40 sol.: 1st. one merely enfranchised, with the Bavarians; 2nd.
the herdsman keeping forty swine, with the Germans; 3rd. the
shepherd over eighty sheep, ibid.; 4th. the seneschal of
the man who has twelve companions (vassi) in his house,
ibid.; 5th. the marshal who kept twelve horses,
ibid.; 6th. the cook who has an assistant
(junior), ibid.; 7th. the goldsmith,
ibid.; 8th. the armourer, ibid.; 9th. the
blacksmith, ibid.; 10th. the cartwright, with the
Burgundians.
36 sol.: 1st. the slave, with the Ripuarians; 2nd. the slave
who had become a tributary planter, ibid.
30 sol.: the keeper of swine, with the Burgundians.
20 sol.: the slave, with the Bavarians.
We see by this table, that, notwithstanding the common opinion to the contrary, the wehrgeld is by no means an exact and certain indication of social conditions. It is not determined uniformly according to the origin, the quality, the position of individuals. The circumstances of the murder, the official character of the criminal, the greater or less usefulness or commonness of the man slain, all these variable elements enter into the determination of the wehrgeld. The simple fact of the murder having been committed at the court of the duke, while the victim is going to or returning from the house of the count, triples the wehrgeld of every man, whether he be a slave or a freeman, a Barbarian or a Roman. The elements of the wehrgeld are very numerous; it varies according to places and times. The Roman, the tributary, the slave, according to circumstances, may be valued at a greater or a less sum than a barbarian free man. We see many general indications which serve to show that the Roman was commonly less esteemed than a barbarian, the tributary or the slave less than the free man. This is very easily accounted for, and might have been anticipated. But it is not on this account less difficult to draw from such facts a positive indication of the state of individuals,—a precise and complete classification of social conditions.
There is no resource left but to renounce the idea of classifying social conditions, and of determining the condition of persons, according to any general principle, resting either on the nature of territorial properties, or in the legal appreciation of the value of different lives. We must simply inquire, by the aid of historical facts, who were the strong and powerful at the time; what common name was given to them; what share of influence and of liberty fell to the lot of those who were simply called free men. We shall thus arrive at clearer and more certain results. We shall often find that landed property is a great and principal source of strength, and that the wehrgeld is an indication of the amount of importance or of liberty possessed by individuals; but we shall not attribute to these two principles a general and decisive authority, and we shall not mutilate facts in order that they may harmonize with our hypotheses.
Of the Leudes or Antrustions.
Men, faithful to the king and to the large proprietors.
Different means of acquiring and retaining them.
Obligations of the Leudes.
The Leudes are the origin of the nobility.
Bishops and heads of monasteries were reckoned among the
leudes of the king.
Moral and material power of the bishops.
Efforts of the kings to possess themselves of the right of
nominating bishops.
Free men.
Did they form a distinct and numerous class?
The arimanni, and rathimburgi.
Mistake of M. de Savigny.
Rapid and general extension of the feudal hierarchy.
The freedmen.
q
Different modes of enfranchisement:
First, the denariales, enfranchised with
respect to the king:
Second, the tabularii, enfranchised with
respect to the church:
Third, the chartularii, enfranchised by a
charter.
Different consequences resulting from these different modes
of enfranchisement.
The first whom we meet with at this time occupying the highest place in the social scale are the Leudes, or Antrustions. Their name indicates their quality—trust expresses fidelity. They were men who had proved faithful, and they succeeded the associates of the German chiefs. After the conquest, each of the chiefs established himself, together with his own men, on a certain territory. The king had a larger and more considerable number of followers. Many remained with him. He had different means, which he very assiduously employed, of attaching to himself his Leudes, or of acquiring them.
1st. This was evidently the result aimed at in conferring benefices. In 587, Gontran, giving his advice to Childebert II. on his conduct to those who were about him, points out to him "those whom he ought to honour by appointments and by gifts, and those to whom he ought to refuse them."
2nd. The organization of the house, the palace, the court, borrowed in part from the traditions of the Roman empire, the passing amusements and the permanent advantages which were attached to them, induced many men of influence to become Leudes, or gave importance to the original Leudes of the king. The following are names of some of their offices; "count of the palace, referendary, seneschal, mareschal, falconer, butler, chamberlain, porter, head-porter, &c."
3rd. Marculf has preserved to us the formula by which a man of importance, cum arimanniâ suâ, "with his freemen, his band," was accustomed to enrol himself among the king's Leudes. Charlemagne took various precautions in order that persons who came to him in order to become his trusty followers (de truste faciendâ), should meet with no obstacle.
4th. It was to their Leudes that the kings were in the habit of giving important public occupations, such as belonged to dukes, counts, &c. There is reason for believing that these functions originally belonged to the principal chief who established himself in a territory. In the natural course of events these chiefs became themselves Leudes of the king or were supplanted by those who were such.
5th. The number of Leudes was the principal source of strength; accordingly they were multiplied by all kinds of devices. In 587, in the treaty of Andely, between Gontran and Childebert II, "it was agreed that neither of them should attempt to draw over to himself the Leudes of the other, or receive them if they came of their own accord." We continually find Leudes of importance threatening the king to leave his service, and enter into some other.
The general obligation of the Leudes was fidelity, service in the palace, and military service. The price of this obligation was, for the Leudes, power and riches. They had also certain civil advantages, but of a more uncertain nature. Their wehrgeld was a larger amount, whatever might otherwise have been their origin. We see that their prerogatives accumulated in proportion as their power was consolidated by the long possession of benefices. Charlemagne desired that his vassals should be honoured, and should hold, after himself, the first place in esteem. There were however among the Leudes of the king some who were less powerful, and some who even were poor.
Every large proprietor had his Leudes; his house was organized after the model of the king's; the same offices existed in each.
It is the opinion of Montesquieu, who is in this opposed by Montlosier, that the origin of the nobility is to be found in the Leudes. Neither of them has formed, in my judgment, a just and clear idea either of the condition of the Leudes or of the character of the nobility. The rank of the Leude and his advantages were purely of a personal character. The rank of a free Barbarian was hereditary, as were also his advantages: but the rank of the Leude, that is to say, the advantages and the superiority which he derived from his position, tended to become hereditary; that of the free man, on the other hand, tended, when he was isolated and left to himself, to become effaced and to lose its advantages. Most free men who did not become beneficiaries, vassals, Leudes of some importance, ceased to be free at all. The aristocracy of the Leudes tended to be constituted, the liberty of the free men tended to be destroyed:—the free men were, viewed in contrast with those who were not free, an aristocracy on the decline; the Leudes were, compared with free men, an aristocracy on the increase.
Mannert, in his treatise entitled, The liberty of the Franks, Freyheit der Franken, has very clearly explained the formation of the nobility among the Franks. There were many Roman Gauls among the Leudes of the Frankish kings: we find, for example, the names of Protadius, Claudius, Florentinianus, among the mayors of the palace towards the close of the sixth, and the commencement of the seventh century. They often changed their names into barbaric names. Thus the brother of Duke Lupus, born a Roman, called himself Magn-Wulfus (great wolf), and his son, who was bishop of Rheims, he called Rom-Wulfus (Roman wolf). These Romans entered into the company of the Leudes because they needed the protection of the kings; because they were disposed to place what power they had in his service; because they were acquainted with the country, and knew that the king required them; because, lastly, the kings, when they embraced Christianity, became reconciled to many wealthy and influential Gauls.
Bishops, and the principal heads of monasteries, or of large ecclesiastical corporations, were reckoned among the number of the king's Leudes. The power of the bishops among the Gauls, before the arrival of the Germans, is proved directly by facts; their influence, their wealth, is proved indirectly by the eagerness with which the position of a bishop was sought. Their importance was greatly augmented after the establishment of the Barbarians. They protected the ancient inhabitants from the Barbarian kings, and served the latter by their power in governing the ancient inhabitants.
They, and scarcely any but they, had preserved some science, some intellectual culture; the influence of religious ideas and practices over the converted barbarians was powerful; the impressions formed were strong and vivid at that stage of civilization: the clergy could excite the imagination, could tranquillize or alarm the conscience. The bishops and heads of monasteries acquired, through a large number of sources, great wealth; they in process of time became large beneficiaries; most of the property given to churches were given as benefices, and consequently involved the obligations belonging to that title; some property was conferred "with the complete right of proprietorship." In 807, Charlemagne charged his son Pepin to prevent the dukes and counts to whom the government of the provinces had been committed, from exacting from churches all the services due in general from free men. In 816, Louis the Debonnair provided that each church should possess a farm absolutely free from all charge. Facts disclose at every step the importance of the bishops; they were employed in important transactions, and assisted in drawing up laws. Counts, dukes, large Barbarian proprietors, became bishops. The temporal consequences attached to ecclesiastical excommunication did not fail to put into their hands a powerful weapon of attack or defence. Churches obtained immunities of all kinds, from military service, rights of custom, &c.; they became asylums of refuge—a popular right which, during these times of brute violence, far more generally protected the innocent than shielded the guilty.
The nomination of bishops was an ancient right of the priests and the faithful. The importance of these functions, and the riches of the churches, induced the king to encroach upon this prerogative. Further, they urged some kind of claim to it, as being lords of the churches on which they had conferred benefices. They used the right of confirmation in order to possess themselves of the right of nomination. At first, bishops were the most sure and devoted Leudes of the king; kings and bishops had need of one another. Very soon afterwards the bishops became so powerful as to be able to act independently of the kings.
At this epoch convents also assumed great importance, although their heads do not seem to have played so prominent a part in Prance as in England.
Upon the whole, the power of the clergy at this period was as useful as it was great. It awakened and developed moral necessities among the Barbarians;—it commanded and inspired a respect for the rights and sufferings of the feeble;—it gave an illustration of the reality of moral force, when everything was at the disposal of material force. That is a false notion which assumes that an institution or an influence is to be attacked by reason of the evil effects which it may produce after centuries of existence; we must consider and appreciate it in the times when it was originally formed.
From the Leudes, let us pass to those who were simply free men.
There are words which have, in our time, so simple and absolute a signification, that we apply them without consideration or scruple to times in which their actual significance was not recognized at all. The expression free man is an example. If by it we mean the man who is not a slave, the man who is not the property of another man, and can neither be given nor sold as an article of traffic, there were a great number of free men from the fifth to the tenth centuries. But if we attach to this expression the political sense which it possesses in our days, that is to say, the idea of a citizen dependent on no other citizen, who depends for the safety of his person and his property only upon the state, and the laws of the state, the number of free men was very inconsiderable at the period of which we speak, and was continually diminishing. Most of those who were not serfs were engaged or were binding themselves with increasing frequency, either for the security of their persons or of their properties, to the service, and to a certain amount of dependency upon some man more powerful than themselves, who employed them in his house or protected them at a distance. The independence of the citizen as it existed in the republics of antiquity, and as it exists in our public communities, became more and more rare from the fifth to the tenth centuries. Eminent publicists, M. de Savigny among others, in his Histoire du droit romain dans le moyen âge, have affirmed that always at this period a numerous class of free men existed, true citizens, exempt from all personal dependence, depending only upon the state and forming the body of the nation. This involves a complete confusion of times' and a misapprehension of the natural succession of events. Doubtless at the time of the invasion, and during the period which immediately followed it, there were many free men of this kind; the independence of individuals who live a wandering and barbarian life did not suddenly and completely vanish under the influence of the new circumstances which resulted from their territorial establishment. But, so far as regards the greater number of free men, this independence was rapidly absorbed by new ties, and by the very numerous and various forms of feudal hierarchy. We may think we have found, under certain names which are frequently to be met with in documents and historical works, such as, Arimanni, Erimanni, Herimanni, Hermanni, among the Lombards, and Rachimburgi, Rathimburgi, Regimburgi, among the Franks, a class of men actually free—citizens in the sense in which we use the words at the present time. But when we investigate more closely, we soon learn that no such class is to be found, and that nearly if not quite all the Arimanni or Rathimburgi, were bound in the fetters of a feudal organization and depended far more on some superior individual than on the protection of the state.
Many learned men also think that the practice of enfranchisement which prevailed at this period created many free men—as completely so, as if they had inherited their freedom as a birthright. This also is, I think, a mistake. Enfranchisement was frequent, but it conferred complete freedom on very few; it transformed many into cultivators and tributaries, or placed them in other analogous positions, which however did not insure entire liberty. In order to be convinced of this, we have only to examine the acts of enfranchisement themselves. There were several kinds, and each was attended with different consequences. We find, First, the denariales, or enfranchised with respect to the king; although their life was valued at 200 solidi, like the life of a Frank, yet their liberty was incomplete; they could not bequeath property to others than their children; the composition for their lives was paid to the king, not to their relatives, which plainly shows that the king regarded them, as homines regii. Second, those enfranchised with respect to the church, or tribularii. Those thus enfranchised became homines ecclesiastici; they could not become denariales according to the laws of the Ripuarians, and their property went to the church if they died without issue. Third, those enfranchised per chartam, chartularii. The expressions of the charter which gave them their liberty seem to be completely unambiguous; but it is doubtful whether the results were similarly unambiguous, since the denariales themselves remained, in certain respects, in an inferior condition. The statutes of Charlemagne, which provide that the terms of composition for the denariales should be paid to the king, and that they should not possess their liberty as a heritage till after the third generation, apply the same conditions also to the chartularii, and even to those who were enfranchised to the church, the tabularii.
The act and the consequences of enfranchisement varied in the course of the epoch on which our attention is occupied. This fact has not been observed by M. Montlosier and all those who bring together facts separated from one another by a long interval of time, in order to make a complete system. They apply to the same epoch facts belonging to different times. History presents us with instances of slaves who, after the Germanic invasion, raised themselves to the condition not only of free men, but of Leudes and large proprietors. Individual cases of these are well authenticated, and were very likely to have occurred in these times of disorder; but from these no general rule is to be inferred. In spite of the vast influence of religious ideas—and all formulas of enfranchisement are prefaced by the expression of a religious sentiment and design—the general movement of the epoch which we are considering, so far as regards the condition of persons, was much more towards the extension of servitude, under different forms and in varying degrees, than towards the maintenance or the advancement of liberty.
Simultaneous existence of three systems of institutions, after
the settlement of the Franks in Gaul.
Conflict of these three systems.
Summary of this conflict, its vicissitudes, and results.
Its recurrence in local and central institutions.
Of local institutions under the Frankish monarchy.
Of the assemblies of free men.
Of the authority and jurisdiction of the great landowners in
their estates.
Of the authority and jurisdiction of the dukes, counts, and
other royal officers.
From the ancient condition of the barbarians in Germany, and from their new situation after their establishment in the Roman empire, there issued three systems of institutions, of different principles and results, which, from the fifth to the tenth century, co-existed at first for some time, and afterwards commingled and conflicted with each other with alternate success and defeat.
In their primitive state, in Germany, the Barbarians were all free; every individual was important—nothing of any moment could be undertaken or decided upon without the approbation and concurrence of the majority. Hence arose the common discussion of affairs of common interest, and the influence of election upon the choice of chiefs or judges or in other words, the institutions of liberty.
The second principle with which we meet is the attachment and subordination of the tribesmen to their chief. Up to a certain point they were dependent upon him, even for their subsistence. This dependence increased after their territorial establishment. The authority of the chiefs over their comrades augmented; and the liberty of the latter diminished with their importance. They became beneficiaries or vassals, colonists, or even serfs; a hierarchy was formed among the landowners. Hence arose those aristocratic and hierarchical institutions which gave birth to the feudal system.
The power of the kings, originally very limited, became extended after conquest by the dispersion, of the nation, the concession of benefices, and the predominance of the principle of hereditary succession to the throne. A conflict arose, not between the power of the king and the liberties of the citizens, but between the power of the king and that of the nobles, especially of the king's own Leudes. The kings made attempts to found the entire government upon the monarchical principle, and, with this object, to place themselves in direct connexion with all their subjects. Under Charlemagne, this attempt reached its apogee, and seemed likely to succeed. But the monarchical system succumbed beneath the feudal system.
Thus, free institutions, aristocratic institutions, monarchical institutions:—local and general assemblies of free men to deliberate on common affairs, military, judicial, or others, in presence of or in concert with the king or his delegates:—the subordination of the simple free man to the lord, of the vassal to the chieftain; the nobles administering justice, making war with each other, and imposing certain charges on their vassals; the progressive organization of the royal power; dukes, counts, royal officers, missi dominici, transacting public affairs and administering justice, even in opposition to the nobles:—these are the three systems of facts, the three tendencies which present themselves to our notice during the period from the fifth to the tenth century. The conflict of these three tendencies constitutes the history of the public institutions of this epoch.
The system of free institutions rapidly declined. It succumbed beneath the system of the predominance of the great landowners, and of the hierarchy of benefices. A conflict arose between the principles of the feudal system, and the endeavours of the monarchical system. In the conflict of these two systems, however, we find remnants of the system of free institutions. These remnants were allied sometimes to the feudal, sometimes to the monarchical system—most frequently to the latter. Charlemagne attempted to render the institutions of liberty auxiliary to the triumph of the monarchical system. We observed something analogous to this in the history of the Anglo-Saxons; but there the system of free institutions never perished; the common deliberation of the free landowners, in the county-courts, always subsisted. Among the Franks, the simultaneity and conflict of the three systems were more distinct and animated; the first was the weakest and perished early.
In treating of the Franks, as of the Anglo-Saxons, we shall first examine their local institutions, and then their general institutions; and we shall everywhere meet with the great fact to which I have just alluded. We shall follow it in its vicissitudes, and we shall see, first, how the system of free institutions perished, in localities and at the centre; secondly, how the monarchical system was for a moment really successful and strongly predominant under Charlemagne alone; and thirdly, how the feudal system, that is to say, the aristocratic and hierarchical organization of territorial properties and sovereignties, could not but prevail, as it really did in the end.
In Frankish Gaul, as among the Anglo-Saxons, the territory was divided into counties, hundreds, and tythings. [Footnote 14]
[Footnote 14: That is, of course, districts analogous to these divisions.]
The counts were called grafen, judices; the centeniers, centgrafen; and the tything-men, tungini, thingrafen. Each of these officers held a court, placitum, mallum, at which justice was administered, and the business of the district transacted. This court was at first an assembly of all the free men of the district; they were bound to attend, and a heavy fine was imposed as the penalty for non-attendance. There, as I have said, they distributed justice, and deliberated upon matters of common interest. Civil transactions, sales, wills, enfranchisements, were carried on in public. There, also, military convocations were made. The court or plaid of the tything-man, decanus, is seldom met with, and was of little importance, as in England. The powers of the courts or assemblies of free men, held by the centenarii and vicarii were somewhat limited; judgments could not be given upon questions involving property or personal liberty, unless it were in presence of the imperial envoys or the counts.
Such were the free institutions and the meetings for common deliberation, of separate localities. These primitive plaids correspond to the ancient assemblies of the Germans in Germany.
Besides the plaids of freemen, appears the jurisdiction of the nobles or important landowners over the persons who dwelt on their domains. The chieftain distributed justice to his comrades, or, as they had now become, his colonists. His jurisdiction was not, however, altogether arbitrary; his comrades were his assessors in his court. The conjuratores, who attested the truth of the facts stated, almost entirely settled the affair. If we consider these institutions in their origin, we find that the seignorial courts of justice, although obscure and somewhat inactive, existed simultaneously with the assemblies of freemen, exempt from the circumscription and jurisdiction of the officers of the crown. The jurisdiction of the churches was derived from the jurisdiction of the seigneurs, and both were exercised in virtue of the proprietorship of the domain, which rendered the landlord the patron of its inhabitants.
These are the first rudiments of that feudal organization which, by establishing the authority and jurisdiction of the seigneur over his tenants, vassals or colonists, constantly tended to destroy the authority and jurisdiction of the assemblies of free men. A conflict began between the feudal principle of hierarchical subordination, and the principle of the union of equals in common deliberation. This conflict commenced as early as the beginning of the epoch which now occupies our attention.
Let us now examine how the royal power was exercised in separate localities during this period. The dukes, counts, centeniers, and others, were probably at the outset, as I have already observed, not mere delegates of the king, but the natural chieftains, the most powerful and extensive landowners. It is quite erroneous to believe that, originally, a county corresponded to what is now called a department, and that the king appointed and sent a count to govern it as he now sends a prefect. The king, the head of the nation, naturally directed the most important man in the district to convoke together the free men of the district for military purposes, and to collect the revenues of the royal domains; and this person thus received a sort of appointment from the king. The increasing importance of the palace and court of the kings—the influence of Roman institutions and ideas, at length made this appointment the source of a title. The counts became Leudes, and vice versâ, the Leudes became counts.
During a considerable period the hereditariness of these officers was not recognised. Some antiquaries even are of opinion that these employments were given for a fixed time only. There is more reason to believe that this point was not definitely determined, and that, in fact, these offices were long unlimited as to their duration, and always transferable; numerous instances can be brought in support of this theory. The Frankish kings frequently allowed the natural chieftains of the countries which they conquered to retain their former position and ancient rights. Thus the Bavarian dukes were hereditary. When Louis the Debonnair received the Spaniards into the south of France, he permitted their counts to retain their titles and jurisdiction.
The title of count become an object of ambition on account of the advantages connected therewith. The count possessed great power, a share of the fines, freda, and immense facilities for acquiring property in the district under his jurisdiction. These offices also supplied the kings with means for enriching their Leudes, or obtaining new ones. Under the Merovingians, perpetual instability prevailed in respect to these offices as well as to benefices; they were obtained by presents or purchased by money. Nevertheless, the office of count was frequently transmitted from father to son; this was natural, and usage could not fail to precede right; the count or duke, being almost always an important personage in his canton or town, independently of his office, his son, who succeeded to his importance, succeeded frequently to his office also.
Some writers have affirmed that there was a great distinction between the dukes and the counts; it has even been asserted that each duke had twelve counts under his orders. No such regularity existed in local administration. We meet with some counts equal in power to dukes; among the Burgundians, for example, some counts ruled over several provinces. We may say, however, that in general the duke was superior to the count. We may even presume that, originally, the office of duke was military, and that of the count, judicial; although the two missions frequently appear confounded. A formula of Marculf assimilates the dukes, counts, and patricians. The margraves were the counts of the marches or frontiers. The men of the court, the delegates of the king, finished by being counts everywhere.
Thus there co-existed the three systems of institutions which I have mentioned: 1. the assemblies of freemen, having authority and jurisdiction; 2. the great landowners, whether beneficiary or allodial, lay or ecclesiastical, proprietors—having authority and jurisdiction; 3. the administrators or delegates of the king, having authority and jurisdiction.
In the midst of the disorders of the Merovingian race, we find that the assemblies of free men rapidly declined. Most of the free men ceased to attend. Some became powerful enough to aim at independence, others became so weak as to lose their freedom. The common deliberation of free men disappeared. The principle of the subordination of the individual to the individual, in virtue of protection, vassalage, patronage, or colonage, prevailed. Seignorial jurisdictions, both lay and ecclesiastical, became extended. Their extension and consolidation were the necessary consequence of the extension and consolidation of benefices. The diminution of the number of allodial estates, the increase of tributary lands, and the corresponding changes which were introduced into the condition of persons, necessarily removed the greater number of justiceables from the jurisdiction of the assemblies of free men and from that of the king. Even the care which was taken by the first Carlovingians to compel the seigneurs to administer justice, and to control their administration of it, proves the progress of this kind of jurisdiction.
The liberty allowed to every man to live under any law he pleased, could not but contribute also to this result; it tended to disperse society, for it placed men under the jurisdiction of those who had their own private code of laws; and thus it opposed union, and common deliberation. It was a kind of liberty, doubtless—a liberty necessary in the state of society which then existed; but this liberty, like almost all other liberties at this period, was a principle of isolation.
Government of Charlemagne.
Apparent revival of free institutions.
Individual independence and social liberty.
Organization of monarchical power under Charlemagne.
His active surveillance over his vassals and agents.
Rapid decline of monarchical institutions after his death.
Definitive predominance of the feudal system.
Central institutions during the same epoch: royalty.
Causes of the progress of royalty, and of the principle of
hereditary succession among the Franks.
Influence of the clergy.
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.
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.
In the infancy of society, the liberty which almost all men desire and defend, is natural liberty—liberty to do nothing but what they please. This is caused by the imperfection of the moral development of each individual, and by the imperfection of the same development in the social powers; from which imperfection it results that these powers ill-understand the true law, never apply it, and are themselves directed by individual wills, as arbitrary as they are capricious. On this account, the state of freedom with which we meet at the outset of all societies lasts for so short a time, and is so quickly superseded by the despotism of one or several persons. Society cannot exist if natural liberty, that is, individual independence, exists in all the extent of its desire: and as society is as yet ignorant both how to govern according to the moral law, and how to respect moral liberty, force seizes upon the government.
When, in such a state of society, a man of superior genius and character appears, he is inevitably driven to found a despotism, that is, the empire of his own individual will. He is irritated and offended by the collision of all these barbarous or stupid individual wills; his instinct tells him that society cannot exist in this manner, that such a state of things is not society. He is personally disgusted, moreover, at the sway which all these narrow and ignorant wills claim to exercise over all things, and even over himself. The authority of blind force over enlightened force is nothing but a despotism; and what is greater insolence than the power of a brutal multitude over a lofty individual reason? The superior man becomes indignant and seeks to free himself from this yoke, to impose some rule upon this disorder; and this rule he seeks in his own reason, in his own will. Thus is established, at such epochs, the despotism of a single person; it is not radically illegitimate, and the best proof that it is not, is afforded by the easy reception with which he meets the admiration with which he is regarded, the gratitude even which he inspires, and which lasts as long as the state of things which originated his power. In truth, the loftiest superiority, that which is most naturally called to empire by the disorder and dissolution of society, soon becomes corrupted and rude, by becoming itself a purely individual will, full of egotism and caprice: but that which constituted its force and credit, at the outset, was its better comprehension of the general wants of society; it had obtained a deeper knowledge of the true law which must govern society; and it rescued society from its losing battle with a multitude of ignorant or ferocious individual wills.
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.
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.