. Comp. Zöpfl; z. ii. § 33; Waitz, iii. 274.

* Hincmar, de Ordine Palatii Epistola [in Migne, Patrologia, tom.cxxv.cols. 993-1008; also published separately with a French translation by M.Prou in the Bibliothèque de l'École des Hautes Études, fascic. 58], c. 29: in quo placito (the Campus Maii) generalitas universorum majorum tam clericorum quam laicorum conveniebat: seniores, propter consilium ordinandum; minores, propter idem consilium suscipiendum et interdum pariter tractandum, et non ex

was regarded both by custom and by law as indispensable for legislation. On the other hand, the approval of the people was of very subordinate importance, and was usually dispensed with except in matters which concerned the organisation of church and state, or the rights of the people themselves (Volksrecht)5. In this co-operation of the nobles we see the first step towards that representation of estates (ständisch) which obtained such great development in subsequent centuries, and which has produced the representative state.

ment.

2. Government. The size of the state and the great Governpolitical changes that were going on rendered necessary an administrative power which was unknown to the older Germans. It was no longer merely a matter of maintaining peace and law, but some regard must be paid to the general welfare. The idea of the Roman imperium was too foreign to be accepted, so the Franks found a basis for their new government in the native mundium or guardianship (mundiburdium, also sermo or verbum regis). This royal guardianship bears the same relation to the Roman imperium as that of the powers of a German father or husband to the Roman patria potestas. Its power is not at all arbitrary or absolute; its chief functions are the protection of the rights and the furtherance of the

potestate sed ex proprio mentis intellectu vel sententia confirmandum.' Ibid. c. 30: 'aliud placitum cum senioribus tantum et praecipuis consiliariis habebatur (usually in autumn but oftener if needed), in quo jam futuri anni status tractari incipiebatur.' [See also Waitz, Deutsche Verfassungsgesch. (ed. 1860), iii. 478, etc.] Hence many of the Capitularies contain such expressions as 'cum consilio servorum Dei et optimatum meorum' (Cap. Karlomanni, a. 742, Pertz, i. 16), and 'cum consensu episcoporum comitum et optimatum Francorum' (Cap. Pippini, a. 744, Pertz, i. 20). The treaty of 851 between the sons of Lewis the Pious says expressly in c. 6 (Pertz, i. 408): Et illorum, scilicet veraciter nobis fidelium, communi consilio, secundum Dei voluntatem et commune salvamentum, ad restitutionem sanctae Dei ecclesiae et statum regni, et ad honorem regium atque pacem populi commissi nobis pertinenti, adsensum praebebimus; in hoc, ut illi non solum non sint nobis contradicentes et resistentes ad ista exsequenda, verum etiam sic sint nobis fideles et obedientes ac veri adjutores atque cooperatores, vero consilio et sincero auxilio, ad ista peragenda quae praemisimus, sicut per rectum unusquisque in suo ordine et statu suo principi et suo seniori esse debet.'

Capit. Car. Magni, a. 803 (Pertz, Legum, i. 115), c. 19: Ut populus interrogetur de capitulis quae in lege noviter addita sunt. Et postquam omnes consenserint, subscriptiones et manufirmationes suas in ipsis capitulis faciant.' A a

Military power.

Judicial power.

welfare of the people; in fact it indissolubly combines the conception of duty with that of right. This novel idea is not yet fully clear, but it contains a healthy germ, which is capable of real political development.

In this form of monarchy the king both can and must command. His commands were issued in the so-called ban, which was both military and judicial (Heerbann and Gerichtsbann). By the military ban he had at his disposal the whole armed force of the kingdom, though his power was limited by custom and by fixed rules of service. But strong kings, and notably Charles the Great, summoned even for aggressive wars not only their feudal following, but whole divisions of the people in arms (Heerbann), and threatened defaulters with the severe penalty of sixty shillings 7.

The judicial ban, so important for the administration of the country, belonged to the king, but was usually exercised through the counts of districts (Gaugrafen), whose powers were derived from the king. As the organisation of the state grew stronger, limits were placed upon the old rights of private war in civil disputes and criminal cases, and throughout the land the king's peace, protected by the royal ban, replaced the old national peace which had been too easily broken.

The revenues of the royal chamber and exchequer, which had increased considerably, were at the king's absolute disposal. The royal domains received large additions from the conquest of Roman provinces and the suppression of ancient kingdoms and duchies, and all over the country were to be found royal residences and palaces surrounded by vast estates. The old land- and poll-taxes of the provincials were retained, the Roman duties on commodities were augmented, tribute was imposed upon the conquered peoples, and large sums exacted from them by way of indemnity.

Du Cange, Glossarium, s. v. mundiburdis et mundiburdium; Capit. Car. Magni, a. 802, c. 40 (Pertz, i. 96). Hincmar, de Ord. Pal. c. 6: Et rex "in semetipso nominis sui dignitatem custodire debet. Nomen enim regis intellectualiter hoc retinet ut subjectis omnibus rectoris officium procuret.'

7

Zöpfl, ii. § 36. Capit. Car. Magni, a. 811, c. 1 (Pertz, i. 172): * Quicumque liber homo in hostem bannitus fuerit, et venire contempserit, plenum heribannum, id est solidos sexaginta, persolvat.'

strative

3. The royal power made itself felt in every branch of the Adminiadministration by means of an organised system of officials officials. dependent upon the king. After the model of the Byzantine court, the most important of these officials were grouped round the king's person. Among these were the comes palatii (Pfalzgraf), the supreme judge and representative of the king; the chaplain (apocrisiarius, referendarius), who was at the head of the court clergy, and had to report about ecclesiastical affairs; the chancellor (camerarius), who presided over the royal chancery and conducted diplomatic correspondence; the chamberlain, who organised the pomp and show of the court; the seneschal, responsible for the servants and the domestic managements; the cellarer, who received payments in kind and provided the wine for the royal table; the marshal (marescaleus, or Rossknecht), the manager of the stables; the house-steward (mansionarius), whose duty it was to see that the king had a suitable residence on his journeys; the four chief huntsmen, and the falconer 9.

The itinerant officials of the king (missi dominici) were sent out yearly to visit the different provinces of the kingdom. It was through them that the king was enabled to see clearly the condition of affairs, to hear the complaints and wishes of the people, and to act with decision when it was necessary to enforce obedience to the laws and to protect public order 10.

The counts of districts or shires (Gaugrafen) had supreme judicial power, while that of the counts of hundreds (Zentgrafen) was limited. Both derived their jurisdiction, the one directly and the other indirectly, from the king, as the supreme judge upon earth. Their military powers sprang from the same source. In the early period of the Frankish monarchy the position of count was not hereditary, but was a real office, to which the king had the right of appointment. Under Charles the Great's successors, however, the natural tendency to hereditary succession soon began to obscure this official character and to create a hereditary right to the dignity.

* See Hincmar, de Ord. Pal. cc. 16-24; Waitz, iii. 499 ff.

10 Capit. Car. Magni, a. 802 (Pertz, i. 97-99), and a. 810 (Ib. i. 163-4); Guizot, Essais, pp. 191 ff.; Waitz, iv. 411-488.