CHAP. XXII.: That the Jurisdictions were established before the End of the second Race.

IT has been pretended that the vassals usurped the jurisdiction in their seignories, during the confusion of the second race. Those who chuse rather to form a general proposition than to examine it, found it easier to say that the vassals did not possess, than to discover how they came to possess. But the jurisdictions do not owe their origin to usurpations; they

are derived from the primitive establishment, and not from its corruption.

“He who kills a freeman, says Tit. iii. chap. 13. Lindenbrock’s edition. ^†1066 the law of the Bavarians, shall pay a composition to his relations, if he has any; if not, he shall pay it to the duke, or to the person under whose protection he had put himself in his life-time.” It is well known what it was to put one’s self under the protection of another for a benefice.

“He who had been robbed of his bondman, says the law of the Alemans Tit. 85. ^†1067, shall have recourse to the prince to whom the robber is subject; to the end that he may obtain a composition.”

“If a centenarius, says In the year 595. art. 11 & 12. edition of the capitularies by Baluzius, page 19. Pari conditione convenit ut si una centena in alia centena vestigium secuta fuerit et invenerit, vel in quibuscunque fidelium nostrorum terminis vestigium miserit, & ipsum in aliam centenam minime expellere potuerit, aut convictus reddit latronem, &c. ^†1068 the decree of Childebert, finds a robber in another hundred than his own, or in the limits of our faithful vassals, and does not drive him out, he shall be answerable for the robber, or purge himself by oath.” There was therefore a difference between the district of the centenarii and that of the vassals.

This decree Si vestigius comprobatur latronis, tamen præsentia nihil longe mulctando; aut si persequens latronem suum comprehenderit, integram sibi compositionem accipiat. Quod si in truste invenitur, medietatem compositionis trustis adquirat, & capitale exigat a latrone, art. 2. & 3. ^†1069 of Childebert explains the constitution of Clotharius in the same year, which being given for the same case and fact, differs only in the terms; the constitution calling in truste, what by the decree is stiled in terminis fidelium nostrorum. Messieurs Bignon and Ducange See the Glossary on the word trustis. ^†1070 who pretend that in

truste signified another king’s demesne, are mistaken in their conjecture.

Pepin, king of Italy, in a constitution Inserted in the law of the Lombards, book ii. tit. 52. sect. 14. it is the capitulary of the year 793. in Baluzius, page 544. art. 10. ^†1071 that had been made as well for the Franks as for the Lombards, after imposing penalties on the counts and other royal officers, for prevarications or delays in the administration of justice, ordains Et si forsitan Francus aut Longobardus habens beneficium justitiam facere noluerit, ille judex in cujus ministerio fuerit, contradicat illi beneficium suum, interim dum ipse aut missus ejus justitiam faciat. See also the same law of the Lombards, book ii. tit. 52. sect. 2. which relates to the capitulary of Charlemaign of the year 779. art. 21. ^†1072 that if it happens that a Frank or a Lombard possessed of a fief is unwilling to administer justice, the judge to whose district he belongs, shall suspend the exercise of his fief, and in the mean time, either the judge or his commissary shall administer justice.

It appears by a capitulary The third of the year 812. art. 10. ^†1073 of Charlemaign, that the kings did not levy the freda in all places. Another The second of the year 813. Baluzius’s edition. ^†1074 capitulary of the same prince shews the feudal laws, and feudal court to have been already established. Another of Lewis the Debonnaire ordains, that when a person possessed of a fief, does not administer justice Capitulare quintum anni 819. art. 90. Baluzius’s edition, page 617. Ut ubicumque missi, aut episcopum, aut abbatem, aut alium quemlibet bonore præditum invenerint qui justitiam facere noluit vel probibuit, de ipsius rebus vivant quamdiu in eo loco justitias facere debent. ^†1075, or hinders it from being administered, the king’s commissaries shall live upon him at discretion, till justice be administered. I shall likewise quote two Edictum in Carisiaco in Balluzius, tom. ii. page 152. Unusquisque advocatus pro omnibus de sua advocatione . . . . . in convenientia ut cum ministerialibus de sua advocatione quos invenerit contra bunc bannum nostrum fecisse . . . . castiget. ^†1076 capitularies of Charles the Bald, one of the

year 861; where we find the particular jurisdictions established, with judges and subordinate officers; and the other Edictum Pistense, art. 18. Baluzius’s edition, tom. ii. page 181. Si in fiscum nostrum vel in quamcunque immunitatem aut alicujus potentis potestatum vel proprietatem confugerit, &c. ^†1077 of the year 864, where he makes a distinction between his own seignories and those of private persons.

We have not the original grants of the fiefs, because they were established by the partition, which is known to have been made among the conquerors. It cannot therefore be proved by original contracts, that the jurisdictions were at first annexed to the fiefs: but if in the formularies of the confirmations, or of the translations of those fiefs in perpetuity, we find, as already hath been observed, that the jurisdiction was there established; this judiciary right must certainly have been inherent in the fief, and one of its chief privileges.

We have a far greater number of records, that establish the patrimonial jurisdiction of the clergy in their districts, than there are to prove that of the benefices or fiefs of the feudal lords; for which two reasons may be assigned. The first, that most of the records now extant were preserved or collected by the monks, for the use of their monasteries. The second, that the patrimony of the several churches having been formed by particular grants, and by a kind of exception to the order established, they were obliged to have charters granted to them; whereas the concessions made to the feudal lords being consequences of the political order, they had no occasion to demand, and much less to preserve, a particular charter. Nay, the kings were oftentimes satisfied with making a simple delivery with the scepter, as appears from the life of St. Maur.

But the third formulary Lib. 1. Maximum regni nostri augere credimus monimentum, si beneficia opportuna locis ecclesiarum aut cui volueris dicere, benevola deliberatione concedimus. ^†1078 of Marculfus sufficiently proves, that the privileges of immunity, and consequently that of jurisdiction, were common to both the clergy and the laity, since it is made for both. The same may be said of the constitution of Clotharius II I have already quoted it in the preceding chapter, Episcopi vel potentes. ^†1079.