Chapter XXXVIII: Reign Of Clovis.—Part III

When justice inexorably requires the death of a murderer, each
private citizen is fortified by the assurance, that the laws, the
magistrate, and the whole community, are the guardians of his
personal safety. But in the loose society of the Germans, revenge
was always honorable, and often meritorious: the independent
warrior chastised, or vindicated, with his own hand, the injuries
which he had offered or received; and he had only to dread the
resentment of the sons and kinsmen of the enemy, whom he had
sacrificed to his selfish or angry passions. The magistrate,
conscious of his weakness, interposed, not to punish, but to
reconcile; and he was satisfied if he could persuade or compel
the contending parties to pay and to accept the moderate fine
which had been ascertained as the price of blood. 72 The fierce
spirit of the Franks would have opposed a more rigorous sentence;
the same fierceness despised these ineffectual restraints; and,
when their simple manners had been corrupted by the wealth of
Gaul, the public peace was continually violated by acts of hasty
or deliberate guilt. In every just government the same penalty is
inflicted, or at least is imposed, for the murder of a peasant or
a prince. But the national inequality established by the Franks,
in their criminal proceedings, was the last insult and abuse of
conquest. 73 In the calm moments of legislation, they solemnly
pronounced, that the life of a Roman was of smaller value than
that of a Barbarian. The Antrustion, 74 a name expressive of the
most illustrious birth or dignity among the Franks, was
appreciated at the sum of six hundred pieces of gold; while the
noble provincial, who was admitted to the king’s table, might be
legally murdered at the expense of three hundred pieces.

Two hundred were deemed sufficient for a Frank of ordinary
condition; but the meaner Romans were exposed to disgrace and
danger by a trifling compensation of one hundred, or even fifty,
pieces of gold. Had these laws been regulated by any principle of
equity or reason, the public protection should have supplied, in
just proportion, the want of personal strength. But the
legislator had weighed in the scale, not of justice, but of
policy, the loss of a soldier against that of a slave: the head
of an insolent and rapacious Barbarian was guarded by a heavy
fine; and the slightest aid was afforded to the most defenceless
subjects. Time insensibly abated the pride of the conquerors and
the patience of the vanquished; and the boldest citizen was
taught, by experience, that he might suffer more injuries than he
could inflict. As the manners of the Franks became less
ferocious, their laws were rendered more severe; and the
Merovingian kings attempted to imitate the impartial rigor of the
Visigoths and Burgundians. 75 Under the empire of Charlemagne,
murder was universally punished with death; and the use of
capital punishments has been liberally multiplied in the
jurisprudence of modern Europe. 76

72 (return) [ In the heroic times of Greece, the guilt of murder
was expiated by a pecuniary satisfaction to the family of the
deceased, (Feithius Antiquitat. Homeric. l. ii. c. 8.)
Heineccius, in his preface to the Elements of Germanic Law,
favorably suggests, that at Rome and Athens homicide was only
punished with exile. It is true: but exile was a capital
punishment for a citizen of Rome or Athens.]

73 (return) [ This proportion is fixed by the Salic (tit. xliv.
in tom. iv. p. 147) and the Ripuarian (tit. vii. xi. xxxvi. in
tom. iv. p. 237, 241) laws: but the latter does not distinguish
any difference of Romans. Yet the orders of the clergy are placed
above the Franks themselves, and the Burgundians and Alemanni
between the Franks and the Romans.]

74 (return) [ The Antrustiones, qui in truste Dominica sunt,
leudi, fideles, undoubtedly represent the first order of Franks;
but it is a question whether their rank was personal or
hereditary. The Abbe de Mably (tom. i. p. 334-347) is not
displeased to mortify the pride of birth (Esprit, l. xxx. c. 25)
by dating the origin of the French nobility from the reign
Clotaire II. (A.D. 615.)]

75 (return) [ See the Burgundian laws, (tit. ii. in tom. iv. p.
257,) the code of the Visigoths, (l. vi. tit. v. in tom. p. 384,)
and the constitution of Childebert, not of Paris, but most
evidently of Austrasia, (in tom. iv. p. 112.) Their premature
severity was sometimes rash, and excessive. Childebert condemned
not only murderers but robbers; quomodo sine lege involavit, sine
lege moriatur; and even the negligent judge was involved in the
same sentence. The Visigoths abandoned an unsuccessful surgeon to
the family of his deceased patient, ut quod de eo facere
voluerint habeant potestatem, (l. xi. tit. i. in tom. iv. p.
435.)]

76 (return) [ See, in the sixth volume of the works of
Heineccius, the Elementa Juris Germanici, l. ii. p. 2, No. 261,
262, 280-283. Yet some vestiges of these pecuniary compositions
for murder have been traced in Germany as late as the sixteenth
century.]

The civil and military professions, which had been separated by
Constantine, were again united by the Barbarians. The harsh sound
of the Teutonic appellations was mollified into the Latin titles
of Duke, of Count, or of Praefect; and the same officer assumed,
within his district, the command of the troops, and the
administration of justice. 77 But the fierce and illiterate
chieftain was seldom qualified to discharge the duties of a
judge, which required all the faculties of a philosophic mind,
laboriously cultivated by experience and study; and his rude
ignorance was compelled to embrace some simple, and visible,
methods of ascertaining the cause of justice. In every religion,
the Deity has been invoked to confirm the truth, or to punish the
falsehood of human testimony; but this powerful instrument was
misapplied and abused by the simplicity of the German
legislators. The party accused might justify his innocence, by
producing before their tribunal a number of friendly witnesses,
who solemnly declared their belief, or assurance, that he was not
guilty. According to the weight of the charge, this legal number
of compurgators was multiplied; seventy-two voices were required
to absolve an incendiary or assassin: and when the chastity of a
queen of France was suspected, three hundred gallant nobles
swore, without hesitation, that the infant prince had been
actually begotten by her deceased husband. 78 The sin and scandal
of manifest and frequent perjuries engaged the magistrates to
remove these dangerous temptations; and to supply the defects of
human testimony by the famous experiments of fire and water.
These extraordinary trials were so capriciously contrived, that,
in some cases, guilt, and innocence in others, could not be
proved without the interposition of a miracle. Such miracles were
really provided by fraud and credulity; the most intricate causes
were determined by this easy and infallible method, and the
turbulent Barbarians, who might have disdained the sentence of
the magistrate, submissively acquiesced in the judgment of God.
79

77 (return) [ The whole subject of the Germanic judges, and their
jurisdiction, is copiously treated by Heineccius, (Element. Jur.
Germ. l. iii. No. 1-72.) I cannot find any proof that, under the
Merovingian race, the scabini, or assessors, were chosen by the
people. * Note: The question of the scabini is treated at
considerable length by Savigny. He questions the existence of the
scabini anterior to Charlemagne. Before this time the decision
was by an open court of the freemen, the boni Romische Recht,
vol. i. p. 195. et seq.—M.]

78 (return) [ Gregor. Turon. l. viii. c. 9, in tom. ii. p. 316.
Montesquieu observes, (Esprit des Loix. l. xxviii. c. 13,) that
the Salic law did not admit these negative proofs so universally
established in the Barbaric codes. Yet this obscure concubine
(Fredegundis,) who became the wife of the grandson of Clovis,
must have followed the Salic law.]

79 (return) [ Muratori, in the Antiquities of Italy, has given
two Dissertations (xxxvii. xxxix.) on the judgments of God. It
was expected that fire would not burn the innocent; and that the
pure element of water would not allow the guilty to sink into its
bosom.]

But the trials by single combat gradually obtained superior
credit and authority, among a warlike people, who could not
believe that a brave man deserved to suffer, or that a coward
deserved to live. 80 Both in civil and criminal proceedings, the
plaintiff, or accuser, the defendant, or even the witness, were
exposed to mortal challenge from the antagonist who was destitute
of legal proofs; and it was incumbent on them either to desert
their cause, or publicly to maintain their honor, in the lists of
battle. They fought either on foot, or on horseback, according to
the custom of their nation; 81 and the decision of the sword, or
lance, was ratified by the sanction of Heaven, of the judge, and
of the people. This sanguinary law was introduced into Gaul by
the Burgundians; and their legislator Gundobald 82 condescended
to answer the complaints and objections of his subject Avitus.
“Is it not true,” said the king of Burgundy to the bishop, “that
the event of national wars, and private combats, is directed by
the judgment of God; and that his providence awards the victory
to the juster cause?” By such prevailing arguments, the absurd
and cruel practice of judicial duels, which had been peculiar to
some tribes of Germany, was propagated and established in all the
monarchies of Europe, from Sicily to the Baltic. At the end of
ten centuries, the reign of legal violence was not totally
extinguished; and the ineffectual censures of saints, of popes,
and of synods, may seem to prove, that the influence of
superstition is weakened by its unnatural alliance with reason
and humanity. The tribunals were stained with the blood, perhaps,
of innocent and respectable citizens; the law, which now favors
the rich, then yielded to the strong; and the old, the feeble,
and the infirm, were condemned, either to renounce their fairest
claims and possessions, to sustain the dangers of an unequal
conflict, 83 or to trust the doubtful aid of a mercenary
champion. This oppressive jurisprudence was imposed on the
provincials of Gaul, who complained of any injuries in their
persons and property. Whatever might be the strength, or courage,
of individuals, the victorious Barbarians excelled in the love
and exercise of arms; and the vanquished Roman was unjustly
summoned to repeat, in his own person, the bloody contest which
had been already decided against his country. 84

80 (return) [ Montesquieu (Esprit des Loix, l. xxviii. c. 17) has
condescended to explain and excuse “la maniere de penser de nos
peres,” on the subject of judicial combats. He follows this
strange institution from the age of Gundobald to that of St.
Lewis; and the philosopher is some times lost in the legal
antiquarian.]

81 (return) [ In a memorable duel at Aix-la-Chapelle, (A.D. 820,)
before the emperor Lewis the Pious, his biographer observes,
secundum legem propriam, utpote quia uterque Gothus erat,
equestri pugna est, (Vit. Lud. Pii, c. 33, in tom. vi. p. 103.)
Ermoldus Nigellus, (l. iii. 543-628, in tom. vi. p. 48-50,) who
describes the duel, admires the ars nova of fighting on
horseback, which was unknown to the Franks.]

82 (return) [ In his original edict, published at Lyons, (A.D.
501,) establishes and justifies the use of judicial combat, (Les
Burgund. tit. xlv. in tom. ii. p. 267, 268.) Three hundred years
afterwards, Agobard, bishop of Lyons, solicited Lewis the Pious
to abolish the law of an Arian tyrant, (in tom. vi. p. 356-358.)
He relates the conversation of Gundobald and Avitus.]

83 (return) [ “Accidit, (says Agobard,) ut non solum valentes
viribus, sed etiam infirmi et senes lacessantur ad pugnam, etiam
pro vilissimis rebus. Quibus foralibus certaminibus contingunt
homicidia injusta; et crudeles ac perversi eventus judiciorum.”
Like a prudent rhetorician, he suppresses the legal privilege of
hiring champions.]

84 (return) [ Montesquieu, (Esprit des Loix, xxviii. c. 14,) who
understands why the judicial combat was admitted by the
Burgundians, Ripuarians, Alemanni, Bavarians, Lombards,
Thuringians, Frisons, and Saxons, is satisfied (and Agobard seems
to countenance the assertion) that it was not allowed by the
Salic law. Yet the same custom, at least in case of treason, is
mentioned by Ermoldus, Nigellus (l. iii. 543, in tom. vi. p. 48,)
and the anonymous biographer of Lewis the Pious, (c. 46, in tom.
vi. p. 112,) as the “mos antiquus Francorum, more Francis
solito,” &c., expressions too general to exclude the noblest of
their tribes.]

A devouring host of one hundred and twenty thousand Germans had
formerly passed the Rhine under the command of Ariovistus. One
third part of the fertile lands of the Sequani was appropriated
to their use; and the conqueror soon repeated his oppressive
demand of another third, for the accommodation of a new colony of
twenty-four thousand Barbarians, whom he had invited to share the
rich harvest of Gaul. 85 At the distance of five hundred years,
the Visigoths and Burgundians, who revenged the defeat of
Ariovistus, usurped the same unequal proportion of two thirds of
the subject lands. But this distribution, instead of spreading
over the province, may be reasonably confined to the peculiar
districts where the victorious people had been planted by their
own choice, or by the policy of their leader. In these districts,
each Barbarian was connected by the ties of hospitality with some
Roman provincial. To this unwelcome guest, the proprietor was
compelled to abandon two thirds of his patrimony, but the German,
a shepherd and a hunter, might sometimes content himself with a
spacious range of wood and pasture, and resign the smallest,
though most valuable, portion, to the toil of the industrious
husbandman. 86 The silence of ancient and authentic testimony has
encouraged an opinion, that the rapine of the Franks was not
moderated, or disguised, by the forms of a legal division; that
they dispersed themselves over the provinces of Gaul, without
order or control; and that each victorious robber, according to
his wants, his avarice, and his strength, measured with his sword
the extent of his new inheritance. At a distance from their
sovereign, the Barbarians might indeed be tempted to exercise
such arbitrary depredation; but the firm and artful policy of
Clovis must curb a licentious spirit, which would aggravate the
misery of the vanquished, whilst it corrupted the union and
discipline of the conquerors. 861 The memorable vase of Soissons
is a monument and a pledge of the regular distribution of the
Gallic spoils. It was the duty and the interest of Clovis to
provide rewards for a successful army, settlements for a numerous
people; without inflicting any wanton or superfluous injuries on
the loyal Catholics of Gaul. The ample fund, which he might
lawfully acquire, of the Imperial patrimony, vacant lands, and
Gothic usurpations, would diminish the cruel necessity of seizure
and confiscation, and the humble provincials would more patiently
acquiesce in the equal and regular distribution of their loss. 87

85 (return) [ Caesar de Bell. Gall. l. i. c. 31, in tom. i. p.
213.]

86 (return) [ The obscure hints of a division of lands
occasionally scattered in the laws of the Burgundians, (tit. liv.
No. 1, 2, in tom. iv. p. 271, 272,) and Visigoths, (l. x. tit. i.
No. 8, 9, 16, in tom. iv. p. 428, 429, 430,) are skillfully
explained by the president Montesquieu, (Esprit des Loix, l. xxx.
c. 7, 8, 9.) I shall only add, that among the Goths, the division
seems to have been ascertained by the judgment of the
neighborhood, that the Barbarians frequently usurped the
remaining third; and that the Romans might recover their right,
unless they were barred by a prescription of fifty years.]

861 (return) [ Sismondi (Hist des Francais, vol. i. p. 197)
observes, they were not a conquering people, who had emigrated
with their families, like the Goths or Burgundians. The women,
the children, the old, had not followed Clovis: they remained in
their ancient possessions on the Waal and the Rhine. The
adventurers alone had formed the invading force, and they always
considered themselves as an army, not as a colony. Hence their
laws retained no traces of the partition of the Roman properties.
It is curious to observe the recoil from the national vanity of
the French historians of the last century. M. Sismondi compares
the position of the Franks with regard to the conquered people
with that of the Dey of Algiers and his corsair troops to the
peaceful inhabitants of that province: M. Thierry (Lettres sur
l’Histoire de France, p. 117) with that of the Turks towards the
Raias or Phanariotes, the mass of the Greeks.—M.]

87 (return) [ It is singular enough that the president de
Montesquieu (Esprit des Loix, l. xxx. c. 7) and the Abbe de Mably
(Observations, tom i. p. 21, 22) agree in this strange
supposition of arbitrary and private rapine. The Count de
Boulainvilliers (Etat de la France, tom. i. p. 22, 23) shows a
strong understanding through a cloud of ignorance and prejudice.
Note: Sismondi supposes that the Barbarians, if a farm were
conveniently situated, would show no great respect for the laws
of property; but in general there would have been vacant land
enough for the lots assigned to old or worn-out warriors, (Hist.
des Francais, vol. i. p. 196.)—M.]

The wealth of the Merovingian princes consisted in their
extensive domain. After the conquest of Gaul, they still
delighted in the rustic simplicity of their ancestors; the cities
were abandoned to solitude and decay; and their coins, their
charters, and their synods, are still inscribed with the names of
the villas, or rural palaces, in which they successively resided.

One hundred and sixty of these palaces, a title which need not
excite any unseasonable ideas of art or luxury, were scattered
through the provinces of their kingdom; and if some might claim
the honors of a fortress, the far greater part could be esteemed
only in the light of profitable farms. The mansion of the
long-haired kings was surrounded with convenient yards and
stables, for the cattle and the poultry; the garden was planted
with useful vegetables; the various trades, the labors of
agriculture, and even the arts of hunting and fishing, were
exercised by servile hands for the emolument of the sovereign;
his magazines were filled with corn and wine, either for sale or
consumption; and the whole administration was conducted by the
strictest maxims of private economy. 88 This ample patrimony was
appropriated to supply the hospitable plenty of Clovis and his
successors; and to reward the fidelity of their brave companions
who, both in peace and war, were devoted to their personal
service. Instead of a horse, or a suit of armor, each companion,
according to his rank, or merit, or favor, was invested with a
benefice, the primitive name, and most simple form, of the feudal
possessions. These gifts might be resumed at the pleasure of the
sovereign; and his feeble prerogative derived some support from
the influence of his liberality. 881 But this dependent tenure
was gradually abolished 89 by the independent and rapacious
nobles of France, who established the perpetual property, and
hereditary succession, of their benefices; a revolution salutary
to the earth, which had been injured, or neglected, by its
precarious masters. 90 Besides these royal and beneficiary
estates, a large proportion had been assigned, in the division of
Gaul, of allodial and Salic lands: they were exempt from tribute,
and the Salic lands were equally shared among the male
descendants of the Franks. 91

88 (return) [ See the rustic edict, or rather code, of
Charlemagne, which contains seventy distinct and minute
regulations of that great monarch (in tom. v. p. 652-657.) He
requires an account of the horns and skins of the goats, allows
his fish to be sold, and carefully directs, that the larger
villas (Capitaneoe) shall maintain one hundred hens and thirty
geese; and the smaller (Mansionales) fifty hens and twelve geese.
Mabillon (de Re Diplomatica) has investigated the names, the
number, and the situation of the Merovingian villas.]

881 (return) [ The resumption of benefices at the pleasure of the
sovereign, (the general theory down to his time,) is ably
contested by Mr. Hallam; “for this resumption some delinquency
must be imputed to the vassal.” Middle Ages, vol. i. p. 162. The
reader will be interested by the singular analogies with the
beneficial and feudal system of Europe in a remote part of the
world, indicated by Col. Tod in his splendid work on Raja’sthan,
vol. ii p. 129, &c.—M.]

89 (return) [ From a passage of the Burgundian law (tit. i. No.
4, in tom. iv. p. 257) it is evident, that a deserving son might
expect to hold the lands which his father had received from the
royal bounty of Gundobald. The Burgundians would firmly maintain
their privilege, and their example might encourage the
Beneficiaries of France.]

90 (return) [ The revolutions of the benefices and fiefs are
clearly fixed by the Abbe de Mably. His accurate distinction of
times gives him a merit to which even Montesquieu is a stranger.]

91 (return) [ See the Salic law, (tit. lxii. in tom. iv. p. 156.)
The origin and nature of these Salic lands, which, in times of
ignorance, were perfectly understood, now perplex our most
learned and sagacious critics. * Note: No solution seems more
probable, than that the ancient lawgivers of the Salic Franks
prohibited females from inheriting the lands assigned to the
nation, upon its conquest of Gaul, both in compliance with their
ancient usages, and in order to secure the military service of
every proprietor. But lands subsequently acquired by purchase or
other means, though equally bound to the public defence, were
relieved from the severity of this rule, and presumed not to
belong to the class of Sallic. Hallam’s Middle Ages, vol. i. p.
145. Compare Sismondi, vol. i. p. 196.—M.]

In the bloody discord and silent decay of the Merovingian line, a
new order of tyrants arose in the provinces, who, under the
appellation of Seniors, or Lords, usurped a right to govern, and
a license to oppress, the subjects of their peculiar territory.
Their ambition might be checked by the hostile resistance of an
equal: but the laws were extinguished; and the sacrilegious
Barbarians, who dared to provoke the vengeance of a saint or
bishop, 92 would seldom respect the landmarks of a profane and
defenceless neighbor. The common or public rights of nature, such
as they had always been deemed by the Roman jurisprudence, 93
were severely restrained by the German conquerors, whose
amusement, or rather passion, was the exercise of hunting. The
vague dominion which Man has assumed over the wild inhabitants of
the earth, the air, and the waters, was confined to some
fortunate individuals of the human species. Gaul was again
overspread with woods; and the animals, who were reserved for the
use or pleasure of the lord, might ravage with impunity the
fields of his industrious vassals. The chase was the sacred
privilege of the nobles and their domestic servants. Plebeian
transgressors were legally chastised with stripes and
imprisonment; 94 but in an age which admitted a slight
composition for the life of a citizen, it was a capital crime to
destroy a stag or a wild bull within the precincts of the royal
forests. 95

92 (return) [ Many of the two hundred and six miracles of St.
Martin (Greg Turon. in Maxima Bibliotheca Patrum, tom. xi. p.
896-932) were repeatedly performed to punish sacrilege. Audite
haec omnes (exclaims the bishop of Tours) protestatem habentes,
after relating, how some horses ran mad, that had been turned
into a sacred meadow.]

93 (return) [ Heinec. Element. Jur. German. l. ii. p. 1, No. 8.]

94 (return) [ Jonas, bishop of Orleans, (A.D. 821-826. Cave,
Hist. Litteraria, p. 443,) censures the legal tyranny of the
nobles. Pro feris, quas cura hominum non aluit, sed Deus in
commune mortalibus ad utendum concessit, pauperes a potentioribus
spoliantur, flagellantur, ergastulis detruduntur, et multa alia
patiuntur. Hoc enim qui faciunt, lege mundi se facere juste posse
contendant. De Institutione Laicorum, l. ii. c. 23, apud
Thomassin, Discipline de l’Eglise, tom. iii. p. 1348.]

95 (return) [ On a mere suspicion, Chundo, a chamberlain of
Gontram, king of Burgundy, was stoned to death, (Greg. Turon. l.
x. c. 10, in tom. ii. p. 369.) John of Salisbury (Policrat. l. i.
c. 4) asserts the rights of nature, and exposes the cruel
practice of the twelfth century. See Heineccius, Elem. Jur. Germ.
l. ii. p. 1, No. 51-57.]

According to the maxims of ancient war, the conqueror became the
lawful master of the enemy whom he had subdued and spared: 96 and
the fruitful cause of personal slavery, which had been almost
suppressed by the peaceful sovereignty of Rome, was again revived
and multiplied by the perpetual hostilities of the independent
Barbarians. The Goth, the Burgundian, or the Frank, who returned
from a successful expedition, dragged after him a long train of
sheep, of oxen, and of human captives, whom he treated with the
same brutal contempt. The youths of an elegant form and an
ingenuous aspect were set apart for the domestic service; a
doubtful situation, which alternately exposed them to the
favorable or cruel impulse of passion. The useful mechanics and
servants (smiths, carpenters, tailors, shoemakers, cooks,
gardeners, dyers, and workmen in gold and silver, &c.) employed
their skill for the use, or profit, of their master. But the
Roman captives, who were destitute of art, but capable of labor,
were condemned, without regard to their former rank, to tend the
cattle and cultivate the lands of the Barbarians. The number of
the hereditary bondsmen, who were attached to the Gallic estates,
was continually increased by new supplies; and the servile
people, according to the situation and temper of their lords, was
sometimes raised by precarious indulgence, and more frequently
depressed by capricious despotism. 97 An absolute power of life
and death was exercised by these lords; and when they married
their daughters, a train of useful servants, chained on the
wagons to prevent their escape, was sent as a nuptial present
into a distant country. 98 The majesty of the Roman laws
protected the liberty of each citizen, against the rash effects
of his own distress or despair. But the subjects of the
Merovingian kings might alienate their personal freedom; and this
act of legal suicide, which was familiarly practised, is
expressed in terms most disgraceful and afflicting to the dignity
of human nature. 99 The example of the poor, who purchased life
by the sacrifice of all that can render life desirable, was
gradually imitated by the feeble and the devout, who, in times of
public disorder, pusillanimously crowded to shelter themselves
under the battlements of a powerful chief, and around the shrine
of a popular saint. Their submission was accepted by these
temporal or spiritual patrons; and the hasty transaction
irrecoverably fixed their own condition, and that of their latest
posterity. From the reign of Clovis, during five successive
centuries, the laws and manners of Gaul uniformly tended to
promote the increase, and to confirm the duration, of personal
servitude. Time and violence almost obliterated the intermediate
ranks of society; and left an obscure and narrow interval between
the noble and the slave. This arbitrary and recent division has
been transformed by pride and prejudice into a national
distinction, universally established by the arms and the laws of
the Merovingians. The nobles, who claimed their genuine or
fabulous descent from the independent and victorious Franks, have
asserted and abused the indefeasible right of conquest over a
prostrate crowd of slaves and plebeians, to whom they imputed the
imaginary disgrace of Gallic or Roman extraction.

96 (return) [ The custom of enslaving prisoners of war was
totally extinguished in the thirteenth century, by the prevailing
influence of Christianity; but it might be proved, from frequent
passages of Gregory of Tours, &c., that it was practised, without
censure, under the Merovingian race; and even Grotius himself,
(de Jure Belli et Pacis l. iii. c. 7,) as well as his commentator
Barbeyrac, have labored to reconcile it with the laws of nature
and reason.]

97 (return) [ The state, professions, &c., of the German,
Italian, and Gallic slaves, during the middle ages, are explained
by Heineccius, (Element Jur. Germ. l. i. No. 28-47,) Muratori,
(Dissertat. xiv. xv.,) Ducange, (Gloss. sub voce Servi,) and the
Abbe de Mably, (Observations, tom. ii. p. 3, &c., p. 237, &c.)
Note: Compare Hallam, vol. i. p. 216.—M.]

98 (return) [ Gregory of Tours (l. vi. c. 45, in tom. ii. p. 289)
relates a memorable example, in which Chilperic only abused the
private rights of a master. Many families which belonged to his
domus fiscales in the neighborhood of Paris, were forcibly sent
away into Spain.]

99 (return) [ Licentiam habeatis mihi qualemcunque volueritis
disciplinam ponere; vel venumdare, aut quod vobis placuerit de me
facere Marculf. Formul. l. ii. 28, in tom. iv. p. 497. The
Formula of Lindenbrogius, (p. 559,) and that of Anjou, (p. 565,)
are to the same effect Gregory of Tours (l. vii. c. 45, in tom.
ii. p. 311) speak of many person who sold themselves for bread,
in a great famine.]

The general state and revolutions of France, a name which was
imposed by the conquerors, may be illustrated by the particular
example of a province, a diocese, or a senatorial family.
Auvergne had formerly maintained a just preeminence among the
independent states and cities of Gaul. The brave and numerous
inhabitants displayed a singular trophy; the sword of Caesar
himself, which he had lost when he was repulsed before the walls
of Gergovia. 100 As the common offspring of Troy, they claimed a
fraternal alliance with the Romans; 101 and if each province had
imitated the courage and loyalty of Auvergne, the fall of the
Western empire might have been prevented or delayed. They firmly
maintained the fidelity which they had reluctantly sworn to the
Visigoths, out when their bravest nobles had fallen in the battle
of Poitiers, they accepted, without resistance, a victorious and
Catholic sovereign. This easy and valuable conquest was achieved
and possessed by Theodoric, the eldest son of Clovis: but the
remote province was separated from his Austrasian dominions, by
the intermediate kingdoms of Soissons, Paris, and Orleans, which
formed, after their father’s death, the inheritance of his three
brothers. The king of Paris, Childebert, was tempted by the
neighborhood and beauty of Auvergne. 102 The Upper country, which
rises towards the south into the mountains of the Cevennes,
presented a rich and various prospect of woods and pastures; the
sides of the hills were clothed with vines; and each eminence was
crowned with a villa or castle. In the Lower Auvergne, the River
Allier flows through the fair and spacious plain of Limagne; and
the inexhaustible fertility of the soil supplied, and still
supplies, without any interval of repose, the constant repetition
of the same harvests. 103 On the false report, that their lawful
sovereign had been slain in Germany, the city and diocese of
Auvergne were betrayed by the grandson of Sidonius Apollinaris.
Childebert enjoyed this clandestine victory; and the free
subjects of Theodoric threatened to desert his standard, if he
indulged his private resentment, while the nation was engaged in
the Burgundian war. But the Franks of Austrasia soon yielded to
the persuasive eloquence of their king. “Follow me,” said
Theodoric, “into Auvergne; I will lead you into a province, where
you may acquire gold, silver, slaves, cattle, and precious
apparel, to the full extent of your wishes. I repeat my promise;
I give you the people and their wealth as your prey; and you may
transport them at pleasure into your own country.” By the
execution of this promise, Theodoric justly forfeited the
allegiance of a people whom he devoted to destruction. His
troops, reenforced by the fiercest Barbarians of Germany, 104
spread desolation over the fruitful face of Auvergne; and two
places only, a strong castle and a holy shrine, were saved or
redeemed from their licentious fury. The castle of Meroliac 105
was seated on a lofty rock, which rose a hundred feet above the
surface of the plain; and a large reservoir of fresh water was
enclosed, with some arable lands, within the circle of its
fortifications. The Franks beheld with envy and despair this
impregnable fortress; but they surprised a party of fifty
stragglers; and, as they were oppressed by the number of their
captives, they fixed, at a trifling ransom, the alternative of
life or death for these wretched victims, whom the cruel
Barbarians were prepared to massacre on the refusal of the
garrison. Another detachment penetrated as far as Brivas, or
Brioude, where the inhabitants, with their valuable effects, had
taken refuge in the sanctuary of St. Julian. The doors of the
church resisted the assault; but a daring soldier entered through
a window of the choir, and opened a passage to his companions.
The clergy and people, the sacred and the profane spoils, were
rudely torn from the altar; and the sacrilegious division was
made at a small distance from the town of Brioude. But this act
of impiety was severely chastised by the devout son of Clovis. He
punished with death the most atrocious offenders; left their
secret accomplices to the vengeance of St. Julian; released the
captives; restored the plunder; and extended the rights of
sanctuary five miles round the sepulchre of the holy martyr. 106

100 (return) [ When Caesar saw it, he laughed, (Plutarch. in
Caesar. in tom. i. p. 409:) yet he relates his unsuccessful siege
of Gergovia with less frankness than we might expect from a great
man to whom victory was familiar. He acknowledges, however, that
in one attack he lost forty-six centurions and seven hundred men,
(de Bell. Gallico, l. vi. c. 44-53, in tom. i. p. 270-272.)]

101 (return) [ Audebant se quondam fatres Latio dicere, et
sanguine ab Iliaco populos computare, (Sidon. Apollinar. l. vii.
epist. 7, in tom i. p. 799.) I am not informed of the degrees and
circumstances of this fabulous pedigree.]

102 (return) [ Either the first, or second, partition among the
sons of Clovis, had given Berry to Childebert, (Greg. Turon. l.
iii. c. 12, in tom. ii. p. 192.) Velim (said he) Arvernam
Lemanem, quae tanta jocunditatis gratia refulgere dicitur, oculis
cernere, (l. iii. c. p. 191.) The face of the country was
concealed by a thick fog, when the king of Paris made his entry
into Clermen.]

103 (return) [ For the description of Auvergne, see Sidonius, (l.
iv. epist. 21, in tom. i. p. 703,) with the notes of Savaron and
Sirmond, (p. 279, and 51, of their respective editions.)
Boulainvilliers, (Etat de la France, tom. ii. p. 242-268,) and
the Abbe de la Longuerue, (Description de la France, part i. p.
132-139.)]

104 (return) [Furorem gentium, quae de ulteriore Rheni amnis
parte venerant, superare non poterat, (Greg. Turon. l. iv. c. 50,
in tom. ii. 229.) was the excuse of another king of Austrasia
(A.D. 574) for the ravages which his troops committed in the
neighborhood of Paris.]

105 (return) [ From the name and situation, the Benedictine
editors of Gregory of Tours (in tom. ii. p. 192) have fixed this
fortress at a place named Castel Merliac, two miles from Mauriac,
in the Upper Auvergne. In this description, I translate infra as
if I read intra; the two are perpetually confounded by Gregory,
or his transcribed and the sense must always decide.]

106 (return) [ See these revolutions, and wars, of Auvergne, in
Gregory of Tours, (l. ii. c. 37, in tom. ii. p. 183, and l. iii.
c. 9, 12, 13, p. 191, 192, de Miraculis St. Julian. c. 13, in
tom. ii. p. 466.) He frequently betrays his extraordinary
attention to his native country.]