Part 1 — Part I. Representative Institutions In England, France, And Spain, From The Fifth To The Eleventh Century. (continued 4)

Earliest Condition Of Society.

Historians have fallen into a double mistake on this point. Some have wished to see in all the Franks, before the conquest, and the establishment of the system of landed estates, which we have already explained, men altogether free and equal, whose liberty and equality for a long time resisted the formation of this system. Others have been unwilling to recognize men as free, except as they are beheld in the condition of land proprietors, whether as allods or as benefices.

The matter is not thus simple and absolute. Social conditions were not thus framed and disposed of by a single process, to suit the convenience of subsequent antiquarians.

What do we find to be the character of liberty in the infancy of societies? Might is its condition, and it has scarcely any other guarantee. So long as society is of small extent and firmly compacted within itself, individual liberty remains, because each individual is important to the society of which he is a member: this was the case with the German tribes in its warrior bands of men. In proportion as society extends and disperses itself, the liberty of individuals is endangered because their personal strength is insufficient for their own protection. This was illustrated by the case of the Germans who established themselves in Gaul. A large number of his associates lived in the house of the chief, without being themselves proprietors or being anxious to become so, for which indifference they were indebted to that want of foresight which is natural to uncivilized men. Property became a prominent instrument for attaining force, yet many free men did not possess any.

The progress of civilization removes the guarantee of individual liberty from the power of the individual himself, and places it in the power of the community. But the very creation of such a public power, and the guarantee thereby of individual liberties, is a gradual and difficult process: it results from a social culture which is of slow growth and must triumph over many obstructions. Wherever there is no power belonging to the community, individual liberties have no guarantee for their continuance.

Hence the error of those who seek for liberty in the infancy of societies. We do in fact find it there, but only when society is quite in its cradle, when each separate individual is sufficiently strong to be able to defend his own liberty in a very limited community. But as soon as society rises and extends itself, we see this liberty perish; the inequality of different forces manifests itself, and individual power becomes incapable of preserving individual liberty. This is the birth-time of oppression and disorder.

Principles Of Classification.

Such was the condition of the Franco-Roman community, at the period which we are considering. It seems somewhat puerile to inquire who was free then; no one was free, whatever his origin might be, if he was not strong. The real inquiry is, who was strong—a point which it is exceedingly difficult to determine.

In a fully settled society which has existed for a long time, it is easy to know who is strong. There is a constant transmission of properties and of ancient influences; power has permanent forms, men are classified. We see where strength resides and who possesses it. But at the time which we are considering, the various elements of social strength were struggling into existence;—they scarcely had a being, and they were not familiarly known, nor stably fixed, or in regular possession of power;—the violent customs which prevailed rendered property very moveable;—individual strength was a poor guarantee for liberty, indeed, it needed itself to be placed in guardianship.

The human mind can hardly believe in disorder, because it cannot picture clearly to itself such a state of things; it does not resign itself to the idea; it desires to introduce an order of its own, in order to discover the light. We must, however, accept facts as they actually are. We may therefore understand how difficult it is to exhibit the condition of men, from the fifth to the tenth centuries; to learn what men were free, and who were not, and especially what a free man really was in his position and influence. We shall understand this difficulty still better when we have attempted to determine the condition of life belonging to certain positions, according to the different principles of classification which we may bring to the task. We shall see that no one principle can be found, by which we can deduce the state belonging to different positions in a manner exactly conformable to known facts, and which is not contradicted at every step by these same facts, or at least shown by them to be utterly insufficient and untrustworthy.

Let us first apply the principle which is inferred from the state of landed property.

Allodial And Beneficiary Proprietors.

The proprietors of allods might seem to be incontestably free men. An allodial proprietor who had extensive estates enjoyed complete independence, and wielded an almost absolute sovereignty throughout his territory, and among his associates.

Large allodial proprietors were sometimes able to remain for a considerable time in such a position. But it was not certainly the strongest, nor consequently the most free and fixed condition; for we have seen that allodial property degenerated and declined, until almost all the allodial proprietors became beneficiaries. We have seen how the anger of Etichon was excited. The general fact is a witness against the life of the allodial proprietor. His very independence was a cause of isolation, and therefore of feebleness. The proprietors of allods, wearied with living on their estates, shut out from all society, used to come and live with the king or some large proprietor of greater power than themselves. It was soon a practice to send their children thither, in order that they might become companions of the prince, or of some distinguished noble.

As to the smaller allodial proprietors, they could not keep their standing long; they were not strong enough to defend their independence. The records of the period show that their property was soon alienated, and at the same time many of them became merely cultivators of the lands. The condition of the freeholder thus became merged in that of the tributary. From thence there was but one step to a total loss of liberty. This step was actually taken by a large number of allodial proprietors—wearied out or ruined, they surrendered their liberty into the hands of proprietors more wealthy and powerful than themselves.

We come now to the beneficiaries.

Benefices originated large individual resources;—in them we find the source of the feudal aristocracy;—large beneficiaries became in time powerful nobles. But we must not from this conclude that the possession of benefices was, during the period we are considering, any security for a permanent social position, to which power and liberty necessarily belonged. First, this possession was precarious, moveable, attacked, in the case of the smaller beneficiaries, by the larger ones, and in the case of the latter by the king. Beneficiary property hardly began to possess any fixity at the close of the ninth century. Secondly, a number of small benefices were conferred on individuals too weak efficiently to defend their position and their liberty. In order to secure the services of a man who was not a slave, a benefice was given to him—it was therefore a grant for the support of a retainer. The land itself was given for this purpose, as well as its productions. The benefices given to Charlemagne's stewards and the keepers of his horse were actual benefices, and not, as M. de Montlosier thinks, tributary lands. We are not then in a position to say that the rank of a beneficiary was the sign of a definitely marked social position, nor that it could measure the degree of importance and of freedom that belonged to individuals.

Various Classes Of Free Men.

When we have mentioned the allodial proprietors and the beneficiaries, it might be thought that the class of freemen is exhausted. Such is not, however, the case. There were different classes of possessors and farmers of tributary lands, known under various names; such as fiscalini, fiscales, tributarii, coloni, lidi, aldi, aldiones, &c. These names do not all designate different conditions, but divers shades in conditions substantially the same. There were: First, free men, at once allodial proprietors and cultivators; Secondly, free men, both proprietors of benefices and cultivators; Thirdly, free men, neither properly freeholders nor beneficiaries, and cultivators; Fourthly, men not free, to whom the hereditary possession of tributary land had been granted on the payment of certain fees and services; Fifthly, men not free, who only enjoyed the permanent occupancy of tributary land. Here again we cannot find any general and fixed social condition which shall determine what were the rank, the rights, and other qualifications of the individuals belonging to it. We are mistaken if we imagine either that every proprietor was free, or that every free man was a proprietor. We find that the cultivators of lands under the king harassed and oppressed the smaller allodial proprietors who resided in their vicinity, and were too feeble to oppose any effectual resistance, although they were Franks.

I need only mention slaves, in order to observe that many free men fell into this state of servitude by means of violence, and through an uncertainty in property which involved a corresponding uncertainty in position. Sometimes one man would surrender himself to his more powerful neighbour, and at the same time completely abandon his liberty. The surrender, however, was sometimes not an entire renouncement of liberty, although it was alienated for life, or a sum was agreed upon to be paid if the engagement should be broken.

Test Of Social Conditions.

It is evident that we cannot derive, from the state and the distribution of territorial properties, any true and fixed table of different social conditions, and of the importance of the rights belonging to each. These conditions were too undefined, too different, while nominally identical, and too fluctuating, to give us a standard to measure the amount of liberty possessed by each man and the place he occupied in society. The state of persons was almost individual; the measure of the importance of any individual was determined by the particular amount of strength which might belong to him, much more than by the general position which he apparently occupied. Individuals constantly passed from one condition into another, neither losing all at once every characteristic of the position which they left, nor assuming at once every characteristic of that upon which they newly entered.

Let us apply another principle.

The Wehrgeld

Attempts have been made to determine the condition of individuals, and to classify men according to the wehrgeld; that is to say, according to the sum by which a man might compound for the commission of a murder, which was consequently the measure of the valuation of different lives. Shall we find here any more certain and unvarying principle by which social conditions may be classified?

I have made an abstract of all the cases of wehrgeld stipulated in the Barbaric laws. I will not enumerate them all, but will bring before you twenty-one of the principal, ranging from the sum of 1800 solidi, the largest value that was legally placed on any man's life, down to 20 solidi.

The wehrgeld amounted to:—

1800 sol. (solidi): for the murder of a free barbarian, a companion of the king (in truste regiâ), attacked and killed in his house by an … 960 sol.: 1st. the duke, among the Bavarians; 2nd. the bishop, among armed band, among the Salian Franks, the Germans.

900 sol.: 1st. the bishop, among the Ripuarian Franks; 2nd. the Roman, in truste regiâ, attacked and killed in his own house by an armed band, among the Salian Franks. 640 sol.: the relatives of a duke, with the Barbarians. 600 sol.: 1st. every man in truste regiâ, with the Ripuarians; 2nd. the same, with the Salian Franks, 3rd. the count, with the Ripuarians; 4th. the priest, born free, with the Ripuarians; 5th. the priest, with the Germans; 6th. the count, with the Salian Franks; 7th. the Sagibaro (a kind of judge) free, ibid.; 8th. the priest, ibid.; the free man attacked and killed in his own house by an armed band, ibid. 500 sol.: the deacon, with the Ripuarians. 400 sol.: 1st. the sub-deacon, with the Ripuarians; 2nd. the deacon, with the Germans; 3rd. the same, among the Salian Franks. 300 sol.: 1st. the Roman living with the king, with the Salian Franks; 2nd. the young man brought up in the service of the king, and those who had been enfranchised by the king, and made counts, with the Ripuarians; 3rd. the priest, among the Bavarians; 4th. the Sagibaro who had been brought up in the court of the king, with the Salian Franks; 5th. the Roman killed by an armed band in his house, ibid. 200 sol.: the free-born clerk, with the Ripuarians; 2nd. the deacon, with the Bavarians; 3rd. the free Ripuarian Frank; 4th. the German of the middle classes; 5th. the Frank or Barbarian, living under Salic law; 6th. the travelling Frank, with the Ripuarians; 7th. the man who had become enfranchised by purchase, with the Ripuarians. 160 sol.: 1st. the free man in general, among the Germans; 2nd. the same, with the Bavarians; 3rd. the Burgundian, the German, the Bavarian, the Frison, the Saxon, with the Ripuarians; 4th. the free man cultivating ecclesiastical property, with the Germans. 150 sol.: 1st. the optimus, or noble Burgundian, killed by the man whom he had attacked; 2nd. the steward of a royal domain, with the Burgundians; 3rd. the slave who could work well in gold, ibid. 100 sol.: any man belonging to the middle classes (mediocris homo) with the Burgundians, killed by the person whom he had attacked; 2nd. the Roman possessing personal property, with the Salian Franks; 3rd. the Roman while travelling, with the Ripuarians; 4th. the man in the service of the king, or of a church, ibid.; 5th. the planter (lidus) by two charters of Charlemagne (an. 803 and 813); 6th. the steward (actor) of a domain belonging to any but the king, with the Burgundians; 7th. the slave, a worker in silver, ibid. 80 sol.: those enfranchised in presence of the church, or by a special charter, with the Germans. 75 sol.: any man of inferior condition (minor persona), with the Burgundians. 55 sol.: the barbarian slave employed in the personal service of a master, or as a bearer of messages, with the Burgundians. 50 sol.: the blacksmith (slave), with the Burgundians. q 45 sol.: 1st. the serf of the church and the serf of the king, with the Germans; 2nd. the tributary Roman, with the Salian Franks.

40 sol.: 1st. one merely enfranchised, with the Bavarians; 2nd. the herdsman keeping forty swine, with the Germans; 3rd. the shepherd over eighty sheep, ibid.; 4th. the seneschal of the man who has twelve companions (vassi) in his house, ibid.; 5th. the marshal who kept twelve horses, ibid.; 6th. the cook who has an assistant (junior), ibid.; 7th. the goldsmith, ibid.; 8th. the armourer, ibid.; 9th. the blacksmith, ibid.; 10th. the cartwright, with the Burgundians. 36 sol.: 1st. the slave, with the Ripuarians; 2nd. the slave who had become a tributary planter, ibid. 30 sol.: the keeper of swine, with the Burgundians. 20 sol.: the slave, with the Bavarians.

Impossibility Of Classification.

We see by this table, that, notwithstanding the common opinion to the contrary, the wehrgeld is by no means an exact and certain indication of social conditions. It is not determined uniformly according to the origin, the quality, the position of individuals. The circumstances of the murder, the official character of the criminal, the greater or less usefulness or commonness of the man slain, all these variable elements enter into the determination of the wehrgeld. The simple fact of the murder having been committed at the court of the duke, while the victim is going to or returning from the house of the count, triples the wehrgeld of every man, whether he be a slave or a freeman, a Barbarian or a Roman. The elements of the wehrgeld are very numerous; it varies according to places and times. The Roman, the tributary, the slave, according to circumstances, may be valued at a greater or a less sum than a barbarian free man. We see many general indications which serve to show that the Roman was commonly less esteemed than a barbarian, the tributary or the slave less than the free man. This is very easily accounted for, and might have been anticipated. But it is not on this account less difficult to draw from such facts a positive indication of the state of individuals,—a precise and complete classification of social conditions.

True Test Of Social Conditions.

There is no resource left but to renounce the idea of classifying social conditions, and of determining the condition of persons, according to any general principle, resting either on the nature of territorial properties, or in the legal appreciation of the value of different lives. We must simply inquire, by the aid of historical facts, who were the strong and powerful at the time; what common name was given to them; what share of influence and of liberty fell to the lot of those who were simply called free men. We shall thus arrive at clearer and more certain results. We shall often find that landed property is a great and principal source of strength, and that the wehrgeld is an indication of the amount of importance or of liberty possessed by individuals; but we shall not attribute to these two principles a general and decisive authority, and we shall not mutilate facts in order that they may harmonize with our hypotheses.

Lecture XVII.

Of the Leudes or Antrustions. Men, faithful to the king and to the large proprietors. Different means of acquiring and retaining them. Obligations of the Leudes. The Leudes are the origin of the nobility. Bishops and heads of monasteries were reckoned among the leudes of the king. Moral and material power of the bishops. Efforts of the kings to possess themselves of the right of nominating bishops. Free men. Did they form a distinct and numerous class? The arimanni, and rathimburgi. Mistake of M. de Savigny. Rapid and general extension of the feudal hierarchy. The freedmen. q Different modes of enfranchisement:

First, the denariales, enfranchised with respect to the king: Second, the tabularii, enfranchised with respect to the church: Third, the chartularii, enfranchised by a charter. Different consequences resulting from these different modes of enfranchisement.

The Leudes Or Antrustions.

The first whom we meet with at this time occupying the highest place in the social scale are the Leudes, or Antrustions. Their name indicates their quality—trust expresses fidelity. They were men who had proved faithful, and they succeeded the associates of the German chiefs. After the conquest, each of the chiefs established himself, together with his own men, on a certain territory. The king had a larger and more considerable number of followers. Many remained with him. He had different means, which he very assiduously employed, of attaching to himself his Leudes, or of acquiring them.

1st. This was evidently the result aimed at in conferring benefices. In 587, Gontran, giving his advice to Childebert II. on his conduct to those who were about him, points out to him "those whom he ought to honour by appointments and by gifts, and those to whom he ought to refuse them."

2nd. The organization of the house, the palace, the court, borrowed in part from the traditions of the Roman empire, the passing amusements and the permanent advantages which were attached to them, induced many men of influence to become Leudes, or gave importance to the original Leudes of the king. The following are names of some of their offices; "count of the palace, referendary, seneschal, mareschal, falconer, butler, chamberlain, porter, head-porter, &c."

Obligations Of The Leudes.

3rd. Marculf has preserved to us the formula by which a man of importance, cum arimanniâ suâ, "with his freemen, his band," was accustomed to enrol himself among the king's Leudes. Charlemagne took various precautions in order that persons who came to him in order to become his trusty followers (de truste faciendâ), should meet with no obstacle.

4th. It was to their Leudes that the kings were in the habit of giving important public occupations, such as belonged to dukes, counts, &c. There is reason for believing that these functions originally belonged to the principal chief who established himself in a territory. In the natural course of events these chiefs became themselves Leudes of the king or were supplanted by those who were such.

5th. The number of Leudes was the principal source of strength; accordingly they were multiplied by all kinds of devices. In 587, in the treaty of Andely, between Gontran and Childebert II, "it was agreed that neither of them should attempt to draw over to himself the Leudes of the other, or receive them if they came of their own accord." We continually find Leudes of importance threatening the king to leave his service, and enter into some other.

The general obligation of the Leudes was fidelity, service in the palace, and military service. The price of this obligation was, for the Leudes, power and riches. They had also certain civil advantages, but of a more uncertain nature. Their wehrgeld was a larger amount, whatever might otherwise have been their origin. We see that their prerogatives accumulated in proportion as their power was consolidated by the long possession of benefices. Charlemagne desired that his vassals should be honoured, and should hold, after himself, the first place in esteem. There were however among the Leudes of the king some who were less powerful, and some who even were poor.

Every large proprietor had his Leudes; his house was organized after the model of the king's; the same offices existed in each.

It is the opinion of Montesquieu, who is in this opposed by Montlosier, that the origin of the nobility is to be found in the Leudes. Neither of them has formed, in my judgment, a just and clear idea either of the condition of the Leudes or of the character of the nobility. The rank of the Leude and his advantages were purely of a personal character. The rank of a free Barbarian was hereditary, as were also his advantages: but the rank of the Leude, that is to say, the advantages and the superiority which he derived from his position, tended to become hereditary; that of the free man, on the other hand, tended, when he was isolated and left to himself, to become effaced and to lose its advantages. Most free men who did not become beneficiaries, vassals, Leudes of some importance, ceased to be free at all. The aristocracy of the Leudes tended to be constituted, the liberty of the free men tended to be destroyed:—the free men were, viewed in contrast with those who were not free, an aristocracy on the decline; the Leudes were, compared with free men, an aristocracy on the increase.

Formation Of The Frankish Nobility.

Mannert, in his treatise entitled, The liberty of the Franks, Freyheit der Franken, has very clearly explained the formation of the nobility among the Franks. There were many Roman Gauls among the Leudes of the Frankish kings: we find, for example, the names of Protadius, Claudius, Florentinianus, among the mayors of the palace towards the close of the sixth, and the commencement of the seventh century. They often changed their names into barbaric names. Thus the brother of Duke Lupus, born a Roman, called himself Magn-Wulfus (great wolf), and his son, who was bishop of Rheims, he called Rom-Wulfus (Roman wolf). These Romans entered into the company of the Leudes because they needed the protection of the kings; because they were disposed to place what power they had in his service; because they were acquainted with the country, and knew that the king required them; because, lastly, the kings, when they embraced Christianity, became reconciled to many wealthy and influential Gauls.

Bishops, and the principal heads of monasteries, or of large ecclesiastical corporations, were reckoned among the number of the king's Leudes. The power of the bishops among the Gauls, before the arrival of the Germans, is proved directly by facts; their influence, their wealth, is proved indirectly by the eagerness with which the position of a bishop was sought. Their importance was greatly augmented after the establishment of the Barbarians. They protected the ancient inhabitants from the Barbarian kings, and served the latter by their power in governing the ancient inhabitants.

Power Of The Bishops.

They, and scarcely any but they, had preserved some science, some intellectual culture; the influence of religious ideas and practices over the converted barbarians was powerful; the impressions formed were strong and vivid at that stage of civilization: the clergy could excite the imagination, could tranquillize or alarm the conscience. The bishops and heads of monasteries acquired, through a large number of sources, great wealth; they in process of time became large beneficiaries; most of the property given to churches were given as benefices, and consequently involved the obligations belonging to that title; some property was conferred "with the complete right of proprietorship." In 807, Charlemagne charged his son Pepin to prevent the dukes and counts to whom the government of the provinces had been committed, from exacting from churches all the services due in general from free men. In 816, Louis the Debonnair provided that each church should possess a farm absolutely free from all charge. Facts disclose at every step the importance of the bishops; they were employed in important transactions, and assisted in drawing up laws. Counts, dukes, large Barbarian proprietors, became bishops. The temporal consequences attached to ecclesiastical excommunication did not fail to put into their hands a powerful weapon of attack or defence. Churches obtained immunities of all kinds, from military service, rights of custom, &c.; they became asylums of refuge—a popular right which, during these times of brute violence, far more generally protected the innocent than shielded the guilty.

The nomination of bishops was an ancient right of the priests and the faithful. The importance of these functions, and the riches of the churches, induced the king to encroach upon this prerogative. Further, they urged some kind of claim to it, as being lords of the churches on which they had conferred benefices. They used the right of confirmation in order to possess themselves of the right of nomination. At first, bishops were the most sure and devoted Leudes of the king; kings and bishops had need of one another. Very soon afterwards the bishops became so powerful as to be able to act independently of the kings.

At this epoch convents also assumed great importance, although their heads do not seem to have played so prominent a part in Prance as in England.

Upon the whole, the power of the clergy at this period was as useful as it was great. It awakened and developed moral necessities among the Barbarians;—it commanded and inspired a respect for the rights and sufferings of the feeble;—it gave an illustration of the reality of moral force, when everything was at the disposal of material force. That is a false notion which assumes that an institution or an influence is to be attacked by reason of the evil effects which it may produce after centuries of existence; we must consider and appreciate it in the times when it was originally formed.

Free Men.

From the Leudes, let us pass to those who were simply free men.

There are words which have, in our time, so simple and absolute a signification, that we apply them without consideration or scruple to times in which their actual significance was not recognized at all. The expression free man is an example. If by it we mean the man who is not a slave, the man who is not the property of another man, and can neither be given nor sold as an article of traffic, there were a great number of free men from the fifth to the tenth centuries. But if we attach to this expression the political sense which it possesses in our days, that is to say, the idea of a citizen dependent on no other citizen, who depends for the safety of his person and his property only upon the state, and the laws of the state, the number of free men was very inconsiderable at the period of which we speak, and was continually diminishing. Most of those who were not serfs were engaged or were binding themselves with increasing frequency, either for the security of their persons or of their properties, to the service, and to a certain amount of dependency upon some man more powerful than themselves, who employed them in his house or protected them at a distance. The independence of the citizen as it existed in the republics of antiquity, and as it exists in our public communities, became more and more rare from the fifth to the tenth centuries. Eminent publicists, M. de Savigny among others, in his Histoire du droit romain dans le moyen âge, have affirmed that always at this period a numerous class of free men existed, true citizens, exempt from all personal dependence, depending only upon the state and forming the body of the nation. This involves a complete confusion of times' and a misapprehension of the natural succession of events. Doubtless at the time of the invasion, and during the period which immediately followed it, there were many free men of this kind; the independence of individuals who live a wandering and barbarian life did not suddenly and completely vanish under the influence of the new circumstances which resulted from their territorial establishment. But, so far as regards the greater number of free men, this independence was rapidly absorbed by new ties, and by the very numerous and various forms of feudal hierarchy. We may think we have found, under certain names which are frequently to be met with in documents and historical works, such as, Arimanni, Erimanni, Herimanni, Hermanni, among the Lombards, and Rachimburgi, Rathimburgi, Regimburgi, among the Franks, a class of men actually free—citizens in the sense in which we use the words at the present time. But when we investigate more closely, we soon learn that no such class is to be found, and that nearly if not quite all the Arimanni or Rathimburgi, were bound in the fetters of a feudal organization and depended far more on some superior individual than on the protection of the state.

Enfranchisement.

Many learned men also think that the practice of enfranchisement which prevailed at this period created many free men—as completely so, as if they had inherited their freedom as a birthright. This also is, I think, a mistake. Enfranchisement was frequent, but it conferred complete freedom on very few; it transformed many into cultivators and tributaries, or placed them in other analogous positions, which however did not insure entire liberty. In order to be convinced of this, we have only to examine the acts of enfranchisement themselves. There were several kinds, and each was attended with different consequences. We find, First, the denariales, or enfranchised with respect to the king; although their life was valued at 200 solidi, like the life of a Frank, yet their liberty was incomplete; they could not bequeath property to others than their children; the composition for their lives was paid to the king, not to their relatives, which plainly shows that the king regarded them, as homines regii. Second, those enfranchised with respect to the church, or tribularii. Those thus enfranchised became homines ecclesiastici; they could not become denariales according to the laws of the Ripuarians, and their property went to the church if they died without issue. Third, those enfranchised per chartam, chartularii. The expressions of the charter which gave them their liberty seem to be completely unambiguous; but it is doubtful whether the results were similarly unambiguous, since the denariales themselves remained, in certain respects, in an inferior condition. The statutes of Charlemagne, which provide that the terms of composition for the denariales should be paid to the king, and that they should not possess their liberty as a heritage till after the third generation, apply the same conditions also to the chartularii, and even to those who were enfranchised to the church, the tabularii.

The act and the consequences of enfranchisement varied in the course of the epoch on which our attention is occupied. This fact has not been observed by M. Montlosier and all those who bring together facts separated from one another by a long interval of time, in order to make a complete system. They apply to the same epoch facts belonging to different times. History presents us with instances of slaves who, after the Germanic invasion, raised themselves to the condition not only of free men, but of Leudes and large proprietors. Individual cases of these are well authenticated, and were very likely to have occurred in these times of disorder; but from these no general rule is to be inferred. In spite of the vast influence of religious ideas—and all formulas of enfranchisement are prefaced by the expression of a religious sentiment and design—the general movement of the epoch which we are considering, so far as regards the condition of persons, was much more towards the extension of servitude, under different forms and in varying degrees, than towards the maintenance or the advancement of liberty.

Lecture XVIII.

Simultaneous existence of three systems of institutions, after the settlement of the Franks in Gaul. Conflict of these three systems. Summary of this conflict, its vicissitudes, and results. Its recurrence in local and central institutions. Of local institutions under the Frankish monarchy. Of the assemblies of free men. Of the authority and jurisdiction of the great landowners in their estates. Of the authority and jurisdiction of the dukes, counts, and other royal officers.

Three Systems Of Institutions.

From the ancient condition of the barbarians in Germany, and from their new situation after their establishment in the Roman empire, there issued three systems of institutions, of different principles and results, which, from the fifth to the tenth century, co-existed at first for some time, and afterwards commingled and conflicted with each other with alternate success and defeat.

In their primitive state, in Germany, the Barbarians were all free; every individual was important—nothing of any moment could be undertaken or decided upon without the approbation and concurrence of the majority. Hence arose the common discussion of affairs of common interest, and the influence of election upon the choice of chiefs or judges or in other words, the institutions of liberty.

The second principle with which we meet is the attachment and subordination of the tribesmen to their chief. Up to a certain point they were dependent upon him, even for their subsistence. This dependence increased after their territorial establishment. The authority of the chiefs over their comrades augmented; and the liberty of the latter diminished with their importance. They became beneficiaries or vassals, colonists, or even serfs; a hierarchy was formed among the landowners. Hence arose those aristocratic and hierarchical institutions which gave birth to the feudal system.

The power of the kings, originally very limited, became extended after conquest by the dispersion, of the nation, the concession of benefices, and the predominance of the principle of hereditary succession to the throne. A conflict arose, not between the power of the king and the liberties of the citizens, but between the power of the king and that of the nobles, especially of the king's own Leudes. The kings made attempts to found the entire government upon the monarchical principle, and, with this object, to place themselves in direct connexion with all their subjects. Under Charlemagne, this attempt reached its apogee, and seemed likely to succeed. But the monarchical system succumbed beneath the feudal system.

Thus, free institutions, aristocratic institutions, monarchical institutions:—local and general assemblies of free men to deliberate on common affairs, military, judicial, or others, in presence of or in concert with the king or his delegates:—the subordination of the simple free man to the lord, of the vassal to the chieftain; the nobles administering justice, making war with each other, and imposing certain charges on their vassals; the progressive organization of the royal power; dukes, counts, royal officers, missi dominici, transacting public affairs and administering justice, even in opposition to the nobles:—these are the three systems of facts, the three tendencies which present themselves to our notice during the period from the fifth to the tenth century. The conflict of these three tendencies constitutes the history of the public institutions of this epoch.

Decline Of Free Institutions.

The system of free institutions rapidly declined. It succumbed beneath the system of the predominance of the great landowners, and of the hierarchy of benefices. A conflict arose between the principles of the feudal system, and the endeavours of the monarchical system. In the conflict of these two systems, however, we find remnants of the system of free institutions. These remnants were allied sometimes to the feudal, sometimes to the monarchical system—most frequently to the latter. Charlemagne attempted to render the institutions of liberty auxiliary to the triumph of the monarchical system. We observed something analogous to this in the history of the Anglo-Saxons; but there the system of free institutions never perished; the common deliberation of the free landowners, in the county-courts, always subsisted. Among the Franks, the simultaneity and conflict of the three systems were more distinct and animated; the first was the weakest and perished early.

In treating of the Franks, as of the Anglo-Saxons, we shall first examine their local institutions, and then their general institutions; and we shall everywhere meet with the great fact to which I have just alluded. We shall follow it in its vicissitudes, and we shall see, first, how the system of free institutions perished, in localities and at the centre; secondly, how the monarchical system was for a moment really successful and strongly predominant under Charlemagne alone; and thirdly, how the feudal system, that is to say, the aristocratic and hierarchical organization of territorial properties and sovereignties, could not but prevail, as it really did in the end.

Of Local Institutions.

In Frankish Gaul, as among the Anglo-Saxons, the territory was divided into counties, hundreds, and tythings. [Footnote 14]

The counts were called grafen, judices; the centeniers, centgrafen; and the tything-men, tungini, thingrafen. Each of these officers held a court, placitum, mallum, at which justice was administered, and the business of the district transacted. This court was at first an assembly of all the free men of the district; they were bound to attend, and a heavy fine was imposed as the penalty for non-attendance. There, as I have said, they distributed justice, and deliberated upon matters of common interest. Civil transactions, sales, wills, enfranchisements, were carried on in public. There, also, military convocations were made. The court or plaid of the tything-man, decanus, is seldom met with, and was of little importance, as in England. The powers of the courts or assemblies of free men, held by the centenarii and vicarii were somewhat limited; judgments could not be given upon questions involving property or personal liberty, unless it were in presence of the imperial envoys or the counts.

Such were the free institutions and the meetings for common deliberation, of separate localities. These primitive plaids correspond to the ancient assemblies of the Germans in Germany.

Besides the plaids of freemen, appears the jurisdiction of the nobles or important landowners over the persons who dwelt on their domains. The chieftain distributed justice to his comrades, or, as they had now become, his colonists. His jurisdiction was not, however, altogether arbitrary; his comrades were his assessors in his court. The conjuratores, who attested the truth of the facts stated, almost entirely settled the affair. If we consider these institutions in their origin, we find that the seignorial courts of justice, although obscure and somewhat inactive, existed simultaneously with the assemblies of freemen, exempt from the circumscription and jurisdiction of the officers of the crown. The jurisdiction of the churches was derived from the jurisdiction of the seigneurs, and both were exercised in virtue of the proprietorship of the domain, which rendered the landlord the patron of its inhabitants.

Rudiments Of Feudalism.

These are the first rudiments of that feudal organization which, by establishing the authority and jurisdiction of the seigneur over his tenants, vassals or colonists, constantly tended to destroy the authority and jurisdiction of the assemblies of free men. A conflict began between the feudal principle of hierarchical subordination, and the principle of the union of equals in common deliberation. This conflict commenced as early as the beginning of the epoch which now occupies our attention.

Let us now examine how the royal power was exercised in separate localities during this period. The dukes, counts, centeniers, and others, were probably at the outset, as I have already observed, not mere delegates of the king, but the natural chieftains, the most powerful and extensive landowners. It is quite erroneous to believe that, originally, a county corresponded to what is now called a department, and that the king appointed and sent a count to govern it as he now sends a prefect. The king, the head of the nation, naturally directed the most important man in the district to convoke together the free men of the district for military purposes, and to collect the revenues of the royal domains; and this person thus received a sort of appointment from the king. The increasing importance of the palace and court of the kings—the influence of Roman institutions and ideas, at length made this appointment the source of a title. The counts became Leudes, and vice versâ, the Leudes became counts.

During a considerable period the hereditariness of these officers was not recognised. Some antiquaries even are of opinion that these employments were given for a fixed time only. There is more reason to believe that this point was not definitely determined, and that, in fact, these offices were long unlimited as to their duration, and always transferable; numerous instances can be brought in support of this theory. The Frankish kings frequently allowed the natural chieftains of the countries which they conquered to retain their former position and ancient rights. Thus the Bavarian dukes were hereditary. When Louis the Debonnair received the Spaniards into the south of France, he permitted their counts to retain their titles and jurisdiction.

Dukes And Counts.

The title of count become an object of ambition on account of the advantages connected therewith. The count possessed great power, a share of the fines, freda, and immense facilities for acquiring property in the district under his jurisdiction. These offices also supplied the kings with means for enriching their Leudes, or obtaining new ones. Under the Merovingians, perpetual instability prevailed in respect to these offices as well as to benefices; they were obtained by presents or purchased by money. Nevertheless, the office of count was frequently transmitted from father to son; this was natural, and usage could not fail to precede right; the count or duke, being almost always an important personage in his canton or town, independently of his office, his son, who succeeded to his importance, succeeded frequently to his office also.

Some writers have affirmed that there was a great distinction between the dukes and the counts; it has even been asserted that each duke had twelve counts under his orders. No such regularity existed in local administration. We meet with some counts equal in power to dukes; among the Burgundians, for example, some counts ruled over several provinces. We may say, however, that in general the duke was superior to the count. We may even presume that, originally, the office of duke was military, and that of the count, judicial; although the two missions frequently appear confounded. A formula of Marculf assimilates the dukes, counts, and patricians. The margraves were the counts of the marches or frontiers. The men of the court, the delegates of the king, finished by being counts everywhere.

Thus there co-existed the three systems of institutions which I have mentioned: 1. the assemblies of freemen, having authority and jurisdiction; 2. the great landowners, whether beneficiary or allodial, lay or ecclesiastical, proprietors—having authority and jurisdiction; 3. the administrators or delegates of the king, having authority and jurisdiction.

Extension Of Seignorial Jurisdiction.

In the midst of the disorders of the Merovingian race, we find that the assemblies of free men rapidly declined. Most of the free men ceased to attend. Some became powerful enough to aim at independence, others became so weak as to lose their freedom. The common deliberation of free men disappeared. The principle of the subordination of the individual to the individual, in virtue of protection, vassalage, patronage, or colonage, prevailed. Seignorial jurisdictions, both lay and ecclesiastical, became extended. Their extension and consolidation were the necessary consequence of the extension and consolidation of benefices. The diminution of the number of allodial estates, the increase of tributary lands, and the corresponding changes which were introduced into the condition of persons, necessarily removed the greater number of justiceables from the jurisdiction of the assemblies of free men and from that of the king. Even the care which was taken by the first Carlovingians to compel the seigneurs to administer justice, and to control their administration of it, proves the progress of this kind of jurisdiction.

The liberty allowed to every man to live under any law he pleased, could not but contribute also to this result; it tended to disperse society, for it placed men under the jurisdiction of those who had their own private code of laws; and thus it opposed union, and common deliberation. It was a kind of liberty, doubtless—a liberty necessary in the state of society which then existed; but this liberty, like almost all other liberties at this period, was a principle of isolation.

Lecture XIX.

Government of Charlemagne. Apparent revival of free institutions. Individual independence and social liberty. Organization of monarchical power under Charlemagne. His active surveillance over his vassals and agents. Rapid decline of monarchical institutions after his death. Definitive predominance of the feudal system. Central institutions during the same epoch: royalty. Causes of the progress of royalty, and of the principle of hereditary succession among the Franks. Influence of the clergy.

Two Meanings Of Personal Liberty.

After the Merovingian anarchy, at the accession of the Carlovingians and especially during the reign of Charlemagne, two facts, which seem contradictory, present themselves to our notice. Free institutions appear to gain new life, and at the same time the monarchical system evidently prevails. We must closely study this singular coincidence, and endeavour thoroughly to understand its causes.

There are two ways in which we may understand a man's personal liberty; first, as the independence of the individual having no law but his own will; and secondly, as the enfranchisement of every individual from every other individual will, which is contrary to reason and justice.

Liberty, if taken in the first sense, is barbarous and anti-social; it is the infancy, or rather the absence, of society. The word society itself indicates the union of individuals in one common idea, feeling, and interest. Society can exist only by the obedience of individuals to one common rule. If the liberty of each man constitutes his only law, if every restriction to the independence of individual will is considered illegitimate, society is impossible. The law which should rule society, according to truth and justice, is exterior to and independent of individual wills. The object of society is to discover this superior law, and to exact obedience to it alone; but to this law obedience must be given; society is possible only by the reign of brute force, or by the government of true law. If the independence of the individual is regarded as the condition of liberty, we may be certain that force will become the dominant power of society, for society there must be; it is an imperious necessity of human nature; and this necessity will receive its gratification from force, if it cannot obtain it from justice and reason.

Object Of Government.

The object of government, then, is twofold; it proposes, first, to seek out and discover the true law which must decide all the questions to which social relations give rise, and to subject to this law all adverse individual wills; and secondly, to prevent individuals from being subjected to any other laws but the true law, such, for example, as the arbitrary will of other more powerful individuals. Good and true government, then, does not say to every individual: "Thou shalt be subject only to thy own caprice," for on these terms there could be no society, and no government; but it says: "Thou shalt be subject, not to the caprice of any other individual, but only to reason and justice." The progress of civilization consists, on the one hand, in extending the authority of reason over all individuals, and in neglecting no means to convince their individual reason and to render their obedience voluntary; and, on the other hand, in limiting the sway of the arbitrary will of individuals over one another. Where the arbitrary will of one or more individuals prevails, legitimate liberty does not exist; where the isolated independence of every individual is maintained, society is impossible.

The importance of this distinction between moral and natural liberty, between social freedom and individual independence, is immense. It would be easy to demonstrate its intimate connexion with the true theory of liberty, considered in relation to man personally, and independently of society. It is as a reasonable being, capable of recognizing truth, that man is sublime; therein resides the divinity of his nature: liberty is in him nothing but the power of obeying the truth which he recognises, and making his actions conform thereto. On this ground, liberty is very respectable; but liberty is respectable on this ground alone.

Origin Of Despotism.

In the infancy of society, the liberty which almost all men desire and defend, is natural liberty—liberty to do nothing but what they please. This is caused by the imperfection of the moral development of each individual, and by the imperfection of the same development in the social powers; from which imperfection it results that these powers ill-understand the true law, never apply it, and are themselves directed by individual wills, as arbitrary as they are capricious. On this account, the state of freedom with which we meet at the outset of all societies lasts for so short a time, and is so quickly superseded by the despotism of one or several persons. Society cannot exist if natural liberty, that is, individual independence, exists in all the extent of its desire: and as society is as yet ignorant both how to govern according to the moral law, and how to respect moral liberty, force seizes upon the government.

When, in such a state of society, a man of superior genius and character appears, he is inevitably driven to found a despotism, that is, the empire of his own individual will. He is irritated and offended by the collision of all these barbarous or stupid individual wills; his instinct tells him that society cannot exist in this manner, that such a state of things is not society. He is personally disgusted, moreover, at the sway which all these narrow and ignorant wills claim to exercise over all things, and even over himself. The authority of blind force over enlightened force is nothing but a despotism; and what is greater insolence than the power of a brutal multitude over a lofty individual reason? The superior man becomes indignant and seeks to free himself from this yoke, to impose some rule upon this disorder; and this rule he seeks in his own reason, in his own will. Thus is established, at such epochs, the despotism of a single person; it is not radically illegitimate, and the best proof that it is not, is afforded by the easy reception with which he meets the admiration with which he is regarded, the gratitude even which he inspires, and which lasts as long as the state of things which originated his power. In truth, the loftiest superiority, that which is most naturally called to empire by the disorder and dissolution of society, soon becomes corrupted and rude, by becoming itself a purely individual will, full of egotism and caprice: but that which constituted its force and credit, at the outset, was its better comprehension of the general wants of society; it had obtained a deeper knowledge of the true law which must govern society; and it rescued society from its losing battle with a multitude of ignorant or ferocious individual wills.

The Monarchy Of Charlemagne.

It is by these means that great men triumph at first. It was thus that Charlemagne triumphed; it was thus that the first three Carlovingians, Pepin of Heristal, Charles Martel, and Pepin the Short, had prepared the way for him. Under the Merovingians, the state was falling into dissolution; every strong man was making himself independent, every weak man was falling into subjection to a stronger. Although the Pepins had sprung from the dominant aristocracy, they early struggled against its excesses. Charles Martel put down the petty tyrants who had sprung up in every direction. The tendency of Charlemagne's policy was to establish the monarchical system, that is, to secure the universal prevalence of his will by making it felt everywhere by means of his agents. In order to understand with any exactness what was Charlemagne's pure monarchy, we must see how he managed his own property, and in what manner he administered his palace. The activity of his surveillance was surprising; we shall find details of it in his capitulary De villis, and in the first part of one of Hincmar's letters. He governed his empire in the same spirit. This was the only means he possessed for restoring order, and applying the national forces to the accomplishment of his designs. Into the despotism of a superior man, there always enters a powerful instinctive feeling of justice, and of protection to the weak. Charlemagne diligently endeavoured to check the power of the nobles by subjecting them to surveillance, and by bringing his subjects into direct relationship with the royal authority. He paid great attention to the employment and administration of his benefices, even when in the hands of beneficiaries; he was careful not to give more than one county to the same count, and this rule he rarely transgressed; he ordered the nobles to distribute strict justice to their vassals, and took most energetic measures to compel them to do so, and to judge all men according to the law. Charlemagne also kept watch over the conduct of the counts; the assemblies of free men had almost entirely perished; and they requested as a favour to be allowed to absent themselves. To supply the place of the active surveillance exercised by these ancient assemblies, Charlemagne created the missi dominici. These were inspectors of the whole state of the kingdom, and particularly of the conduct of the counts and nobles.

Decline Of The Frankish Monarchy.

The delegates of Charlemagne, the imperial judges, had assessors; and as the free men whose duty it was to fill the office of assessors seldom attended the periodical assemblies, Charlemagne superseded them by the scabini, who were appointed by the missi dominici, whom he enjoined to select them with the greatest care. This intervention of the delegates of the sovereign himself in judicial affairs, was a powerful means of monarchical centralization.

In his Frankish empire, it was not against the ancient free institutions, but against public anarchy and the disorderly power of the strong, that Charlemagne directed these means of government. In his other dominions, wherever he feared the influence of liberty, his despotism was exerted to crush it rigorously; thus he interdicted all public assemblies of the Saxons.

All this monarchical organization fell with Charlemagne. Its existence is protracted, as if by habit, in the speeches and laws of Louis the Debonnair; but the hand which sustained the edifice is no longer there. The language of Charlemagne in the mouth of Charles the Bald, is nothing but a piece of ridiculous rhodomontade. The feudal system gains the upper hand and organizes itself in every direction. The great vassals either attack the king or isolate themselves from him. The dignity of count became so considerable, that the sons of kings and emperors desire and obtain it. Hereditary succession prevails in the offices of dukes, counts, viscounts, &c. Rhegino cites as a singular fact that the sons of Duke Robert did not succeed to his dukedom, and assigns as the reason, that their tender age rendered them incapable of repulsing the Normans. The sons of two counts of Austria were not put into possession of the counties of their fathers; so their relations took arms, and drove out the usurper. The power of the counts, now they had become hereditary seigneurs, was augmented by the authority they had exercised, under that title, as delegates of the king. The feudal hierarchy, strong by its own intrinsic power, thus gained additional strength from the wreck of royal authority. Hence resulted a new order of local institutions, which I cannot now explain.

The picture of central institutions reproduces, under another aspect, the same facts, and leads to the same results. Central institutions, as you are aware, may be reduced to two—royalty, and the general assemblies of the nation.

Royalty Among The Franks.

To royalty among the Franks you may apply what I have said of royalty among the Anglo-Saxons; only, among the Franks, the royal family does not bear, at the outset, the character of a religious filiation. This is perhaps attributable to the fact that the Franks were a confederation of different tribes; among them, the king appears especially as a military chieftain. Under the first Merovingians, there was always a great mixture of hereditariness and election; hereditariness fluctuated among the members of the same family; election, when it was not an act of violence, was rather a recognition than an election.

It is a grave error to expect to find in facts the basis of a primitive and exclusive law: facts may be made to demonstrate anything. The most opposite parties have fallen into the same error in this respect. Whoever has discovered, at the origin of a state, an act of violence in conformity to his preconceived opinion, takes it as the foundation of what he calls the general law. Some fancy they can discern absolute and well-regulated hereditary succession in the midst of barbarism; others transfer the troubles and violence of a barbarian election into a more advanced stage of civilization; whatever they find existing as fact in the infancy of society, they convert into law for society in its greatest extension and development. This is neither philosophy nor history. The ruling law is that which is conformable to reason and justice. There is always more or less of this law at every epoch in the life of human society; but at no epoch is it pure or complete. We must resign ourselves to the task of freeing it everywhere from all alloy.

Let us then pass by the primitive and exclusive right of royal heredity, which existed neither among the Franks nor in other countries; all that can be said is that the principle of hereditary monarchy tended, early and constantly, to prevail. The heirship of the private domain of the kings, which was of considerable value, powerfully contributed to establish the heirship of the kingdom, just as the partition of the private domain among the sons led to the partition of the royal dominions; but the partition of the kingdom was almost always made with the consent of the nobles, whilst the heirship of the crown, in each state, does not appear to have required their formal assent.

Fall Of The Merovingians.

We have already seen what were the causes which occasioned the fall of the Merovingian race, and the accession of Carlovingians. The fall of the latter, in the tenth century presents some features of similarity to that of the Merovingians, but between the two, there was greater diversity than resemblance. The ancient companions of the Frankish kings, the Leudes, the Antrustions, and the beneficiaries, had left the court, established themselves on their lands, and become feudal lords: revolutions were no longer effected at the foot of the throne, and in the interior of the royal palace. The feudal lords were much more isolated, not only from the king, but also from one another, than the Leudes had been under the Merovingians. Pepin the Short was king in fact when Childeric III. was king in name; Pepin assumed the name belonging to his power. At the end of the tenth century, there was no king, and no powerful man in the king's service who wielded the royal power in the name of Louis V. Hugh Capet took possession of an almost vacant place, which, at the moment, added much to his dignity, but little to his authority. After the fall of the Merovingians, Pepin and Charlemagne were able to attempt to establish the monarchical system, and to inaugurate the central authority of the king; Hugh Capet was unable to do this, nor did he attempt it; the feudal lordships had divided the kingdom amongst them. Pepin was the head of an aristocracy which had its centre in the palace of the Merovingian kings. Hugh Capet was one of the principal members of an aristocracy which had no centre; he made himself king because the crown was within his reach. If Louis V. had resided at Rouen, the Duke of Normandy would probably have seized the monarchy.

As regards the nature and extent of the royal authority, what I have already said sufficiently indicates what it was: very limited and precarious before the settlement of the Franks on Roman territory—being nothing but the power of the chief of a warlike band, always restrained by the presence of the free men, his comrades—it became extended and strengthened after the conquest by various causes:

Authority And Liberty.

1. By the dispersion of the Franks. They ceased constantly, to surround the king; his authority was but slight over those who left him; but those who were habitually near him depended more closely upon him; a court of barbarian servants succeeded to a court of warriors. 2. By the subjugation of neighbouring chiefs or kings. 3. By the increasing inequality of wealth: the royal property greatly augmented, and this was their principal source of power; they devoted all their energies to the amassing of treasure; it was useless to leave their children a kingdom, unless they could at the same time bequeath to them a full exchequer. 4. By the influence of religious and Roman ideas. In the opinion of the Christians, the king was the successor of Saul and of David; in that of the Romans, he was the representative of the emperors. The Frankish kings were fully sensible of the advantages of this two-fold position, and they eagerly accepted the titles of Patrician and Consul. But the royal authority had no definite character; it was proportionate to the ability and energy of those who exercised it.

Nothing can be more different than the idea of royal authority in those times and in our own day. If a village were now to disregard the king's authority, or to refuse to obey him, it would be a serious event, the sign of a great decay of power. Such was not the case then; authority was not universally diffused over the country; remote places and interests were in some sort independent of it. It had no real supremacy, except in case of war; the rays of its influence were short, and wherever it was applied, it was matter of fact rather than of right.

With regard to authority and liberty, right and fact are almost identical in the infancy of society. The idea of right, separate from fact, has but very little power and can scarcely be said to exist. Hence arise the eternal vicissitudes of authority and liberty; whoever ceases to possess them is never permitted to regain them. It is the work and the master-work of civilization to separate right from fact, and to constitute right a power able to maintain, defend, and vindicate itself.

Influence Of Religious Ideas.

We must not, however, believe that religious ideas exercised no other influence, in regard to the royal authority, than to extend it, and to represent it as absolute and springing from divine right; they contributed powerfully to render it moral. It is true, they rendered it independent of the public liberties, which were frequently mere embodiments of arbitrary power and brute force, and thus they helped to establish absolute power; but at the same time they subordinated it to the divine laws, in which the moral laws are comprised. The limits which Frankish usages imposed on the royal authority were very different from those assigned to it by Christian ideas: "the king," to use the expression of the Councils, "is he who governs with pity, justice, and goodness; he who does not govern thus is not a king, but a tyrant." The restraint which this principle laid upon the royal authority was more efficacious than that which resulted from the influence of Frankish usages. This system, it is true, gave no positive and real guarantee for the observance of the rules which it imposed as duties upon royalty. But the age in which we live has taken too much pains to seek guarantees in physical force, and has neglected to seek for them in the power of moral ideas. In barbarian times, as all powers, both of kings and subjects, are almost equally unregulated, they appear bad guarantees to sensible men, who seek for purer sureties in moral ideas. When, in the epoch of which we are now speaking, the Franks or Leudes repress the abuse of royal authority, they repress it only in virtue of their own powers, and defend their liberties only out of regard to their own interests, and not in obedience to any moral idea of justice and of general right. The ecclesiastics, on the contrary, speak in the name of the general ideas of justice and humanity. They oppose morality rather than force to the abuse of authority. The clergy thus gave utterance to things which answered to the necessities of all the weak, and led them to consider them as their protectors. The vice of the religious system, doubtless, is that it creates no political institution, and consequently, no effectual guarantee; thus it always ends by being more favourable to power than to liberty: but, in barbarous ages, when power and liberty were almost equally brutal and anarchical, this system has rendered immense services to humanity and to civilization.

Lecture XX.

National assemblies of the Franks; their primitive character, and rapid decline under the Merovingians. They regain importance under the Carlovingians; and are held regularly under Charlemagne. Letter of Archbishop Hincmar De ordine Palatii.

National Assemblies Of The Franks.

National assemblies were held among the Franks long previously to their settlement in the Roman empire, and to the establishment of monarchy amongst them. In these assemblies were discussed, in Germany, all the affairs of the confederation, tribe, or band. All the free men, that is to say, all the warriors, were present; but the authority of these assemblies, like the authority of the kings, was uncertain and precarious. They were formed, not in virtue of the principle of the sovereignty of the people, but in virtue of the right of every free man to have the sole disposal of himself. They were convoked especially to determine on military expeditions. Beyond this, every man acted independently, and was answerable for his conduct to none but the local authorities. The Champ de Mars, or autumnal assembly, of which we find traces at the beginning of the monarchy, was habitually held for the purpose of dividing the booty which had been gained.

The dispersion of the free men, the increasing inequality of social conditions, and the subordination of the comrades to their chief, soon caused the national assemblies of the Franks to lose their character of universality. They ceased to be attended by any but the large landowners, the Leudes, and the superior clergy. In this state, they appear to have existed under most of the Merovingian kings. Mention is sometimes made of the people in general; but evidently the great majority of the free men neither could, nor did attend these assemblies. Those who possessed power and wealth were almost the only persons who attended; and they regulated the business brought under their notice solely with a view to their own interest. The increasing disorder, and continual dislocations of the kingdom, rendered these assemblies less frequent.

Letter Of Archbishop Hincmar.

They reappear, however, at the establishment of the authority of the Mayors of the Palace. As leaders of the aristocracy of the great independent landowners, they had need of their support. The substitution of a new family of kings, instead of the ancient race, was favourable to the importance of the assemblies. They became, under the first Carlovingians, what they had been under the first Merovingians,—a great council of government, in which all great affairs were discussed. Pepin transferred the Champs de Mars to the month of May; and Charlemagne held these assemblies with a regularity heretofore unknown. In order to form a correct idea of what they were under his reign, you must read the text, and the entire text, of the letter written in 882, sixty-eight years after the death of Charlemagne, by the celebrated Hincmar, archbishop of Rheims, in compliance with the request of some of the nobles of the kingdom who had asked his advice with regard to the government of Carloman, one of the sons of Louis the Stammerer. In this letter, Hincmar, as he himself informs us, does nothing but copy a treatise On the Order of the Palace, De ordine Palatii, written before 826 by the celebrated Adalhard, abbot of Corbia, and one of the principal advisers of Charlemagne. It is, therefore, a contemporary document, and its authority is great.

"It was the usage at that time," says Hincmar, "to hold in each year two assemblies, (placita,) and no more. The first took place in the spring; at it were regulated the general affairs of the whole kingdom; no occurrence, unless it were an imperious and universal necessity, could alter what had been decreed thereat. In this assembly, met together all the great men (majores), both lay and ecclesiastic; the more influential (seniores), to discuss business and agree on decisions; the less influential (minores), to receive these decisions, and sometimes also to deliberate upon them and confirm them, not by a formal consent, but by the exercise of their opinion and the assent of their understanding."

The Councils Of State.

"The other assembly, in which the general gifts of the realm were received, was composed only of the more influential members (seniores) of the first assembly, and of the principal councillors. Here the affairs of the following year were treated of, if there were any which it was necessary to deliberate upon beforehand; as also those which might have occurred during the course of the year which was about to expire, and which required provisional attention without delay. For example, if, in any part of the kingdom, the governors of the frontiers (marchisi) had concluded a truce for any time, the course to be pursued on the expiration of these truces was discussed, and it was determined whether they should be renewed or not. If, in any other quarter of the kingdom, war seemed imminent, or peace appeared likely to be established, it was examined whether the exigencies of the moment required, in the first case, that incursions should be commenced or endured, and, in the second, how tranquillity might be insured. These lords thus deliberated long beforehand on what the affairs of the future might require; and when suitable measures had been agreed upon, they were kept so secret, that before the next general assembly they were no more known than if no one had paid any attention to the matter, and no decision had been arrived at regarding it. The object of this was, that if it were necessary to take, either within or without the kingdom, any measures which certain persons, when informed thereof, might wish to prevent, or frustrate, or render difficult, by any artifice, those persons might never have the power to do so. "In the same assembly, if any measure were necessary either to satisfy absent nobles, or to calm or excite the spirit of the people, and such measure had not previously been taken, it was discussed and adopted by the consent of those present, and it was executed in concert with them by the orders of the king. The year being thus terminated, the assembly of the following year was arranged as I have said.

"With regard to the councillors, both lay and ecclesiastic, care was taken, as far as possible, to select such persons as, from their condition and duties, were filled with the fear of God, and animated, moreover, by unalterable fidelity, so as to consider nothing superior to the interests of the king and kingdom, except eternal life. Men were sought who could be turned aside from the path of duty neither by friends, nor enemies, nor relatives, nor gifts, nor flatteries, nor reproaches; men were sought who were wise and skilful, not with that sophistical skill and worldly wisdom which are so opposed to God's will, but with a just and true wisdom that might enable them not only to repress, but also fully to confound the men who place all their reliance in the tricks and stratagems of human policy. The maxim of the councillors thus elected, and of the king himself, was, never to confide, without their mutual consent, to their domestics or any other person, what they might have said familiarly to one another, either upon the affairs of the kingdom, or about any particular individuals. It made no difference whether the secret ought to be kept for a day or two, or more, or for a year, or even for ever. "It invariably happens that, if the conversation held in such meetings, with regard to any individual, either by way of precaution, or in reference to any other public interest, come afterwards to the knowledge of that individual, he cannot but feel great anxiety, or be driven to despair thereby, or, which is a much more serious matter, be stimulated to infidelity; and thus a man who might perhaps still have done service to the State, is rendered useless,—which never would have happened if he had not known what was said about him. That which is true of one man may be true of two, of a hundred, or of a greater number, or of a whole family, or of an entire province, unless the greatest caution be observed.

The Officers Of The Palace.

"The apocrisiary, that is, the chaplain or keeper of the palace, and the chamberlain, were always present at these councils; they were therefore chosen with the greatest care; or else, after having been chosen, they were furnished with such instructions as should render them worthy of being present. As to the other officers of the palace (ministeriales), if there were any one who, first by gaining instruction, and afterwards by giving advice, proved himself capable of honourably occupying the place of one of these councillors, or fit to become one, he received orders to attend the meetings, giving the greatest attention to the matters discussed thereat, correcting his erroneous ideas, learning that of which he was ignorant, and retaining in his memory that which had been ordained and determined. The object of this was, that, if any unforeseen accident occurred, either within or without the kingdom; if any unexpected news arrived, in reference to which previous provision had not been made (it rarely happened, however, that in such cases, profound deliberation was necessary, or that there was not time to convoke the councillors already mentioned); the object of this, I say, was that, under such circumstances, the officers of the palace, with the grace of God, and by their constant habit of both attending at the public councils and deliberating upon the domestic affairs of the realm, might be capable, as need was, either to advise what had best be done, or to point out how matters might be arranged without inconvenience, until the next meeting of the council. So much with regard to the principal officers of the palace.

The Palatines.

"In reference to the inferior officers, properly called palatines, who had not to do with the general affairs of the kingdom, but only with those in which the persons specially connected with the palace were concerned, the sovereign regulated their duties with great care; in order that, not only might no evil arise therefrom, but also that if any disorder were manifested, it might at once be repressed and extirpated. If the affair were urgent, but might nevertheless without injustice or wrong to any person be deferred for decision until the meeting of the general assembly, the emperor expected the palatines to indicate the best means of delay, and to imitate the wisdom of their superiors in a manner pleasing to God and useful to the kingdom. As to the councillors whom I first mentioned, they were careful, when summoned to the palace, not to occupy themselves with private affairs, or with the disputes which might have arisen with regard to the possession of property or the application of the law, until they had arranged, with the help of God, everything that concerned the king and kingdom in general. This being done, if, in obedience to the orders of the king, there remained any affair which could not be settled either by the Count of the palace, or by the officer under whose cognizance it fell, without the assistance of the councillors, they proceeded to investigate it.

The Capitularies.

"At one or other of the two assemblies, and in order that they might not appear to be convoked without reason, there were submitted to the examination and deliberation of the great personages whom I have mentioned, as well as of the chief senators of the realm, and in virtue of the orders of the king, those articles of law named capitula, which the king himself had drawn up under the inspiration of God, or the necessity of which had been manifested to him in the interval between the meetings. After having received these communications, they deliberated upon them for one, two, or three days, or more, according to the importance of the matter. Messengers from the palace, going and coming, received their questions and brought back answers; and no stranger approached the place of their meeting, until the result of their deliberations was placed before the eyes of the great prince, who then, with the wisdom which he had received from God, adopted a resolution which all obeyed. This course was pursued for one, two, or more capitularies, until, by the help of God, all the necessities of the time had been duly regulated. "Whilst these affairs were thus arranged out of the presence of the king, the prince himself, in the midst of the multitude who had come to the general assembly, was busied in receiving presents, greeting the most important individuals, conversing with those whom he saw but seldom, exhibiting an affectionate interest in the old, laughing and joking with the young, and doing these and similar things to ecclesiastics as well as laymen. However, if those who were deliberating upon the matters submitted to their judgment desired it, the king went to them, and remained with them as long as they wished; and there they reported to him, with entire familiarity, what they thought of various matters, and what were the friendly discussions which had arisen amongst them. "I must not forget to mention that, if the weather were fine, all this went on in the open air; but if not, in several distinct buildings, by which those who had to deliberate upon the king's propositions were separated from the multitude of persons who had come to the assembly; and then the less important men could not enter. The building intended for the meeting of the nobles was divided into two parts, so that the bishops, abbots, and superior clergy could meet together without any mixture of laymen. In the same way, the counts and other distinguished personages of the State separated themselves, in the morning, from the rest of the multitude, until the time came, when, whether the king were present or absent, they all met together; and then the nobles above-mentioned, the clergy on their side, and the laymen on theirs, proceeded to the hall which was assigned to them, and where seats had been honourably prepared for them. When the lay and ecclesiastical lords were thus separated from the multitude, it was in their power to sit either together or separately, according to the nature of the affairs which they had to discuss, whether ecclesiastical, secular, or mixed. In the same way, if they wished to send for any one, either to bring them food, or to answer any question, and to dismiss him after having obtained what they desired, it was in their power to do so. Thus proceeded the examination of the affairs which the king proposed for their deliberation.

Duties Of The King.

"The second occupation of the king was to demand of each what he had to report or relate to him regarding that part of the kingdom from which he had come; not only was this permitted to all, but they were specially enjoined to make inquiries, during the interval between the assemblies, about what was going on both within and without the kingdom; and they were to seek information from foreigners as well as natives, from enemies as well as friends, sometimes by employing envoys, and without being very scrupulous as to the way in which the information was obtained. The king desired to know whether in any district or corner of his kingdom the people were murmuring or disaffected, and what was the cause of their disaffection, and whether any disorder had occurred which required the attention of the general council, and other similar details. He also sought to know whether any of the conquered nations were likely to revolt, or whether any that had revolted seemed disposed to submit, or whether those that still remained independent threatened the kingdom with any attack, and so forth. Upon all these matters, wherever disorder or danger appeared, his chief care was to learn what was the motive or occasion thereof."

Policy Of Charlemagne.

It is evident that these assemblies were considered by Charlemagne as an instrument of authority, order, and administration, much rather than as a national institution rendered necessary by the rights and free spirit of his people. The employment of this means of government, however, does not do the less honour to the genius of Charlemagne. He had perceived that the principal vice of the social system of his time, and the principal cause of the weakness of his own authority, were the absence of concentration, the isolation of individuals, and the independence of his agents. Periodical convocations gave a centre to all. The efforts of a great man in a barbarous age have as their especial object the creation of a nation, for therein lies his power; Charlemagne sought to find his nation lower than among the great landowners and the great beneficiaries. He wished to rally together the entire mass of the people, in order to increase his own power, and to have at his disposal everywhere potent means of action. His was a skilful despotism. Despotism, in barbarous times, sometimes announces the presence of a man who is before his age, and who has necessities and views in relation to the future. Despotism, in the midst of an advanced state of civilization, indicates the presence of a man who may be great and even necessary to society, but who cares only for himself, and for the times in which he lives.

Lecture XXI.

Decay of national assemblies under Louis the Débonnair and Charles the Bald. Definitive predominance of the feudal system at the end of the tenth century. Cause of this predominance. Character of feudalism. No trace of true representative government in France, from the fifth to the tenth century.

Decay Of National Assemblies.

After the death of Charlemagne, and under Louis the Débonnair, national assemblies were still frequently held. The movement which Charlemagne had begun, had not yet entirely ceased. Unable to create, Louis the Débonnair sought to imitate; at the spring or autumn assemblies, he passed several useful rules, amongst others the capitulary which summoned the scabini, or royal judges, to the Champs de Mai. But the government, even with this sanction, was lifeless and inefficient. The assemblies had been nothing but an instrument of the monarch, and the monarch was now no longer able to make use of them. Their decay was complete under Charles the Bald. They began again to be nothing more than meetings of the bishops and the great lay landowners. There were forty-six assemblies held under Charles the Bald; but they were almost all confined to the negotiations of the great nobles with the king, respecting their private interests. Such was the progress made by feudalism that the central aristocracy of the great landowners, beneficiaries, and others, dissolved of itself. They isolated themselves from one another in order to exercise, each in his own domains, the almost absolute sovereignty which they had acquired. The fall of the Carlovingians was the work of Hugh Capet alone, and not of an aristocratic coalition. An assembly did not meet, as at the fall of the Merovingians, to elect a new king. Hugh Capet made himself king, and was acknowledged as such, first by the vassals whom he possessed as Duke of France, and afterwards, successively, by the great lords of the kingdom, who remained, nevertheless, almost his equals in power. Then the assemblies almost entirely disappeared, together with every national and central institution; and nearly three centuries elapsed before anything analogous to them was established.

Retrospect Of Five Centuries.

Thus, at the end of the tenth century, of the three systems of institutions which we characterized at the outset, viz.: free institutions, monarchical institutions, and feudal institutions, the last had completely prevailed; the first had perished early, and Charlemagne had vainly attempted to establish the second. The hierarchical organization of the proprietors of estates, and the dislocation of France into as many petty sovereignties as there were proprietors sufficiently strong to be almost independent and absolute masters in their own domains,—such was the natural result of the settlement of the Franks in Gaul.

During the five centuries which we have now briefly examined, institutions, customs, and powers appear to be in a constant state of disorder and conflict. The ancient liberties of the Franks, the primitive independence of the warriors, royal authority, the first rudiments of the feudal system,—all these different elements present themselves to our view as obscure, incoherent, and in opposition. We pass incessantly from one system to another, from one tendency to another. At the end of the tenth century, the struggle has almost ceased; the mass of the population have fallen into a state of serfage, or become tributary colonists; the possession of fiefs confers a real sovereignty, more or less complete according to the power of the possessor; these petty sovereigns are hierarchically united and constituted by the bonds of suzerainty and vassalage. Nowhere is this bond weaker than between the king and his vassals; for there the pretensions to authority on the one hand, and to independence on the other, are most earnestly contested.

The fundamental characteristics of this state of things are the destruction of all centrality, both national and monarchic; the hierarchical constitution of landed property; the distribution of sovereignty according to the various degrees of this hierarchy; and the servitude or quasi-servitude of the mass of the inhabitants of the country.

Attacks On The Feudal System.

I have said that this system was the natural result of the condition of the Franks in Gaul after the conquest; its definitive success is proof of this. Another circumstance, also, may be adduced in evidence. Before the tenth century, we witness the constant struggle and alternating success of free, monarchical, and feudal institutions. The efforts made in favour of the first two systems, although some were supported by the ancient independence of the Franks, and others by the ability of great kings, were unsuccessful,—a more powerful tendency frustrated and overcame them. When the struggle ceased, when the feudal system had fully prevailed, a new conflict almost immediately commenced; the victorious system was attacked: in the inferior classes of society, by the mass of the inhabitants, citizens, colonists, or serfs, who strove to regain some rights, some property, and some liberty; in the superior class, by royalty, which laboured to resume some general sway, and to become once more the centre of the nation. These new efforts were made, not, as during the period from the fifth to the tenth century, in the midst of the confusion arising from the conflict of opposing systems, but in the very interior of a single system, of the system which had prevailed over, and taken possession of, the whole of society. The combatants are no longer free men, uncertain of their position and their rights, who feebly defend the wreck of their ancient existence against the overpowering invasion of the feudal system; they are citizens, colonists, serfs, whose condition is clear and determined, who become in their turn aggressors, and labour to free themselves from the yoke of feudalism. We no longer behold the king uncertain of his authority, and subject to have it unceasingly attacked, not knowing whether he is king or lord, and defending his power against the Leudes, or great landowners, who attempt sometimes to infringe it, and sometimes to set it aside altogether; now it is the chief of the nobles labouring to make himself the king of all, and to convert suzerainty into sovereignty. From the fifth to the tenth century, the feudal system had been in progress, in development, and in aggression. From the eleventh century onwards, this system had to defend itself against the people and the king. The struggle was long, difficult, and terrible; but the results altered with the position of the combatants. In spite of the servitude into which the people fell in the tenth century, from that time forth the enfranchisement of the people made progress. Notwithstanding the impotence of the royal power at the same period, thenceforward the royal power gained ground. No effort was vain, no step was retrograde. That monarchical system which the genius of Charlemagne had been unable to establish, was gradually founded by kings far inferior to Charlemagne. Those ancient liberties, which neither Franks nor Gauls had been able to preserve, were regained piecemeal by the commons and the third estate. During the first period, monarchy and liberty had failed to establish their position; it was destined that monarchy should issue out of feudalism itself, and that emancipation should spring from the bosom of servitude.

Character Of Feudalism.

With regard to feudalism itself, it is not my intention to sketch its history. I hasten to arrive at that period at which I shall again meet with a nation and a king, and at which endeavours after a free government and a monarchical system will recommence. I will only state here what were the dominant character and general influence of the feudal system, in relation to power and liberty—those two constituent elements of social order.

The feudal system brought the master into close connection with the subject, and the sovereign with those who depended upon him; in this sense it was a cause of oppression and servitude. It is difficult to escape from a power that is ever near, and almost present. The human will is subject to strange caprices, and never is this more frequently exemplified than when the objects on which it acts are in its power. You may breathe a little under an arbitrary power, if it be very lofty and very distant; but if it be at your elbow, you are truly a slave. Local tyranny is the worst of all; though difficult to avoid, it can easily defend itself. A handful of men have often kept the population of a large town in servitude for ages. The citizens, colonists, and serfs felt themselves so grievously oppressed by the feudal lords that they preferred to their absolute power the absolute power of the kings, even with more extensive and irresistible rights than those possessed by the lords. A certain and general despotism has neither the same interest in being tyrannical, nor the same means of oppression. This will explain the intensity of feudal oppression, and the profound hatred which it inspired.

Influence Of Feudalism.

The feudal system placed the inferior near his superior; and, in this sense, it was a principle of dignity and liberty. Many vassals were equal in rank to each other, and on terms of familiarity; frequently the inequality between the superior and inferior was not great, so that the latter was neither humiliated thereby, nor obliged to play the courtier. Protection was a right; the suzerain had absolute need of his vassals. There was no room, in their relations to one another, for servility and baseness of soul. Moreover, the vassals had reasons and means for banding together to defend themselves against oppression; they possessed common rights and interests. The intimacy in which they lived with their lord prevented the feeling of their mutual rights from becoming effaced within them; thus feudal relations are generally full of dignity and high-spiritedness; a noble sentiment, fidelity instead of submission, guides their conduct. Now, wherever a profound moral sentiment exists, it must necessarily call others into action; hence the many splendid and honourable developments of human nature under the feudal system: these developments were concentrated, it is true, within the circle of the lords and vassals; but even that is better than the equal abasement of all under an universal despotism.

Thus, whilst feudalism disregarded and insulted both justice and the dignity of man among the masses whom it claimed as subjects, it respected and developed both among its own hierarchy. In this hierarchy, liberty existed, with all its accompaniments. Below were servitude and its attendant evils, with all the shames that follow in their train.

Absence Of The Representative System.

I may now fearlessly affirm that, in the institutions of the period from the fifth to the tenth century, there is no trace of the representative system. We pass from the independence of individuals, sometimes to the power of the king, sometimes to the predominance of the great landowners. But there is no political organization founded upon ideas of general law and public interest; all institutions have reference to private rights and interests. Two opposite forces are in conflict; there is nothing to reveal the division of powers, and their tendency towards one common object. There are no representatives of the rights of all; none elected in the name of the interests of all; those who have rights exercise them personally; those who do not exercise them personally do not possess them. The ecclesiastics alone preserve the idea of the general right of all men to justice and to good government; but this idea is not transfused into any institutions. Neither the philosophic principle, nor any of the true external characteristics of representative government, can anywhere be met with.