and to divide the laws into two groups according to their force, and more especially according to the powers responsible for their origin — one group, that of laws approved by the people and formally accepted laws according to Folkright and the other group, that of laws issued without any decision of the people-laws according to King's Law. Of such a division the ancient authorities know nothing. An assent to certain laws by the people gathered in the Hundred Court was not constitutionally necessary. Even though the principle was effective that laws were not to be made without the co-operation of those classes for whom they were intended, the summons to a Diet of those concerned was clearly sufficient. For the participation of the people ended with participation of the subjects in Diets. That is the fixed principle of the Frankish State to which all accounts of the legislation of the Frankish kings point.

In connexion with the contrast of Folkright and King's Law, the Carlovingian Capitularies which deal with secular matters, and from which only Capitularies containing ecclesiastical regulations are to be separated, are commonly divided into three groups according to contents, origin, and period of validity: (1) Capitula legibus addenda, (2) Capitula per se scribenda, (3) Capitula missorum. The first are said to contain those decrees which modify or supplement laws of the Folkright; the second to refer to such ordinances as concerned the relation of the subjects to the Empire; the third to be instructions for the king's envoys. The first, according to the usual view, were raised to law by a decision of the people; the second were called into existence on the ground of an agreement of king and Diet and did not claim lasting validity; the third owed their origin to the personal decision of the monarch alone and were of merely temporary validity. The first embrace Folkright; the second King's Law; the third administrative

measures.

This favourite differentiation1 proceeds from modern legal conceptions and reads them into an age that knew nothing of such legal differences, and could not know. When several explanations were necessary at the same time for one Folkright - the Lex Salica, Ripuaria, or the Lex 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

1 Started by Boretius, adopted by many investigators.

different character, there is no hint of a different origin, and scarcely of a difference in validity, for this was quite independent of the intrinsic significance of the law. That was merely the consequence of a purely external method of legislating applied according to circumstances. It was only applied according to circumstances, for the great mass of extant capitularies shew that the Carlovingians did not and could not know anything of the principles of a threefold division. If we disregard the not very numerous Carlovingian capitularies that can be reckoned 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 itwere single groups of secular ordinances: instructions, supplements, or modifications of leges. But what had by chance been jointly debated and decided could also just as well be comprehended in a law. This was carried out on no intentional system. Rather, the want of a system was characteristic. Significant is the attempt of the State to provide for the development of the Law by numerous disconnected measures to meet special needs of the moment. There was nothing like a principle of difference between law and prescript, nor even a clear difference between legislation and administration.

Two powers were in operation: King and People. They worked in harmony, they also worked in opposition. A conflict between popular influence and royal influence necessarily manifested itself in the restricted sphere of the Frankish tribe from the moment that the monarchy in its excessive strength arose as a new independent power. But it was seen still more significantly in the districts of those other Germanic tribes which had been brought into subjection by the Frankish king and possessed a copious system of Law independently developed, and which were now to be embraced in the unity of the Frankish Empire. But the conflict of popular and royal influences was not limited to the sphere of legislation. It naturally became prominent in all spheres of corporate life. The consideration of the administration of the provinces under Charles will also shew this - the ancient popular institutions on the one hand, the new desired by the central authority on the other.

The Carlovingian government of the provinces was based upon the system of counties. The whole Empire was divided into districts, at the head of which stood counts, an old institution already known under

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 recognise what existed before the Frankish conquest, and how it was overcome by institutions of the Frankish kingdom. But there had been a long struggle between the two forces between the old popular institutions on the one hand, and those proceeding from the Frankish authority on the other. In this sense there was a significant opposition of popular and royal influences, of Folkright and King's Law. Gradually we can observe the advance of what was desired by the central authority.

When the Merovingians conquered Gaul and extended their rule over different tribes of the Germanic East, they did not abolish the national institutions altogether. Just as they left to the different peoples their own Law, so they left them also their national 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 Carlovingians 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 connexion 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

679

It

The authority of the count himself was unusually extensive. 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.1 It was a principle of the constitution that the count was the ordinary judge in the gau.

The organisation of the army was also in the hands of the count. By him the levies were led or superintended, and he himself went on campaign with the vassals of his district - one of his most important functions. On him it further rested to summon to the royal service and to exact state requirements from the freemen of the gau. He had to represent in himself the special defensive authority of the king, just as he had to see to the general peace. And just as the State in Carlovingian 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

1 Such is the view of Waitz, Verfassungsgesch. IV. pp. 381 ff., to which for the most part sufficient attention is not paid.