Part 1 — Part I. Representative Institutions In England, France, And Spain, From The Fifth To The Eleventh Century. (continued 3)

Predominance Of Neustria.

Historic testimony positively confirms this probable deduction from facts. Austrasia is termed Francia Teutonica, and Neustria, Francia Romana. The German language prevailed in the former country, and the Roman in the latter. Finally, under the first race of kings, events bear the evident impress of this fundamental distinction, or rather, they are its natural result. When considering them in a general manner, it is impossible to recognize this character. I shall now give a summary of the principal proofs.

I. The original predominance of the kingdom of Neustria. This is an incontestable fact. Four kings, after Clovis, and before the destruction of the royal authority by the Mayors of the Palace, united the whole Frankish monarchy under one head. These were kings of Neustria; Clotaire I., from 558 to 561; Clotaire II., from 613 to 628; Dagobert I., from 631 to 638; and Clovis II., from 655 to 656. This predominance of Neustria was the natural result, 1st, Of the establishment of Clovis in Neustria; 2ndly, Of the central position of that kingdom with reference to the rest of Gaul; 3rd, Of the superior civilization and wealth which accrued to it from its Roman population; 4th, Of the rapid extension which the royal authority obtained in it, in consequence of the prevalence of Roman ideas and customs; 5th, Of the continual fluctuations occasioned in Austrasia, by the proximity of the German barbarians, by wars against the Thuringians and Saxons, and by other causes.

II. The state of the two kingdoms, during the epoch of Fredegonde and Brunehaut, from 598 to 623. The struggle was constant between Neustria and Austrasia, under the name of these two queens. The power of Chilperic and of Fredegonde in Neustria was greater than that of the kings of Austrasia and of Brunehaut. Fredegonde acted upon a country in which the only Roman administration still prevailed; Brunehaut endeavoured in vain to overcome the rude independence of the chiefs of the German bands, who had become large landed proprietors. Her boldness and ability failed in its opposition to the Austrasian and Burgundian aristocracy. The Austrasian aristocracy formed a secret alliance with that of Neustria. The fall and death of Brunehaut were evidently a triumph of the Austrasian aristocracy, which, being stronger and more compact than that of Neustria, imposed upon Clotaire II. the execution of his queen. The remnants of Roman despotism were overcome in Austrasia by the German aristocracy, and the consequences of that event were the enfeeblement of the royal authority and the predominance of Austrasian influence.

The Mayors Of The Palace.

III. The elevation of the Mayors of the Palace, and the fall of the Merovingian race, are the third proof of the great fact which I have mentioned. The elevation of the Mayors of the Palace must be ascribed to the same causes in both kingdoms. It is an error to interpret this fact as the conflict of the victorious Franks against the Gauls and Romans. These last, more moulded to despotism, had found a ready access to the court of the barbarian kings, and it has been inferred from this, that it was in order to counteract their influence, that the German aristocracy created the Mayors of the Palace. This is an error; the Mayors of the Palace were the work and instrument of the barbarian aristocracy, whether Roman or Gallic, in opposition to the royal authority.

It has also been said that the kings were desirous of attaching to themselves one of the most powerful members of the territorial aristocracy, in order to control or oppress the others. This might have been the case originally, but the Mayor of the Palace soon found it more advantageous to make himself the leader and instrument of the nobility. He promoted their interests, and assumed the character of a protector to the large proprietors with whom, finally, his appointment rested. From this time forth, the royal authority was almost a dead letter.

The same phenomenon is observable in both kingdoms; but the Austrasian aristocracy was more purely German, and more compact, than that of Neustria. It was consequently more powerful, and its Mayors of the Palace became more deeply rooted in their authority. Thus we behold the family of Pepin gain the royal power by a progressive elevation, from 630 to 752. This family was descended from Carloman, the wealthy proprietor of the domain of Haspengau, situated on the Meuse, between the district of Liege and the duchy of Brabant. It was thoroughly German, and naturally placed itself at the head of the Franco-German aristocracy.

Fall Of The Merovingians.

The fall of the Merovingians was, therefore, the work of Austrasia, and, as it were, a second conquest of Roman France, by Germanic France. The kings of Roman France were unable to maintain their position, and the Neustrian Mayors of the Palace, the leaders of a mingled aristocracy of Franks and Gauls, were incompetent to take their place. It was from the banks of the Rhine and from Belgium, that is, from the ancient fatherland of the Franks, that the new conquerors came—and these conquerors were the chiefs of a purely Germanic aristocracy.

Charles Martel.

This was, undoubtedly, the true character of the fall of the Merovingians, and of the elevation of the Carlovingians, who founded a new Frankish monarchy in that Gaul in which the Neustrian Franks had so greatly degenerated. Thus we shall perceive, at this epoch, and in consequence of this revolution, a marked return towards the primitive institutions and manners of the Franks. This is perceptible, indeed, even in the manner in which the revolution was effected. The details of this event fully confirm what we have first said regarding the general progress of affairs. The Pepin family had laboured for a century to place itself at the head of the Frankish nation. It derived its support not merely from the great landed aristocracy, but also from the patronage of the warriors employed in military expeditions. The development of the power of this family, in the first point of view, was the work of Pepin the Old and of Pepin de Heristal; under the second, it was the work of Charles Martel in particular. His continual wars against the Transrhenane Germans, against the Saracens, and against the petty tyrants of the interior, rendered him a more powerful warrior-chief than any of his ancestors. But Charles Martel employed other means also to attach his companions to his person. He seized the property of the church, and distributed it amongst them. He did not take this property, however, in so absolute a manner as is supposed. The various churches were in the habit of farming out their property for a fixed annual income, and ecclesiastical estates thus farmed out were called precaria. Frequently the kings, when desirous of rewarding one of their chiefs, ordered a chapter to farm out an estate to the favourite for a very moderate rent, under the title of a precarium. Charles Martel, at first, merely generalised this practice. A very large number of his comrades received from him favours of this kind; in the first instance, they received the ecclesiastical estates only for two or three years; but, when that term had expired, the tenants were unwilling to restore what they had appropriated to themselves by the habit of enjoyment. The conflict of the church against the usurping proprietors long perplexed the the kings of the second race. As they often required the help of the clergy, they strove to appease their complaints. Pepin the Short and Charlemagne restored to them a large portion of their property which had formerly been granted to their warriors as precaria; or at least, increased the amount paid to the church by the new proprietors, who obstinately refused to consider themselves mere tenants.

Pepin.

The predominance of the Pepin family had commenced before the time of Charles Martel, by their possessing the hereditary office of Mayor of the Palace. During the life of that great chieftain, there were several inter-reigns in Austrasia and Neustria, and he continued to exercise the supreme authority with the simple title of Duke of the Franks. At his death, his children, Pepin and Carloman, divided the kingdom between them, Pepin, still preserving some respect for appearances, made Childeric III. king in Neustria; and soon, by the abdication of his brother Carloman, he found himself Duke of Austrasia, as well as the all-powerful Mayor of the Palace in Neustria. Such was, however, the influence already possessed by the idea of the hereditary legitimacy of the crown, that Pepin did not venture to seize, in the name of force alone, upon the throne which was considered to belong rightfully to the descendants of Clovis. He sought to justify his employment of force by popular election, and an appeal to religion. As the head of an aristocracy, he was obliged frequently to defer to its will, and to give it a share of authority. He revived the ancient assemblies of the large landowners, and restored to them their part in public affairs. Thenceforward he might consider himself certain of his election; but even this did not suffice him. He thought that his usurpation needed a more august and sacred sanction. He gained over to his interests Boniface, bishop of Mayence, and charged him to sound Pope Zachary, who, on his side, was hard pressed by the Lombards, and needed the assistance of the Frankish chieftain. When Pepin was sure of the pontiff's concurrence, he sent Burckhardt, bishop of Wurtzburg, and Fulrad, abbot of St. Denis, to propose to him this question, in the form of a case of conscience. "When there is a king in fact and a king by right, which is the true king?" The pope replied, that he who actually exercised the royal authority ought also to possess the royal title. In 752, Pepin convoked the national assembly at Soissons; he was there elected king, and afterwards consecrated by Bishop Boniface. In 754, Pope Stephen III. made a journey into France, and again consecrated Pepin with his two sons and his wife Bertrade. The pope ordered the Franks, on pain of excommunication, to take none as kings who did not belong to the family of Pepin, and the Franks swore an oath: Ut nunquam de alterius lumbis regem in ævo præsumant eligere.

A second dynasty was thus established almost in the same manner as the first had been. The principal warrior-chief, the most powerful of the large landowners, has himself elected by his companions, confines future elections to members of his own family, and obtains the sanction of religion to his election. He holds the actual power from his fathers and from himself; he is desirous of holding the rightful power from God and from the people. German manners and institutions reappear, but in association with Christian ideas. Here is a second conquest of Gaul, accomplished by German warriors, and sanctioned, in the name of the Roman world, no longer by the Emperor, but by the Pope. The church has inherited the moral ascendancy of the empire.

Lecture XI.

General character of events under the Carlovingian Empire. Reign of Pepin the Short. Reign of Charlemagne. Epoch of transition. Reigns of Louis the Débonnair and Charles the Bald. Norman invasions. The last Carlovingians. Accession of Hugh Capet.

Tendency To Centralization.

I have sketched the general progress of events in Frankish Gaul, under the Merovingians; I have now to give a similar outline of the reign of the Carlovingians. I shall enter neither into an examination of the institutions, nor a detailed narrative of occurrences; I shall seek to sum up the facts in the general fact which includes them all.

The general tendency of events under the Merovingians was towards centralization; and this tendency was natural. At that period, a society and a state were labouring to form and create themselves; and societies and states can be created only by the centralization of interests and forces. The conquests and authority of Clovis, however fleeting and incomplete they may have been, indicate this need of centralization, which was then pressing upon Roman and barbarian society. After the death of Clovis, his dominions were dismembered, and formed into distinct kingdoms; but these kingdoms could not remain separate; they continually tended to reunite, and soon became reduced in number to two, which finally coalesced. A similar process took place in reference to the authority in the interior of each state. The royal power attempted at first to be the centralizing principle, but did not succeed; the aristocracy of the chiefs, the great landowners, laboured to organize itself, and to produce its own government; it produced it, at length, in the form of the Mayors of the Palace, who eventually became kings. After two hundred and seventy-one years of labour, all the Frankish kingdoms were reunited into one. The supreme power was more entirely concentrated in the hands of the king, aided by the concurrence of the national assemblies, than it had ever been previously.

Under Pepin the Short and Charlemagne, this centralization was maintained, extended and regulated; and it appeared to gain strength. New countries, new peoples, were incorporated into the Frankish state. The relations of the sovereign with his subjects became more numerous and regular. New bonds of union were established between the supreme power, its delegates, and its subjects. A state and a government seemed likely to be formed.

Tendency To Dissolution.

After the death of Charlemagne, affairs presented quite another aspect, and assumed a contrary direction. In proportion as a tendency to the centralization, either of the different states among themselves, or of the internal power of each state, had been visible under the rule of the Merovingian race, in just that proportion did a tendency to the dismemberment, to the dissolution, both of the states themselves and of the power in each state, become evident under the Carlovingians. Under the Merovingians, you have seen that five successive dismemberments took place, none of which was able to last; after the death of Charlemagne, the kingdoms once separated do not reunite. Louis the Debonnair divided the empire among his children, in 838, and made vain efforts to maintain some unity therein. The treaty of Verdun, in 843, definitively separated the three monarchies. Charles the Fat, in 884, made an attempt to unite them again; but this attempt also failed—reunion was impracticable.

In the interior of each state, and particularly in France, the same phenomenon was manifested. The supreme power which, under the Merovingians, had tended to become concentrated in the hands, either of the kings, or of the Mayors of the Palace, and which had seemed to have attained this end under Pepin and Charlemagne, took a contrary direction from the reign of Louis the Debonnair, and tended constantly to dissolution. The great landed proprietors who, under the first race, had been naturally urged to coalesce against the royal authority, now laboured only to elevate themselves, and to become sovereigns in their own domains. The hereditary succession of benefices and offices became prevalent. Royalty was nothing more than a direct lordship, or an indirect and impotent suzerainty. Sovereignty was dispersed; there no longer existed any state, or head of the state. The history of the Carlovingians is nothing but the struggle of declining royalty against that tendency which was continually robbing and contracting it more and more. This was the dominant character, the general progress of events, from Louis the Debonnair to Hugh Capet. I shall now refer to the principal facts of this epoch; in them I shall find proofs of the general fact just stated.

Pepin The Short.

I. Pepin the Short (752-768). As this monarch had risen to power by the aid of the large landowners, the clergy, and the pope, he was obliged, during the whole course of his reign, to treat with consideration those powers which had supported him. He frequently convoked national assemblies, and frequently met with opposition from them. It was not without extreme difficulty that he prevailed upon his chieftains to make war against the Lombards, at the request of Pope Stephen III. In order to retain the support of the clergy, Pepin ordered the holders of ecclesiastical benefices to perform the conditions annexed to their tenure of them; he lavished, donations upon the churches, and greatly augmented the importance of the bishops. It is from Zachary's answer to Pepin, that the popes have assumed to deduce their historic right to make and unmake kings. Pepin thus favoured the aggrandizement of the aristocracy, the clergy, and the papacy,—three powers which had been very useful, and were still of great service to him, which he knew how to manage and restrain, but which, under other circumstances, would assuredly labour to render themselves independent of the royal power, and would promote the dismemberment, after having assisted in the concentration of the kingdom. The moment most favourable for the development of these powers had arrived. They placed themselves at first at the service of the king, who was useful to them, and knew how to make them serviceable to himself; and thus they became able to free themselves from dependence upon him, and henceforward to act alone and on their own account.

Charlemagne.

II. Charlemagne (768-814). Epochs of transition, in the history of society, have this singular characteristic, that they are marked sometimes by great agitation, and sometimes by profound repose. It is well worth while to study the causes of this difference between epochs which are fundamentally similar in nature, and which do not constitute a fixed and durable state of society, but only a passage from one state to another. When the transition occurs from a state of things which has long been established and is doomed to destruction, to a new state of things which it will be necessary to create, it is generally full of agitation and violence. When, on the other hand, there exists no previous state of society, which from its long duration is difficult to overthrow, the transition is only a momentary halt of society, fatigued by the disorder of its previous chaotic state, and by the labour of creation. This was the character of the reign of Charlemagne. The whole country of the Franks, wearied by the disorders of the first dynasty, and not having yet originated the social system which was destined to issue naturally from their conquest—I mean the feudal régime—stood still for a time under the government of a great man who procured for it greater order and more regular activity, than it had ever known before. Until then, the two great powers which agitated the country—the great landowners and the clergy—had not been able to take a settled position. The royal authority was hostile to them, and they attacked it. Charlemagne knew how to restrain and satisfy them, and contrived to keep them employed without placing himself in their power. This knowledge constituted his strength, and was the cause of the temporary order which he established throughout his empire. In a future lecture, when studying the institutions of his epoch, we shall see what was the characteristic feature of his government. I am speaking now only of the fact itself—of the singular circumstance of the authority of a very powerful king being interposed between an age in which royalty was held in slight esteem, and an age in which it almost ceased to be of any importance. Charlemagne made of barbarian monarchy all that he possibly could. He possessed within himself, in the necessities of his mind and life, an activity corresponding to the general exigencies ol his age, which, indeed, surpassed them. The Franks desired war and booty; Charlemagne desired conquests, in order to extend his renown and dominion; the Franks were unwilling to be without a share in their own government; Charlemagne held frequent national assemblies, and employed the principal members of the territorial aristocracy as dukes, counts, missi dominici, and in other offices. The clergy were anxious to possess consideration, authority, and wealth; Charlemagne held them in great respect, employed many bishops in the public service, bestowed on them rich endowments, and attached them firmly to him, by proving himself a munificent friend and patron of those studies of which they were almost the only cultivators. In every direction towards which the active and energetic minds of the time turned their attention, Charlemagne was always the first to look; and he proved himself more warlike than the warriors, more careful of the interests of the church than her most devout adherents, a greater friend of literature than the most learned men, always foremost in every career, and thus bringing everything to a kind of unity, by the single fact that his genius was everywhere in harmony with his age, because he was its most perfect representative, and that he was capable of ruling it because he was superior to it. But the men who are thus before their age, in every respect, are the only men who can gain followers; Charlemagne's personal superiority was the indispensable condition of the transitory order which he established. Order did not at that time spring naturally from society; the victorious aristocracy had not yet attained the organization at which it aimed. Charlemagne, by keeping it employed, diverted it temporarily from its object. When Charlemagne was dead, all the social forces which he had concentrated and absorbed became in want of aliment; they resumed their natural tendencies, their intestine conflicts; they began once more to aspire to the independence of isolation, and to sovereignty in their own neighbourhood.

Louis The Debonnair.

III. Louis the Debonnair (814-840). As soon as Louis became emperor, he lost the success which had attended him as king of Aquitaine. Facts soon gave proof of that tendency to dissolution which pervaded the empire of Charlemagne, and which dispersed the authority which he had been able to retain entire in his own hands. Louis gave kingdoms to his sons, and they were continually in revolt against him. The great landholders, the clergy, and the pope—those three social forces which Charlemagne had so ably managed and restrained—escaped from the yoke of Louis the Debonnair, and acted sometimes in his favour, and sometimes against him. The clergy loaded him with reproaches, and forced him to do public penance at Worms, in 829. An attempt was made, in 830, to make him a monk, after the assembly at Compiègne, where he had confessed his faults; and he was deposed, in 833, by another assembly at Compiègne, in pursuance of a conspiracy into which Pope Gregory IV. had entered. During the whole course of this reign, nothing held together, everything was disjoined; both the states which constituted the empire, and the great social forces, lay and ecclesiastical, in each state. Each of these forces aspired to render itself independent. Louis the Debonnair presents a singular spectacle, in the midst of this dissolution, attempting to practise as a scholar the maxims of government laid down by Charlemagne, enacting general laws against general abuses, prescribing rules for the guidance of all those forces which had escaped from his hands, and even endeavouring to correct the particular acts of injustice which had been committed under the preceding reign. But the kings, the great landowners, the bishops,—all had acquired a feeling of their own importance, and refused to obey an emperor who was no longer Charlemagne.

Charles The Bald.

IV. Charles the Bald (840-877). The dissolution which had commenced under Louis the Debonnair continued under his son Charles the Bald. His three brothers, [Footnote 12] relying alternately upon the pretensions of the clergy and of the large landholders, disputed with him for the vast empire of Charlemagne.

The bloody battle of Fontenay, fought on the 25th of June, 841, made Charles the Bald king of Neustria and Aquitaine, that is, of France. His reign is nothing but a continual alternation, a scene of futile efforts to prevent the dismemberment of his dominions and of his power. At one time, he robs the clergy in order to satisfy the avidity of the great landholders, whose support he is anxious to gain; at another time, he spoils the landholders in order to appease the clergy, of whose assistance he stands in need. His capitulars contain hardly anything but these impotent alternations. The hereditary succession of benefices and appointments became triumphant, and every chieftain laid the foundation of his own independence.

The Normans.

V. The Normans. This is the generic name of the German and Scandinavian tribes, who inhabited the shores of the Baltic. Their maritime expeditions may be traced back to a very remote period. We meet with them under the first dynasty of Frankish kings; they frequently occur towards the end of the reign of Charlemagne, and under Louis the Debonnair; and they continually appear under Charles the Bald. They constituted a fresh cause of the dismemberment of the empire, and of the royal authority. In the ninth century, the Frankish Gauls present the same appearance which the Roman Gauls had offered four centuries before: that of a government incapable of defending the country, and expelled or retiring in every direction, and of barbarians pillaging, imposing tribute, withdrawing on payment of large sums of money, and continually reappearing to levy fresh contributions. Nevertheless, a notable difference is to be remarked between these two epochs. In both, the central government was equally incapable and worn out; but, in the ninth century, there existed within the Frankish territory a host of chieftains, who, though lately barbarian invaders themselves, had become independent, and were surrounded by warriors who defended themselves against the new invaders with far greater energy than the Roman magistrates had done, and who took advantage of the disturbed state of society to consolidate firmly their own individual sovereignties. Among these chieftains, we meet with Robert the Strong, the ancestor of the Capetian family, who became Duke of Neustria, in 861, and was killed in 866, while defending Neustria against the Normans. The Normans definitively established themselves in Neustria, in 912, under Charles the Simple, who yielded the province to their chief Rollo, and gave him his daughter Grisella in marriage.

VI. Charles the Fat. In 884, Charles the Fat, son of Louis the Germanic, temporarily collected under his rule nearly all the dominions of Charlemagne. The maintenance of this new concentration of territory and power was impossible, and it was dissolved even before the death of Charles the Fat.

VII. In 888, Eudes, and in 923, Raoul, made themselves kings. The first, a count of Paris, was the son of Robert the Strong, and assumed the title of king, at the national assembly held at Compiègne. The second was Duke of Burgundy, and husband of Emma, the grand-daughter of Robert the Strong, and sister of Hugo the Great, Duke of France. These kings were not, like the Mayors of the Palace at the termination of the first dynasty, the representatives of a powerful aristocracy. The landed aristocracy of the tenth century had no further need of representation; no power could struggle effectively against them. Every great landowner was absolute master in his own estates, and the kings were only great barons, who, having become independent, assumed the title of kings, with the aid of their vassals. A portion of the lords who had thus become independent, remained indifferent to quarrels which did not disturb their rights and their power. They cared little whether there was a king, or who was king. The descendants of Charlemagne retained for some considerable time a party of adherents, for the idea and feeling of the rightfulness of a hereditary succession to the crown, that is, of legitimacy, were already powerful; but in 987, the conflict ceased, and Hugh Capet became king.

Tendency To Dissolution.

The general fact which characterizes this epoch,—a tendency to dismemberment and dissolution,—is frequently met with in the course of the history of the human race. At first, we see the interests, forces, and ideas which exist in society, labouring to become united, to concentrate themselves, and to produce a suitable form of government. When this concentration has been once effected, and this government has been once produced, we find that, at the end of a certain time, it becomes exhausted and incapable of maintaining it entirely; new interests, new forces, and new ideas, which do not harmonize with each other, arise and come into action; then the dissolution begins, the elements of society become separated, and the bonds of government are relaxed. A conflict commences between the forces which tend to separation, and the authority which strives to maintain union. When the dissolution shall be consummated, then will begin a new work of concentration.

Formation And Dissolution.

This occurred after the fall of the second dynasty in France. The prevalence of the feudal system had caused the dissolution of the government and the state; the government and the state laboured to reconstitute themselves, and to regain their unity and consistency. This great work was not definitively accomplished until the reign of Louis XIV.; the social forces had then become once more concentrated in the hands of royalty. Our own times have witnessed a fresh dissolution.

What we observe, then, during the years from 481 to 987, is a general phenomenon, characteristic of the progress of the human race. This phenomenon occurs not only in the political history of societies, but also in every occupation in which the activity of man finds exercise. In intellectual order, for example, we find at first that chaos reigns; the most divergent attempts to resolve the great questions of the nature and destiny of man, are made in the midst of the universal ignorance. By degrees, opinions become assimilated, a school is formed, founded by a superior man; it is joined by almost all men of mind. Ere long, in the midst of this very school, diverse opinions arise, contend, and become separated; dissolution begins once again in intellectual order, and will continue until a new unity is formed, and regains the empire.

Such, also, is the course of nature herself in her great and mysterious operations. This continual alternation of formation and dissolution, of life and death, recurs in all things, and under all forms. Spirit gathers matter together and gives it animation,—uses, and then abandons it. It falls a prey to some fermentation, after which it will reappear under a new aspect, to receive once more that spirit which alone can impart to it life, order, and unity.

Lecture XII.

Ancient institutions of the Franks. They are more difficult of study than those of the Anglo-Saxons. Three kinds of landed property; allodial, beneficiary, and tributary lands. Origin of allodial lands. Meaning of the word allodium. Salic land amongst the Franks. Essential characteristics of the allods.

Primitive Institutions Of The Franks.

The primitive institutions of the Franks are much more difficult of study than those of the Anglo-Saxons.

I. In the Frankish monarchy, the old Gallo-Roman people still subsisted; they in part retained their laws and customs; their language even predominated; Gaul was more civilised, more organised, more Romanised than Great Britain, in which nearly all the original inhabitants of the country were either destroyed or dispersed.

II. Gaul was divided among various barbarian peoples, each of whom had its own laws, its own kingdom, its own history; the Franks, the Visigoths, the Burgundians; and the continual alternations of the Frankish monarchy between dislocation and re-union, long destroyed all unity in its history.

III. The conquerors were dispersed over a much larger extent of territory; and central institutions were weaker, more diverse, and more complicated.

IV. Of the two systems of social and political order, contained in the cradle of modern nations—I mean the feudal system and the representative system—the latter has long prevailed in England, while the former long maintained its sway in France. The ancient national institutions of the Franks were absorbed into the feudal system, in whose train came absolute power. Those of the Saxons, on the other hand, were more or less maintained and perpetuated, to end at length in the representative system, which rendered them clear by giving them due development.

Perhaps, also, the difficulty of the study of the ancient Frankish institutions arises in some measure from the fact that we possess more documents respecting the Franks than respecting the Saxons. Because we are acquainted with more facts, we have greater trouble in harmonizing them. We believe we are better informed because we know less.

Such being the case, I wish to state with precision the object of my researches, so as not to lose time in useless digressions. I do not propose that we should study together either the state of Frankish society in all its departments, or the history of all its vicissitudes. I am desirous to investigate and explain to you, first, what constituted in France, from the fifth to the tenth century, the political part of the nation, possessing political rights and liberties; and secondly, by what institutions these rights were exercised, and these liberties guaranteed. We shall frequently be obliged to make excursions beyond these limits in search of the facts necessary to the solution of the questions contained therein; but we shall not dwell long upon such extraneous matter.

In the pursuit of this study, we shall find the works of German authors of incontestable utility. A principal cause of the errors of the leading French writers who have treated of the subject, is that they have attempted to derive all our institutions from Germany, from the condition of the Franks before the invasion, and that, at the same time, they have been unacquainted with the language, the history, and the learned researches of the purely German peoples, that is, of the nations which have most thoroughly retained the primitive elements of Frankish society, and which formed a considerable portion of the Frankish monarchy.

Views Of Hullmann.

Dr. Hullmann, a professor at the University of Bonn, has written a book on the origin of the various social states or conditions, the object of which is to prove that all modern social order, political as well as civil, derives its origin from the circumstance, that the peoples of modern times have been agriculturists, devoted to the possession and fixed cultivation of land. This view, although incomplete, is of much importance. It is certain that, in the history of Europe, ever since the fall of the Roman Empire, the condition of persons has been closely connected with that of landed property, and that the one throws light upon the other. Though all history would not prove that this has been the case from the beginning, yet the long-continued predominance of the feudal system, which consists precisely in the intimate connection and amalgamation of the relations of lands with those of persons, would alone be sufficient to demonstrate it unquestionably.

Condition Of Lands.

At the outset, the condition of persons gave rise to that of lands; according as a man was more or less free, more or less powerful, the land which he possessed or cultivated assumed a corresponding character. The condition of lands afterwards became the symbol of the condition of persons; according as a man possessed or cultivated such and such a domain, he was more or less free and more or less important in the State. Originally, the man gave its character to the estate; in the sequel, the estate gave his character to the man: and as symbols quickly become causes, the condition of persons was at length not only indicated, but determined by, and consequent upon, the condition of lands. Social conditions became in some degree incorporated with the soil: and a man found himself possessed of a certain rank and of a certain degree of liberty and social importance, corresponding to the character of the land which he occupied. In studying modern history, we must not for a moment lose sight of these vicissitudes in the condition of lands, and of the varied influence they exerted upon the condition of persons.

There is some advantage in first studying the condition of lands, in so far as it was a symbol of the condition of persons, because the former is somewhat more determinate than the latter. It is also less complicated; the condition of persons frequently varied upon lands of the same condition; and the same persons have possessed lands of different conditions. Our information, respecting the condition of lands, is also more than exact.

In studying the condition of landed property and its vicissitudes, I do not propose to investigate its civil condition, or to consider property in all its civil relations, such as successions, bequests, and alienations. I intend to consider it only in its relation to the condition of persons, and as a symbol or cause of the various conditions of society. In the period which we are about to study, from the fifth to the tenth century, we have this advantage: that it contains a complete system, both as regards landed property, and also with respect to the condition of persons and the political institutions of the nation.

Allodial Lands.

At this period, we meet with three kinds of landed property: 1st. Allodial lands; 2nd. Beneficiary lands; and 3rd. Tributary lands.

1st. Of allodial lands or Allods.—These were lands possessed in absolute right, which the proprietor held from no one, on account of which he owed nothing to any superior, and of which he had full liberty to dispose. The lands taken or received as booty by the Franks, at the time of the conquest of Gaul, or in their subsequent conquests, were originally allodial. At a later period it was said that a man held an allodium, only from God and his sword. Hugh Capet said that he held the crown of France in this manner, because he had received it from no one. Such tenures were mementos of conquest.

The word alode itself indicates that the first allods were lands, which fell to the conquerors either by lot or division; loos, lot; allotted, allotment; whence also came the French word, loterie. Among the Burgundians, Visigoths, Lombards, and others, we find positive traces of this division of the lands allotted to the conquerors. They took possession of two-thirds of the land, that is, not of the whole extent of the country, but of the land in any locality, where a barbarian of any importance took up his residence. The lands which thus fell to the barbarians, were called Sortes Burgundionum, Gothorum, and so on. We do not find among the Franks positive traces of such a division of the land; but we know, nevertheless, that they divided their booty by lot.

The word alode, then, was probably applied at first only to the lands taken by the victors in virtue of their conquests. Another proof of this is that allodial property, properly so called, was long distinguished from the lands held also in absolute right, and entailing no acknowledgment of a superior, but which had been acquired by purchase or in any other way. A distinction was also made among allodial lands, of salic land, which could be inherited only by males. This was probably the original allod, the land acquired at the time of the conquest, and which thereupon became the primitive and principal establishment of the head of the family. Terra salica is the terra aviatica of the Ripuarian Franks, the terra sortis titulo adquisita of the Burgundians, the hæreditas of the Saxons, and the terra paterna of the formulas of Marculf.

Salic Land.

Various explanations have been given of the term salic land. Montesquieu thinks that it was the land belonging to the house, from the word, sal, hall. This explanation is supported by Hullmann. It would thus be the in-land of the Anglo-Saxons. It is probable that originally the terra salica was in fact the land connected with the house, the residence of the chieftain. The two explanations would thus coincide; but the former is more complete and historical than the latter.

The name of allod was extended by degrees to all lands possessed in absolute right, and held from no superior, whether they were the original allods or not. The words proprium, possessio, prædium, hæreditas, were then employed as synonyms of allodium. It was probably at this period also that the rigorous interdict which excluded females from succession to salic land, fell into desuetude. It would have been too harsh to exclude them from succession to all allodial property. There were some doubts entertained on this point as early as the time when the salic law was drawn up; and Marculf has transmitted to us a formula which proves that, although it was the common law to deprive females of all succession to primitive allods, a father might, nevertheless, by his will, give his daughter an equal share with his sons in the division of all his property, of whatever nature.

The essential and primitive characteristic of the allodium, consisted in the absoluteness of the property; the right to give it away, to alienate it, to bequeath it by inheritance or will, &c. Its second characteristic was that it depended upon no superior, and involved no service or tribute of any kind to any individual. But although allodial lands were exempt from all private charges towards individuals, does it follow that they were also exempt from all public charges as regarded the state, or the king as head of the State? This question has been differently answered by learned men.

At the period to which we allude, there were no public charges properly so called, no obligations imposed and fulfilled as regarded the State, or its head. All was limited to personal relations between individuals; and from the relations of man with man arose the mutual relations of landed property, which were not carried further than those of persons.

Charges On Allodial Lands.

We have already seen this; the position of the Franks after the conquest resulted from the combination of their anterior relations with their new position. The freeman, who held his land from no one, had no obligations or charges to fulfil to any one on account of his land. In such a state of civilization, liberty is the appanage of force. The Franks who possessed allodial lands, and were strong enough to be under no obligation of duty to any more powerful individual, would not have comprehended the necessity of owing service to an abstract being like the State, with which, moreover, they had no personal relation.

However, as society cannot exist in such a state of dissolution, arising from the isolation of individuals, new relations were progressively formed between the proprietors of allodial lands, which relations imposed certain charges on them.

1st. The gifts presented to the kings either at the holding of the Champs de Mars or Mai, or when they come to pass any time in any particular province. The kings had no fixed habitation. These gifts, though at first purely voluntary, became gradually converted into a sort of obligation, from which allodial lands were not exempt. That these gifts had become obligatory is proved by a list drawn up at Aix-la-Chapelle in 817, during the reign of Louis the Debonnair, which enumerates the monasteries which had to pay them, and those which had not.

2nd. The supply of provisions and means of transport to the king's ambassadors, and to the foreign envoys, on their passage through the country.

3rd. Of the various barbarian nations which were successively incorporated into the kingdom of the Franks, several paid tribute to the Frankish kings; and of this tribute it is probable that the free or allodial lands, possessed by these nations, contributed their share. It consisted of a certain number of cows, hogs, and horses. The nature of these tributes proves that they were not distributed among the lands, but imposed upon the nation as a whole.

4th. A more important charge, namely, military service, was imposed upon allodial lands. In our next lecture, we shall see how this charge was introduced.

Lecture XIII.

Origin of military service; its cause and limits. It was made a general obligation by Charlemagne. Allodial lands were originally exempt from taxation. Origin of benefices. Change in the position of the German chiefs in consequence of their territorial settlement. Their wealth. No public treasury. The œrarium and fiscus of the old Roman republic. Formation of the private domain of the kings of France. Character of benefices. Error of Montesquieu on this subject.

Origin Of Military Service.

I have indicated some of the new relations which became progressively established between the proprietors of allodial lands and the services that resulted from them. I have to occupy you to-day with the consideration of military service and benefices.

Originally, military service was imposed on a man by virtue of his quality, his nationality before the conquest, and not by reason of his wealth. After the conquest, there was no legal obligation to it whatever; it was a natural result of the position occupied by the Franks,—who were constantly called upon to defend what they had conquered,—and of their taste for warlike expeditions, and for pillage. It was, also, a kind of moral obligation which each man owed to the chief whom he had chosen. This connexion continued the same as in Germany; the chief proposed an expedition to his men, and if they approved of it, they set out. Thus, we find Theodoric proposed to the Austrasian Franks an expedition against Thuringia. Often the warriors themselves summoned their chief to conduct them on some particular expedition, threatening to forsake him, and seek another chief, in the event of his refusal. Under the Merovingians, a kind of regularity, some sort of legal obligation, was introduced into the military convocations, and a penalty was inflicted upon those who did not present themselves. The obligation was imposed, and the penalty inflicted, even in cases where no movement was required in defence of the country. The proprietors ol allodial lands were not exempted; many, doubtless, went on their own free choice, but the feeble were constrained. This was, however, an obligation attached rather to the quality of a free man, a Frank, or an associate, than to property.

Not until the reign of Charlemagne, do we see the obligation to military service imposed on all free men, proprietors of freeholds, as well as of benefices, and regulated by property qualifications. This service now appeared no longer as a voluntary act; it was no longer the consequence of the simple relation between a chief and his associates, but a truly public service imposed on every individual of the nation, in proportion to the nature and extent of his territorial possessions. Charlemagne was very vigilant in seeing that the system of recruiting which he had established, should be faithfully carried out; we have a proof of this in his capitulary, issued in the form of instructions to the missi dominici, in the year 812. This is an exceedingly minute account of the particulars and charges of military service. These charges remained under the same conditions during the reigns of Charlemagne's immediate successors. Under Charles the Bald, they were restricted to the case of an invasion of the country by a foreigner (landwehr). The relation of the vassal to his lord, at that time, prevailed completely over that of the citizen to the chief ruler of the state.

Exemption Of Freeholds From Imposts.

Although allodial lands were exempt from imposts, properly so called, more because there were no general imposts whatever than because of any special immunity from them possessed by allodial lands, yet we find the kings used every favourable opportunity to attempt to attach imposts to men and lands, which they believed rightfully exempt from them; complaints were made of these attempts as acts of injustice; they were resisted, and sometimes redress was sought, as under Chilperic, in 578, in Austrasia; under Theodebert, in 547; and under Clovis II., in 615. We find also, that, on the occasion of great and alarming emergencies, the kings imposed certain charges on proprietors, without distinction, requiring them to lend their assistance, either to the poor, or to the state. Thus, Charlemagne, in 779, during a famine, and Charles the Bald, in 877, in order to pay the tribute due to the Normans, made such general claims. In both these cases, the charge was adjusted to the quality of persons and properties.

Distribution Of Lands.

There is reason to believe that, originally, allodial lands did not exist in large numbers, especially among the Franks.

There is no ground for supposing that the Franks took possession of, and shared the lands, wherever they made expeditions and conquests. They rather cared for the booty which they carried off, and the cattle which they took with them, instead of forming a settlement themselves. For a long time, the greater part of the Franks did not often forsake their first habitations on the banks of the Meuse and the Rhine; thither they returned after their expeditions.

We may conclude that lands were most probably distributed in the following manner. Each chief took a portion for himself and his associates, who lived on the land of their chief. It would be absurd to suppose that each band would dissolve itself, and the separated individuals then retire each to his isolated share of land; there were no individual shares, or, certainly, but few. This is sufficiently proved by the fact that the greater number of Franks appear to have been without landed property, living as cultivators on the lands, and in the villæ of a chief, or of the king. Often, even, a man would place himself not only under the protection, but at the disposal of another, to serve him during his life, on condition of being fed and clothed, and yet without ceasing to be free. This kind of contract, the formula for which has been preserved, must have been very common, and explains the circumstance that so large a number of free men are found to have lived and served on lands not belonging to themselves. Probably, the number of Franks who became successively proprietors, by means of benefices, was greater than the number of those who were primitively allodial proprietors.

The larger number ol small allodial proprietors were gradually robbed of their possessions, or reduced to the condition of tributaries, by the usurpation of their neighbours, or of powerful chiefs. Of this, there are innumerable examples. The laws made, from the seventh to the tenth century, give evidence of the tendency of large allodial estates or benefices to absorb small freeholds. The statute of Louis the Debonnair, referring to the complaints of the Spanish refugees in the south, explains pretty accurately the system according to which properties changed hands.

Donations to churches also tended incessantly to reduce the number of allodial estates. They would probably soon have disappeared altogether, had not a cause of an opposite character tended continually to create new ones. As allodial property was sure and permanent, while benefices were precarious and more dependent, the proprietors of benefices constantly sought to convert their benefices into allodial estates. The capitularies which remain to us prove this at every step. It is probable that large new allodial estates were thus created, but small ones tended to disappear.

Beneficiary Lands.

Finally, under Charles the Bald, a singular circumstance presents itself. This was the very time when the system of allodial property was preparing, so to speak, to merge itself in the system of beneficiary property, which is synonymous with feudalism; and precisely at that time the name of Allods is more frequent than ever. We find it applied to properties which are evidently benefices. This name still designated a property more surely hereditary and independent, and as benefices were ordinarily hereditary and independent, they were called allods, just in order to indicate their new character; and the king himself, whose interest it especially was that his benefices should not become allods, gave them this name, as if it had become their conventional designation. Sixty years previously, Charlemagne had made the greatest efforts to prevent benefices from becoming allods.

Having thus explained the nature and changes of allods, I pass on to the consideration of benefices.

Benefices, which constituted the cradle of the feudal system, were a natural result of the relations anciently subsisting in Germany between a chief and his associates. As the power of these chiefs resided only in the strength of their band of associates, all their attention was directed to the means of enlarging the number of these followers. Tacitus relates how, being charged with the maintenance and preservation of their followers, they gained and kept them by means of constant warfare, by dividing to them the spoils of the empire, by gifts of arms and horses. After the conquest, when the territorial establishment took place, the position of the chiefs was altered.

Private Domains Of The Kings.

Hitherto, in their wandering life, they had lived solely upon rapine; then they possessed two kinds of wealth, moveable booty and lands. They made their companions other presents, which engaged them in another kind of life. These riches, both moveable and fixed, remained for the chiefs, as for all others, as their personal and private property. The Frankish society had not then arrived at any ideas of public property. It consisted only of individuals, powerful by reason of their courage and their talent for war, by the antiquity of their family, and the renown of their name, who collected around them other individuals, who passed their life in the same precarious manner. The republics of antiquity did not commence thus. Rome had soon its public treasure—its ærarium. Till nearly the close of the republic, the ærarium still remained. Augustus established the fiscus, the treasury of the prince, which was destined to absorb the ærarium. The fiscus, at first, received only private gifts to the prince, but it soon usurped all the public revenues, till it became at length the only repository for public wealth. Thus, despotism transformed a public into a private domain. The states founded on the ruins of the Roman empire have followed an opposite course. At their commencement, all property was private property. It is in consequence of the development of civilization, and free institutions, that in almost all monarchies private domains have gradually become public property.

The private domains of the chiefs of bands, and particularly of the Frankish kings, were at first composed of lands taken from the inhabitants of the countries in which they established themselves. I have already stated that they did not take all the lands, but a large number of them. The share of the chief must have been considerable, as is indicated by the numerous domains of the chiefs of the first two races, in Belgium, in Flanders, and on the banks of the Rhine, where they first formed their settlements. Hullmann has given a list of a hundred and twenty-three domains beyond the Meuse belonging to the Carlovingian family.

The private property of the chiefs of conquered peoples were, to a great extent at least, incorporated into the domain of the conquering chief. Clovis subjected to himself successively several petty monarchs in his neighbourhood—Ragnachair at Cambray, Chararich in Belgium, and Siegbert at Cologne; and took possession of all their personal property.

The substitution of the royalty of one family for that of another, augmented the private domain of the king; the new king would add to his own personal possessions the property of the dethroned king. Thus the large domains possessed by the family of the Pepins, in Belgium, and on the Rhine, became royal domains.

Legal confiscations, as a punishment for crime, cases in which no legal heir was to be found for property, unjust and violent confiscations—were other sources of personal wealth to kings.

In these ways, the private domain of the kings increased rapidly, and it was employed by them especially as a means of attaching their associates to them, and of gaining new ones. Benefices, then, are as ancient as the establishment of the Franks on a fixed territory.

Tenure Of Benefices.

The fundamental question which has divided historians, whether those who are merely scholars or the philosophers, is—were benefices given for a time and revocable at will, or were they for life and yet revertible, or were they hereditary? Montesquieu has aimed at establishing a historical progression among these different modes; he asserts that benefices were at first revocable, being given for a time, then for life, and then hereditary. I believe he is mistaken, and that his mistake arises from an attempt to systematize history, and bring its facts into regular marching order. In the giving and receiving of benefices, two tendencies have always coexisted: on the one hand, those who had received benefices wished to retain them, and even to make them hereditary; on the other hand, the kings who granted them wished to resume them, or to grant them for only a limited period. All the disputes that occurred between kings and their powerful subjects, all the treaties which arose out of these disputes, all the promises which were made with a view to appease the dissatisfaction of malcontents, prove that the kings were in the habit of taking back, by violence, the benefices they had granted, and that the nobles attempted to retain them also by violence.

Disputes About Benefices.

The Mayors of the Palace acquired their power by placing themselves at the head of the large possessors of benefices, and by seconding their pretensions. Under the administration of Pepin the Short and Charlemagne, the struggle appeared to cease, because the kings had for a time great superiority in force; but, in reality, the kings were now the aggressors in their turn, who endeavoured to bring the benefices again into their own hands, and to preserve to themselves the free disposal of them. Under Charles the Bald, the kings again began to get feeble, and, in consequence the treaties and promises became again favourable to the beneficiaries. In fact, the history of benefices, from the time of Clovis till the full establishment of the feudal system, is only a perpetual struggle between these two opposing tendencies. An attentive and accurate examination of the facts will prove that the three modes of conceding benefices did not follow one another in regular chronological succession, but that they are to be found existing and operating simultaneously during the whole course of this period.

Lecture XIV.

Proofs of the co-existence of various modes of conferring benefices, from the fifth to the tenth century. Of benefices that were absolutely and arbitrarily revocable. Of benefices conceded for a limited time; theprecaria. Of benefices granted for life. Of benefices granted hereditarily. General character of the concession of benefices. Their tendency to become hereditary. Its prevalence under Charles the Bald. Military service. Judicial and domestic service. Origin, meaning, and vicissitudes of the fidelity due by the vassal to his lord.

Transference Of Benefices.

From the time of the invasion of the Gauls by the Franks up to the moment when the feudal system was definitely constituted, we find during the whole course of this epoch:

I. That benefices were revoked, not only as a consequence of legal condemnation, but also by the arbitrary will of the donor. The power of absolute and arbitrary transference of benefices was practically in existence under the Merovingian kings. It is however very doubtful whether this has ever been recognised as the right of the donors. Such an act possessed a character of suddenness and violence which gave a shock to ideas of natural justice. Few men would consent to receive a favour of which they might legally have been deprived at the first moment of caprice. Montesquieu affirms that benefices were first held on an entirely uncertain tenure. The proofs which he gives are but of little weight. First, the clause contained in the treaty concluded at Andely, in 587, between the two monarchs, Gontran and Childebert, proves the fact but not the right. Secondly, the formula of Marculf again does not prove anything more than a common practice. Besides, the giver of the benefice presents a motive in this formula, namely, the necessity of the exchange. Thirdly, the law of the Lombards merely characterises the benefice as a precarious property, which it indubitably was. Fourthly, the Book of Fiefs compiled in the twelfth century, probably converted the fact into a right. Fifthly, the letter of the bishops to Louis the Germanic also proves merely the fact. It is evident that the right has always been contested, and that attempts have always been made to prevent the permanency of benefices is a fact also. "Charlemagne," says Eginhard, "did not suffer that every noble should take away from his vassal the benefices which he had granted to him upon any outburst of anger." The capitulary of Louis the Debonnair, which allows a year to the rejected incumbent whose benefice is in a bad condition before it can be finally taken from him, proves likewise that certain forms were observed with this view, and protests against a purely arbitrary disposition. That the patron had a right to take away the benefice, when the occupant had failed to discharge his obligations, is an indisputable fact. Now it would be very easy to abuse this principle of taking away benefices under a pretext of disorderly conduct or infidelity to the trust reposed; accordingly all the protestations that were made, and all the treaties that were enforced, were designed to oppose such a procedure.

Thus we find, from the fifth to the tenth century: First, numerous examples of benefices being arbitrarily taken away; this was the practice of the giver, when his power corresponded to his desire. Secondly, benefices taken away on account of unfaithfulness, disorder, treachery; this was a right.

The Precaria.

II. As to benefices granted for a limited time, Montesquieu affirms, after the Book of Fiefs, that they were at first granted for one year. I have not been able to find any positive example of this. It is not however impossible that there may have been such, similar to the precaria belonging to churches. Precarium, among the Romans, signified a grant of property on the tenure of usufruct for a limited time, which was generally pretty short. Under the monarchy of the Franks, we have seen that the churches often consolidated their wealth in this way, in order to secure a permanent revenue. Charles the Bald decreed that the precaria should be held for five years and renewed every five years.

Seizure Of Church Property.

The only benefices which appear to me to have been granted for a time, ostensibly so at least, are those which arose out of the ecclesiastical wealth taken by Charles Martel (about A.D. 720), and which were then possessed under the designation precarious. Before this period we find kings and mayors interposing their authority in order to obtain, under the title of precarious, the enjoyment of certain church wealth for certain persons. It appears that Charles Martel did more at that time than grant or cause the retention of church property, under the title of precaria,—he also completely stripped the churches, in order to confer their wealth as benefices. But, after him, Pepin and Carloman, his sons, while they also took the wealth of churches in order to confer them on their vassals, only took it on the title of precaria. The ecclesiastics protested vigorously against the spoliation of Charles Martel, and it was upon their protestations that Pepin ordained that the wealth which could be restored should be actually returned, and that what could not be so restored, should be held under the title precaria, at fixed rentals, till they could again be transferred to the church. Pepin and Charlemagne used rigorous measures to secure that the holders, in precario, of church wealth should fulfil their obligations to its primitive proprietors; and we may gather, from the frequency of their orders, that these orders were often treated with contempt. It is nevertheless evident that the practice of taking the goods of the church, and placing them in other hands, whether absolutely, or under the title of precarious, continued under even the most feeble and superstitious kings. The bishops said that Charles the Bald suffered himself to be led astray, being often seduced, partly because of his youth, partly through feebleness of character, by evil counsellors, and often constrained by the threats of the occupants, who told him "that if he did not allow them to possess this consecrated property, they would abandon him immediately." It is probable that but little of this property was restored to the churches, and that the greater part of what was held sub precario became, along with the other benefices, the hereditary possession of the occupants.

We see that far from Charles Martel having any claim to be regarded as the first originator of the practice of granting benefices for life, the benefices, on the contrary, which arose either from the act by which he despoiled churches and monasteries, or from acts similar to his, were for a long time more precarious than any others, and even ought legally to have been restored to the churches; certainly at the death of the occupants, and if possible before.

III. We find during the whole of the epoch which we are considering, and at its close as much as at its commencement, benefices conferred for life. It is evident that under Pepin and Charlemagne most benefices were given on this tenure. This was owing to the various precautions taken by the kings to prevent their being transformed into allodial estates. Louis the Debonnair took the same precautions. Mabillon quotes a charter of this king containing the formal concession of a benefice to be held for life. In 889, King Eudes conferred a benefice on Ricabod his vassal, "in beneficiary right, and on a tenure of usufruct;" with this addition, that, if he should have a son, the benefice should pass to his son for his life. We see, under Pepin, a vassal die who had a son, and yet his benefice was given immediately to another vassal.

Hereditary Benefices.

IV. We find also, during the whole of this epoch, that benefices were given or held hereditarily. In 587, it was stipulated by the treaty of Andely, with regard to the concessions made by queen Clotilda, that they should be perpetual. The law of the Visigoths (of Chindasuinth, about 540) provides that the concessions made by the princes should not be revoked. Marculf gives the formulary for a hereditary concession. In 765, Charlemagne gave to an individual named Jean, who had conquered the Saracens in the province of Barcelona, a domain (says Fontaines) situated near Narbonne; "in order that he and his posterity may possess it without any fee or trouble, so long as they remain faithful to us or to our children." The same Jean presented himself to Louis the Debonnair, with the gift of Charlemagne, and demanded his confirmation of it. Louis confirmed it, and added to it new lands. In 884, Jean being dead, his son Teutfred presented himself to Charles the Bald with the two donations just mentioned, and asked him to confirm them to him. The king granted this, as it is expressed, "in order that thou mayest possess them, thou and thy posterity, without any fee." These successive demands of confirmation, either at the death of the original bestower, or at that of the original incumbent, prove that the hereditary character of benefices was not then considered as a right, even when it had been promised, and consequently that it rested on no general law that was recognized by the state.

Tenure Of Benefices.

These three modes of granting benefices, of which I have just given examples, existed therefore at the same time, and I believe that we may assert from them two general facts, which however are not without exceptions: First, the usual condition of benefices, during this period, was that they should be given on a tenure of usufruct and for life; Secondly, the tendency of the time was to render the benefice a hereditary possession. This result was eventually realized when the feudal or aristocratic system triumphed over the monarchical system. We see under Charlemagne, at which time the monarchical system reached its culminating point, that most benefices were held on a tenure of usufruct for life, and not as personal property. Not only was Charlemagne unwilling that the property in benefices should be usurped, but he was especially vigilant with regard to their right administration. Under Charles the Bald, when the aristocratic system prevailed, benefices came to be held as hereditary possessions. This mode of possession partly arose out of the immense number of hereditary concessions which were made during this reign, and which were commenced under Louis the Debonnair; partly also out of some general arrangements in the capitularies of Charles the Bald, which recognized or conferred upon those who were faithful to the king the right to transmit their benefices hereditarily. We must conclude from this that the hereditary character of benefices at that time prevailed almost universally as a custom, and began to be avowed as a principle, but that it was not yet a general and recognized right. It was demanded and received in individual instances, which would not have been the case had it existed as a common right. In the monarchies consequent on the dismemberment of Charlemagne's empire—in Germany, for example—it was not recognized as a right, and prevailed still less as a custom.

Let us never forget—I repeat it—that all these general facts are subject to exceptional cases, and that different methods of conferring benefices have existed at all times. It would follow, from the nature of things, that the common condition of benefices was, at first, that of possession for life. The relations of the chief to his associates were all personal,—hence his benefactions were personal also. Not less did it follow from the nature of things, that when the Franks were once established and fixed, the associates of the monarch who were able to acquire an independent existence, and to become powerful in their turn, tended to separate themselves from their ancient chief, and to settle themselves in their own possessions, in order that they also might become the centre of groups of men. Hence resulted all the efforts to make benefices hereditary.

Conditions Attached To Benefices.

After having determined the origin and the mode of conferring and transmitting benefices, it remains that we should learn what conditions were attached to them, and what relations were thereby formed between the giver and the incumbent.

Mably thinks that benefices did not at first impose any particular obligation, and that those of Charles Martel were the first which were formally associated with civil and military services. This opinion is contrary to the nature of things;—the origin of benefices testifies to the contrary. They were, as, in Germany, gifts of horses or of arms and banquets had been, a mode of attaching companies to the benefactor. This relation in itself involves an obligation. Mably's idea is equally contradicted by facts. In all the disputes which arose between the incumbents and the Merovingian kings, the benefices are always vindicated in behalf of those who kept faith with their patron. No complaints were made when those were seen to be despoiled who had failed to render the fidelity that was due from them. Siggo we find losing the benefices of Chilperic in 576, because he had forsaken his allegiance and passed over to Childebert II. The law of the Ripuarians pronounced the confiscation of the goods of every man who had been unfaithful to the king. Marculf gives the formula of the act by which a man was received into the number of the faithful. Charles Martel, in giving benefices to his soldiers, only imposed upon them the obligations that had always followed on such appointments. Only these obligations became progressively more formal and explicit, precisely in the measure that the ancient relations of the chief and his associates tended to become weakened and to disappear, in consequence of the dispersion of his men and their settlement on their own properties.

Vassalage.

Originally, the associates lived with their chief, around him, in his house and at his table, in peace, as well as in war: they were his vassals, according to the original sense of the word, which signified the guest, the companion, an individual attached to the house. [Footnote 13]

When most of the vassals had dispersed themselves, in order that each might reside in his own allodial or beneficiary estate, we may easily perceive the necessity that thus arose of determining the obligations that were then imposed upon them; but this was only done imperfectly and by degrees, as is generally the case where matters are at issue which have for a long time had a general and conventional adjustment. As the first race began to disappear and the second to arise in its place, the obligations attached to the conferring of benefices appear to be clearly determined. They range themselves under two principal heads. First, the obligation of military service on the requisition of the patron. Secondly, the obligation of certain judicial and domestic services of a more personal and household character. It is impossible at the present time to specify what these services were to which the incumbents were held. We see only, among a host of acts, that the kings imposed on the incumbents servilia, which obliged them to present themselves at court. These obligations were comprised under the general term fidelity. They were at first personal, and attached to the quality of liege-man, independently of the possession of any benefice; a connexion identical with that between the ancient German associates and their monarch. When it had become necessary for the king to give lands as a benefice, in order to insure the fidelity of his liege subjects, the obligation attached itself to the quality of beneficiary. We constantly see benefices given under the condition of loyalty. Charlemagne, when he gave a benefice in perpetuity to Jean, annexed to it this condition. There is reason to believe that benefices were also given, conditioned by the payment of certain fees (census). I do not find, at this period, the granting of any benefice in which the imposition of a rental is expressly indicated; but the nature of things seems to show that such must have been the case, and I do find mention made of benefices conferred absque ullo censu. Anxiety in certain cases to obtain exemption from the fees, proves that in other cases they were imposed. It is probable that rentals were attached to benefices, granted hereditarily, and not to those which were only given for the term of an individual life.

Oaths Of Fidelity.

Loyalty was at first due only to that chief to whom it had been expressly promised, and from whom a benefice had been received. Charlemagne attempted to change this into an obligation common to all the freemen in his States. Marculf has preserved to us the formula in which he wrote to his counts, requiring from all individuals the oath of fidelity. Thus did this prince endeavour to break through the feudal hierarchy which was consolidating itself, to bring himself into a direct relation with all freemen, and to make the relation between king and subject predominant over that between lord and vassal. The oath of fidelity was universally exacted by the successors of Charlemagne, Louis the Debonnair and Charles the Bald, but without any effective results; for the tendency to hierarchical and feudal aristocracy had become prevalent. We find besides numerous examples of the maintenance of the relations between incumbent and patron, even under Charlemagne. Under Charles the Bald this relation became more positive and independent of the king. The prince even, for the repression of public crimes, allowed his authority to be exercised through the intervention of the lord; he made each lord responsible for the crimes of his own dependents. It was therefore especially in the empire of the lord over his men, that the means were then sought of sustaining order and repressing crime. This alone will sufficiently indicate the continually growing force of feudal relations and the diminishing authority of royalty.

Lecture XV.

Of benefices conceded by great landowners to men dependent upon them:

First, benefices conceded for all kinds of services, and as a mode of paying salary; Secondly, larger proprietors usurp the lands adjoining their own, and bestow them as benefices on their subordinates; Thirdly, the conversion of a great number of allodial lands into benefices, by the practice of recommendation.

Origin and meaning of this practice. Permanence of freeholds, especially in certain parts of the Frankish monarchy. Tributary lands. Their origin and nature. Their rapid extension: its causes. General view of the condition of territorial property, from the sixth to the eleventh century:

First, different conditions of territorial property; Secondly, the individual dependence of territorial property; Thirdly, the stationary condition of territorial wealth.

Why the system of beneficiary property, that is to say, the feudal system, was necessary to the formation of modern society and of powerful states.

Donors Of Benefices.

Kings were not the sole donors of benefices; all the large proprietors gave them. Many leaders of bands of men were originally united under the conduct of the king; these chiefs became subsequently proprietors of large allodial estates. Portions of these were conceded as benefices to their immediate associates. Afterwards, they became large incumbents, and gave also as benefices portions of the benefice which they held from the king. Hence arose the practice of sub-enfeoffment. In the capitularies, we perpetually meet with the words, vassalli vassallorum nostrorum.

We find, during the whole of this period, even under Charlemagne, numerous examples of benefices held otherwise than from the king. Two letters of Eginhard expressly mention the concession, by way of benefice, of certain portions of royal benefices.

It is the opinion of Mably, that other persons than the king began to give benefices only after the reign of Charles Martel. This mistake arises from his not having apprehended that the relation of the chief to his associate, which afterwards grew into that of lord to his vassal, was at first a purely personal relation, entirely independent of and anterior to any concession of benefices. It is impossible to determine at what particular time the conferring of benefices became connected with the relation of the beneficiary to his patron. This was probably almost immediately after the territorial establishment.

Character Of Benefices.

The number of benefices was soon very considerable, and became greater every day.

I. Benefices were given to free men belonging to quite an inferior order, and employed in subordinate services. The majores villæ, and the poledrarii, that is to say, the stewards of the estates, and the keepers of the horses of Charlemagne, had them. It was the policy of this prince to scatter widely his gifts, and to reward zeal and fidelity wherever he found them.

II. The larger proprietors continually made themselves masters of the lands adjoining their own, whether these were lands belonging to the royal domain, or such as were neglected, and had no very definite owners. They had them cultivated, and often procured subsequently the privilege of adding them to their benefices. The extent of this abuse becomes manifest under Charles the Bald, by the numerous expedients adopted by this prince to remedy it.

III. A large number of allods were converted into benefices by means of a tolerably ancient usage. Marculf has left us the formula by which this conversion was made; its origin we must seek in the practice of recommendation. Recommendation was not primitively anything else than the choice of a chief, or a patron. A law of the Visigoths, called a lex antiqua, and which must be referred to king Euric, towards the close of the fifth century, says: "If any one have given arms, or any other thing, to a man whom he has taken under his patronage, these gifts shall remain the property of him by whom they have been received. If this latter choose another patron, he shall be free to recommend himself to whomsoever he will: this may not be forbidden to a free man, for he belongeth to himself; but he shall, in this case, return to the patron from whom he separates himself all that he has received from him."

These were, then, the ancient Germanic customs. The relation of the individual recommended to his patron was a purely personal one. The presents consisted in arms; his liberty remained unimpaired. The law of the Lombards left to every one the same liberty as the law of the Visigoths. Nevertheless, we see, by the same capitulary, that this liberty began to be restrained. Charlemagne defined the reasons by which any one might be allowed to quit his lord, when he had received anything from him. We may learn from this, that the ties contracted by recommendation began to be strengthened. This practice became very frequent. By these means order was promoted, so far as the law was concerned, and protection and safety as far as concerned the person recommended. When relations of service and protection bearing a purely personal character were thus established with a patron, other more tangible relations arose in which the property of the parties was considered. The person recommended received benefices from the lord, and became a vassal of his estate; or rather he recommended his lands, as he had previously recommended his person. Recommendation thus became a part of the feudal system, and it contributed most importantly to the conversion of allodial estates into benefices.

There is, however, no reason to believe that all allods were thus converted into benefices. Originally, such a conversion, or even the mere acceptance of a benefice, was regarded by a free man as, to a certain extent, a surrender of his liberty, being an entrance upon a personal service. The large proprietors, who exercised an almost absolute sovereignty in their own domains, would not readily renounce their proud independence. Etichon, brother to Judith the wife of Louis the Debonnair, was unwilling any longer to receive his son Henry, who had accepted, without his knowledge, from the king his uncle a benefice of four hundred acres, and thereby entered upon the service of the crown. After the triumph of the feudal system, a considerable number of allods still remained in several provinces, particularly in Languedoc.

Tributary Lands.

After speaking of freeholds and benefices, it remains that I should allude to the tributary lands, whose existence is attested by all the memorials of this period. We do not necessarily understand by this term lands on which a public impost was levied, but lands which paid a fee, a rental, to a superior, and which were not the actual and absolute property of those who cultivated them.

Their Rapid Increase.

This kind of property existed in Gaul before the invasion of the Franks. The conquest that resulted from this invasion contributed in various ways to augment their number. First, wherever a Barbarian possessed of some amount of power established himself, he did not take possession of all the lands, but he most probably exacted certain fees, or services equivalent to them, from almost all whose lands bordered on his own. This is certain from à priori considerations, and is proved as a fact by the example of the Lombards, who invariably contented themselves at first with rendering all the lands of the conquered country tributary to themselves. They demanded a third of the revenue, and afterwards took the property itself. This fact shows clearly the mode of procedure that was adopted by the Barbarians. Almost all the lands possessed by Roman or Gallic chiefs, who did not possess sufficient power to rank with the Barbarians, were obliged to submit to a tributary condition.

Secondly, conquest was not the work of a single day; it continued to be carried on after the establishment of the invaders. All the documents of the period indicate that the principal officers and large proprietors continually exerted themselves, either to usurp the possessions of their less powerful neighbours, or to impose upon them rentals or other charges. These usurpations are proved by the multitude of laws that were enacted to prevent it. In the unsettled state of society that then existed, the feeble were entirely placed at the disposal of the strong; public authority had become incompetent for their protection; many lands which were at first free, and belonged either to their ancient owners, or to Barbarians of slender resources, fell into a tributary state; many of the smaller proprietors purchased for themselves the protection of the strong, by voluntarily placing their lands in this condition. The most common method of rendering lands tributary, was to give them either to churches or to powerful proprietors, and then to receive them again, on the tenure of usufruct, to be enjoyed during life, on the payment of fixed fees. This kind of contract is to be met with again and again, during this period. The same causes which tended to destroy allods, or to convert them into benefices, acted with even more energy in augmenting the number of tributary lands.

Thirdly, many large proprietors, whether of allodial lands or of benefices, were unable themselves to cultivate the whole of their lands, and gave them up by small portions to simple cultivators, on the payment of certain fees and services. This alienation took place under a multitude of forms and a variety of circumstances; it certainly occasioned many lands to become tributary. The large number and endless variety of rentals and rights, known in a later time by the name of feudal, arose probably either from similar contracts, or from usurpations committed by the powerful proprietors. The constant recurrence in writers and laws of the period of the terms census and tributum; the multitude of arrangements which relate to them; the general course of events; lastly, the state in which most landed property was found when order began to reappear,—all these circumstances render it probable that at the end of the period we are considering, the greater number of lands had fallen into a tributary condition. Property and liberty were alike devoted to be plundered. Individuals were so isolated, and their forces so unequal, that nothing could prevent the results of such a position.

Waste Lands.

The large number of waste lands, attested by the facility with which any one who was willing to cultivate them might obtain them, bears witness in its turn also to the depopulation of the country, and the deplorable condition in which property existed. The concentration of landed property is a decisive proof of this state of things. When this kind of property is safe and prosperous, it tends to become divided, because every one desires to possess it. When, on the other hand, we see it accumulated more and more in the same hands, we may almost certainly conclude that it is in an unsound condition, that the feeble cannot sustain themselves upon it, and that the strong alone can defend it. Landed property, like moveable property, is only to be found where it can continue to exist in safety.

There is reason to believe that most tributary lands, even those which were not originally the property of the cultivators who laboured on them, became at length by a right of occupancy in reality their possessions, though burdened by rentals and exactions of service. This is the natural course of things: it is very difficult to remove a cultivator who has with his family for a long time tilled the same soil.

Different Kinds Of Landed Property.

Such were the vicissitudes of landed property, from the sixth to the eleventh century. I will now give a summary view of the general characteristics of this state of things, and endeavour to estimate their influence on the progress of general civilization, and more particularly of political institutions.

I. There was a great diversity in the conditions of property. In our days, the condition of property is uniform and everywhere the same; whoever the proprietor may be, he possesses his property, whatever may be its character, on the same tenure of right, and subject to the same laws as any other. Between properties which are the most distinct in character, there is thus far an identity. This is one of the most unequivocal symptoms and safest guarantees of the progress of legal equality. During the times of which we have been speaking, the diversified conditions under which property was held would necessarily lead to the formation of several classes in society, between which existed great, factitious, and permanent inequality. Men were not merely proprietors to a greater or less extent; besides the inequality in the amount of wealth, there was also an inequality in the nature of the wealth possessed, than which it is impossible to conceive of a more powerful instrument for oppression. Even this, however, was a step in advance out of the slavery existing among the ancients. The slave could possess nothing,—was essentially incapable of owning property. In the times of which I am speaking, the mass of the population had not become full and absolute possessors of property, but was attaining to a possession that was more or less imperfect and precarious, by which it had gained the means of yet loftier ascents.

Isolation Of Proprietors.

II. Landed property was then submitted to the restraints of dependence on individuals. At present, all property is free, and is at the disposal only of its owner. General society has been formed,—the State has been organized,—every proprietor is united to his fellow-citizens by a multitude of ties and relations, and to the state by the protection which he receives from it, and the taxes to which he is subject in return: there is, thus, independence without isolation. From the sixth to the eleventh century, independence was necessarily accompanied by isolation: the proprietor of an allod lived upon his lands almost without buying or selling anything. He owed scarcely anything to a State which hardly existed, and which could not assure him of an efficient protection. The condition, therefore, of the allods and their proprietors was at that time a con that was to a considerable extent anti-social. In more ancient times, in the forests of Germany, men without landed properties lived at least in common. When they became proprietors, if the allodial system had succeeded in becoming prevalent, the chiefs and their associates would have been separated, without ever being summoned to meet and recognize one another as citizens. Society would not have been at all constituted. It exists in those relations which unite men together, and in the ties out of which these relations arise. It necessarily demands a law, a condition of dependence. And when it is not so far advanced as that a sufficient number of these relations and ties have been established between the State and the individual, then individuals become dependent one upon another; and it was to this state of things that the seventh century had arrived. It was the imperfection of society which caused the allodial system in regard to landed property to perish, and the beneficiary or tributary system to prevail. The independence of allods could only exist in connexion with their isolation, and isolation is anti-social. The hierarchical dependence of benefices became the tie to unite properties with one another, and society within itself.

Stationary Condition Of Wealth.

III. Out of this distribution and this character of landed property, a very important fact has resulted; namely, that during several centuries scarcely any means existed by which either the state or individuals could increase their wealth. Most proprietors of any importance did not cultivate the land at all; it was for them merely a capital, the revenues of which they gathered without troubling themselves to augment it, or to render it more productive. On the other side, most of those who cultivated the land were not proprietors, or were only so in a precarious and imperfect manner; they did not seek from the earth more than means of subsistence, and did not look to it as a means of enriching or elevating them. Agricultural labour was almost unknown to the rich, and to the poor it yielded nothing beyond the bare necessities of existence. 'Hence, resulted the continual impoverishment of the larger proprietors, which forced them incessantly to have recourse to violence, in order to preserve their fortune and their rank. Hence, resulted also, at the same time, that stationary condition of the population of the country districts which was prolonged for so long a period. Landed property tended always to become concentrated, from the very circumstance that its products did not increase. Accordingly, it is not in the country districts and in agricultural labour, but in the towns, in their commerce and industry, that we shall find the earliest germs of the accumulation of public wealth, and of the progress of civilization. The indolence of the upper classes, and the misery of the lower classes, in the middle ages, proceeded chiefly from the nature and distribution of territorial property.

IV. Beneficiary property was one of the most influential principles in the formation of large societies. In the absence of public assemblies and of a central despotism, it nevertheless established a bond, and formed relations between men dispersed over a vast tract of country, and thereby rendered possible a federative hierarchy, which should embrace a still wider circle. Among the nations of antiquity, the extension of the State was incompatible with the progress of civilization; either the State must be dislocated, or despotism would prevail. Modern States have presented a different spectacle, and to this result the character of beneficiary property has powerfully contributed.

Lecture XVI.

Of the state of persons, from the fifth to the tenth century. Impossibility of determining this, according to any fixed and general principle. The condition of lands not always correspondent with that of persons. Variable and unsettled character of social conditions. Slavery. Attempt to determine the condition of persons according to the Wehrgeld. Table of twenty-one principal cases of Wehrgeld. Uncertainty of this principle. The true method of ascertaining the condition of persons.

Classification Of Persons.

We have investigated the condition of territorial properties, from the fifth to the tenth centuries. We have recognized three kinds of territorial property. First, allodial or independent; Secondly, beneficiary; Thirdly, tributary. If from this we should wish to deduce the state of persons, we should find three social conditions corresponding to these: First, the free men, or proprietors of allods, bound to, and dependent upon no one, excepting the general laws of the state; Secondly, vassals, or proprietors of benefices, dependent in certain respects upon the noble from whom they held their property, either during life or hereditarily; Thirdly, the proprietors of tributary lands, who were subject to certain special obligations. To which it is necessary to add a fourth class, namely, the serfs.

We should observe further, that the first of these classes tended to disappear and become absorbed in the second, third, and even the fourth classes. This arose from facts which we have already explained.

This classification of persons is in fact a real one, and is to be met with in history; but we must not regard it as a primitive, general, and perfectly regular classification.

The condition of persons preceded that of lands;—there were free men before there were freeholds; there were vassals and associates before benefices. The condition and relations of persons did not therefore originally depend on the condition and relations of territorial properties, and cannot be deduced from them.