CHAPTER XXI

LEGISLATION AND ADMINISTRATION OF CHARLES THE GREAT

 

THE State of Charles the Great goes back to the foundation of the empire of the Merovingians. The four hundred years of Frankish rule (500-900) comprise radical changes, it is true, but a definite direction of the development from the first is clearly to be seen. The great Charles is only to be regarded as finishing what the Merovingian Clovis introduced, and the coronation of 800 as concluding a process of formation which began with the baptism of Clovis and with the acceptance of the Catholic Faith on the part of the Frankish people. Always characteristic was the continued and remarkable combination of Roman system and Biblical conceptions with the old German ideas, the rise of ideas of absolute monarchy and the increasing prominence of patriarchal and theocratic principles which changed the character of the State itself.

Not from the initiative of the Frankish people, nor, properly speaking, from its need for expansion, did the great Frankish conquest of the fifth and sixth centuries originate. The people had indeed their share, and the success of the movement depended on the strength and the political capacity of the people themselves, but the empire was none the less the personal foundation of Clovis and the dynasty. Hence we can easily understand that on the one hand German institutions remained, and were even transferred to what was once Roman ground, and that on the other, a powerful influence through Roman systems made itself felt. And, connected with the last, after the acceptance of the Catholic Faith by the Franks, was the influence in increasing degree of ideas which were given through the Bible and the Christian theocratic conception of the world. The growth of the power of the Frankish monarchy is certainly not to be ascribed solely to foreign influences. It is certain that the German monarchy possessed in itself, of its own strength, the capacity for development, and that political circumstances necessitated a great growth of the monarchy in the sixth century. But foreign influences all the same gave the standard in no slight measure, the king stood apart before the political mass, he was inviolable, he was irresponsible, to his word unconditional obedience was due, the idea of high treason finds entrance into the constitution. And these expressly monarchical elements, which were originally strange to the German conceptions of society, never disappeared again in spite of all political changes. As the elevation of the Carolingians had taken place with the liveliest sympathy of the people or rather of the leaders of the people, a certain participation of the people in the government of the empire was revived in the first half of the eighth century. But no serious deviation of the development of the monarchy in the direction of popular or aristocratic limitation was effected. The characteristic feature of the formation of the Carolingian State is rather the greater emphasis of the theocratic element. That introduced essentially new influences into the commonwealth, not merely strengthening the power of the kings, but also turning the whole development into new paths.

A principle that had been active from the time of Clovis became in the eighth century dominant : the king derives his authority from God, he appears amid a halo of supernatural glory, but is at the same time bound to definite duties. For God has bestowed the authority in order that the people may be well ruled. An idea of the social body began to be supreme, far surpassing all aims of purely private rule. If the king was in no way head of a body which in itself possessed the constitutional authority, yet he was not simply lord for the sake of lordship.

The theocratic element had an ennobling tendency and raised the conception of the commonwealth above the sphere of private rule. Effort for the well-being of mankind was demanded, and the principle salus publica suprema lex began to make itself felt. Moreover, immediately connected with this was the vast extension of the duties which were regarded as lying within the province of the State. Although the idea of the superiority of spiritual power over secular had long been recognised, and although a universal subjection of the world to the Church and its hierarchy ought to have resulted from it, the political development even of the Merovingian period had brought the Church into dependence upon the State. In the Carolingian period that was entirely the case.

The Church had the most prominent place in social life, Church and State ran side by side, the Empire was weighed down with ecclesiastical burdens, but the Church was in the position of Church of the Empire, and the head of the State was at the same time head of the Church. Truly the predominance of the theocratic point of view gave to the Frankish State a new and wide prospect of its rights. Not merely was the object of the State the primitive maintenance of peace at home and of authority abroad, but all questions of the common life were drawn into the domain of the work of the State, everything that concerned the well-being, in the widest sense, of its subjects was to be an object of care to the State, their material as well as their spiritual concerns, questions of this life as well as questions of the future life.

It is not necessary here to say more than that the task of Charles extended beyond the preservation of peace and relations to external powers. In extended degree his care was devoted to economic conditions. The efforts of his predecessors for the promotion of commerce were continued. Measures for the maintenance and erection of bridges and roads were doubtless often undertaken from considerations of national defence, but they were also eminently calculated to serve the purposes of trade. Navigation was to be fostered and rendered safer. It is to be surmised that considerations of intercourse were chiefly taken into account in the magnificent plan for uniting the river-systems of the Rhine and the Danube by a canal between the Rednitz and the Altmuhl. Numerous measures enable us to see how much understanding Charles brought to bear upon questions of trade. The numerous ordinances respecting tolls and customs had their origin in the same purpose fiscal interests were not to be neglected, but yet they were not to be the main consideration tolls were not to restrict trade. The general prosperity, it may even be said, was really taken into account. Business was indirectly served by manifold regulations for weights and measures, which were aimed against individual caprice and required uniformity. In the same direction point the ordinances respecting the coinage.

Coinage was the royal prerogative, and this right was still preserved. Perfect centralization, it is true, was not yet aimed at, but for some time Charles was thinking of restricting the stamping of money to his places of abode, and although that was not carried out, we find under Charles considerable limitation of places of mintage.

While all these measures were calculated to promote trade, Charles issued direct ordinances with regard to the manner of trade by the restriction of excessive privileges, the prohibition of trade by night, and by regulations for the trade in horses and cattle. The exportation of certain articles was entirely forbidden, especially the exportation of corn in case of failure of the crops. A check was put upon speculation by the decree that corn might not be sold while still growing, or wine before the vintage. Steps were taken against excessive raising of prices, and indeed tariffs of prices were actually issued by the State. All these measures tended to the general well-being, and care was taken for the common interest. How this care on the part of the State began to develop was shewn with special clearness in measures devoted to the relief of the poor. The plague of mendicancy was to be checked, the poorest were to be protected from want. The support of the poor was accordingly delegated by the State to individual rulers, and a kind of general poor relief was required. A decree was actually made that on bishops, abbots, and abbesses a sum of one pound of silver, half a pound, and five solidi respectively, should be levied, and definite sums similarly on counts and others. It was thus sought to introduce a poor rate.

Under Charles the activities of the State were enormously extended. In this connection it is only possible to hint how they turned to the department of intellectual life also, to art and learning, and how Charles aimed at raising the intellectual plane of the laity. As a matter of fact, the official activity of Charles only recognised such limits as the economic ideas of the age laid down.

We observe, under Charles, the first great expansion of the idea of the State itself in the history of the Christian West. It is connected with the increasing prominence of theocratic ideas, while the coronation of 800 was but the visible completion of the long process of development. The theocratic ideas which dominated the Frankish Empire had sprung up previous to 800, and had made the Frankish king the absolute representative of Christian rule in the West. Thus the Empire did not demand any essential change in the relations of people and ruler, for substantially it only established the results of the previous political developments. It is true that special emphasis was laid on duties towards the Church in the new oath of allegiance, which Charles made universal in 802, but this enforced no new idea.

The Theocratic Ideal is a great social force, which exerted influence on the formation of State and society independently of individual circumstances. Charles the Great made it equally serviceable to the State. Universal monarchy was founded with the help of theocratic ideas. But could it endure?

From two sides attempts were necessarily made to break up the Carolingian universal Empire. In the first place, the theocratic idea demanded unity of social organization of Christendom. But under the prevalent belief in the superiority of ecclesiastical over secular power, and under the requirements of the strictly hierarchical and monarchical organization of the Papal Church, Christendom was another unity, not under a temporal prince, but under the Pope.

Again, opposed to the universal demands of the theocratic idea there stood the particular political needs of the different peoples and races a second great social force striving for recognition. Before the powerful personality of Charles, those forces which struggled against the theocratic State ruled by a secular prince, were not effective. Under Charles all yielded to the service of the political idea represented by the Frankish monarch. After the death of Charles, however, these restrained forces burst forth again : on the one side the particular needs of the different peoples of the great Empire, on the other that idea of union which desired a predominant position of the Papacy.

That outburst, however, is not our present object. Here we must only indicate that even Charles the Great was not successful in once for all subduing those internal forces hostile to his consolidated State. Further we have to show how the Carolingian State sought to solve its increasingly serious problems.

In the centre of the national life stands the king. He represents the nation. His authority is essentially the national authority. The fate of that authority involves the fate of the State itself. The Empire doubtless brought about an increase of the external strength of the monarchical position, but not any internal change. Charles already possessed as king all the elements of the power which as emperor he brought to development. The monarchy was hereditary. All male members of the royal house had rights of inheritance; the Empire was to be divided into as many parts as there were claims to satisfy.

That was originally the principle of the Frankish monarchy in the sixth century. But in the time of the decadence of the power of the Merovingians it was set aside, the aims of the too powerful aristocracy and the needs of many a district of the Empire for national incorporation withstood it. A selection was made among the members of the royal house. Even the powerful Carolingians did not represent the principle of chance divisions corresponding to the private circumstances of the royal house. Charles the Great in the year 806 drew up a scheme for the division of his Empire, in case of his death, among his three sons then living, Louis, Pepin, and Charles; but no further division was contemplated. It was intended that only one son the one whom the people elected should succeed each of these kings of the divided monarchy. And then the theocratic ideas began to demand a consolidation of political organisation overlooking all individual dynastic claims to supremacy. The ordinance of 813 is the outcome of these tendencies.

The death of the sons Pepin and Charles made it possible for Louis to attain the sole monarchy, while Pepin's son Bernard only received Italy as sub-king. But in 813 an ordinance was made for the Empire which continued united, and thus comes before us that tendency to unification which attained supremacy at the very beginning of the reign of Louis I only as a result of the ideas which were coming to the front under Charles.

Many of the old Germanic customs are no longer met with under Charles the Great, for instance, the use of the ox-wagon on the occasion of the visit to the great Annual Assembly, and the elevation on the shield, which took place in the Merovingian period when the succession was broken. On the other hand, anointing according to Biblical precedent had been introduced in the Carolingian age. Just as Pepin in 751 had received the solemn anointing at the hands of Boniface and afterwards of Pope Stephen, so it became afterwards the rule. With the anointing went, under Charles, the coronation. Before 800 there is no certain evidence of such a ceremony in the Frankish Empire, although the Merovingians had already used crown-like diadems as ornaments. After 800 it established itself, and not only emperors, but kings too, were crowned. Originally not necessarily an act to be performed by ecclesiastics, like the anointing, it was soon combined with the anointing and in West Francia, where first a fixed ceremonial was developed, it became from the time of Charles the Bald an integral element of the ceremony, whereas in the Eastern Kingdom, where there is no evidence of a coronation either in the case of Louis the German, or of his sons and Arnulf, it did not perhaps become permanently the custom till after 900. As symbols of monarchical rule we find in addition sceptre and throne, which we may suppose to have first come into use in the Carolingian time, together with the lance, attested as a royal symbol on the ring of Childeric, and the staff, distinguished at any rate in later times from sceptre and lance.

In the symbols and in the solemnity of the elevation, the change in the royal power is revealed. The spiritual element was placed in the foreground, its divine origin emphasised, and the priesthood played a ruling part. The personality of the monarchy stands forth quite distinct from the populace. The royal title is but simple, originally a continuation of that of the Merovingians, then, independently but from the very beginning, with the significant addition "by the grace of God" a custom afterwards adopted not merely in the Empire of the Franks but in the whole of the West. The imperial title was exceedingly circumstantial: “Most noble Augustus, crowned of God, great and peace-bringing Emperor, who rules the Roman Empire and who, by the grace of God, is King of the Franks and of the Lombards”. Superabundant are the epithets of virtue and exaltation which Charles applied to himself and with which he was saluted. Court ceremonial became the custom, and Byzantine influences served as the model. Whoever approached the Emperor for any official purpose was required to prostrate himself to the ground and kiss the knee and foot of majesty.

But all that was a veneer of foreign and external splendor. Underneath is clearly visible the true Germanic character in the conception and accomplishment of national undertakings. The king was guardian of justice and peace. All stood beneath his protection. The king’s peace was the general peace of the State, the king’s protection covered every member of the State. But together with the general protection which ensured peace for everyone, went a special king’s protection which was bestowed on individuals, placing the object of it in closer relation to the king and decreeing severer punishment for every injury to his person.

The subject was bound to unconditional obedience to the king. An oath of allegiance was exacted, a custom not of Roman but of Merovingian origin, which had fallen into disuse, and was re-introduced by Charles the Great. Obedience was, however, claimed from every subject without oath, and disregard of the king’s command was severely punished.

The king had the power to issue coercive ordinances and injunctions, he had the power to command, he had the power of the ban. This royal Punishment of disobedience 661 right of the ban is not to be derived from any special priestly or knightly prerogative, but is to be simply regarded as a natural adjunct of the supreme position. It lies in the very nature of kingship to issue coercive commands.

Obedience on the part of the subject flowed from the ordinary obligations of allegiance. Disobedience was disloyalty. Just as disloyalty was differently punished according to the enormity of the offence, even with banishment, confiscation, or death, so, in the same way, disobedience was differently punished, fixed punishments being appointed by law for definite offences, or else the sentence was referred to the monarch’s arbitrary power of punishing.

The power of the ban possessed by the Frankish kings was not simply the power to order or to forbid under threat of the old fine of sixty shillings. It was on the contrary much further reaching. It demanded obedience on the ground of allegiance, on the ground of the legal principle that the punishment for disloyalty, whatever it be, should light on the disobedient, and that in so far as special punishments were not already decreed by law the disobedient mighty suffer any punishment from the King’s Court up to complete outlawry.

If the equivalent fine of sixty shillings was indicated by the king’s “ban”, that is not to be so understood to mean that disregard of the royal authority was punished by a fine limited to sixty shillings, or that the king could only pursue any who disregarded the royal command with infliction of these definite fines. The fact is rather to be explained in another manner. In the seventh century, and first in the Lex Ripuaria, a fine of sixty shillings was fixed by law for definite cases of disobedience to commands issued by authority, not necessarily by the royal authority. This fine, a moderate punishment for disobedience, was further extended in Carolingian times. The many-sided care of the State for the social life, the growing need for the exaction of punishment by the State more frequently than hitherto, tended to the infliction of the sixty shilling “ban”, the usual moderate punishment for disobedience, and in such a way that a trespass was legally explained as transgression of the king’s command. So arose the different cases of ban in the eighth and ninth centuries. They originated in the sixty shilling fine of Ripuarian Folklaw which inflicted this fine on disregard of summons to the royal service, but their signification became very different. In the seventh century the sixty shilling punishment was inflicted when a definite ordinance was disregarded, but under Charles the Great if a definite transgression was defined by law as contempt of the king’s command. Hence many instances of “ban” under the Carolingians have nothing to do with disobedience to specific royal ordinances, but on the other hand the sixty shilling fine the king's ban was not inflicted at all in processes against contemners of the royal command. But above all it must be clearly understood that the authority of the Frankish king was never limited in such a way as to threaten the contemner of his ordinance with nothing worse than a fine of sixty shillings.

Amongst those who in the first place stood beside the monarch appear the superintendents of the four old court officers, the seneschal, the butler, the marshal, and the chamberlain, who not only performed their official duties in the narrower sense, but could be employed in the most varied capacities in times both of war and peace, as generals, ambassadors, judges amongst others. Then the chief doorkeeper (Magister ostiariorum), the quartermaster (Mansionarius), the chief huntsman, and less important officials. Of special importance for purely state business was the palsgrave, or rather the palsgraves, for several acted contemporaneously as deputy-presidents of the palace judicial Court, and of course also as ambassadors, generals, and in other similar official capacities.

The Chancery

Besides the judicial Court of the Palace the Chancery was of importance as a court with definite jurisdiction, the court for the preparation of documents. The president was no longer the lay referendary of Merovingian times, but an ecclesiastic, who even in the time of Charles the Great appears to have had no official title, but who was already of great importance and under Louis the Pious rose to much greater importance still. Hitherius, abbot of St Martin at Tours, Abbot Rado of St Vaast, Ercanbald, and Jeremiah, afterwards archbishop of Sens, acted as Charles’ presidents of Chancery. Under these, the later chancellors, several deacons, and sub-deacons were employed as clerks and notaries. They were all attached to the royal chapel as court chaplains. Chapel, capella, was originally the name given to the place where the cappa (cloak) of St Martin of Tours was preserved with other treasures, and chaplains were the guardians of these relics. In a derived sense, the body of court ecclesiastics was next designated the chapel. At their head stood the most influential ecclesiastic of the court, the primicerius of the chapel, the arch-chaplain, as the title, at first varying, became established under Louis the Pious. The illustrious Abbot Fulrad of St Denis, who had taken so active a part in the elevation of Pepin to the throne, was also arch-chaplain at the beginning of the reign of Charles the Great. To him succeeded Bishop Angilram of Metz and then Archbishop Hildibald of Cologne, who were regarded as the chief advisers of the Emperor, not merely in ecclesiastical, but in other, matters as well.

Chancery and chapel were at first only in so far connected, that many chancery officials were also chaplains and that, as we may suppose, the chapel served also at the same time for the archives. In addition, the arch-chaplain like other high court officials had an active connection with business dealt with in documents, and hence not unfrequently appears as the one who transmitted to the chancery the order for verification. But that implies no organic connexion between chancery and chapel. Such a connection was unknown under Charles the Great, and equally so under Louis the Pious. This connexion, so important for later times, was not effected till the time of Louis the German, when the arch-chaplain was placed in charge of the chancery, in 854 temporarily, in 860 permanently.

The Court

A court council did not exist in the time of Charles. The monarch summoned at his pleasure those about him and the nobles who were staying at the court, but a council, properly speaking, did not exist. The number of those who, in the wider sense of the word, were courtiers was unusually large. There were staying there the numerous ecclesiastics and scholars, the teachers and pupils of the palace school, the one class those whom the great Emperor had invited from afar, the other those who were living in preparation for the service of Church and State.

But there were also numerous knights in attendance, who formed the bodyguard of the monarch and were ready to undertake different duties within or without the court. In addition were the different vassals and servants of the courtiers, some free, some not; and also merchants who enjoyed the Emperor's special protection, and who had to supply the needs of the court and its numerous visitors; and moreover the adventurers, the travellers who were trying their fortune, the crowd of beggars, who in the Middle Ages appeared wherever there was active traffic.

Vigorous life was developed at Charles’ court. We see there magnificence and genius, but immorality also. For Charles was not particular about the persons he drew round him. He was himself no model, and he suffered the greatest licence in those whom he liked and found useful. As Holy Emperor he was addressed, though his life exhibited little holiness. He is so addressed by Alcuin, who also praises the Emperor's beautiful daughter Rotrud as distinguished for her virtues in spite of her having borne a son to Count Roderic of Maine, though not his wife. Charles would not be separated from his daughters, he would not allow their marriage, and he was therefore obliged to accept the consequences. The other daughter Bertha also had two sons by the pious Abbot Angilbert of St Riquier. In fact the court of Charles was a centre of very loose life. It was one of the first acts of the pious Louis to cleanse the court of its foul elements and to issue a strict ordinance to put an end to this dissoluteness.

Strictness of morals came, but the magnificence was gone. In truth it was on the personality of the monarch that all depended. The patriarchal tendency predominated, the central official world was in everything dependent on the varying decisions of the monarch himself, it had no independent position or strength. How could the foundation for a lasting absolute monarchy be laid under these circumstances?

The Revenue

Before the activity of the State in the provinces is considered, it is necessary to shew what material resources were available for the monarch and in what manner the individual power of the people for national purposes was put in requisition. Amongst these stand in the first place the revenues from his estates. The Frankish king was the largest landowner in the kingdom. The royal property was continually increased through confiscations, through reversions to the crown for want of heirs, through reclamation of uncultivated territory. Though the king bestowed much land as gift or as fief, which was thereby withdrawn from his own use, what remained was sufficiently important. On the royal domains also reigned that activity which was found on all large estates and which had developed in connexion with the circumstances of the later Roman Empire but also from the social and economic needs of the German peoples. There was no system of agriculture on a large scale. Only a comparatively small part of the domain was managed by the lord himself (terra salica, terra indominicata). The greater part was occupied by dependents, who cultivated for themselves and might work, at any rate in part, on their own account, and were only bound to certain payments and services (mansi serviles, litiles, ingenuiles).

Charles constituted the management of his estates a definite organization, which served as a model for the great landowners of later ages. As heads of the different farms held by socage, which served as intermediaries between the land which was cultivated independently and the land held under conditions of service and money payment, appeared sundry meier (maiores); several of the small farms with their district were united in “deaneries” under a “dean”, but of a higher rank were the chief farms, the management of which was entrusted to a judex, or as he was generally called later, a villicus. A system of lower and chief farms was made. The surplus products were collected on the chief farms in order to be brought, according to definite regulations, to the king’s farm, or on the other hand, to be either stored or sold. Not at the end, but in the very first years of his reign Charles issued for his domains the famous ordinance, the Capitulare de villis, in which complete directions were given for all circumstances on the farms, for the use of every kind of farm produce, for book-keeping and accounts, and in which the monarch’s active care, even for subordinate matters of agricultural work, is so characteristically shown. A number of officials of the most different kinds for the cultivation of the royal lands, the fisci, both free and not free, come before us; the juniores and ministeriales, who stood as assistants beside the higher officials, the judices. Such were the foresters, the superintendents of the stores (cellerarii), the overseers of the studs, the poledrarii, and in addition the many artisans, the goldsmiths, the blacksmiths, the shoemakers, cartwrights, saddlers, etc., for whose presence in the districts the judices were to make provision and who had received a definite organization under their own masters.

Towards the end of his reign Charles compiled a complete register of the fisci, a gene al inventory of the crown lands. This was an important work, and fragments of the particulars which it gave have come down to us. The revenues accruing from the management of these estates certainly formed the most important material foundation of the royal power. But many others were added to these. The king was lord over all land that was not already in private possession. Out of this principle, derived from Roman law, not out of an assumed prerogative of the Frankish king, arose a multitude of privileges which were also of substantial advantage to the royal power. 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 protection, and in any case it was rendered by many classes of the population, on the ground of special, not general, circumstances of dependence.

Military Service

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 not 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 beyond that; but this was only to afford protection against arbitrary acts on the part of the officials and against their making use of obligations 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 service. The organization 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 bannitio 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 Carolingians 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 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 formation 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 possessions 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 Frankish 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 undertaking 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 System

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 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”" 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 connection 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 dispensing 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' 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 Charles’ 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 considerable 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.

Assemblies

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. Hincmar’s 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 generales, placita 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 survived 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 Carolingian 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 Martius. 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 Carolingian 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 Carolingian 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.

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 Charles’ 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 Capitulare 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 nobles. 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 Mayfield, 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 connection 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 (missi dominici).

Thus in the ninth 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 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 preliminary 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 Carolingians 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 organization, 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 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 overcome 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 favorable circumstances.

Is a similar relation of king and people to be observed in connection with the formation of Law and with legislation.

Folkright and King’s Law.

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 civilization. These great systematic codices, called the Folkrights, 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 supplemented 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 information 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 Merovingian period and reached the summit of their development and their fullest satisfaction through Charles the Great.

In the year 802 - so relate the Annales 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, he intended supplying what was lacking, harmonising what was contradictory, 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 transmission of the laws entirely confirms the accuracy of these accounts. Numerous manuscripts of the Salic and Ripuarian Folkrights testify that in the Carolingian 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 regulations 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 and to the royal power representing the Empire. For the Empire laid claim to the supreme power of making laws quite generally and unconditionally. 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 Folkright and King’s Law.

But only in a certain sense. Any deeper systematic distinction is erroneous. Erroneous is the assumption that according to the constitution 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 Folkright.

But another attempt also to systematise the dualism of Folkright and King’s Law 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 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.

The Capitularies

In connexion with the contrast of Folkright and King’s Law, the Carolingian 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 favorite differentiation 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 Baiuvariorum, 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 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 show that the Carolingians did not and could not know anything of the principles of a threefold division. If we disregard the not very numerous Carolingian capitularies that can be reckoned as 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 ecclesiastical 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 show this the ancient popular institutions on the one hand, the new desired by the central authority on the other.

Local Government

The Carolingian 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 the Merovingians, but first consistently and fully used by Charles the Great. Thereby along process was brought to a close, a process of competition between the institutions desired by the Frankish government and the ancient institutions of the different tribes and districts incorporated into the Frankish State. We are often no longer able to recognize 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 institutions. 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 Carolingians and perfected 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 sometimes 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 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 connection with older arrangements possessed comites, while the purely Frankish districts had grafs. 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 praefectus, 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.

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 manifested 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 prevented. It was a principle of the constitution that the count was the ordinary judge in the gau.

The organization 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 Carolingian 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 concerning 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 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 authority.

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.

The Marches

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, Serbian, 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 connection 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 completely 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 arrangements, 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 arrangements. 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 different officials acting in the subordinate positions side by side, and the same official titles occur among those holding different official positions.

Subordinate Officials

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 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 identified 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 Gografen. To the third group belong not only the superintendents of the royal domains called judices and other officials of these domains like the villici, 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. All belonged to the one great organism, to the universal State, in the centre of which stood the monarch himself.

The missi dominici

But how could the centre remain in living connection 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 Carolingian institutions.

The summit of the Carolingian constitution was the organization 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 Carolingians, nor to be bearers of a provincial authority, but to bring the king's will into the provinces, and to render possible an immediate connection 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 Carolingian 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 of 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 ad justitias faciendas, i.e. to preserve the right in every direction. They acted with the counts, and eventually against them, for the administration 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 organization 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 whole institution, which had long established itself, now appears raised and made permanent. The Empire was divided into large fixed districts (missatica, legationes), perhaps partly already in such a way as is testified for the time of Louis the Pious, or perhaps the missatica then corresponded 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 communicated to the officials and people of the Missaticum (capitula 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 oppression 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. At these provincial assemblies the envoy sought to obtain disclosures of the affairs of his province through the statements of those dwelling in the gaus, who were bound to truth by oath, and of witnesses of crimes. Abuses were removed, bad officials brought to account or even summoned before the king. That this arrangement already existed under Charles may be taken as proved. In addition to these assemblies, the envoys also held special courts of justice in the different judicial divisions of their provinces. They were, however, not to injure but merely to control and supplement the judicial work of the regular judges, especially the counts. Hence their judicial duties were limited to four months, January, April, July, October, while the remaining months were reserved for the courts of the counts. In each of these four months, Charles ordered courts to be held at different places with the count of the district. At other times the envoys travelled about, inspected churches and monasteries, and everywhere saw that things were in order.

Together with the regular envoys, extraordinary envoys were still used as of old on special missions, whether military, judicial, or ecclesiastical. But no great significance was ever attached to them. The importance of the whole institution rests purely on the regular envoys. The purpose of the centralization finds expression in this endeavour to preserve the unity of the whole while justifiable local differences were recognised. Unity was to be in the kingdom. Because the king could not appear everywhere in person, his place was taken by men who were to be regarded as his representatives. Herein lies the essential character of the whole institution -arrangements were made which enabled the king to appear personally active in all parts of the Empire. The fundamental idea of the purely personal and immediate government of the monarch is thus realized. In this peculiarity lay the strength, but at the same time also the weakness, of the institution itself. Its strength showed itself in the fact that thereby an immense influence of the king was made possible, and all things were quickened from the centre. Its weakness was seen in the excessive dependence for strength on the personality of the monarch, and in the failure of continuous and immediate influence of the royal authority from the moment the central power failed. The institution had no strength of its own, it was absolutely dependent on the circumstances of the court. And when the influence from the centre, which under Charles had been so vigorous and powerful, ceased in the later years of Louis the Pious, the institution of the royal envoys became degenerate. It either ceased entirely or it became territorial and thereby was robbed of its proper and original living principle.

Nothing manifests so clearly the whole inner development of the unified Carolingian State as the history of the royal envoys. Nothing reveals more surely the peculiar nature of the State than this one institution.

The Empire

The universal empire of the great Charles could not long outlive its founder. General forces certainly were in existence which assisted the unification, such as the thought of universal unity which proceeded from the ecclesiastical conception and from the Roman Empire. It is true that the genius of Charles made these ideas of unity serviceable to his efforts for power. But he failed to equalise the diverging intellectual and material needs of the different peoples subjected to his rule. And he failed to erect a bureaucracy strong in itself and not absolutely dependent upon the changeable circumstances of the court.

A bureaucracy certainly was erected; but a bureaucracy of a peculiar kind, a patriarchal bureaucracy. Such a one has no independent strength of its own, it shares for the most part the fate of the ruling family, and is chiefly supported by the ability of the monarch. If this fails, then the State itself fails. To create anything enduring of this kind was beyond the power even of Charles the Great. It was not the advance of the feudal system that brought about the early collapse of the Carolingian Empire. The feudal system only furnished the outer form and the external support for the decomposing tendencies. These had their root in the nature of the social development of the Western peoples themselves, in general factors of their civilization both material and mental, and also in the personal character of the leaders of the State.

 

 

CHAPTER XXII

THE PAPACY, TO CHARLES THE GREAT