lands; according as a man was more or less free, more or less
powerful, the land which he possessed or cultivated assumed a
corresponding character. The condition of lands afterwards became
the symbol of the condition of persons; according as a man
possessed or cultivated such and such a domain, he was more or
less free and more or less important in the State. Originally,
the man gave its character to the estate; in the sequel, the
estate gave his character to the man: and as symbols quickly
become causes, the condition of persons was at length not only
indicated, but determined by, and consequent upon, the condition
of lands. Social conditions became in some degree incorporated
with the soil: and a man found himself possessed of a certain
rank and of a certain degree of liberty and social importance,
corresponding to the character of the land which he occupied. In
studying modern history, we must not for a moment lose sight of
these vicissitudes in the condition of lands, and of the varied
influence they exerted upon the condition of persons.
There is some advantage in first studying the condition of lands,
in so far as it was a symbol of the condition of persons, because
the former is somewhat more determinate than the latter. It is
also less complicated; the condition of persons frequently varied
upon lands of the same condition; and the same persons have
possessed lands of different conditions. Our information,
respecting the condition of lands, is also more than exact.
In studying the condition of landed property and its
vicissitudes, I do not propose to investigate its civil
condition, or to consider property in all its civil relations,
such as successions, bequests, and alienations. I intend to
consider it only in its relation to the condition of persons, and
as a symbol or cause of the various conditions of society. In the
period which we are about to study, from the fifth to the tenth
century, we have this advantage: that it contains a complete
system, both as regards landed property, and also with respect to
the condition of persons and the political institutions of the
nation.
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Allodial Lands.
At this period, we meet with three kinds of landed property: 1st.
Allodial lands; 2nd. Beneficiary lands; and 3rd. Tributary lands.
1st. Of allodial lands or _Allods_.--These were lands
possessed in absolute right, which the proprietor held from no
one, on account of which he owed nothing to any superior, and of
which he had full liberty to dispose. The lands taken or received
as booty by the Franks, at the time of the conquest of Gaul, or
in their subsequent conquests, were originally allodial. At a
later period it was said that a man held an allodium, only from
God and his sword. Hugh Capet said that he held the crown of
France in this manner, because he had received it from no one.
Such tenures were mementos of conquest.
The word _alode_ itself indicates that the first allods were
lands, which fell to the conquerors either by lot or division;
_loos_, lot; _allotted, allotment;_ whence also came
the French word, _loterie_. Among the Burgundians,
Visigoths, Lombards, and others, we find positive traces of this
division of the lands allotted to the conquerors. They took
possession of two-thirds of the land, that is, not of the whole
extent of the country, but of the land in any locality, where a
barbarian of any importance took up his residence. The lands
which thus fell to the barbarians, were called _Sortes
Burgundionum, Gothorum,_ and so on. We do not find among the
Franks positive traces of such a division of the land; but we
know, nevertheless, that they divided their booty by lot.
The word _alode_, then, was probably applied at first only
to the lands taken by the victors in virtue of their conquests.
Another proof of this is that allodial property, properly so
called, was long distinguished from the lands held also in
absolute right, and entailing no acknowledgment of a superior,
but which had been acquired by purchase or in any other way. A
distinction was also made among allodial lands, of _salic_
land, which could be inherited only by males. This was probably
the original allod, the land acquired at the time of the
conquest, and which thereupon became the primitive and principal
establishment of the head of the family. _Terra salica_ is
the _terra aviatica_ of the Ripuarian Franks, the _terra
sortis titulo adquisita_ of the Burgundians, the
_hæreditas_ of the Saxons, and the _terra paterna_ of
the formulas of Marculf.
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Salic Land.
Various explanations have been given of the term _salic
land_. Montesquieu thinks that it was the land belonging to
the house, from the word, _sal_, hall. This explanation is
supported by Hullmann. It would thus be the _in-land_ of the
Anglo-Saxons. It is probable that originally the _terra
salica_ was in fact the land connected with _the_ house,
the residence of the chieftain. The two explanations would thus
coincide; but the former is more complete and historical than the
latter.
The name of _allod_ was extended by degrees to all lands
possessed in absolute right, and held from no superior, whether
they were the original allods or not. The words _proprium,
possessio, prædium, hæreditas,_ were then employed as synonyms
of _allodium_. It was probably at this period also that the
rigorous interdict which excluded females from succession to
salic land, fell into desuetude. It would have been too harsh to
exclude them from succession to all allodial property. There were
some doubts entertained on this point as early as the time when
the salic law was drawn up; and Marculf has transmitted to us a
formula which proves that, although it was the common law to
deprive females of all succession to primitive allods, a father
might, nevertheless, by his will, give his daughter an equal
share with his sons in the division of all his property, of
whatever nature.
The essential and primitive characteristic of the
_allodium_, consisted in the absoluteness of the property;
the right to give it away, to alienate it, to bequeath it by
inheritance or will, &c. Its second characteristic was that it
depended upon no superior, and involved no service or tribute of
any kind to any individual. But although allodial lands were
exempt from all private charges towards individuals, does it
follow that they were also exempt from all public charges as
regarded the state, or the king as head of the State? This
question has been differently answered by learned men.
At the period to which we allude, there were no public charges
properly so called, no obligations imposed and fulfilled as
regarded the State, or its head. All was limited to personal
relations between individuals; and from the relations of man with
man arose the mutual relations of landed property, which were not
carried further than those of persons.
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Charges On Allodial Lands.
We have already seen this; the position of the Franks after the
conquest resulted from the combination of their anterior
relations with their new position. The freeman, who held his land
from no one, had no obligations or charges to fulfil to any one
on account of his land. In such a state of civilization, liberty
is the appanage of force. The Franks who possessed allodial
lands, and were strong enough to be under no obligation of duty
to any more powerful individual, would not have comprehended the
necessity of owing service to an abstract being like the State,
with which, moreover, they had no personal relation.
However, as society cannot exist in such a state of dissolution,
arising from the isolation of individuals, new relations were
progressively formed between the proprietors of allodial lands,
which relations imposed certain charges on them.
1st. The gifts presented to the kings either at the holding of
the Champs de Mars or Mai, or when they come to pass any time in
any particular province. The kings had no fixed habitation. These
gifts, though at first purely voluntary, became gradually
converted into a sort of obligation, from which allodial lands
were not exempt. That these gifts had become obligatory is proved
by a list drawn up at Aix-la-Chapelle in 817, during the reign of
Louis the Debonnair, which enumerates the monasteries which had
to pay them, and those which had not.
2nd. The supply of provisions and means of transport to the
king's ambassadors, and to the foreign envoys, on their passage
through the country.
3rd. Of the various barbarian nations which were successively
incorporated into the kingdom of the Franks, several paid tribute
to the Frankish kings; and of this tribute it is probable that
the free or allodial lands, possessed by these nations,
contributed their share. It consisted of a certain number of
cows, hogs, and horses. The nature of these tributes proves that
they were not distributed among the lands, but imposed upon the
nation as a whole.
4th. A more important charge, namely, military service, was
imposed upon allodial lands. In our next lecture, we shall see
how this charge was introduced.
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Lecture XIII.
Origin of military service; its cause and limits.
It was made a general obligation by Charlemagne.
Allodial lands were originally exempt from taxation.
Origin of benefices.
Change in the position of the German chiefs in consequence of
their territorial settlement.
Their wealth.
No public treasury.
The _œrarium_ and _fiscus_ of the old Roman republic.
Formation of the private domain of the kings of France.
Character of benefices.
Error of Montesquieu on this subject.
Origin Of Military Service.
I have indicated some of the new relations which became
progressively established between the proprietors of allodial
lands and the services that resulted from them. I have to occupy
you to-day with the consideration of military service and
benefices.
Originally, military service was imposed on a man by virtue of
his quality, his nationality before the conquest, and not by
reason of his wealth. After the conquest, there was no legal
obligation to it whatever; it was a natural result of the
position occupied by the Franks,--who were constantly called upon
to defend what they had conquered,--and of their taste for
warlike expeditions, and for pillage. It was, also, a kind of
moral obligation which each man owed to the chief whom he had
chosen. This connexion continued the same as in Germany; the
chief proposed an expedition to his men, and if they approved of
it, they set out. Thus, we find Theodoric proposed to the
Austrasian Franks an expedition against Thuringia. Often the
warriors themselves summoned their chief to conduct them on some
particular expedition, threatening to forsake him, and seek
another chief, in the event of his refusal. Under the
Merovingians, a kind of regularity, some sort of legal
obligation, was introduced into the military convocations, and a
penalty was inflicted upon those who did not present themselves.
The obligation was imposed, and the penalty inflicted, even in
cases where no movement was required in defence of the country.
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The proprietors ol allodial lands were not exempted; many,
doubtless, went on their own free choice, but the feeble were
constrained. This was, however, an obligation attached rather to
the quality of a free man, a Frank, or an associate, than to
property.
Not until the reign of Charlemagne, do we see the obligation to
military service imposed on all free men, proprietors of
freeholds, as well as of benefices, and regulated by property
qualifications. This service now appeared no longer as a
voluntary act; it was no longer the consequence of the simple
relation between a chief and his associates, but a truly public
service imposed on every individual of the nation, in proportion
to the nature and extent of his territorial possessions.
Charlemagne was very vigilant in seeing that the system of
recruiting which he had established, should be faithfully carried
out; we have a proof of this in his capitulary, issued in the
form of instructions to the _missi dominici_, in the year
812. This is an exceedingly minute account of the particulars and
charges of military service. These charges remained under the
same conditions during the reigns of Charlemagne's immediate
successors. Under Charles the Bald, they were restricted to the
case of an invasion of the country by a foreigner
(_landwehr_). The relation of the vassal to his lord, at
that time, prevailed completely over that of the citizen to the
chief ruler of the state.
Exemption Of Freeholds From Imposts.
Although allodial lands were exempt from imposts, properly so
called, more because there were no general imposts whatever than
because of any special immunity from them possessed by allodial
lands, yet we find the kings used every favourable opportunity to
attempt to attach imposts to men and lands, which they believed
rightfully exempt from them; complaints were made of these
attempts as acts of injustice; they were resisted, and sometimes
redress was sought, as under Chilperic, in 578, in Austrasia;
under Theodebert, in 547; and under Clovis II., in 615. We find
also, that, on the occasion of great and alarming emergencies,
the kings imposed certain charges on proprietors, without
distinction, requiring them to lend their assistance, either to
the poor, or to the state. Thus, Charlemagne, in 779, during a
famine, and Charles the Bald, in 877, in order to pay the tribute
due to the Normans, made such general claims. In both these
cases, the charge was adjusted to the quality of persons and
properties.
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Distribution Of Lands.
There is reason to believe that, originally, allodial lands did
not exist in large numbers, especially among the Franks.
There is no ground for supposing that the Franks took possession
of, and shared the lands, wherever they made expeditions and
conquests. They rather cared for the booty which they carried
off, and the cattle which they took with them, instead of forming
a settlement themselves. For a long time, the greater part of the
Franks did not often forsake their first habitations on the banks
of the Meuse and the Rhine; thither they returned after their
expeditions.
We may conclude that lands were most probably distributed in the
following manner. Each chief took a portion for himself and his
associates, who lived on the land of their chief. It would be
absurd to suppose that each band would dissolve itself, and the
separated individuals then retire each to his isolated share of
land; there were no individual shares, or, certainly, but few.
This is sufficiently proved by the fact that the greater number
of Franks appear to have been without landed property, living as
cultivators on the lands, and in the _villæ_ of a chief, or
of the king. Often, even, a man would place himself not only
under the protection, but at the disposal of another, to serve
him during his life, on condition of being fed and clothed, and
yet without ceasing to be free. This kind of contract, the
formula for which has been preserved, must have been very common,
and explains the circumstance that so large a number of free men
are found to have lived and served on lands not belonging to
themselves. Probably, the number of Franks who became
successively proprietors, by means of benefices, was greater than
the number of those who were primitively allodial proprietors.
The larger number ol small allodial proprietors were gradually
robbed of their possessions, or reduced to the condition of
tributaries, by the usurpation of their neighbours, or of
powerful chiefs. Of this, there are innumerable examples. The
laws made, from the seventh to the tenth century, give evidence
of the tendency of large allodial estates or benefices to absorb
small freeholds. The statute of Louis the Debonnair, referring to
the complaints of the Spanish refugees in the south, explains
pretty accurately the system according to which properties
changed hands.
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Donations to churches also tended incessantly to reduce the
number of allodial estates. They would probably soon have
disappeared altogether, had not a cause of an opposite character
tended continually to create new ones. As allodial property was
sure and permanent, while benefices were precarious and more
dependent, the proprietors of benefices constantly sought to
convert their benefices into allodial estates. The capitularies
which remain to us prove this at every step. It is probable that
large new allodial estates were thus created, but small ones
tended to disappear.
Beneficiary Lands.
Finally, under Charles the Bald, a singular circumstance presents
itself. This was the very time when the system of allodial
property was preparing, so to speak, to merge itself in the
system of beneficiary property, which is synonymous with
feudalism; and precisely at that time the name of _Allods_
is more frequent than ever. We find it applied to properties
which are evidently benefices. This name still designated a
property more surely hereditary and independent, and as benefices
were ordinarily hereditary and independent, they were called
allods, just in order to indicate their new character; and the
king himself, whose interest it especially was that his benefices
should not become allods, gave them this name, as if it had
become their conventional designation. Sixty years previously,
Charlemagne had made the greatest efforts to prevent benefices
from becoming allods.
Having thus explained the nature and changes of allods, I pass on
to the consideration of _benefices_.
_Benefices_, which constituted the cradle of the feudal
system, were a natural result of the relations anciently
subsisting in Germany between a chief and his associates. As the
power of these chiefs resided only in the strength of their band
of associates, all their attention was directed to the means of
enlarging the number of these followers. Tacitus relates how,
being charged with the maintenance and preservation of their
followers, they gained and kept them by means of constant
warfare, by dividing to them the spoils of the empire, by gifts
of arms and horses. After the conquest, when the territorial
establishment took place, the position of the chiefs was altered.
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Private Domains Of The Kings.
Hitherto, in their wandering life, they had lived solely upon
rapine; then they possessed two kinds of wealth, moveable booty
and lands. They made their companions other presents, which
engaged them in another kind of life. These riches, both moveable
and fixed, remained for the chiefs, as for all others, as their
personal and private property. The Frankish society had not then
arrived at any ideas of public property. It consisted only of
individuals, powerful by reason of their courage and their talent
for war, by the antiquity of their family, and the renown of
their name, who collected around them other individuals, who
passed their life in the same precarious manner. The republics of
antiquity did not commence thus. Rome had soon its public
treasure--its _ærarium_. Till nearly the close of the
republic, the _ærarium_ still remained. Augustus established
the _fiscus_, the treasury of the prince, which was destined
to absorb the _ærarium_. The _fiscus_, at first,
received only private gifts to the prince, but it soon usurped
all the public revenues, till it became at length the only
repository for public wealth. Thus, despotism transformed a
public into a private domain. The states founded on the ruins of
the Roman empire have followed an opposite course. At their
commencement, all property was private property. It is in
consequence of the development of civilization, and free
institutions, that in almost all monarchies private domains have
gradually become public property.
The private domains of the chiefs of bands, and particularly of
the Frankish kings, were at first composed of lands taken from
the inhabitants of the countries in which they established
themselves. I have already stated that they did not take all the
lands, but a large number of them. The share of the chief must
have been considerable, as is indicated by the numerous domains
of the chiefs of the first two races, in Belgium, in Flanders,
and on the banks of the Rhine, where they first formed their
settlements. Hullmann has given a list of a hundred and
twenty-three domains beyond the Meuse belonging to the
Carlovingian family.
The private property of the chiefs of conquered peoples were, to
a great extent at least, incorporated into the domain of the
conquering chief. Clovis subjected to himself successively
several petty monarchs in his neighbourhood--Ragnachair at
Cambray, Chararich in Belgium, and Siegbert at Cologne; and took
possession of all their personal property.
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The substitution of the royalty of one family for that of
another, augmented the private domain of the king; the new king
would add to his own personal possessions the property of the
dethroned king. Thus the large domains possessed by the family of
the Pepins, in Belgium, and on the Rhine, became royal domains.
Legal confiscations, as a punishment for crime, cases in which no
legal heir was to be found for property, unjust and violent
confiscations--were other sources of personal wealth to kings.
In these ways, the private domain of the kings increased rapidly,
and it was employed by them especially as a means of attaching
their associates to them, and of gaining new ones. Benefices,
then, are as ancient as the establishment of the Franks on a
fixed territory.
Tenure Of Benefices.
The fundamental question which has divided historians, whether
those who are merely scholars or the philosophers, is--were
benefices given for a time and revocable at will, or were they
for life and yet revertible, or were they hereditary? Montesquieu
has aimed at establishing a historical progression among these
different modes; he asserts that benefices were at first
revocable, being given for a time, then for life, and then
hereditary. I believe he is mistaken, and that his mistake arises
from an attempt to systematize history, and bring its facts into
regular marching order. In the giving and receiving of benefices,
two tendencies have always coexisted: on the one hand, those who
had received benefices wished to retain them, and even to make
them hereditary; on the other hand, the kings who granted them
wished to resume them, or to grant them for only a limited
period. All the disputes that occurred between kings and their
powerful subjects, all the treaties which arose out of these
disputes, all the promises which were made with a view to appease
the dissatisfaction of malcontents, prove that the kings were in
the habit of taking back, by violence, the benefices they had
granted, and that the nobles attempted to retain them also by
violence.
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Disputes About Benefices.
The Mayors of the Palace acquired their power by placing
themselves at the head of the large possessors of benefices, and
by seconding their pretensions. Under the administration of Pepin
the Short and Charlemagne, the struggle appeared to cease,
because the kings had for a time great superiority in force; but,
in reality, the kings were now the aggressors in their turn, who
endeavoured to bring the benefices again into their own hands,
and to preserve to themselves the free disposal of them. Under
Charles the Bald, the kings again began to get feeble, and, in
consequence the treaties and promises became again favourable to
the beneficiaries. In fact, the history of benefices, from the
time of Clovis till the full establishment of the feudal system,
is only a perpetual struggle between these two opposing
tendencies. An attentive and accurate examination of the facts
will prove that the three modes of conceding benefices did not
follow one another in regular chronological succession, but that
they are to be found existing and operating simultaneously during
the whole course of this period.
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Lecture XIV.
Proofs of the co-existence of various modes of conferring
benefices, from the fifth to the tenth century.
Of benefices that were absolutely and arbitrarily revocable.
Of benefices conceded for a limited time; the_precaria_.
Of benefices granted for life.
Of benefices granted hereditarily.
General character of the concession of benefices.
Their tendency to become hereditary.
Its prevalence under Charles the Bald.
Military service.
Judicial and domestic service.
Origin, meaning, and vicissitudes of the fidelity due by the
vassal to his lord.
Transference Of Benefices.
From the time of the invasion of the Gauls by the Franks up to
the moment when the feudal system was definitely constituted, we
find during the whole course of this epoch:
I. That benefices were revoked, not only as a consequence of
legal condemnation, but also by the arbitrary will of the donor.
The power of absolute and arbitrary transference of benefices was
practically in existence under the Merovingian kings. It is
however very doubtful whether this has ever been recognised as
the right of the donors. Such an act possessed a character of
suddenness and violence which gave a shock to ideas of natural
justice. Few men would consent to receive a favour of which they
might legally have been deprived at the first moment of caprice.
Montesquieu affirms that benefices were first held on an entirely
uncertain tenure. The proofs which he gives are but of little
weight. _First_, the clause contained in the treaty
concluded at Andely, in 587, between the two monarchs, Gontran
and Childebert, proves the fact but not the right.
_Secondly_, the formula of Marculf again does not prove
anything more than a common practice. Besides, the giver of the
benefice presents a motive in this formula, namely, the necessity
of the exchange. _Thirdly_, the law of the Lombards merely
characterises the benefice as a precarious property, which it
indubitably was. _Fourthly_, the _Book of Fiefs_
compiled in the twelfth century, probably converted the fact into
a right. _Fifthly_, the letter of the bishops to Louis the
Germanic also proves merely the fact.
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It is evident that the right has always been contested, and that
attempts have always been made to prevent the permanency of
benefices is a fact also. "Charlemagne," says Eginhard, "did not
suffer that every noble should take away from his vassal the
benefices which he had granted to him upon any outburst of
anger." The capitulary of Louis the Debonnair, which allows a
year to the rejected incumbent whose benefice is in a bad
condition before it can be finally taken from him, proves
likewise that certain forms were observed with this view, and
protests against a purely arbitrary disposition. That the patron
had a right to take away the benefice, when the occupant had
failed to discharge his obligations, is an indisputable fact. Now
it would be very easy to abuse this principle of taking away
benefices under a pretext of disorderly conduct or infidelity to
the trust reposed; accordingly all the protestations that were
made, and all the treaties that were enforced, were designed to
oppose such a procedure.
Thus we find, from the fifth to the tenth century: _First_,
numerous examples of benefices being arbitrarily taken away; this
was the practice of the giver, when his power corresponded to his
desire. _Secondly_, benefices taken away on account of
unfaithfulness, disorder, treachery; this was a right.
The Precaria.
II. As to benefices granted for a limited time, Montesquieu
affirms, after the _Book of Fiefs_, that they were at first
granted for one year. I have not been able to find any positive
example of this. It is not however impossible that there may have
been such, similar to the _precaria_ belonging to churches.
_Precarium_, among the Romans, signified a grant of property
on the tenure of usufruct for a limited time, which was generally
pretty short. Under the monarchy of the Franks, we have seen that
the churches often consolidated their wealth in this way, in
order to secure a permanent revenue. Charles the Bald decreed
that the _precaria_ should be held for five years and
renewed every five years.
Seizure Of Church Property.
The only benefices which appear to me to have been granted for a
time, ostensibly so at least, are those which arose out of the
ecclesiastical wealth taken by Charles Martel (about A.D. 720),
and which were then possessed under the designation
_precarious_.
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Before this period we find kings and mayors interposing their
authority in order to obtain, under the title of
_precarious_, the enjoyment of certain church wealth for
certain persons. It appears that Charles Martel did more at that
time than grant or cause the retention of church property, under
the title of _precaria_,--he also completely stripped the
churches, in order to confer their wealth as benefices. But,
after him, Pepin and Carloman, his sons, while they also took the
wealth of churches in order to confer them on their vassals, only
took it on the title of _precaria_. The ecclesiastics
protested vigorously against the spoliation of Charles Martel,
and it was upon their protestations that Pepin ordained that the
wealth which could be restored should be actually returned, and
that what could not be so restored, should be held under the
title _precaria_, at fixed rentals, till they could again be
transferred to the church. Pepin and Charlemagne used rigorous
measures to secure that the holders, _in precario_, of
church wealth should fulfil their obligations to its primitive
proprietors; and we may gather, from the frequency of their
orders, that these orders were often treated with contempt. It is
nevertheless evident that the practice of taking the goods of the
church, and placing them in other hands, whether absolutely, or
under the title of precarious, continued under even the most
feeble and superstitious kings. The bishops said that Charles the
Bald suffered himself to be led astray, being often seduced,
partly because of his youth, partly through feebleness of
character, by evil counsellors, and often constrained by the
threats of the occupants, who told him "that if he did not allow
them to possess this consecrated property, they would abandon him
immediately." It is probable that but little of this property was
restored to the churches, and that the greater part of what was
held _sub precario_ became, along with the other benefices,
the hereditary possession of the occupants.
We see that far from Charles Martel having any claim to be
regarded as the first originator of the practice of granting
benefices for life, the benefices, on the contrary, which arose
either from the act by which he despoiled churches and
monasteries, or from acts similar to his, were for a long time
more precarious than any others, and even ought legally to have
been restored to the churches; certainly at the death of the
occupants, and if possible before.
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III. We find during the whole of the epoch which we are
considering, and at its close as much as at its commencement,
benefices conferred for life. It is evident that under Pepin and
Charlemagne most benefices were given on this tenure. This was
owing to the various precautions taken by the kings to prevent
their being transformed into allodial estates. Louis the
Debonnair took the same precautions. Mabillon quotes a charter of
this king containing the formal concession of a benefice to be
held for life. In 889, King Eudes conferred a benefice on Ricabod
his vassal, "in beneficiary right, and on a tenure of usufruct;"
with this addition, that, if he should have a son, the benefice
should pass to his son for his life. We see, under Pepin, a
vassal die who had a son, and yet his benefice was given
immediately to another vassal.
Hereditary Benefices.
IV. We find also, during the whole of this epoch, that benefices
were given or held hereditarily. In 587, it was stipulated by the
treaty of Andely, with regard to the concessions made by queen
Clotilda, that they should be perpetual. The law of the Visigoths
(of Chindasuinth, about 540) provides that the concessions made
by the princes should not be revoked. Marculf gives the formulary
for a hereditary concession. In 765, Charlemagne gave to an
individual named Jean, who had conquered the Saracens in the
province of Barcelona, a domain (says Fontaines) situated near
Narbonne; "in order that he and his posterity may possess it
without any fee or trouble, so long as they remain faithful to us
or to our children." The same Jean presented himself to Louis the
Debonnair, with the gift of Charlemagne, and demanded his
confirmation of it. Louis confirmed it, and added to it new
lands. In 884, Jean being dead, his son Teutfred presented
himself to Charles the Bald with the two donations just
mentioned, and asked him to confirm them to him. The king granted
this, as it is expressed, "in order that thou mayest possess
them, thou and thy posterity, without any fee." These successive
demands of confirmation, either at the death of the original
bestower, or at that of the original incumbent, prove that the
hereditary character of benefices was not then considered as a
right, even when it had been promised, and consequently that it
rested on no general law that was recognized by the state.
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Tenure Of Benefices.
These three modes of granting benefices, of which I have just
given examples, existed therefore at the same time, and I believe
that we may assert from them two general facts, which however are
not without exceptions: _First_, the usual condition of
benefices, during this period, was that they should be given on a
tenure of usufruct and for life; _Secondly_, the tendency of
the time was to render the benefice a hereditary possession. This
result was eventually realized when the feudal or aristocratic
system triumphed over the monarchical system. We see under
Charlemagne, at which time the monarchical system reached its
culminating point, that most benefices were held on a tenure of
usufruct for life, and not as personal property. Not only was
Charlemagne unwilling that the property in benefices should be
usurped, but he was especially vigilant with regard to their
right administration. Under Charles the Bald, when the
aristocratic system prevailed, benefices came to be held as
hereditary possessions. This mode of possession partly arose out
of the immense number of hereditary concessions which were made
during this reign, and which were commenced under Louis the
Debonnair; partly also out of some general arrangements in the
capitularies of Charles the Bald, which recognized or conferred
upon those who were faithful to the king the right to transmit
their benefices hereditarily. We must conclude from this that the
hereditary character of benefices at that time prevailed almost
universally as a custom, and began to be avowed as a principle,
but that it was not yet a general and recognized right. It was
demanded and received in individual instances, which would not
have been the case had it existed as a common right. In the
monarchies consequent on the dismemberment of Charlemagne's
empire--in Germany, for example--it was not recognized as a
right, and prevailed still less as a custom.
Let us never forget--I repeat it--that all these general facts
are subject to exceptional cases, and that different methods of
conferring benefices have existed at all times. It would follow,
from the nature of things, that the common condition of benefices
was, at first, that of possession for life. The relations of the
chief to his associates were all personal,--hence his
benefactions were personal also.
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Not less did it follow from the nature of things, that when the
Franks were once established and fixed, the associates of the
monarch who were able to acquire an independent existence, and to
become powerful in their turn, tended to separate themselves from
their ancient chief, and to settle themselves in their own
possessions, in order that they also might become the centre of
groups of men. Hence resulted all the efforts to make benefices
hereditary.
Conditions Attached To Benefices.
After having determined the origin and the mode of conferring and
transmitting benefices, it remains that we should learn what
conditions were attached to them, and what relations were thereby
formed between the giver and the incumbent.
Mably thinks that benefices did not at first impose any
particular obligation, and that those of Charles Martel were the
first which were formally associated with civil and military
services. This opinion is contrary to the nature of things;--the
origin of benefices testifies to the contrary. They were, as, in
Germany, gifts of horses or of arms and banquets had been, a mode
of attaching companies to the benefactor. This relation in itself
involves an obligation. Mably's idea is equally contradicted by
facts. In all the disputes which arose between the incumbents and
the Merovingian kings, the benefices are always vindicated in
behalf of those who kept faith with their patron. No complaints
were made when those were seen to be despoiled who had failed to
render the fidelity that was due from them. Siggo we find losing
the benefices of Chilperic in 576, because he had forsaken his
allegiance and passed over to Childebert II. The law of the
Ripuarians pronounced the confiscation of the goods of every man
who had been unfaithful to the king. Marculf gives the formula of
the act by which a man was received into the number of the
faithful. Charles Martel, in giving benefices to his soldiers,
only imposed upon them the obligations that had always followed
on such appointments. Only these obligations became progressively
more formal and explicit, precisely in the measure that the
ancient relations of the chief and his associates tended to
become weakened and to disappear, in consequence of the
dispersion of his men and their settlement on their own
properties.
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Vassalage.
Originally, the associates lived with their chief, around him, in
his house and at his table, in peace, as well as in war: they
were his vassals, according to the original sense of the word,
which signified the _guest_, the _companion_, an
individual attached to the house. [Footnote 13]
[Footnote 13: There are different etymologies of the word
_vassus_, from _haus_, a house; from _gast_, a
guest; from _fest_, fast, established; from
_geselle_ (vassallus). The word _Gasinde_, which
expresses the _familia_, so far as it comprises the
individuals inhabiting the house, the _guests_ in
opposition to the _mancipia_, induces me to think that
_vassus_ comes from _gast_. (Anton, _Gesch. der
Deuts. Land._, vol. i. p. 526.)
We read in the Salic law (tit. 43): _Si quis romanum
hominem convivam regis occiderit, sol. 300 culpabilis
judicetur_. The Roman editors of this law would have
rendered the word _gast_ by _conviva_.]
When most of the vassals had dispersed themselves, in order that
each might reside in his own allodial or beneficiary estate, we
may easily perceive the necessity that thus arose of determining
the obligations that were then imposed upon them; but this was
only done imperfectly and by degrees, as is generally the case
where matters are at issue which have for a long time had a
general and conventional adjustment. As the first race began to
disappear and the second to arise in its place, the obligations
attached to the conferring of benefices appear to be clearly
determined. They range themselves under two principal heads.
_First_, the obligation of military service on the
requisition of the patron. _Secondly_, the obligation of
certain judicial and domestic services of a more personal and
household character. It is impossible at the present time to
specify what these services were to which the incumbents were
held. We see only, among a host of acts, that the kings imposed
on the incumbents _servilia_, which obliged them to present
themselves at court. These obligations were comprised under the
general term _fidelity_. They were at first personal, and
attached to the quality of _liege-man,_ independently of the
possession of any benefice; a connexion identical with that
between the ancient German associates and their monarch. When it
had become necessary for the king to give lands as a benefice, in
order to insure the fidelity of his liege subjects, the
obligation attached itself to the quality of beneficiary. We
constantly see benefices given under the condition of loyalty.
Charlemagne, when he gave a benefice in perpetuity to Jean,
annexed to it this condition.
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There is reason to believe that benefices were also given,
conditioned by the payment of certain fees (_census_). I do
not find, at this period, the granting of any benefice in which
the imposition of a rental is expressly indicated; but the nature
of things seems to show that such must have been the case, and I
do find mention made of benefices conferred _absque ullo
censu_. Anxiety in certain cases to obtain exemption from the
fees, proves that in other cases they were imposed. It is
probable that rentals were attached to benefices, granted
hereditarily, and not to those which were only given for the term
of an individual life.
Oaths Of Fidelity.
Loyalty was at first due only to that chief to whom it had been
expressly promised, and from whom a benefice had been received.
Charlemagne attempted to change this into an obligation common to
all the freemen in his States. Marculf has preserved to us the
formula in which he wrote to his counts, requiring from all
individuals the oath of fidelity. Thus did this prince endeavour
to break through the feudal hierarchy which was consolidating
itself, to bring himself into a direct relation with all freemen,
and to make the relation between king and subject predominant
over that between lord and vassal. The oath of fidelity was
universally exacted by the successors of Charlemagne, Louis the
Debonnair and Charles the Bald, but without any effective
results; for the tendency to hierarchical and feudal aristocracy
had become prevalent. We find besides numerous examples of the
maintenance of the relations between incumbent and patron, even
under Charlemagne. Under Charles the Bald this relation became
more positive and independent of the king. The prince even, for
the repression of public crimes, allowed his authority to be
exercised through the intervention of the lord; he made each lord
responsible for the crimes of his own dependents. It was
therefore especially in the empire of the lord over his men, that
the means were then sought of sustaining order and repressing
crime. This alone will sufficiently indicate the continually
growing force of feudal relations and the diminishing authority
of royalty.
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Lecture XV.
Of benefices conceded by great landowners to men dependent
upon them:
_First_, benefices conceded for all kinds of services,
and as a mode of paying salary;
_Secondly_, larger proprietors usurp the lands adjoining
their own, and bestow them as benefices on their
subordinates;
_Thirdly_, the conversion of a great number of allodial
lands into benefices, by the practice of
_recommendation_.
Origin and meaning of this practice.
Permanence of freeholds, especially in certain parts of the
Frankish monarchy.
Tributary lands.
Their origin and nature.
Their rapid extension: its causes.
General view of the condition of territorial
property, from the sixth to the eleventh century:
_First_, different conditions of territorial property;
_Secondly_, the individual dependence of territorial
property;
_Thirdly_, the stationary condition of territorial
wealth.
Why the system of beneficiary property, that is to say, the
feudal system, was necessary to the formation of modern society
and of powerful states.
Donors Of Benefices.
Kings were not the sole donors of benefices; all the large
proprietors gave them. Many leaders of bands of men were
originally united under the conduct of the king; these chiefs
became subsequently proprietors of large allodial estates.
Portions of these were conceded as benefices to their immediate
associates. Afterwards, they became large incumbents, and gave
also as benefices portions of the benefice which they held from
the king. Hence arose the practice of sub-enfeoffment. In the
capitularies, we perpetually meet with the words, _vassalli
vassallorum nostrorum_.
We find, during the whole of this period, even under Charlemagne,
numerous examples of benefices held otherwise than from the king.
Two letters of Eginhard expressly mention the concession, by way
of benefice, of certain portions of royal benefices.
It is the opinion of Mably, that other persons than the king
began to give benefices only after the reign of Charles Martel.
This mistake arises from his not having apprehended that the
relation of the chief to his associate, which afterwards grew
into that of lord to his vassal, was at first a purely personal
relation, entirely independent of and anterior to any concession
of benefices.
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It is impossible to determine at what particular time the
conferring of benefices became connected with the relation of the
beneficiary to his patron. This was probably almost immediately
after the territorial establishment.
Character Of Benefices.
The number of benefices was soon very considerable, and became
greater every day.
I. Benefices were given to free men belonging to quite an
inferior order, and employed in subordinate services. The
_majores villæ_, and the _poledrarii_, that is to say,
the stewards of the estates, and the keepers of the horses of
Charlemagne, had them. It was the policy of this prince to
scatter widely his gifts, and to reward zeal and fidelity
wherever he found them.
II. The larger proprietors continually made themselves masters of
the lands adjoining their own, whether these were lands belonging
to the royal domain, or such as were neglected, and had no very
definite owners. They had them cultivated, and often procured
subsequently the privilege of adding them to their benefices. The
extent of this abuse becomes manifest under Charles the Bald, by
the numerous expedients adopted by this prince to remedy it.
III. A large number of allods were converted into benefices by
means of a tolerably ancient usage. Marculf has left us the
formula by which this conversion was made; its origin we must
seek in the practice of _recommendation_. Recommendation was
not primitively anything else than the choice of a chief, or a
patron. A law of the Visigoths, called a _lex antiqua_, and
which must be referred to king Euric, towards the close of the
fifth century, says: "If any one have given arms, or any other
thing, to a man whom he has taken under his patronage, these
gifts shall remain the property of him by whom they have been
received. If this latter choose another patron, he shall be free
to _recommend_ himself to whomsoever he will: this may not
be forbidden to a free man, for he belongeth to himself; but he
shall, in this case, return to the patron from whom he separates
himself all that he has received from him."
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These were, then, the ancient Germanic customs. The relation of
the individual _recommended_ to his patron was a purely
personal one. The presents consisted in arms; his liberty
remained unimpaired. The law of the Lombards left to every one
the same liberty as the law of the Visigoths. Nevertheless, we
see, by the same capitulary, that this liberty began to be
restrained. Charlemagne defined the reasons by which any one
might be allowed to quit his lord, when he had received anything
from him. We may learn from this, that the ties contracted by
recommendation began to be strengthened. This practice became
very frequent. By these means order was promoted, so far as the
law was concerned, and protection and safety as far as concerned
the person recommended. When relations of service and protection
bearing a purely personal character were thus established with a
patron, other more tangible relations arose in which the property
of the parties was considered. The person recommended received
benefices from the lord, and became a vassal of his estate; or
rather he recommended his lands, as he had previously recommended
his person. _Recommendation_ thus became a part of the
feudal system, and it contributed most importantly to the
conversion of allodial estates into benefices.
There is, however, no reason to believe that all allods were thus
converted into benefices. Originally, such a conversion, or even
the mere acceptance of a benefice, was regarded by a free man as,
to a certain extent, a surrender of his liberty, being an
entrance upon a personal service. The large proprietors, who
exercised an almost absolute sovereignty in their own domains,
would not readily renounce their proud independence. Etichon,
brother to Judith the wife of Louis the Debonnair, was unwilling
any longer to receive his son Henry, who had accepted, without
his knowledge, from the king his uncle a benefice of four hundred
acres, and thereby entered upon the service of the crown. After
the triumph of the feudal system, a considerable number of allods
still remained in several provinces, particularly in Languedoc.
Tributary Lands.
After speaking of freeholds and benefices, it remains that I
should allude to the tributary lands, whose existence is attested
by all the memorials of this period. We do not necessarily
understand by this term lands on which a public impost was
levied, but lands which paid a fee, a rental, to a superior, and
which were not the actual and absolute property of those who
cultivated them.
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Their Rapid Increase.
This kind of property existed in Gaul before the invasion
of the Franks. The conquest that resulted from this invasion
contributed in various ways to augment their number.
_First_, wherever a Barbarian possessed of some amount of
power established himself, he did not take possession of all the
lands, but he most probably exacted certain fees, or services
equivalent to them, from almost all whose lands bordered on his
own. This is certain from _à priori_ considerations, and is
proved as a fact by the example of the Lombards, who invariably
contented themselves at first with rendering all the lands of the
conquered country tributary to themselves. They demanded a third
of the revenue, and afterwards took the property itself. This
fact shows clearly the mode of procedure that was adopted by the
Barbarians. Almost all the lands possessed by Roman or Gallic
chiefs, who did not possess sufficient power to rank with the
Barbarians, were obliged to submit to a tributary condition.
_Secondly_, conquest was not the work of a single day; it
continued to be carried on after the establishment of the
invaders. All the documents of the period indicate that the
principal officers and large proprietors continually exerted
themselves, either to usurp the possessions of their less
powerful neighbours, or to impose upon them rentals or other
charges. These usurpations are proved by the multitude of laws
that were enacted to prevent it. In the unsettled state of
society that then existed, the feeble were entirely placed at the
disposal of the strong; public authority had become incompetent
for their protection; many lands which were at first free, and
belonged either to their ancient owners, or to Barbarians of
slender resources, fell into a tributary state; many of the
smaller proprietors purchased for themselves the protection of
the strong, by voluntarily placing their lands in this condition.
The most common method of rendering lands tributary, was to give
them either to churches or to powerful proprietors, and then to
receive them again, on the tenure of usufruct, to be enjoyed
during life, on the payment of fixed fees. This kind of contract
is to be met with again and again, during this period. The same
causes which tended to destroy allods, or to convert them into
benefices, acted with even more energy in augmenting the number
of tributary lands.
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_Thirdly_, many large proprietors, whether of allodial lands
or of benefices, were unable themselves to cultivate the whole of
their lands, and gave them up by small portions to simple
cultivators, on the payment of certain fees and services. This
alienation took place under a multitude of forms and a variety of
circumstances; it certainly occasioned many lands to become
tributary. The large number and endless variety of rentals and
rights, known in a later time by the name of _feudal_, arose
probably either from similar contracts, or from usurpations
committed by the powerful proprietors. The constant recurrence in
writers and laws of the period of the terms _census_ and
_tributum_; the multitude of arrangements which relate to
them; the general course of events; lastly, the state in which
most landed property was found when order began to reappear,--all
these circumstances render it probable that at the end of the
period we are considering, the greater number of lands had fallen
into a tributary condition. Property and liberty were alike
devoted to be plundered. Individuals were so isolated, and their
forces so unequal, that nothing could prevent the results of such
a position.
Waste Lands.
The large number of waste lands, attested by the facility with
which any one who was willing to cultivate them might obtain
them, bears witness in its turn also to the depopulation of the
country, and the deplorable condition in which property existed.
The concentration of landed property is a decisive proof of this
state of things. When this kind of property is safe and
prosperous, it tends to become divided, because every one desires
to possess it. When, on the other hand, we see it accumulated
more and more in the same hands, we may almost certainly conclude
that it is in an unsound condition, that the feeble cannot
sustain themselves upon it, and that the strong alone can defend
it. Landed property, like moveable property, is only to be found
where it can continue to exist in safety.
There is reason to believe that most tributary lands, even those
which were not originally the property of the cultivators who
laboured on them, became at length by a right of occupancy in
reality their possessions, though burdened by rentals and
exactions of service. This is the natural course of things: it is
very difficult to remove a cultivator who has with his family for
a long time tilled the same soil.
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Different Kinds Of Landed Property.
Such were the vicissitudes of landed property, from the sixth to
the eleventh century. I will now give a summary view of the
general characteristics of this state of things, and endeavour to
estimate their influence on the progress of general civilization,
and more particularly of political institutions.
I. There was a great diversity in the conditions of property. In
our days, the condition of property is uniform and everywhere the
same; whoever the proprietor may be, he possesses his property,
whatever may be its character, on the same tenure of right, and
subject to the same laws as any other. Between properties which
are the most distinct in character, there is thus far an
identity. This is one of the most unequivocal symptoms and safest
guarantees of the progress of legal equality. During the times of
which we have been speaking, the diversified conditions under
which property was held would necessarily lead to the formation
of several classes in society, between which existed great,
factitious, and permanent inequality. Men were not merely
proprietors to a greater or less extent; besides the inequality
in the amount of wealth, there was also an inequality in the
nature of the wealth possessed, than which it is impossible to
conceive of a more powerful instrument for oppression. Even this,
however, was a step in advance out of the slavery existing among
the ancients. The slave could possess nothing,--was essentially
incapable of owning property. In the times of which I am
speaking, the mass of the population had not become full and
absolute possessors of property, but was attaining to a
possession that was more or less imperfect and precarious, by
which it had gained the means of yet loftier ascents.
Isolation Of Proprietors.
II. Landed property was then submitted to the restraints of
dependence on individuals. At present, all property is free, and
is at the disposal only of its owner. General society has been
formed,--the State has been organized,--every proprietor is
united to his fellow-citizens by a multitude of ties and
relations, and to the state by the protection which he receives
from it, and the taxes to which he is subject in return: there
is, thus, independence without isolation.
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From the sixth to the eleventh century, independence was
necessarily accompanied by isolation: the proprietor of an allod
lived upon his lands almost without buying or selling anything.
He owed scarcely anything to a State which hardly existed, and
which could not assure him of an efficient protection. The
condition, therefore, of the allods and their proprietors was at
that time a con that was to a considerable extent anti-social. In
more ancient times, in the forests of Germany, men without landed
properties lived at least in common. When they became
proprietors, if the allodial system had succeeded in becoming
prevalent, the chiefs and their associates would have been
separated, without ever being summoned to meet and recognize one
another as citizens. Society would not have been at all
constituted. It exists in those relations which unite men
together, and in the ties out of which these relations arise. It
necessarily demands a law, a condition of dependence. And when it
is not so far advanced as that a sufficient number of these
relations and ties have been established between the State and
the individual, then individuals become dependent one upon
another; and it was to this state of things that the seventh
century had arrived. It was the imperfection of society which
caused the allodial system in regard to landed property to
perish, and the beneficiary or tributary system to prevail. The
independence of allods could only exist in connexion with their
isolation, and isolation is anti-social. The hierarchical
dependence of benefices became the tie to unite properties with
one another, and society within itself.
Stationary Condition Of Wealth.
III. Out of this distribution and this character of landed
property, a very important fact has resulted; namely, that during
several centuries scarcely any means existed by which either the
state or individuals could increase their wealth. Most
proprietors of any importance did not cultivate the land at all;
it was for them merely a capital, the revenues of which they
gathered without troubling themselves to augment it, or to render
it more productive. On the other side, most of those who
cultivated the land were not proprietors, or were only so in a
precarious and imperfect manner; they did not seek from the earth
more than means of subsistence, and did not look to it as a means
of enriching or elevating them.
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Agricultural labour was almost unknown to the rich, and to the
poor it yielded nothing beyond the bare necessities of existence.
'Hence, resulted the continual impoverishment of the larger
proprietors, which forced them incessantly to have recourse to
violence, in order to preserve their fortune and their rank.
Hence, resulted also, at the same time, that stationary condition
of the population of the country districts which was prolonged
for so long a period. Landed property tended always to become
concentrated, from the very circumstance that its products did
not increase. Accordingly, it is not in the country districts and
in agricultural labour, but in the towns, in their commerce and
industry, that we shall find the earliest germs of the
accumulation of public wealth, and of the progress of
civilization. The indolence of the upper classes, and the misery
of the lower classes, in the middle ages, proceeded chiefly from
the nature and distribution of territorial property.
IV. Beneficiary property was one of the most influential
principles in the formation of large societies. In the absence of
public assemblies and of a central despotism, it nevertheless
established a bond, and formed relations between men dispersed
over a vast tract of country, and thereby rendered possible a
federative hierarchy, which should embrace a still wider circle.
Among the nations of antiquity, the extension of the State was
incompatible with the progress of civilization; either the State
must be dislocated, or despotism would prevail. Modern States
have presented a different spectacle, and to this result the
character of beneficiary property has powerfully contributed.
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Lecture XVI.
Of the state of persons, from the fifth to the tenth century.
Impossibility of determining this, according to any fixed and
general principle.
The condition of lands not always correspondent with that of
persons.
Variable and unsettled character of social conditions.
Slavery.
Attempt to determine the condition of persons according to
the _Wehrgeld_.
Table of twenty-one principal cases of _Wehrgeld_.
Uncertainty of this principle.
The true method of ascertaining the condition of persons.
Classification Of Persons.
We have investigated the condition of territorial properties,
from the fifth to the tenth centuries. We have recognized three
kinds of territorial property. _First_, allodial or
independent; _Secondly_, beneficiary; _Thirdly_,
tributary. If from this we should wish to deduce the state of
persons, we should find three social conditions corresponding to
these: _First_, the free men, or proprietors of allods,
bound to, and dependent upon no one, excepting the general laws
of the state; _Secondly_, vassals, or proprietors of
benefices, dependent in certain respects upon the noble from whom
they held their property, either during life or hereditarily;
_Thirdly_, the proprietors of tributary lands, who were
subject to certain special obligations. To which it is necessary
to add a fourth class, namely, the serfs.
We should observe further, that the first of these classes tended
to disappear and become absorbed in the second, third, and even
the fourth classes. This arose from facts which we have already
explained.
This classification of persons is in fact a real one, and is to
be met with in history; but we must not regard it as a primitive,
general, and perfectly regular classification.
The condition of persons preceded that of lands;--there were free
men before there were freeholds; there were vassals and
associates before benefices. The condition and relations of
persons did not therefore originally depend on the condition and
relations of territorial properties, and cannot be deduced from
them.
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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.
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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.
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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.
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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.
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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.
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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.
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.
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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.
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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.
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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.
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."
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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.
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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.
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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.
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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.
{146}
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_.
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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,
chartulari_i. 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.
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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.
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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.
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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]
[Footnote 14: That is, of course, districts analogous to
these divisions.]
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.
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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.
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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.
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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.
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Lecture XIX.
Government of Charlemagne.
Apparent revival of free institutions.
Individual independence and social liberty.
Organization of monarchical power under Charlemagne.