His active surveillance over his vassals and agents.

Rapid decline of monarchical institutions after his death.

Definitive predominance of the feudal system.

Central institutions during the same epoch: royalty.

Causes of the progress of royalty, and of the principle of

hereditary succession among the Franks.

Influence of the clergy.

Two Meanings Of Personal Liberty.

After the Merovingian anarchy, at the accession of the

Carlovingians and especially during the reign of Charlemagne, two

facts, which seem contradictory, present themselves to our

notice. Free institutions appear to gain new life, and at the

same time the monarchical system evidently prevails. We must

closely study this singular coincidence, and endeavour thoroughly

to understand its causes.

There are two ways in which we may understand a man's personal

liberty; first, as the independence of the individual having no

law but his own will; and secondly, as the enfranchisement of

every individual from every other individual will, which is

contrary to reason and justice.

Liberty, if taken in the first sense, is barbarous and

anti-social; it is the infancy, or rather the absence, of

society. The word _society_ itself indicates the union of

individuals in one common idea, feeling, and interest. Society

can exist only by the obedience of individuals to one common

rule. If the liberty of each man constitutes his only law, if

every restriction to the independence of individual will is

considered illegitimate, society is impossible. The law which

should rule society, according to truth and justice, is exterior

to and independent of individual wills. The object of society is

to discover this superior law, and to exact obedience to it

alone; but to this law obedience must be given; society is

possible only by the reign of brute force, or by the government

of true law. If the independence of the individual is regarded as

the condition of liberty, we may be certain that force will

become the dominant power of society, for society there must be;

it is an imperious necessity of human nature; and this necessity

will receive its gratification from force, if it cannot obtain it

from justice and reason.

{155}

Object Of Government.

The object of government, then, is twofold; it proposes, first,

to seek out and discover the true law which must decide all the

questions to which social relations give rise, and to subject to

this law all adverse individual wills; and secondly, to prevent

individuals from being subjected to any other laws but the true

law, such, for example, as the arbitrary will of other more

powerful individuals. Good and true government, then, does not

say to every individual: "Thou shalt be subject only to thy own

caprice," for on these terms there could be no society, and no

government; but it says: "Thou shalt be subject, not to the

caprice of any other individual, but only to reason and justice."

The progress of civilization consists, on the one hand, in

extending the authority of reason over all individuals, and in

neglecting no means to convince their individual reason and to

render their obedience voluntary; and, on the other hand, in

limiting the sway of the arbitrary will of individuals over one

another. Where the arbitrary will of one or more individuals

prevails, legitimate liberty does not exist; where the isolated

independence of every individual is maintained, society is

impossible.

The importance of this distinction between moral and natural

liberty, between social freedom and individual independence, is

immense. It would be easy to demonstrate its intimate connexion

with the true theory of liberty, considered in relation to man

personally, and independently of society. It is as a reasonable

being, capable of recognizing truth, that man is sublime; therein

resides the divinity of his nature: liberty is in him nothing but

the power of obeying the truth which he recognises, and making

his actions conform thereto. On this ground, liberty is very

respectable; but liberty is respectable on this ground alone.

Origin Of Despotism.

In the infancy of society, the liberty which almost all men

desire and defend, is natural liberty--liberty to do nothing but

what they please. This is caused by the imperfection of the moral

development of each individual, and by the imperfection of the

same development in the social powers; from which imperfection it

results that these powers ill-understand the true law, never

apply it, and are themselves directed by individual wills, as

arbitrary as they are capricious.

{156}

On this account, the state of freedom with which we meet at the

outset of all societies lasts for so short a time, and is so

quickly superseded by the despotism of one or several persons.

Society cannot exist if natural liberty, that is, individual

independence, exists in all the extent of its desire: and as

society is as yet ignorant both how to govern according to the

moral law, and how to respect moral liberty, force seizes upon

the government.

When, in such a state of society, a man of superior genius and

character appears, he is inevitably driven to found a despotism,

that is, the empire of his own individual will. He is irritated

and offended by the collision of all these barbarous or stupid

individual wills; his instinct tells him that society cannot

exist in this manner, that such a state of things is not society.

He is personally disgusted, moreover, at the sway which all these

narrow and ignorant wills claim to exercise over all things, and

even over himself. The authority of blind force over enlightened

force is nothing but a despotism; and what is greater insolence

than the power of a brutal multitude over a lofty individual

reason? The superior man becomes indignant and seeks to free

himself from this yoke, to impose some rule upon this disorder;

and this rule he seeks in his own reason, in his own will. Thus

is established, at such epochs, the despotism of a single person;

it is not radically illegitimate, and the best proof that it is

not, is afforded by the easy reception with which he meets the

admiration with which he is regarded, the gratitude even which he

inspires, and which lasts as long as the state of things which

originated his power. In truth, the loftiest superiority, that

which is most naturally called to empire by the disorder and

dissolution of society, soon becomes corrupted and rude, by

becoming itself a purely individual will, full of egotism and

caprice: but that which constituted its force and credit, at the

outset, was its better comprehension of the general wants of

society; it had obtained a deeper knowledge of the true law which

must govern society; and it rescued society from its losing

battle with a multitude of ignorant or ferocious individual

wills.

{157}

The Monarchy Of Charlemagne.

It is by these means that great men triumph at first. It was thus

that Charlemagne triumphed; it was thus that the first three

Carlovingians, Pepin of Heristal, Charles Martel, and Pepin the

Short, had prepared the way for him. Under the Merovingians, the

state was falling into dissolution; every strong man was making

himself independent, every weak man was falling into subjection

to a stronger. Although the Pepins had sprung from the dominant

aristocracy, they early struggled against its excesses. Charles

Martel put down the petty tyrants who had sprung up in every

direction. The tendency of Charlemagne's policy was to establish

the monarchical system, that is, to secure the universal

prevalence of his will by making it felt everywhere by means of

his agents. In order to understand with any exactness what was

Charlemagne's pure monarchy, we must see how he managed his own

property, and in what manner he administered his palace. The

activity of his surveillance was surprising; we shall find

details of it in his capitulary _De villis_, and in the

first part of one of Hincmar's letters. He governed his empire in

the same spirit. This was the only means he possessed for

restoring order, and applying the national forces to the

accomplishment of his designs. Into the despotism of a superior

man, there always enters a powerful instinctive feeling of

justice, and of protection to the weak. Charlemagne diligently

endeavoured to check the power of the nobles by subjecting them

to surveillance, and by bringing his subjects into direct

relationship with the royal authority. He paid great attention to

the employment and administration of his benefices, even when in

the hands of beneficiaries; he was careful not to give more than

one county to the same count, and this rule he rarely

transgressed; he ordered the nobles to distribute strict justice

to their vassals, and took most energetic measures to compel them

to do so, and to judge all men according to the law. Charlemagne

also kept watch over the conduct of the counts; the assemblies of

free men had almost entirely perished; and they requested as a

favour to be allowed to absent themselves. To supply the place of

the active surveillance exercised by these ancient assemblies,

Charlemagne created the _missi dominici_. These were

inspectors of the whole state of the kingdom, and particularly of

the conduct of the counts and nobles.

{158}

Decline Of The Frankish Monarchy.

The delegates of Charlemagne, the imperial judges, had assessors;

and as the free men whose duty it was to fill the office of

assessors seldom attended the periodical assemblies, Charlemagne

superseded them by the _scabini_, who were appointed by the

_missi dominici_, whom he enjoined to select them with the

greatest care. This intervention of the delegates of the

sovereign himself in judicial affairs, was a powerful means of

monarchical centralization.

In his Frankish empire, it was not against the ancient free

institutions, but against public anarchy and the disorderly power

of the strong, that Charlemagne directed these means of

government. In his other dominions, wherever he feared the

influence of liberty, his despotism was exerted to crush it

rigorously; thus he interdicted all public assemblies of the

Saxons.

All this monarchical organization fell with Charlemagne. Its

existence is protracted, as if by habit, in the speeches and laws

of Louis the Debonnair; but the hand which sustained the edifice

is no longer there. The language of Charlemagne in the mouth of

Charles the Bald, is nothing but a piece of ridiculous

rhodomontade. The feudal system gains the upper hand and

organizes itself in every direction. The great vassals either

attack the king or isolate themselves from him. The dignity of

count became so considerable, that the sons of kings and emperors

desire and obtain it. Hereditary succession prevails in the

offices of dukes, counts, viscounts, &c. Rhegino cites as a

singular fact that the sons of Duke Robert did not succeed to his

dukedom, and assigns as the reason, that their tender age

rendered them incapable of repulsing the Normans. The sons of two

counts of Austria were not put into possession of the counties of

their fathers; so their relations took arms, and drove out the

usurper. The power of the counts, now they had become hereditary

seigneurs, was augmented by the authority they had exercised,

under that title, as delegates of the king. The feudal hierarchy,

strong by its own intrinsic power, thus gained additional

strength from the wreck of royal authority. Hence resulted a new

order of local institutions, which I cannot now explain.

{159}

The picture of central institutions reproduces, under another

aspect, the same facts, and leads to the same results. Central

institutions, as you are aware, may be reduced to two--royalty,

and the general assemblies of the nation.

Royalty Among The Franks.

To royalty among the Franks you may apply what I have said of

royalty among the Anglo-Saxons; only, among the Franks, the royal

family does not bear, at the outset, the character of a religious

filiation. This is perhaps attributable to the fact that the

Franks were a confederation of different tribes; among them, the

king appears especially as a military chieftain. Under the first

Merovingians, there was always a great mixture of hereditariness

and election; hereditariness fluctuated among the members of the

same family; election, when it was not an act of violence, was

rather a recognition than an election.

It is a grave error to expect to find in facts the basis of a

primitive and exclusive law: facts may be made to demonstrate

anything. The most opposite parties have fallen into the same

error in this respect. Whoever has discovered, at the origin of a

state, an act of violence in conformity to his preconceived

opinion, takes it as the foundation of what he calls the general

law. Some fancy they can discern absolute and well-regulated

hereditary succession in the midst of barbarism; others transfer

the troubles and violence of a barbarian election into a more

advanced stage of civilization; whatever they find existing as

_fact_ in the infancy of society, they convert into

_law_ for society in its greatest extension and development.

This is neither philosophy nor history. The ruling _law_ is

that which is conformable to reason and justice. There is always

more or less of this law at every epoch in the life of human

society; but at no epoch is it pure or complete. We must resign

ourselves to the task of freeing it everywhere from all alloy.

Let us then pass by the primitive and exclusive right of royal

heredity, which existed neither among the Franks nor in other

countries; all that can be said is that the principle of

hereditary monarchy tended, early and constantly, to prevail. The

heirship of the private domain of the kings, which was of

considerable value, powerfully contributed to establish the

heirship of the kingdom, just as the partition of the private

domain among the sons led to the partition of the royal

dominions; but the partition of the kingdom was almost always

made with the consent of the nobles, whilst the heirship of the

crown, in each state, does not appear to have required their

formal assent.

{160}

Fall Of The Merovingians.

We have already seen what were the causes which occasioned the

fall of the Merovingian race, and the accession of Carlovingians.

The fall of the latter, in the tenth century presents some

features of similarity to that of the Merovingians, but between

the two, there was greater diversity than resemblance. The

ancient companions of the Frankish kings, the Leudes, the

Antrustions, and the beneficiaries, had left the court,

established themselves on their lands, and become feudal lords:

revolutions were no longer effected at the foot of the throne,

and in the interior of the royal palace. The feudal lords were

much more isolated, not only from the king, but also from one

another, than the Leudes had been under the Merovingians. Pepin

the Short was king in fact when Childeric III. was king in name;

Pepin assumed the name belonging to his power. At the end of the

tenth century, there was no king, and no powerful man in the

king's service who wielded the royal power in the name of Louis

V. Hugh Capet took possession of an almost vacant place, which,

at the moment, added much to his dignity, but little to his

authority. After the fall of the Merovingians, Pepin and

Charlemagne were able to attempt to establish the monarchical

system, and to inaugurate the central authority of the king; Hugh

Capet was unable to do this, nor did he attempt it; the feudal

lordships had divided the kingdom amongst them. Pepin was the

head of an aristocracy which had its centre in the palace of the

Merovingian kings. Hugh Capet was one of the principal members of

an aristocracy which had no centre; he made himself king because

the crown was within his reach. If Louis V. had resided at Rouen,

the Duke of Normandy would probably have seized the monarchy.

As regards the nature and extent of the royal authority, what I

have already said sufficiently indicates what it was: very

limited and precarious before the settlement of the Franks on

Roman territory--being nothing but the power of the chief of a

warlike band, always restrained by the presence of the free men,

his comrades--it became extended and strengthened after the

conquest by various causes:

{161}

Authority And Liberty.

1. By the dispersion of the Franks. They ceased constantly, to

surround the king; his authority was but slight over those who

left him; but those who were habitually near him depended more

closely upon him; a court of barbarian servants succeeded to a

court of warriors.

2. By the subjugation of neighbouring chiefs or kings.

3. By the increasing inequality of wealth: the royal property

greatly augmented, and this was their principal source of

power; they devoted all their energies to the amassing of

treasure; it was useless to leave their children a kingdom,

unless they could at the same time bequeath to them a full

exchequer.

4. By the influence of religious and Roman ideas. In the

opinion of the Christians, the king was the successor of Saul

and of David; in that of the Romans, he was the representative

of the emperors. The Frankish kings were fully sensible of the

advantages of this two-fold position, and they eagerly accepted

the titles of Patrician and Consul. But the royal authority had

no definite character; it was proportionate to the ability and

energy of those who exercised it.

Nothing can be more different than the idea of royal authority in

those times and in our own day. If a village were now to

disregard the king's authority, or to refuse to obey him, it

would be a serious event, the sign of a great decay of power.

Such was not the case then; authority was not universally

diffused over the country; remote places and interests were in

some sort independent of it. It had no real supremacy, except in

case of war; the rays of its influence were short, and wherever

it was applied, it was matter of fact rather than of right.

With regard to authority and liberty, right and fact are almost

identical in the infancy of society. The idea of right, separate

from fact, has but very little power and can scarcely be said to

exist. Hence arise the eternal vicissitudes of authority and

liberty; whoever ceases to possess them is never permitted to

regain them. It is the work and the master-work of civilization

to separate right from fact, and to constitute right a power able

to maintain, defend, and vindicate itself.

{162}

Influence Of Religious Ideas.

We must not, however, believe that religious ideas exercised no

other influence, in regard to the royal authority, than to extend

it, and to represent it as absolute and springing from divine

right; they contributed powerfully to render it moral. It is

true, they rendered it independent of the public liberties, which

were frequently mere embodiments of arbitrary power and brute

force, and thus they helped to establish absolute power; but at

the same time they subordinated it to the divine laws, in which

the moral laws are comprised. The limits which Frankish usages

imposed on the royal authority were very different from those

assigned to it by Christian ideas: "the king," to use the

expression of the Councils, "is he who governs with pity,

justice, and goodness; he who does not govern thus is not a king,

but a tyrant." The restraint which this principle laid upon the

royal authority was more efficacious than that which resulted

from the influence of Frankish usages. This system, it is true,

gave no positive and real guarantee for the observance of the

rules which it imposed as duties upon royalty. But the age in

which we live has taken too much pains to seek guarantees in

physical force, and has neglected to seek for them in the power

of moral ideas. In barbarian times, as all powers, both of kings

and subjects, are almost equally unregulated, they appear bad

guarantees to sensible men, who seek for purer sureties in moral

ideas. When, in the epoch of which we are now speaking, the

Franks or Leudes repress the abuse of royal authority, they

repress it only in virtue of their own powers, and defend their

liberties only out of regard to their own interests, and not in

obedience to any moral idea of justice and of general right. The

ecclesiastics, on the contrary, speak in the name of the general

ideas of justice and humanity. They oppose morality rather than

force to the abuse of authority. The clergy thus gave utterance

to things which answered to the necessities of all the weak, and

led them to consider them as their protectors. The vice of the

religious system, doubtless, is that it creates no political

institution, and consequently, no effectual guarantee; thus it

always ends by being more favourable to power than to liberty:

but, in barbarous ages, when power and liberty were almost

equally brutal and anarchical, this system has rendered immense

services to humanity and to civilization.

{163}

Lecture XX.

National assemblies of the Franks; their primitive character,

and rapid decline under the Merovingians.

They regain importance under the Carlovingians; and are held

regularly under Charlemagne.

Letter of Archbishop Hincmar _De ordine Palatii_.

National Assemblies Of The Franks.

National assemblies were held among the Franks long previously to

their settlement in the Roman empire, and to the establishment of

monarchy amongst them. In these assemblies were discussed, in

Germany, all the affairs of the confederation, tribe, or band.

All the free men, that is to say, all the warriors, were present;

but the authority of these assemblies, like the authority of the

kings, was uncertain and precarious. They were formed, not in

virtue of the principle of the sovereignty of the people, but in

virtue of the right of every free man to have the sole disposal

of himself. They were convoked especially to determine on

military expeditions. Beyond this, every man acted independently,

and was answerable for his conduct to none but the local

authorities. The _Champ de Mars_, or autumnal assembly, of

which we find traces at the beginning of the monarchy, was

habitually held for the purpose of dividing the booty which had

been gained.

The dispersion of the free men, the increasing inequality of

social conditions, and the subordination of the comrades to their

chief, soon caused the national assemblies of the Franks to lose

their character of universality. They ceased to be attended by

any but the large landowners, the Leudes, and the superior

clergy. In this state, they appear to have existed under most of

the Merovingian kings. Mention is sometimes made of the people in

general; but evidently the great majority of the free men neither

could, nor did attend these assemblies. Those who possessed power

and wealth were almost the only persons who attended; and they

regulated the business brought under their notice solely with a

view to their own interest. The increasing disorder, and

continual dislocations of the kingdom, rendered these assemblies

less frequent.

{164}

Letter Of Archbishop Hincmar.

They reappear, however, at the establishment of the authority of

the Mayors of the Palace. As leaders of the aristocracy of the

great independent landowners, they had need of their support. The

substitution of a new family of kings, instead of the ancient

race, was favourable to the importance of the assemblies. They

became, under the first Carlovingians, what they had been under

the first Merovingians,--a great council of government, in which

all great affairs were discussed. Pepin transferred the Champs de

Mars to the month of May; and Charlemagne held these assemblies

with a regularity heretofore unknown. In order to form a correct

idea of what they were under his reign, you must read the text,

and the entire text, of the letter written in 882, sixty-eight

years after the death of Charlemagne, by the celebrated Hincmar,

archbishop of Rheims, in compliance with the request of some of

the nobles of the kingdom who had asked his advice with regard to

the government of Carloman, one of the sons of Louis the

Stammerer. In this letter, Hincmar, as he himself informs us,

does nothing but copy a treatise _On the Order of the Palace,

De ordine Palatii_, written before 826 by the celebrated

Adalhard, abbot of Corbia, and one of the principal advisers of

Charlemagne. It is, therefore, a contemporary document, and its

authority is great.

"It was the usage at that time," says Hincmar, "to hold in each

year two assemblies, (_placita_,) and no more. The first

took place in the spring; at it were regulated the general

affairs of the whole kingdom; no occurrence, unless it were an

imperious and universal necessity, could alter what had been

decreed thereat. In this assembly, met together all the great

men (_majores_), both lay and ecclesiastic; the more

influential (_seniores_), to discuss business and agree on

decisions; the less influential (_minores_), to receive

these decisions, and sometimes also to deliberate upon them and

confirm them, not by a formal consent, but by the exercise of

their opinion and the assent of their understanding."

{165}

The Councils Of State.

"The other assembly, in which the general gifts of the realm

were received, was composed only of the more influential

members (_seniores_) of the first assembly, and of the

principal councillors. Here the affairs of the following year

were treated of, if there were any which it was necessary to

deliberate upon beforehand; as also those which might have

occurred during the course of the year which was about to

expire, and which required provisional attention without delay.

For example, if, in any part of the kingdom, the governors of

the frontiers (_marchisi_) had concluded a truce for any

time, the course to be pursued on the expiration of these

truces was discussed, and it was determined whether they should

be renewed or not. If, in any other quarter of the kingdom, war

seemed imminent, or peace appeared likely to be established, it

was examined whether the exigencies of the moment required, in

the first case, that incursions should be commenced or endured,

and, in the second, how tranquillity might be insured. These

lords thus deliberated long beforehand on what the affairs of

the future might require; and when suitable measures had been

agreed upon, they were kept so secret, that before the next

general assembly they were no more known than if no one had

paid any attention to the matter, and no decision had been

arrived at regarding it. The object of this was, that if it

were necessary to take, either within or without the kingdom,

any measures which certain persons, when informed thereof,

might wish to prevent, or frustrate, or render difficult, by

any artifice, those persons might never have the power to do

so.

"In the same assembly, if any measure were necessary either to

satisfy absent nobles, or to calm or excite the spirit of the

people, and such measure had not previously been taken, it was

discussed and adopted by the consent of those present, and it

was executed in concert with them by the orders of the king.

The year being thus terminated, the assembly of the following

year was arranged as I have said.

{166}

"With regard to the councillors, both lay and ecclesiastic,

care was taken, as far as possible, to select such persons as,

from their condition and duties, were filled with the fear of

God, and animated, moreover, by unalterable fidelity, so as to

consider nothing superior to the interests of the king and

kingdom, except eternal life. Men were sought who could be

turned aside from the path of duty neither by friends, nor

enemies, nor relatives, nor gifts, nor flatteries, nor

reproaches; men were sought who were wise and skilful, not with

that sophistical skill and worldly wisdom which are so opposed

to God's will, but with a just and true wisdom that might

enable them not only to repress, but also fully to confound the

men who place all their reliance in the tricks and stratagems

of human policy. The maxim of the councillors thus elected, and

of the king himself, was, never to confide, without their

mutual consent, to their domestics or any other person, what

they might have said familiarly to one another, either upon the

affairs of the kingdom, or about any particular individuals. It

made no difference whether the secret ought to be kept for a

day or two, or more, or for a year, or even for ever.

"It invariably happens that, if the conversation held in such

meetings, with regard to any individual, either by way of

precaution, or in reference to any other public interest, come

afterwards to the knowledge of that individual, he cannot but

feel great anxiety, or be driven to despair thereby, or, which

is a much more serious matter, be stimulated to infidelity; and

thus a man who might perhaps still have done service to the

State, is rendered useless,--which never would have happened if

he had not known what was said about him. That which is true of

one man may be true of two, of a hundred, or of a greater

number, or of a whole family, or of an entire province, unless

the greatest caution be observed.

The Officers Of The Palace.

"The _apocrisiary_, that is, the chaplain or keeper of the

palace, and the _chamberlain_, were always present at

these councils; they were therefore chosen with the greatest

care; or else, after having been chosen, they were furnished

with such instructions as should render them worthy of being

present. As to the other officers of the palace

(_ministeriales_), if there were any one who, first by

gaining instruction, and afterwards by giving advice, proved

himself capable of honourably occupying the place of one of

these councillors, or fit to become one, he received orders to

attend the meetings, giving the greatest attention to the

matters discussed thereat, correcting his erroneous ideas,

learning that of which he was ignorant, and retaining in his

memory that which had been ordained and determined.

{167}

The object of this was, that, if any unforeseen accident

occurred, either within or without the kingdom; if any

unexpected news arrived, in reference to which previous

provision had not been made (it rarely happened, however, that

in such cases, profound deliberation was necessary, or that

there was not time to convoke the councillors already

mentioned); the object of this, I say, was that, under such

circumstances, the officers of the palace, with the grace of

God, and by their constant habit of both attending at the

public councils and deliberating upon the domestic affairs of

the realm, might be capable, as need was, either to advise what

had best be done, or to point out how matters might be arranged

without inconvenience, until the next meeting of the council.

So much with regard to the principal officers of the palace.

The Palatines.

"In reference to the inferior officers, properly called

_palatines_, who had not to do with the general affairs of

the kingdom, but only with those in which the persons specially

connected with the palace were concerned, the sovereign

regulated their duties with great care; in order that, not only

might no evil arise therefrom, but also that if any disorder

were manifested, it might at once be repressed and extirpated.

If the affair were urgent, but might nevertheless without

injustice or wrong to any person be deferred for decision until

the meeting of the general assembly, the emperor expected the

_palatines_ to indicate the best means of delay, and to

imitate the wisdom of their superiors in a manner pleasing to

God and useful to the kingdom. As to the councillors whom I

first mentioned, they were careful, when summoned to the

palace, not to occupy themselves with private affairs, or with

the disputes which might have arisen with regard to the

possession of property or the application of the law, until

they had arranged, with the help of God, everything that

concerned the king and kingdom in general. This being done, if,

in obedience to the orders of the king, there remained any

affair which could not be settled either by the Count of the

palace, or by the officer under whose cognizance it fell,

without the assistance of the councillors, they proceeded to

investigate it.

{168}

The Capitularies.

"At one or other of the two assemblies, and in order that they

might not appear to be convoked without reason, there were

submitted to the examination and deliberation of the great

personages whom I have mentioned, as well as of the chief

senators of the realm, and in virtue of the orders of the king,

those articles of law named _capitula_, which the king

himself had drawn up under the inspiration of God, or the

necessity of which had been manifested to him in the interval

between the meetings. After having received these

communications, they deliberated upon them for one, two, or

three days, or more, according to the importance of the matter.

Messengers from the palace, going and coming, received their

questions and brought back answers; and no stranger approached

the place of their meeting, until the result of their

deliberations was placed before the eyes of the great prince,

who then, with the wisdom which he had received from God,

adopted a resolution which all obeyed. This course was pursued

for one, two, or more capitularies, until, by the help of God,

all the necessities of the time had been duly regulated.

"Whilst these affairs were thus arranged out of the presence of

the king, the prince himself, in the midst of the multitude who

had come to the general assembly, was busied in receiving

presents, greeting the most important individuals, conversing

with those whom he saw but seldom, exhibiting an affectionate

interest in the old, laughing and joking with the young, and

doing these and similar things to ecclesiastics as well as

laymen. However, if those who were deliberating upon the

matters submitted to their judgment desired it, the king went

to them, and remained with them as long as they wished; and

there they reported to him, with entire familiarity, what they

thought of various matters, and what were the friendly

discussions which had arisen amongst them.

"I must not forget to mention that, if the weather were fine,

all this went on in the open air; but if not, in several

distinct buildings, by which those who had to deliberate upon

the king's propositions were separated from the multitude of

persons who had come to the assembly; and then the less

important men could not enter. The building intended for the

meeting of the nobles was divided into two parts, so that the

bishops, abbots, and superior clergy could meet together

without any mixture of laymen. In the same way, the counts and

other distinguished personages of the State separated

themselves, in the morning, from the rest of the multitude,

until the time came, when, whether the king were present or

absent, they all met together; and then the nobles

above-mentioned, the clergy on their side, and the laymen on

theirs, proceeded to the hall which was assigned to them, and

where seats had been honourably prepared for them.

{169}

When the lay and ecclesiastical lords were thus separated from

the multitude, it was in their power to sit either together or

separately, according to the nature of the affairs which they

had to discuss, whether ecclesiastical, secular, or mixed. In

the same way, if they wished to send for any one, either to

bring them food, or to answer any question, and to dismiss him

after having obtained what they desired, it was in their power

to do so. Thus proceeded the examination of the affairs which

the king proposed for their deliberation.

Duties Of The King.

"The second occupation of the king was to demand of each what

he had to report or relate to him regarding that part of the

kingdom from which he had come; not only was this permitted to

all, but they were specially enjoined to make inquiries, during

the interval between the assemblies, about what was going on

both within and without the kingdom; and they were to seek

information from foreigners as well as natives, from enemies as

well as friends, sometimes by employing envoys, and without

being very scrupulous as to the way in which the information

was obtained. The king desired to know whether in any district

or corner of his kingdom the people were murmuring or

disaffected, and what was the cause of their disaffection, and

whether any disorder had occurred which required the attention

of the general council, and other similar details. He also

sought to know whether any of the conquered nations were likely

to revolt, or whether any that had revolted seemed disposed to

submit, or whether those that still remained independent

threatened the kingdom with any attack, and so forth. Upon all

these matters, wherever disorder or danger appeared, his chief

care was to learn what was the motive or occasion thereof."

{170}

Policy Of Charlemagne.

It is evident that these assemblies were considered by

Charlemagne as an instrument of authority, order, and

administration, much rather than as a national institution

rendered necessary by the rights and free spirit of his people.

The employment of this means of government, however, does not do

the less honour to the genius of Charlemagne. He had perceived

that the principal vice of the social system of his time, and the

principal cause of the weakness of his own authority, were the

absence of concentration, the isolation of individuals, and the

independence of his agents. Periodical convocations gave a centre

to all. The efforts of a great man in a barbarous age have as

their especial object the creation of a nation, for therein lies

his power; Charlemagne sought to find his nation lower than among

the great landowners and the great beneficiaries. He wished to

rally together the entire mass of the people, in order to

increase his own power, and to have at his disposal everywhere

potent means of action. His was a skilful despotism. Despotism,

in barbarous times, sometimes announces the presence of a man who

is before his age, and who has necessities and views in relation

to the future. Despotism, in the midst of an advanced state of

civilization, indicates the presence of a man who may be great

and even necessary to society, but who cares only for himself,

and for the times in which he lives.

{171}

Lecture XXI.

Decay of national assemblies under Louis the Débonnair and

Charles the Bald.

Definitive predominance of the feudal system at the end of the

tenth century.

Cause of this predominance.

Character of feudalism.

No trace of true representative government in France, from the

fifth to the tenth century.

Decay Of National Assemblies.

After the death of Charlemagne, and under Louis the Débonnair,

national assemblies were still frequently held. The movement

which Charlemagne had begun, had not yet entirely ceased. Unable

to create, Louis the Débonnair sought to imitate; at the spring

or autumn assemblies, he passed several useful rules, amongst

others the capitulary which summoned the _scabini_, or royal

judges, to the Champs de Mai. But the government, even with this

sanction, was lifeless and inefficient. The assemblies had been

nothing but an instrument of the monarch, and the monarch was now

no longer able to make use of them. Their decay was complete

under Charles the Bald. They began again to be nothing more than

meetings of the bishops and the great lay landowners. There were

forty-six assemblies held under Charles the Bald; but they were

almost all confined to the negotiations of the great nobles with

the king, respecting their private interests. Such was the

progress made by feudalism that the central aristocracy of the

great landowners, beneficiaries, and others, dissolved of itself.

They isolated themselves from one another in order to exercise,

each in his own domains, the almost absolute sovereignty which

they had acquired. The fall of the Carlovingians was the work of

Hugh Capet alone, and not of an aristocratic coalition. An

assembly did not meet, as at the fall of the Merovingians, to

elect a new king. Hugh Capet made himself king, and was

acknowledged as such, first by the vassals whom he possessed as

Duke of France, and afterwards, successively, by the great lords

of the kingdom, who remained, nevertheless, almost his equals in

power. Then the assemblies almost entirely disappeared, together

with every national and central institution; and nearly three

centuries elapsed before anything analogous to them was

established.

{172}

Retrospect Of Five Centuries.

Thus, at the end of the tenth century, of the three systems of

institutions which we characterized at the outset, viz.: free

institutions, monarchical institutions, and feudal institutions,

the last had completely prevailed; the first had perished early,

and Charlemagne had vainly attempted to establish the second. The

hierarchical organization of the proprietors of estates, and the

dislocation of France into as many petty sovereignties as there

were proprietors sufficiently strong to be almost independent and

absolute masters in their own domains,--such was the natural

result of the settlement of the Franks in Gaul.

During the five centuries which we have now briefly examined,

institutions, customs, and powers appear to be in a constant

state of disorder and conflict. The ancient liberties of the

Franks, the primitive independence of the warriors, royal

authority, the first rudiments of the feudal system,--all these

different elements present themselves to our view as obscure,

incoherent, and in opposition. We pass incessantly from one

system to another, from one tendency to another. At the end of

the tenth century, the struggle has almost ceased; the mass of

the population have fallen into a state of serfage, or become

tributary colonists; the possession of fiefs confers a real

sovereignty, more or less complete according to the power of the

possessor; these petty sovereigns are hierarchically united and

constituted by the bonds of suzerainty and vassalage. Nowhere is

this bond weaker than between the king and his vassals; for there

the pretensions to authority on the one hand, and to independence

on the other, are most earnestly contested.

The fundamental characteristics of this state of things are the

destruction of all centrality, both national and monarchic; the

hierarchical constitution of landed property; the distribution of

sovereignty according to the various degrees of this hierarchy;

and the servitude or quasi-servitude of the mass of the

inhabitants of the country.

{173}

Attacks On The Feudal System.

I have said that this system was the natural result of the

condition of the Franks in Gaul after the conquest; its

definitive success is proof of this. Another circumstance, also,

may be adduced in evidence. Before the tenth century, we witness

the constant struggle and alternating success of free,

monarchical, and feudal institutions. The efforts made in favour

of the first two systems, although some were supported by the

ancient independence of the Franks, and others by the ability of

great kings, were unsuccessful,--a more powerful tendency

frustrated and overcame them. When the struggle ceased, when the

feudal system had fully prevailed, a new conflict almost

immediately commenced; the victorious system was attacked: in the

inferior classes of society, by the mass of the inhabitants,

citizens, colonists, or serfs, who strove to regain some rights,

some property, and some liberty; in the superior class, by

royalty, which laboured to resume some general sway, and to

become once more the centre of the nation. These new efforts were

made, not, as during the period from the fifth to the tenth

century, in the midst of the confusion arising from the conflict

of opposing systems, but in the very interior of a single system,

of the system which had prevailed over, and taken possession of,

the whole of society. The combatants are no longer free men,

uncertain of their position and their rights, who feebly defend

the wreck of their ancient existence against the overpowering

invasion of the feudal system; they are citizens, colonists,

serfs, whose condition is clear and determined, who become in

their turn aggressors, and labour to free themselves from the

yoke of feudalism. We no longer behold the king uncertain of his

authority, and subject to have it unceasingly attacked, not

knowing whether he is king or lord, and defending his power

against the Leudes, or great landowners, who attempt sometimes to

infringe it, and sometimes to set it aside altogether; now it is

the chief of the nobles labouring to make himself the king of

all, and to convert suzerainty into sovereignty. From the fifth

to the tenth century, the feudal system had been in progress, in

development, and in aggression. From the eleventh century

onwards, this system had to defend itself against the people and

the king. The struggle was long, difficult, and terrible; but the

results altered with the position of the combatants. In spite of

the servitude into which the people fell in the tenth century,

from that time forth the enfranchisement of the people made

progress.

{174}

Notwithstanding the impotence of the royal power at the same

period, thenceforward the royal power gained ground. No effort

was vain, no step was retrograde. That monarchical system which

the genius of Charlemagne had been unable to establish, was

gradually founded by kings far inferior to Charlemagne. Those

ancient liberties, which neither Franks nor Gauls had been able

to preserve, were regained piecemeal by the commons and the third

estate. During the first period, monarchy and liberty had failed

to establish their position; it was destined that monarchy should

issue out of feudalism itself, and that emancipation should

spring from the bosom of servitude.

Character Of Feudalism.

With regard to feudalism itself, it is not my intention to sketch

its history. I hasten to arrive at that period at which I shall

again meet with a nation and a king, and at which endeavours

after a free government and a monarchical system will recommence.

I will only state here what were the dominant character and

general influence of the feudal system, in relation to power and

liberty--those two constituent elements of social order.

The feudal system brought the master into close connection with

the subject, and the sovereign with those who depended upon him;

in this sense it was a cause of oppression and servitude. It is

difficult to escape from a power that is ever near, and almost

present. The human will is subject to strange caprices, and never

is this more frequently exemplified than when the objects on

which it acts are in its power. You may breathe a little under an

arbitrary power, if it be very lofty and very distant; but if it

be at your elbow, you are truly a slave. Local tyranny is the

worst of all; though difficult to avoid, it can easily defend

itself. A handful of men have often kept the population of a

large town in servitude for ages. The citizens, colonists, and

serfs felt themselves so grievously oppressed by the feudal lords

that they preferred to their absolute power the absolute power of

the kings, even with more extensive and irresistible rights than

those possessed by the lords. A certain and general despotism has

neither the same interest in being tyrannical, nor the same means

of oppression. This will explain the intensity of feudal

oppression, and the profound hatred which it inspired.

{175}

Influence Of Feudalism.

The feudal system placed the inferior near his superior; and, in

this sense, it was a principle of dignity and liberty. Many

vassals were equal in rank to each other, and on terms of

familiarity; frequently the inequality between the superior and

inferior was not great, so that the latter was neither humiliated

thereby, nor obliged to play the courtier. Protection was a

right; the suzerain had absolute need of his vassals. There was

no room, in their relations to one another, for servility and

baseness of soul. Moreover, the vassals had reasons and means for

banding together to defend themselves against oppression; they

possessed common rights and interests. The intimacy in which they

lived with their lord prevented the feeling of their mutual

rights from becoming effaced within them; thus feudal relations

are generally full of dignity and high-spiritedness; a noble

sentiment, fidelity instead of submission, guides their conduct.

Now, wherever a profound moral sentiment exists, it must

necessarily call others into action; hence the many splendid and

honourable developments of human nature under the feudal system:

these developments were concentrated, it is true, within the

circle of the lords and vassals; but even that is better than the

equal abasement of all under an universal despotism.

Thus, whilst feudalism disregarded and insulted both justice and

the dignity of man among the masses whom it claimed as subjects,

it respected and developed both among its own hierarchy. In this

hierarchy, liberty existed, with all its accompaniments. Below

were servitude and its attendant evils, with all the shames that

follow in their train.

Absence Of The Representative System.

I may now fearlessly affirm that, in the institutions of the

period from the fifth to the tenth century, there is no trace of

the representative system. We pass from the independence of

individuals, sometimes to the power of the king, sometimes to the

predominance of the great landowners. But there is no political

organization founded upon ideas of general law and public

interest; all institutions have reference to private rights and

interests. Two opposite forces are in conflict; there is nothing

to reveal the division of powers, and their tendency towards one

common object.

{176}

There are no representatives of the rights of all; none elected

in the name of the interests of all; those who have rights

exercise them personally; those who do not exercise them

personally do not possess them. The ecclesiastics alone preserve

the idea of the general right of all men to justice and to good

government; but this idea is not transfused into any

institutions. Neither the philosophic principle, nor any of the

true external characteristics of representative government, can

anywhere be met with.

{177}

Lecture XXII.

Political institutions of the Visigoths.

Peculiar character of Visigothic legislation.

Its authors and its influences.

Destruction and disappearance of the middle class in the Roman

empire, at the time of the Barbarian invasion.

History of the Roman municipal system.

Three epochs in that history.

Laws Of The Visigoths.

In conformity to the plan which I sketched out for our guidance

at the commencement of these lectures, I have studied with you

the political institutions of the Anglo-Saxons and Franks, from

the fifth to the tenth century. I now come to those of the

Visigoths, the third of the Barbarian peoples established in the

Roman empire, about whom I propose to give you some information.

On opening the collection of the laws of the Visigoths, it is

impossible not to be struck with the compactness which

distinguishes them. The Franks and Burgundians have laws

partially anterior to their establishment upon the Roman

territory; customs handed down and gathered together from age to

age. The Visigoths have a code which was systematically drawn up,

and promulgated on an appointed day.

This fact alone indicates that the laws of the Visigoths were not

the work of the Barbarians themselves. The influence of the

clergy, indeed, was more potent among the Visigoths than among

the other Barbarian conquerors; not only did the clergy take part

in their government, but they acted as their civil and political

legislators. The Visigothic code was their work. How did this

happen?

Before the foundation of the Barbarian States, under the dominion

even of the last Roman emperors, the power of the new religion

gradually placed the Christian clergy at the head of the peoples;

the bishop was the defender and chief of the towns. After the

conquest, the Barbarians embraced the religion of the vanquished;

and as the Christian clergy were powerful in the towns, by virtue

of the municipal institutions, they used every effort to preserve

to the municipal system its form and efficacy.

{178}

In this they succeeded to a great extent. It is therefore of

essential importance to have some precise knowledge of the Roman

municipal system and its vicissitudes until the period of the

great Barbarian invasions, in order properly to understand the

condition of the urban populations at that epoch, and the part

which their clergy played in their new position, especially in

the kingdom of the Visigoths.

Fall Of The Roman Empire.

As I have already observed, the fall of the Roman empire in the

West is a strange phenomenon. Not only did the population not

support the government in its struggles against the Barbarians,

but the population, when left to itself, did not attempt any

resistance on its own behalf. More than this--nothing, during

this protracted conflict, revealed the existence of a nation;

scarce any allusion is made to what it suffered; it endured all

the scourges of war, pillage, and famine, and suffered an entire

change in its destiny and condition, without acting, speaking, or

even appearing.

This phenomenon is not merely strange, it is unexampled.

Despotism has reigned elsewhere than in the Roman empire; more

than once, foreign invasion and conquest have devastated

countries that had long groaned beneath a tyrannical government.

Even where the nation has not resisted, its existence has been

manifested in some manner in history. It suffers, it complains,

and, notwithstanding its humiliation, it struggles against its

evil fate; narratives and monuments attest what it experienced,

what it became, and if not what it did, at least what was done

with it.

In the fifth century, the remnants of the Roman legions disputed

with hordes of Barbarians the possession of the immense territory

of the empire, but it seemed as if this territory were a desert.

When the soldiers of the empire had departed or been defeated,

mention is made of no other person or thing. The Barbarian tribes

seize upon the provinces in succession; beside them, facts

exhibit to us only one other real and living existence, that of

the bishops and the clergy. If the laws did not remain to inform

us that a Roman population still covered the soil, history would

give us good reason to doubt its existence.

{179}

State Of The Roman Colonies.

It was especially in the provinces which had long been subject to

Rome, and wherein civilization was more advanced, that the people

thus disappeared. We look upon the letter of the Britons,

tearfully imploring the assistance of Aetius and the despatch of

a legion, as a singular monument of the cowardice of the subjects

of the empire. This astonishment is unjust: the Britons, being

less civilized and less Romanized than the other subjects of the

empire, resisted the Saxons, and their resistance has a history.

At the same period, under similar circumstances, the Italians,

the Gauls, and the Spaniards have no history; the empire withdrew

itself from their country, and the Barbarians took possession of

it, without the mass of the inhabitants taking the least part in

the transaction, or giving the slightest indication of the place

they occupied in the events which gave them over to so many

scourges.

Nevertheless Gaul, Italy, and Spain were covered with towns,

which had lately been wealthy and populous; civilization had

there received a splendid development; roads, aqueducts,

circuses, and schools, were abundant. Everything that can attest

wealth, or procure for a nation an animated and brilliant

existence, they possessed. The invasions of the Barbarians

occurred to pillage them of all their wealth, to disperse all

their friendly meetings, to destroy all their pleasures. Never

had the existence of a nation been more completely overthrown;

never had individuals had more evils to endure and more dangers

to apprehend. Whence came it that the populations were dumb and

dead? How is it that so many sacked towns, so many ruined

positions, so many blasted careers, so many ejected proprietors,

have left so few traces, I do not say of their active resistance,

but only of their sufferings?

The despotism of the imperial government, the degraded condition

of the people, the profound apathy which had seized upon both

masters and subjects, have been alleged to account for this--and

justly so: therein consisted the great cause of this strange

phenomenon. But it is easy thus to enunciate in a general manner

a cause which, though apparently in existence elsewhere, did not

elsewhere produce the same results. We must penetrate more deeply

into the state of Roman society, in the condition to which it had

been reduced by despotism. We must inquire by what means it had

been so utterly deprived of all consistency and life.

{180}

Roman Municipal System.

Despotism can clothe itself in very different forms, and exhibit

itself in proceedings which impart to its action a far higher

energy, and give a far wider scope to its consequences.

The great fact which had resulted from the system of imperial

despotism, and which alone can explain the phenomenon of which I

speak, is the destruction and disappearance of the middle class

from the Roman world: at the arrival of the Barbarians, this

class no longer existed; and for this reason also, the nation had

ceased to exist. This annihilation of the middle class in the

Roman empire was especially the result of a municipal system,

which had rendered it completely the instrument and the victim of

the imperial despotism. All the batteries of that despotism were

directed against this class; and it was imprisoned within the

municipal system that it might be turned to account, and made to

supply the necessities of the existence of the power that crushed

it.

Such a fact renders it worth while to study, in all its parts,

the machine by which it was produced. Those who are unacquainted

with the organization of the municipal system at this period, and

its effects upon Roman society, cannot properly understand the

history of these times.

In the constitution and existence of cities, within the Roman

world, we may discern three epochs, very distinct from each

other, and clearly marked out by actual revolutions. It is well

known that the Romans, adopting, in their conquests, a system

widely different from that of most ancient nations, were careful

not to exterminate or reduce to servitude the nations which they

had conquered. This difference of procedure was, I think,

occasioned by the condition of most of the neighbouring nations,

against which Rome first waged war. They were collected together

in towns, and not dispersed throughout the country; they formed

civic bodies, cultivating and governing a territory of greater or

less extent. These cities were numerous and independent. A nation

scattered over the land which it cultivates, may easily be

destroyed or enslaved; but the task is more difficult and less

profitable when that nation dwells within walls and has already

assumed the consistency of a petty State.

{181}

Moreover, the nations which, in ancient times, were enslaved or

exterminated, received this treatment almost invariably from

conquerors who were in search of a home, and who had settled in

the territory they had won. When the war was ended, the Romans

returned to Rome. Enslavement and extermination cannot be

effected either all at once or from a distance. The victors who

intend to do this must be ever present among the vanquished,

ceaselessly depriving them of their wealth, their liberty, and

their lands. The primitive condition of the Romans, at the

commencement of their conquests, exercised a decisive influence

upon the fate of nations.

Treatment Of Conquered Towns.

Originally, it does not appear that the Romans ventured to leave

their former inhabitants in the conquered towns. It is said that

violence supplied Rome with women; the same proceeding furnished

her with new citizens. The vanquished, when transferred to Rome,

became Romans like their victors. The conquered town was

occupied, either by soldiers, or by inhabitants of Rome,

belonging to the lowest class of the people, and sent thither to

form a kind of colony. The town of Cœre was the first which, on

being united to Rome, was allowed to retain its own laws and

magistrates after receiving, at least in part, the right of Roman

citizenship. According to Livy, in the year of Rome 365, a decree

of the Senate ordained _ut cum Cœretibus publice hospitium

fieret_.

Admission To Citizenship.

This system prevailed and received continual development. The

conquered towns were united to Rome by receiving the right of

citizenship. Some of them, like Cœre, only received the title of

Roman citizens for their inhabitants, and still retained their

own Senate and laws; others were admitted into the Roman city,

but without obtaining the right of suffrage in the _comitia_

of Rome. With regard to others, again, their political

incorporation was complete; their inhabitants enjoyed the right

of suffrage at Rome like the Romans themselves. These last alone

had a tribe in Rome.

The right of suffrage was granted successively to several towns

which had not received it at first. Finally, all Italy after the

war of the allies, and ere long a portion of Southern Gaul

received the right of Roman citizenship in all its plenitude.

{182}

The towns thus admitted to all the rights of Roman citizenship

were called _municipia_. When the whole of Italy was

invested with these rights, those towns which had not at first

fully possessed them retained for a considerable period the names

of _coloniæ, prefectures_, and so forth, which they had

originally borne; but, in fact, their condition was completely

assimilated to that of the ancient _municipia_.

Out of Italy, the condition of the conquered towns and districts

was still very various. History tells us of _coloniæ_, some

of which were Roman, and others Latin, of _populi liberi_,

_civitates fæderatæ, reges amici, provinciæ_. These

different denominations indicated different modes of existence

under the domination of Rome, and different degrees of dependence

--but these differences successively disappeared. I am referring

merely to the _municipia_.

Before conferring on a town the full rights of Roman citizenship,

inquiry was made whether it would accept them or not. On consent

being given, and, to use the legal phrase, _ubi fundus ei legi

factus erat_, the concession took place. Its principal

consequences were these: municipal rights, interests and offices,

in that town, were then separated from political rights, interest

and offices. The former remained in possession of the town, and

were exercised on the spot by the inhabitants, with entire

independence: the latter were transferred to Rome, and could be

exercised only within its walls. Thus, the right of making peace

or war, of passing laws, levying taxes, and administering

justice, ceased to belong to the _municipium_ individually;

but the citizens shared these rights, and exercised them at Rome

in common with the citizens who inhabited Rome; they repaired

thither to vote at the _comitia_, both upon the laws and

upon appointments to magisterial functions: they sought and might

obtain all the offices of the State. The city of Rome possessed

the privilege that these political rights could be exercised only

within its walls. Its inhabitants possessed no privilege above

those of the _municipia_.

The rights, interests, and offices, which we now call municipal,

and the entire disposal of which was secured to each locality,

are nowhere regularly distinguished and enumerated. At this

degree of civilization, neither the rulers nor the ruled feel the

necessity of foreseeing, defining, and regulating everything;

they trust to the good sense of mankind, and to the nature of

things. History, however, indicates the principal prerogatives

which continued local.

{183}

1. Worship, religious festivals, and ceremonies. Not only did

each town retain its ancient usages and independent authority

in this respect, but the Roman laws watched over the

preservation of these rights, and even made it a duty. Each

_municipium_, therefore, had its own priests and flamens,

as well as the right of choosing them, and of regulating all

matters in relation thereto.

2. Every _municipium_ also possessed the administration of

its own private property and revenues. In ceasing to be a

political personage, it became a civil personage. Public

edifices, whether devoted to purposes of utility or of

pleasure, festivals, local and general amusements, all expenses

of this kind, and all the revenues by which they were defrayed,

continued to be absolutely local matters. The inhabitants

appointed the magistrates who were charged with these

functions.

3. The police also remained, to a certain extent at least, in

the hands of the local magistrates; they had to watch over the

internal security of their town, and provisionally to arrest

those who disturbed its peace.

4. Although the judicial power had been withdrawn from the

localities, we nevertheless meet with some traces of a

Jurisdiction somewhat similar to that which we call municipal

police, giving judgment upon offences against the laws, with

regard to public health, weights and measures, markets, and so

forth.

Municipal Officers.

All these local affairs were managed either by magistrates

appointed by the inhabitants, or by the _curia_ of the town

or _college of decurions_, that is, of all the inhabitants

who possessed a fixed landed income. In general, the _curia_

appointed the magistrates; we meet with some instances, however,

of their being appointed by the general body of the inhabitants.

But at this period, and by a necessary consequence of the

existence of slavery, there were few free men who did not belong

to the _curia_.

The origin of the word _decurio_ is uncertain. Some writers

are of opinion that he was an officer placed at the head of ten

families, like the _tything-man_, or _tunginus_ of the

German peoples. Others think that _decurio_ simply means

member of a _curia_. The last interpretation seems to me the

more probable of the two. At a later period, the decurions were

called _curiales_.

{184}

Constitution Of The Municipia.

Such was the constitution of the _municipia_ at the end of

the Roman republic. It presents, as results, the following

general facts:

1. All political rights and interests, all political life, in

short, was centralized at Rome, not merely morally and by law,

but materially and in fact. Within the walls of Rome alone

could be consummated all the acts of a Roman citizen.

2. No centralization of this kind had taken place in reference

to what we now call administrative interests. Each town had

remained isolated and distinct in this respect, regulating its

own affairs, just as a private individual would do.

3. The appointment and surveillance of the magistrates who

administered the local affairs of the town took place on the

spot, without any intervention of the central power, and by the

assembly of the principal inhabitants.

4. Into this assembly were admitted all the inhabitants who

possessed a certain income. There is reason to believe that a

few free men only were excluded therefrom.

Here begins a second epoch in the history of the Roman municipal

system.

The absolute separation of political from local existence, and

the impossibility of exercising political rights elsewhere than

in Rome, could not fail to deprive the towns of their principal

citizens, and also of a great part of their importance. Thus,

during the epoch which we have just surveyed, purely local

interests occupied only a small place. Rome absorbed everything.

The independence left to other towns, as regarded matters that

were not treated of at Rome, or did not emanate from Rome, arose

from the slight importance of those matters.

When liberty began to totter at Rome, the decadence of the

political activity of the citizens necessarily diminished its

concentration. The chief men of the _municipia_ repaired to

Rome to take their part in the government of the world, either by

voting in the _comitia_, or discharging great public

functions. When the _comitia_ and the high magistracies

ceased to have any perceptible influence in the government, when

political life became extinct in Rome, together with the movement

of liberty, this affluence of all the important men towards Rome

decreased. Such a decrease was advantageous to the rising

despotism, and met with no opposition.

{185}

Progress Of Public Indifference.

Here, as in every instance, the necessary consequences of general

facts are revealed in particular and positive facts, up to that

time, no political act could be performed, and no suffrage be

exercised, elsewhere than within the walls of Rome. Suetonius

informs us that Augustus conferred upon the citizens of a large

number of Italian _municipia_ the right of giving their

votes without leaving their town, and sending them to Rome in a

sealed packet, that they might be properly scrutinized in the

_comitia_. Thus was exhibited, at once, the progress of

public indifference, and the growth of absolute power.

This progress continued rapidly. Ere long, the _comitia_ met

with the fate of all shams, and were abolished; all free

intervention of the citizens in the government disappeared, and

no political acts remained to be performed, either at Rome, or at

a distance therefrom; and as it is always a trick of nascent

despotism to offer to all men the deceptive advantages of a

shameful equality, the right of Roman citizenship was, almost at

the same period, bestowed indiscriminately upon the whole Roman

world. This right no longer possessed any political significance,

nor did it confer any real importance upon those who received it;

and yet this concession deprived those whom it levelled to the

condition of the multitude, of any importance they might still

have retained. There is reason to believe that this measure was

rather the consequence of a financial speculation than of a

clever despotic combination. But despotism, even when its conduct

is least guided by scientific principles, is never deceived by

its instincts. Such was, moreover, the natural course of things;

and degraded peoples must inevitably suffer their fate. All the

blame must not be laid on the master of the flock; and the hatred

which tyranny merits cannot save from our contempt nations that

are incapable of liberty.

However, as the degradation and ruin of an empire cannot be

effected in a moment, or by a single blow; as there still existed

in the Roman world some habits of liberty which despotism had not

had time or need to destroy, it was necessary to make some sort

of compensation for this complete disappearance of political

rights and life; and this compensation naturally resulted from

the change which had occurred.

{186}

Growing Importance Of The Municipia.

A portion of the importance which Rome had lost, had returned to

the _municipia_. A large number of wealthy citizens no

longer left their homes. Having been excluded from the government

of the State, their attention spontaneously turned to the affairs

of their own city. Nothing had yet stimulated the central power

to interfere in their administration. The treasures of Rome, and

the ordinary contributions of the provinces, were sufficient for

the imperial wants, and even for its follies. Tyranny then felt

but slightly the necessity of penetrating into every quarter, and

of possessing a detailed organization; and did not even know how

to set about it. The municipal system, therefore, retained

considerable importance; it even constituted itself with greater

regularity, and according to more positive, perhaps more

extensive rights, than those which it had previously possessed.

It is during the period from the reign of Nerva to that of

Diocletian, that the state of the _municipia_ appears under

this new aspect. A great many laws were passed to increase and

secure the property and revenues of towns. Trajan permitted them

to receive inheritances by way of _fidei commissus;_ and,

ere long, they were authorized to receive them directly. Hadrian

granted them the right of receiving legacies, and ordained that

any administrator who should misappropriate the property of a

town should be considered guilty, not of simple theft, but of

embezzlement. The ordinary income usually sufficed to meet the

expenditure, and it was not necessary to lay fresh taxes upon the

citizens. The State did not cast upon the cities any burdens

which did not directly concern them; and there were but very few

citizens exempt from that which was onerous in municipal duties.

The common people bore their part, by hard labour, in the public

works which interested each town: the dignity of the decurions

was recognised and sanctioned. Hadrian freed them from the

punishment of death, except in cases of parricide. The

decurionate was still sought after as an honour; and lastly, the

best proof of the importance and extension of the municipal

system, during this period, will be found in the number of laws

passed in relation to it, and the particular attention paid to it

by jurisconsults. Evidently, in the absence of political rights

and guarantees, the municipal system was the depository in which

all the rights and securities of citizens were contained.

{187}

Dangers Of Roman Despotism.

But the attempt to preserve this system could not long succeed.

We must, indeed, date revolutions from the day on which they

break out; this is the only precise epoch which we can assign to

them, but it is not that in which they originate. The convulsions

which we call revolutions, are far less symptomatic of what is

commencing than declaratory of what has passed away. The crisis

of the municipal system under Constantine is one of many proofs

of this truth.

Ever since the reign of Septimius Severus, the central power in

the Roman empire had been falling into ruin; its strength

decreased in proportion as its burdens and dangers augmented. It

became indispensable to cast upon others the burdens which it

could no longer bear, and to seek new strength in order to

confront new dangers. At the same time, there arose, in the midst

of the old Roman society, a society both young and ardent, united

in a firm and fruitful faith, gifted from within with principles

admirably adapted to fortify its internal constitution, and also

with an immense power of external expansion; I refer to Christian

society. It was by the action of these two causes, at first

divided and afterwards united, that the municipal system of the

Roman empire was dissolved, and ended by deteriorating into a

principle of ruin, and an instrument of oppression.

It is one of the thousand vices of despotism that its exigencies

increase in proportion as its means diminish; the weaker it

becomes, the greater is its need of exaggeration; the more it is

impoverished, the more it desires to spend. In point of strength,

as of wealth, sterility and prodigality are equally imposed upon

it; society, both men and things, in its hands, is but a lifeless

and limited material which it expends for its own support, and

into which it is compelled to penetrate more deeply as it becomes

more exhausted, and as it is itself more nearly losing all.

The despotism of the Roman emperors existed in presence of three

dangers: the Barbarians, who were continually advancing, and whom

it was necessary to conquer or to bribe; the populace, which was

continually increasing, and which it was necessary to feed,

amuse, and restrain; the soldiers, the force to be opposed to

this twofold peril,--a force all the more dangerous in itself, as

it was necessary to increase it, and grant it daily fresh

concessions.

{188}

Burdens Of The Municipia.

This position imposed immense burdens on despotism. In order to

obtain resources, it was compelled to create an administrative

machine capable of carrying its action into every quarter, and

which became itself a new burden. This system of government,

which commenced under Diocletian and ended under Honorius, had no

other object but to extend over society a network of

functionaries, who were incessantly occupied in extracting from

it wealth and strength, which they afterwards deposited in the

hands of the emperors.

The revenues of the towns, like those of private individuals,

were laid under contribution by the exigencies of power, and were

speedily invaded in a still more direct manner. On various

occasions, amongst others under Constantine, the emperor took

possession of a large number of municipal properties; but the

local charges which these properties were intended to meet were,

nevertheless, left undiminished. Nay, more, they were increased;

as the populace everywhere became more numerous and more disposed

to sedition, it became more expensive to feed and amuse them, and

greater force was required to keep them in check. The central

power, itself overburdened, cast a portion of its load upon the

towns. Now, whenever the regular revenues of a town did not

suffice to meet its expenditure, the _curia_, that is, the

body of wealthy citizens, the decurions, were bound to supply the

deficiency from their own private purse. They were, moreover, in

almost every place, the collectors of the public taxes, and were

responsible for this collection; their private property had to

make up for the insolvency of the tax-payers, as well as to

supply the deficiency of the communal revenues. The dignity of

decurion thus became a cause of ruin; this condition was the most

onerous of all social conditions; it was, nevertheless, that of

all the well-to-do inhabitants of all the _municipia_ in the

empire.

Nor was this all; as soon as the position of the decurions became

burdensome, there was a tendency to leave it, as well as an

advantage in doing so. Exemption from curial functions became a

privilege; and this privilege received an ever-increasing

extension. The emperors, who disposed of all public dignities and

employments, conferred them upon the men and the classes whom

they felt it necessary to gain.

{189}

Thus arose within the State, as a necessary result of despotism,

an immense class of privileged persons. In proportion as the

revenues of the towns diminished, their burdens augmented, and

fell upon the decurions, now fewer in number in consequence of

the concession of privilege. It was, however, needful to leave

enough to bear the burdens imposed on the _curiæ_. Hence the

origin of that long series of laws which make of each

_curia_ a prison-house in which the decurions were

hereditarily confined; which deprived them, in a multitude of

cases, of the free disposal of their property, or even disposed

of it without their consent for the benefit of the _curia_;

which pursued them into the country, into the army, wherever they

attempted to take refuge, in order to restore them to the

_curiæ_, from whence they desired to escape: laws, in fine,

which bound an immense class of citizens, in property as well as

in person, to the most onerous and ungrateful of public services,

just as you would compel animals to perform this or that species

of domestic labour.

Growth Of Christianity.

Such was the place which despotism finally assigned to the

municipal system; such was the condition to which municipal

proprietors were reduced by the laws. And whilst despotism was

straining every nerve to tighten the bonds of the municipal

system, and to compel the inhabitants to perform, as charges,

functions which had formerly been considered as rights, the

second cause to which I have alluded, Christianity, was labouring

to dissolve or dismantle municipal society, in order to

substitute another in its place.

During nearly three centuries, Christian society had been

silently forming in the midst, and, so to speak, beneath the

surface of the civil society of the Romans. It was at a very

early period a regularly-constituted society, with its chiefs,

its laws, its expenditure, and its income. Its organization,

originally entirely free and founded upon purely moral ties, was

by no means deficient in strength. It was at that time the only

association which could procure for its members the joys of the

inner life--which possessed, in the ideas and sentiments that

formed its basis, matter to occupy lofty minds, to exercise

active imaginations, and to satisfy the requirements of that

moral and intellectual existence which neither oppression nor

misfortune can completely extinguish throughout a nation.

{190}

Effects Of Christianity.

The inhabitant of a _municipium_, when he became a

Christian, ceased to belong to his town, and entered into the

Christian society, of which the bishop was chief. There alone,

henceforward, was the centre of his thoughts and affections, and

the abode of his masters and brethren. To the necessities of this

new association were devoted, if needful, his fortune and his

activity; thither, in fine, his entire moral existence was in

some measure transported.

When such a displacement has occurred in the moral order of

things, it speedily becomes consummated in the material order

also. The conversion of Constantine, in fact, declared the

triumph of Christian society, and accelerated its progress.

Thenceforward, power, jurisdiction, and wealth poured in upon the

churches and bishops, as upon the only centres around which men

were spontaneously disposed to group themselves, and which could

exercise the virtue of attraction upon all the forces of society.

It was no longer to his town, but to his church that the citizen

desired to bequeath his property. It was no longer by the

construction of circuses and aqueducts, but by the erection of

Christian temples, that the rich man endeavoured to rest his

claim to public affection. The parish took the place of the

_municipium;_ the central power itself, hurried on by the

course of the events with which it had become associated, used

all its efforts to swell the stream. The emperors deprived the

communes of a portion of their property, and gave it to the

churches; they deprived the municipal magistrates of a portion of

their authority, and gave it to the bishops. When the victory had

been thus avowed, interest combined with faith to increase the

society of the conquerors. The clergy were exempted from the

burden of municipal functions; and it became necessary to pass

laws to prevent all the decurions from making themselves clerks.

Without these laws, municipal society would have been entirely

dissolved; its existence was protracted that it might continue to

bear the burden to which it was condemned; and, strange to say,

the emperors most favourable to the ecclesiastical order, and

most liberal in augmenting its advantages, were compelled at the

same time to struggle against the tendency which induced men to

leave every other association, in order to enter into the only

one in which they could find honour and protection.

{191}

Decay Of The Municipia.

Such then, was, in truth, the state of things. Despotism, urged

by its own necessities, incessantly aggravated the condition of

the _curia_. That of the church flourished and improved as

incessantly, either by the aid of the peoples, or by the action

of despotism itself, which had need of the support of the clergy.

It was therefore necessary continually to relegate to the

_curia_ the decurions who were ever anxious to leave it. In

proportion as their number decreased, and as those who remained

became ruined and unable to bear the burden, their condition

became less and less endurable. Thus, evil sprang from evil;

oppression rendered ruin certain by its efforts to delay it; and

the municipal system which, as I have said, had become an actual

gaol to one class of citizens, daily hastened onwards to its own

destruction, and to that of the class which was chained to its

destiny.

Such was, with regard to the _municipia_, the course of

events and laws from the reign of Constantine until the fall of

the Western Empire. In vain did some emperors strive to raise the

communes; in vain did Julian restore to them a portion of the

property which they had previously lost. These changes in

legislation were ineffectual; a fatal necessity weighed upon the

_municipia_; and whenever the municipal system bordered

closely upon dissolution, and it was felt necessary to support

it, no other aid was given than by redoubling the energy of the

causes which urged it to destruction. Thus violent is the course

of decaying despotism. The municipalities were daily sacrificed

in greater measure to the empire, and the decurions to the

municipalities; the external forms of liberty still existed

within the _curiæ_, as regarded the election of magistrates

and the administration of the affairs of the city; but these

forms were vain, for the citizens who were called upon to give

them life by their actions, were stricken to death in their

personal independence and in their fortune. It was in this state

of material ruin and moral annihilation that the Barbarians, when

they established themselves in the Roman territory, found the

towns, their magistrates, and their inhabitants.

{192}

Abolition Of The Municipal System.

In the East, the agony of the _municipia_ was prolonged with

the duration of the empire. Here also some emperors made

unsuccessful attempts to restore them to prosperity. At length,

the progress of the central despotism became so great, and the

forms of municipal liberty so evidently a dead letter, that,

towards the end of the ninth century, the Emperor Leo, called the

Philosopher, abolished the whole municipal system at once, by the

following decree:--

"As, in things which serve for use in common life, we esteem

those which are convenient and useful, and despise those which

are of no utility, so we ought to act in reference to laws;

those which are of some advantage, and which confer some

benefit on the commonwealth, should be maintained and honoured;

but as for those whose maintenance is troublesome and

unimportant, not only should we pay no attention to them, but

we should reject them from the body of the laws. Now, we say,

that among the ancient laws passed in reference to _curiæ_

and _decuriones_, there are some which impose intolerable

burdens on the decurions, and confer on the _curiæ_ the

right of appointing certain magistrates, and of governing

cities by their own authority. Now that civil affairs have

assumed another form, and that all things depend solely upon

the care and administration of the imperial majesty, these laws

wander, in some sort, vainly and without object around the

legal territory; we therefore abolish them by the present

decree." [Footnote 15]

[Footnote 15: Novell. Leo. 46.]

Such were, during the period of twelve centuries which elapsed

between the treaty of Rome with Cœre and the reign of Leo the

Philosopher, the great revolutions of the municipal system in the

Roman world. We may characterize them by saying that, during the

first period, the municipal system was a liberty granted, in

fact, to the inhabitants of the towns; during the second, it was

a right legally constituted, as an indemnity for the loss of

political privileges; and, during the third, it was a burden

imposed upon a certain class of citizens.

I now terminate its history. In our next lecture, we shall

investigate the real state of the municipal system during the

third period, and its influence upon the condition of the

citizens.

{193}

Lecture XXIII.

Of the various social conditions in the Roman Empire, before

the final invasion of the Barbarians.

The privileged classes, and curials.

Their obligations, functions, and immunities.

Attributes of the _curia_ as a body.

Of the various municipal magistracies and offices.

Of the _Defender_ in cities.

Comparison of the development of the municipal system, and its

relations to the central organization of the State in the Roman

Empire and in modern societies.

Social Conditions In The Roman Empire

At the commencement of the fifth century the subjects of the

Empire were divided into three classes, forming three very

distinct social conditions:

1. The privileged classes;

2. The curials;

3. The common people. I speak only of free men.

The privileged class included:

1. The members of the Senate, and all those who were entitled

to bear the name of _clarissimi;_

2. The officers of the palace;

3. The clergy;

4. The cohortal militia, a sort of _gendarmerie_ employed

in the maintenance of the internal order of the State, and the

execution of the laws;

5. The soldiers in general, whether included in the legions, or

in the troops attached to the palace, or in the corps of

barbarian auxiliaries.

The class of curials comprehended all the citizens inhabiting

towns, whether natives or settlers therein, who possessed a

certain landed income, and did not belong, by any title, to the

privileged class. The common people were the mass of the

inhabitants of the towns, whose almost absolute want of property

excluded them from a place among the curials.

The privileged members of the first class were numerous, of

various rank, and unequally distributed among the five orders of

which it was composed; but that which was, in fact, the most

important and most sought after of their privileges, that which

alone was more valuable than all the rest, was common to the five

orders which constituted this class--I mean, exemption from

municipal functions and offices.

{194}

When we come to treat of the curials, you will learn what was the

extent of these duties; but you must first understand clearly who

were exempt from them.

1. The whole army, from the lowest _cohortalis_ to the

_magister equitum peditumve;_

2. The entire body of the clergy, from the simple clerk to the

archbishop;

3. It is an easy matter to define the two foregoing classes;

but it is not so clear who were the members of the class of

senators and _clarissimi_.

The number of the senators was unlimited; the emperor appointed

and dismissed them at his will, and could even raise the sons of

freedmen to this rank. All those who had filled the principal

magisterial offices in the Empire, or who had merely received

from the prince the honorary title belonging to those

magistratures, were called _clarissimi_, and had the right,

when occasion required, of sitting in the Senate. Thus the class

of _clarissimi_ included all the functionaries of any

importance: and they were all appointed and might be dismissed by

the emperor.

The Privileged Class.

The body of privileged individuals, then, was composed:

1. Of the army;

2. Of the clergy;

3. Of all the public functionaries, whether employed at the

Court and in the palace, or in the provinces.

Thus despotism and privilege had made a close alliance; and, in

this alliance, privilege, which depended almost absolutely on

despotism, possessed neither liberty nor dignity, except perhaps

in the body of the clergy.

This privilege, and especially exemption from curial functions,

was not purely personal, but also hereditary. It was so, in the

case of military men, on condition that the children also should

embrace the profession of arms; and in the case of civilians, it

was continued to those children who were born since their fathers

had belonged to the class of _clarissimi_, or had occupied

posts in the palace. Among the classes exempt from curial

functions was the cohortal militia, a subaltern service to which

those who entered it were hereditarily bound, and from which

there was no means of passing into a superior class.

The class of curials comprehended all the inhabitants of the

towns, whether natives thereof, _municipes_, or settlers

therein, _incolæ_, who possessed a landed property of more

than twenty-five acres, _jugera_, and did not belong to any

privileged class. Members of the curial class became so either by

origin, or by appointment.

{195}

Every child of a curial was a curial also, and liable to all the

charges attached to that quality. Every inhabitant who, by trade

or otherwise, acquired a landed property of more than twenty-five

acres, might be summoned to enter the _curia_, and could not

refuse to do so. No curial could, by a voluntary act, pass into

another condition. They were interdicted from dwelling in the

country, entering the army, or engaging in employments which

would have liberated them from municipal functions, until they

had passed through every curial gradation, from that of a simple

member of a _curia_ to the highest civic magistracies. Then

alone they might become military men, public functionaries, and

senators. The children born to them before their elevation

remained curials. They were not allowed to enter the clergy

except by granting the enjoyment of their property to any one who

agreed to be a curial in their place, or by making a present of

their possessions to the _curia_ itself. As the curials were

incessantly striving to escape from their bondage, a multitude of

laws were passed directing the prosecution of those who had

escaped from their original condition, and succeeded in effecting

their entrance furtively into the army, the clergy, public

offices, or the Senate; and ordaining their restoration to the

_curia_ from which they had fled.

Functions And Charges Of The Curials.

The following were the functions and charges of the curials thus

confined, voluntarily or perforce, in the _curia_.

1. The administration of the affairs of the _municipium_,

with its expenditure and revenues, either by deliberating

thereon in the _curia_, or by discharging the magisterial

offices of the town. In this double position, the curials were

responsible not only for their individual management, but also

for the necessities of the town, for which they were bound to

provide out of their own resources, in case the municipal

revenues were insufficient.

2. The collection of the public taxes, also under the

responsibility of their private property in case of defaulters.

Lands which were subject to the land-tax and had been abandoned

by their possessors, were allotted to the _curia_, which

was bound to pay the tax thereon until it had found some one

willing to take them off its hands. If it could find no one,

the tax on the abandoned land was divided amongst the other

estates.

{196}

3. No curial could sell the property from which he derived his

qualification, without the permission of the governor of the

province.

4. The heirs of curials, when not members of the _curia_,

and the widows or daughters of curials, who married men

belonging to other classes, were bound to give a fourth part of

their goods to the _curia_.

5. The curials who had no children could not dispose, by will,

of more than a fourth of their property: the other

three-fourths went, by right, to the curia.

6. They were not allowed to absent themselves from their

_municipium_, even for a limited time, without permission

from the judge of the province.

7. When they had withdrawn from their _curia_, and could

not be brought back, their property was confiscated to the

benefit of their _curia_.

8. The tax known by the name of _aurum coronarium_, and

which consisted in a sum to be paid to the prince, on the

occasion of certain events, was levied on the curials alone.

Advantages Granted To The Curials.

The only advantages granted to the curials in compensation

for these burdens were:

1. Exemption from torture, except in very serious cases.

2. Exemption from certain afflictive and dishonouring

punishments which were reserved for the populace; such as being

condemned to work in the mines, to be burned alive, and so

forth.

3. Decurions who had fallen into indigence were supported at

the expense of the _municipium_.

These were the only advantages possessed by the curials over the

common people, who, on the other hand, enjoyed the benefit that

every career was open to them, and that, by entering the army, or

engaging in public employments, they might raise themselves at

once into the privileged class.

The condition of the curials, then, both as citizens and in

relation to the State, was onerous and devoid of liberty.

Municipal administration was a burdensome service, to which the

curials were doomed, and not a right with which they were

invested. Let us now see what was the condition of the curials,

not in relation to the State, and to the other classes of

citizens, but in the _curia_ and amongst themselves. Here

still existed the forms, and even the principles, of liberty. All

the curials were members of the _curia_, and sat therein.

The ability to bear the burdens of the office entailed that of

exercising its rights, and taking part in its affairs; the names

of all the curials of each _municipium_ were inscribed, in

an order which was determined according to their dignity, age,

and other circumstances, in a book called the _album curiæ_.

{197}

When there was occasion to deliberate upon any matter, they were

all convoked together by the superior magistrate of the town, the

_duumvir, ædilis_ or _prætor_, and they all gave their

opinions and their votes; everything was decided by the majority

of votes: and no deliberation of the _curia_ was valid

unless two-thirds of the curials were present.

Attributes Of The Curia.

The attributes of the curia as a body were:

1. The examination and decision of certain affairs;

2. The appointment of magistrates and municipal officers.

Nowhere can I find an enumeration of the affairs which fell under

the cognizance of the _curia_ as a body. Everything,

however, indicates that most of those municipal interests which

required more than the simple execution of the laws or of orders

already given, were discussed in the _curia_. The proper and

independent authority of the municipal magistrates appears to

have been very limited. For example, there is reason to believe

that no expense could be incurred without the authorization of

the _curia_. It fixed the time and place for holding fairs;

it alone granted recompenses; and so forth.

There were even occasions on which the authorization of the

_curia_ was not sufficient, and when it was necessary to

have the sanction of all the inhabitants, whether curials or not;

for example, for the sale of any property belonging to the

commune, or for the despatch of deputies to wait on the emperor

in reference to any grievance or request. On the other hand, it

is evident that, by the general progress of despotism, the

imperial power continued daily to interfere more and more in the

affairs of the _municipia_, and to limit the independence of

the _curiæ_. Thus they might not erect new buildings without

the permission of the governor of the province; the reparation of

the walls around the towns was subject to the same formality; and

it was also necessary for the emancipation of slaves, and for all

acts which tended to diminish the patrimony of the city. By

degrees, also, even those affairs the final decision of which had

previously belonged to the _curiæ_ fell, by way of objection

or appeal, under the authority of the emperor and his delegates

in the provinces. This occurred in consequence of the absolute

concentration of judicial and fiscal power in the hands of the

imperial functionaries. The _curia_ and the curials were

then reduced to be nothing more than the lowest agents of the

sovereign authority. There was left to them hardly anything

beyond the right of consultation and the right of complaint.

{198}

Municipal Offices.

With regard to the appointment to municipal magistracies, it

remained for a long time, in reality, in the hands of the

_curia_, without any necessity for its confirmation by the

governor of the province, except in exceptional cases of towns

which it was specially intended to ill-use or punish. But even

this right soon became illusory by reason of the power given to

provincial governors to annul the appointment on the demand of

the person elected, When municipal functions had become merely

burdensome, all the curials elected to discharge these offices,

who had any influence with the governor, were able, under some

pretext or another, to get their election annulled, and thus to

escape from the load.

There were two kinds of municipal offices: the first, called

_magistratus_, which conferred certain honours and a certain

jurisdiction; the second, called _munera_, simple

employments without jurisdiction and without any particular

dignity. The _curia_ appointed to both kind of offices; only

the magistrates proposed the men whom they thought competent to

fulfil the _munera_; but even these were not really

appointed until they had obtained the suffrages of the

_curia_.

The _magistratus_ were:

1. _Duumvir_; this was the most usual name of the chief

municipal magistrate. He was also called, in certain

localities, _quatuorvir, dictator, ædilis, prætor_. His

tenure of office was for a year; it corresponded pretty nearly

with that of our mayors; the _duumvir_ presided over the

_curia_, and directed the general administration of the

affairs of the city. He had a jurisdiction confined to matters

of small importance; he also exercised a police authority which

gave him the right of inflicting certain punishments upon

slaves, and of provisionally arresting freemen.

2. _Ædilis_; this was a magistrate generally inferior to

the _duumvir_; he had the inspection of public edifices,

of the streets, of corn, and of weights and measures. These two

magistrates, the _duumvir_ and _ædilis_, were

expected to give public festivals and games.

{199}

3. _Curator reipublicæ;_ this officer, like the ædile,

exercised a certain oversight over public edifices; but his

principal business was the administration of the finances; he

farmed out the lands of the _municipium_, received the

accounts of the public works, lent and borrowed money in the

name of the city, and so forth.

The _munera_ were:

1. _Susceptor_, the collector of taxes, under the

responsibility of the curials who appointed him.

2. _Irenarchæ_, commissaries of police, whose duty it was

to seek out and prosecute offences, in the first instance.

3. _Curatores_, officers charged with various particular

municipal services; _curator frumenti, curator

calendarii_, the lender out on good sureties of the money of

the city, at his own risk and peril.

4. _Scribæ_, subaltern clerks in the two offices. To this

class belonged the _tabelliones_, who performed almost the

same functions as our notaries.

The Defenders Of Cities.

In later times, when the decay of the municipal system became

evident, when the ruin of the curials and the impotence of all

the municipal magistrates to protect the inhabitants of the

cities against the vexations of the imperial administration,

became evident to despotism itself; and when despotism, suffering

at length the punishment of its own deeds, felt society

abandoning it on every side, it attempted, by the creation of a

new magistracy, to procure for the _municipia_ some security

and some independence. A _defensor_ was given to every city;

his primitive mission was to defend the people, especially the

poor, against the oppression and injustice of the imperial

officers and their agents. He soon surpassed all the other

municipal magistrates in importance and influence. Justinian gave

the _defenders_ the right to exercise, in reference to each

city, the functions of the governor of the province during the

absence of that officer; he also granted them jurisdiction in all

cases which did not involve a larger sum than 300 _aurei_.

They had even a certain amount of authority in criminal matters,

and two apparitors were attached to their person; and in order to

give some guarantees of their power and independence, two means

were employed; on the one hand, they had the right of passing

over the various degrees in the public administration, and of

carrying their complaints at once before the prætorian prefect;

this was done with the intention of elevating their dignity by

freeing them from the jurisdiction of the provincial authorities.

{200}

On the other hand, they were elected, not by the _curia_

merely, but by the general body of the inhabitants of the

_municipium_, including the bishop and all the clergy; and

as the clergy then alone possessed any energy and influence, this

new institution, and consequently all that still remained of the

municipal system, fell into its hands almost universally. This

was insufficient to restore the vigour of the _municipia_,

under the dominion of the empire; but it was enough to procure

for the clergy great legal influence in the towns after the

settlement of the Barbarians. The most important result of the

institution of _defenders_ was to place the bishops at the

head of the municipal system, which otherwise would have

dissolved of itself, through the ruin of its citizens and the

nullity of its institutions.

Destruction Of The Middle Class.

Such are the facts: they demonstrate the phenomenon which I

indicated at the outset, namely, the destruction of the middle

class in the empire; it was destroyed materially by the ruin and

dispersion of the curials, and morally by the denial of all

influence to the respectable population in the affairs of the

State, and eventually in those of the city. Hence it arose that,

in the fifth century, there was so much uncultivated land and so

many towns almost deserted, or inhabited only by a famished and

spiritless population. The system which I have just explained

contributed, much more powerfully than the devastations of the

Barbarians, to produce this result.

In order rightly to apprehend the true character and consequences

of these facts, we must reduce them to general ideas, and deduce

therefrom all that they contain in regard to one of the greatest

problems of social order. Let us first examine them on the

relations of the municipal system with political order, of the

city with the State. In this respect, the general fact which

results from those which I have stated, is the absolute

separation of political rights and interests from municipal

rights and interests; a separation equally fatal to the political

rights and interests, and to the municipal rights and interests

of citizens. So long as the principal citizens possessed, at the

centre of the State, real rights and an actual influence, the

municipal system was not wanting in guarantees of security, and

continued to develop itself. As soon as the principal citizens

lost their influence at head quarters, these guarantees

disappeared, and the decay of the municipal system was not long

in manifesting itself.

{201}

The Roman Empire And Modern States.

Let us now compare the course of things in the Roman world, with

what has occurred in the modern states. In the Roman world,

centralization was prompt and uninterrupted. In proportion as she

conquered the world, Rome absorbed and retained within her walls

the entire political existence of both victors and vanquished.

There was nothing in common between the rights and liberties of

the citizen, and the rights and liberties of the inhabitant;

political life and municipal life were not confounded one in the

other, and were not exhibited in the same localities. In regard

to politics, the Roman people had, in truth, only one head; when

that was stricken, political life ceased to exist; local

liberties then found themselves unconnected by any bond, and

without any common guarantee for their general protection.

Among modern nations, no such centralization has ever existed. On

the contrary, it has been in the towns, and by the operation of

municipal liberties, that the mass of the inhabitants, the middle

class, has been formed, and has acquired importance in the State.

But when once in possession of this point of support, this class

soon felt itself to be in straits, and without security. The

force of circumstances made it understand that, so long as it was

not raised to the centre of the State, and constitutionally

established there; so long as it did not possess, in political

matters, rights which should prove the development and pledge of

those which it exercised in municipal affairs--these last would

be insufficient to protect it in all its interests, and even to

protect themselves. Here is the origin of all the efforts which,

from the thirteenth century onwards, either by States General or

Parliaments, or by more indirect means, were made for the purpose

of raising the burghers to political life, and associating with

the rights and liberties of the inhabitant, the rights and

liberties of the citizen. After three centuries of endeavour,

these efforts were unsuccessful. The municipal system was unable

to give birth to a political system which should correspond with

it and become its guarantee. The centralization of power was

effected without any centralization of rights.

{202}

Thenceforward the municipal system proved weak and incapable of

defending itself; it had been formed in spite of feudal

domination; it was unable to exist in presence of a central

authority, and in the midst of administrative monarchy. The towns

gradually lost, obscurely and almost unresistingly, their ancient

liberties. No one is ignorant that, at the moment when the French

revolution broke out, the municipal system in France was nothing

more than a vain shadow, without consistency or energy.

Results of the Comparison.

Thus although, in the Roman world and amongst ourselves, matters

have progressed in inverse proportion, although Rome began by the

centralization of public liberties, and modern States by

municipal freedom, in both cases facts alike reveal to us the

double truth that the two orders of liberties and rights are

indispensable to one another, that they cannot be separated

without mutual injury, and that the ruin of one necessarily

entails the ruin of that which at first survives.

A second result of no less importance is revealed to us by the

same facts. The separation of the municipal from the political

system led, in the Roman empire, to the legal classification of

society and to the introduction of privilege. In modern States,

an analogous classification and the presence of aristocratic

privileges prevented the municipal system from raising itself to

political influence, and from producing the rights of the citizen

from the local rights of the inhabitant. Where, then, municipal

and political life are strangers to one another, where they are

not united in the same system and bound together in such a manner

as reciprocally to guarantee each other's security, we may be

certain that society either is or soon will be divided into

distinct and unchangeable classes, and that privilege either

already exists or is about to make its appearance. If the

burgesses have no share in the central power, if the citizens who

exercise or share in the central power do not at the same time

participate in the rights and interest of the burgesses, if

political and municipal existence proceed thus collaterally,

instead of being, as it were, included in each other, it is

impossible for privilege not to gain a footing, even beneath the

iron hand of despotism and in the midst of servitude.

{203}

Principles of Liberty.

If from all this we desire to deduce a still more general

consequence, and to express it in a purely philosophical form, we

shall acknowledge that, in order that right may certainly exist

in any place, it must exist everywhere, that its presence at the

centre is vain unless it be present also in localities; that,

without political liberty, there can be no solid municipal

liberties, and _vice versâ_. If, however, we consider the

facts already stated in reference to the municipal system taken

in itself and in its internal constitution; if in these facts we

look for principles--we shall meet with the most singular

amalgamation of the principles of liberty with those of

despotism; an amalgamation, perhaps unexampled, and certainly

inexplicable to those who have not well understood the course of

circumstances, both in the formation and in the decline of the

Roman world.

The presence of principles of liberty is evident. They were

these.

1. Every inhabitant possessing a fortune which guaranteed his

independence and intelligence, was a curial; and, as such,

called upon to take part in the administration of the affairs

of the city. Thus, the right was attached to presumed capacity,

without any privilege of birth, or any limit as to number; and

this right was not a simple right of election, but the right of

full deliberation, of immediate participation in affairs, as

far as they related to what occurred in the interior of a town,

and to interests which might be understood and discussed by all

those who were capable of raising themselves above the cares of

individual existence. The _curia_ was not a restricted and

select council, it was an assembly of all the inhabitants who

possessed the conditions of curial capacity.

2. An assembly cannot administrate--magistrates are necessary.

These were all elected by the _curia_, for a very short

time; and they answered for their administration by their

private fortune.

3. In circumstances of importance, such as changing the

condition of a city, or electing a magistrate invested with

vague and more arbitrary authority, the _curia_ itself was

not sufficient; the whole body of the inhabitants was called in

to take part in these solemn acts.

Who, on beholding such rights, would not think that he saw a

small republic, in which municipal and political life were merged

in one another, and in which the most democratic rule prevailed?

Who would think that a municipality thus regulated formed a part

of a great empire, and depended, by narrow and necessary bonds,

on a remote and sovereign central power?

{204}

Who would not, on the contrary, expect to meet with all the

outbreaks of liberty, all the agitations and cabals, and

frequently all the disorder and violence which, at all periods,

characterize small societies thus shut up and governed within

their own walls?

Principles Of Despotism.

Nothing of the kind was the case, and all these principles of

liberty were lifeless. Other principles existed which struck them

to death.