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IN 1820, at the time when the various faculties of the Academic de Paris and the College de France were recom- mencing their courses of lectures, several persons com- bined to establish a Journal des Cours Publiques, in which they reproduced, from their notes, the lectures which they had attended. The course which I delivered, at this period, on the history of Representative Government, occupies a place in this collection. I did not revise the analyses of my lec- tures which were published. They were brief and incomplete, and frequently incorrect and confused. I have been requested to authorize a reprint of them. I could not consent to this without bestowing upon these analyses, at the present day, that labour of revision to which they were not subjected at the time of their publication. The two volumes which I now publish are the result of this labour, which has been more protracted, and has involved more considerable altera- tions than I at first anticipated. In order to accomplish it, I have frequently had recourse to my Essaies sur VHistoire de France, in which I embodied, in 1823, some of my researches on the same subject. This course of lectures on the origin of Eepresentative Government is now as exact and complete as if my lectures in 1820 1822 had been collected and revised with the same care as I bestowed, in 1827 1830, on the publication of my courses on the General History of Civilization in Europe, and on the History of Civilization in France. "When, in the year 1820, 1 devoted my energies to this course of instruction, I was taking leave of public life, after VI PBEFACE. having, during six years, taken an active part in the work of establishing representative government in our own land. The political ideas and friends with whom I had been asso- ciated were, at that period, removed from the head of affairs. I connected myself with their reverses, without abandoning our common hopes and efforts. We had faith in our insti- tutions. Whether they entailed upon us good or evil fortune, we were equally devoted to them. I was unwilling to cease to serve their cause. I endeavoured to explain the origin and principles of representative government, as I had at- tempted to practise it. How shall I speak, at the present day, of bad fortune and reverse, in reference to 1820 ? What shall we say of the fate which has recently overtaken our fatherland, and of that which is perhaps in "store for us ? It is a shame to make use of the same words in respect to evils and dangers so prodigiously unequal. In truth, the trials of 1820 were severe and painful, yet the State was not thrown into con- fusion by them, and they were followed by ten years of regular and free government. In 1830, a still severer trial, the test of a revolution, was applied to our noble institutions, and they did not succumb ; they shook off the revolutionary yoke, and gave us eighteen years more of order and liberty. From 1814 to 1848, notwithstanding so many violent con- vulsions, constitutional monarchy remained standing, and events justified the obstinacy of our hopes. But now the storm has struck every institution, and still threatens to destroy all that survive. Not merely kings and laws, but the very root of government, of all government what do I say ? the roots of society itself have been reached, and are left bare and almost torn up. Can we again seek safety at the same source ? can we still believe and hope in representative government and monarchy ? I have not escaped, any more than other persons, from the anxiety occasioned by this doubt. Nevertheless, in propor- PBEFACE. Vll tion as the events which have weighed upon us, for the last three years, have received development and elucidation when I beheld society pausing, by an effort of its own, on the verge of that abyss to which it had been brought by its own weakness I felt the revival in my soul of that faith and hope which have filled my life, and which, until these last days, have constituted the faith and hope of our time. Among the infinite illusions of human vanity, we must number those of misfortune ; whether as peoples or as individuals, in public or in private life, we delight to per- suade ourselves that our trials are unprecedented, and that we have to endure evils and to surmount obstacles pre- viously unheard of. How deceitful is this consolation of pride in suffering ! God has made the condition of men, of all men, more severe than they are willing to believe ; and he causes them, at all times, to purchase, at a dearer price than they had anticipated, the success of their labours and the progress of their destiny. Let us accept this stern law without a murmur ; let us courageously pay the price which God puts upon success, instead of basely renouncing the hope of success itself. The leading idea, the national desire of France, in 1789, was the alliance of free institutions with hereditary monarchy. "We have been carried far away from our design ; we have immensely deceived ourselves and gone astray in our presumptuous hopes ; but we should no less deceive ourselves in our sceptical despondency. God, who permits the burden of their faults to fall upon nations, does not make their own life to be to them a continuous false- hood and a fatal snare ; our whole history, our entire civi- lization, all our glories and our greatness urged and led us onward to the union of monarchy and liberty ; we have often taken the wrong road in our way towards our object ; and in order to reach it, we shall still have to take many new roads and to pass over many difficult spots. But let our object remain the same ; for there lies our haven. Vlll PEEFACE. If I should apply, at the present day, to these historical studies of 1820, all the lessons which political life has given me since that period, I should perhaps modify some of the ideas which I have expressed in reference to some of the conditions and forms of representative government. This system of government has no unique and solely good type, in conformity to which it must necessarily and universally be instituted. Providence, which allots to nations different origins and destinies, also opens to justice and liberty more than one way of entering into governments : and it would be foolishly to reduce their chances of success if we condemned them to appear always with the same lineaments, and to develope themselves by the same means. One thing only is important, and that is, that the essential principles of order and liberty should subsist beneath the different forms which the interference of the country in its own affairs may assume amongst different peoples and at different epochs. These essential and necessary principles of all representative government are precisely those which, in our days, are ignored and outraged. I venture to believe that they will be found faithfully expounded in these lectures ; and that on this account, even at the present day, my work will not be devoid either of utility or of interest. GUIZOT. CONTENTS. PART I. REPRESENTATIVE INSTITUTIONS IN ENGLAND, FRANCE, AND SPAIN, FROM THE FIFTH TO THE ELEVENTH CENTUEY. Page LECTURE I. Simultaneous development of history and civilization. Two errors in our method of considering the past ; proud disdain, or super- stitious admiration. Historic impartiality the vocation of the present age. Divisions of the history of the political institutions of Europe into four great epochs. Representative government the general and natural aim of these institutions. Object of the course ; inquiry into the origin of representative government in France, Spain, and England. State of mind appropriate to this inquiry ffr* . . *.;*' . 1 LECTURE II. General character of political institutions in Europe, from the fourth to the eleventh century. Political sterility of the Roman Empire. Progress of the Germanic invasions. Sketch of the history of the Anglo-Saxons . . . . .23 LECTUBE III. Subject of the lecture. A knowledge of the state of persons neces- sary to the proper study of institutions. Essential difference between antiquity and modern societies, as regards the classifica- tion of social conditions. State of persons among the Anglo- Saxons. Thanes and Ceorls. Central and local institutions. Predominance of the latter among the Anglo-Saxons. Its cause , 32 X CONTENTS. Page LECTUBE IV. Local institutions among the Anglo-Saxons. Divisions of territory; their origin and double object. Internal police of these local associations. Importance of the county-courts ; their composi- tion and attributes. Complex origin of the Jury. Central institutions of the Anglo-Saxons. The Wittenagemot ; its com- position, and the principle on which it was based. Increasing preponderance of the large landowners in the Anglo-Saxon monarchy . . . . . . .41 LECTUBE V. The Wittenagemot; its business and power. Method of its con- vocation. Vicissitudes of its character and importance. The kingly office among the Anglo-Saxons. Extent and progress of the royal power . . . . . . .49 LECTURE VI. The true principle of representative government. Error of classi- / fying governments according to their external forms. Montes- quieu's error with respect to the origin of the representative system. Necessary correlation and simultaneous formation of society and government. Rousseau's mistaken hypothesis of the social contract. The nature of rightful sovereignty. Con- fused and contradictory ideas entertained on this subject. Societies, as individuals, possess the right of being placed under laws of justice and reason. Governments ought to be continu- ally reminded of their obligation to inquire into and conform to these laws. Classification of governments on this principle . 55 LECTUBE VII. Comparison of the principles of different governments with the true principle of representative government. Aristocratic governments. Origin and history of the word aristocracy. Principle of this form of government ; its consequences. How the principle of representative government enters into aristo- cratic governments. Democratic governments. Origin and consequences of the principle of the sovereignty of the people. This principle not identical with that of representative govern- ment. In what sense representative government is the govern- ment of the majority . . . . . .65 LECTUBE VIII. The forms of a government are related to its principle, but are swayed by circumstances, and vary according to different degrees CONTENTS. XI Page of civilization. What are the forms essential to a represen- tative government 1 ? 1st. Division of powers; why absolutely essential to the principle of representative government ; 2nd. Election; 3rd. Publicity . . . . ,76 LECTURE IX. Primitive institutions of the Franks. Sketch of the history of the Frankish monarchy. The Franks in Germany. Their settle- ment in Belgium and in Gaul. Character and authority of their chiefs after their establishment in the Roman 'Empire. Early Frankish chieftains. Clovis : his expeditions, wars, and con- quests. Decisive preponderance of the Franks in Gaul . . 82 LECTURE X. Division of territory among the sons of the Frankish kings. Rapid formation and disappearance of several Frank kingdoms. Neustria and Austrasia ; their geographical division. Early predominance of Neustria. Fredegonde and Brunehaut. Ele- vation of the Mayors of the Palace. True character of their power. The Pepin family. Charles Martel. Fall of the Mero- vingians . . . . . . .86 LECTURE XL General character of events under the Carlovingian Empire. Reign of Pepin the Short. Reign of Charlemagne. Epoch of transition. Reigns of Louis the Debonnair and Charles the Bald. Norman invasions. The last Carlovingians. Accession of Hugh Capet . ., v ' ^ . J '-\; . . .94 LECTURE XII. Ancient institutions of the Franks. They are more difficult of study than those of the Anglo-Saxons. Three kinds of landed property ; allodial, beneficiary, and tributary lands. Origin of allodial lands. Meaning of the word allodium. Salic land amongst the Franks. Essential characteristics of the allods . 103 LECTURE XIII. Origin of military service ; its cause and limits. It was made a general obligation by Charlemagne. Allodial lands were origi- nally exempt from taxation. Origin of benefices. Change in the position of the German chiefs in consequence of their terri- torial settlement. Their wealth. No public treasury. The Xll CONTENTS. cerarium and fiscus of the old Eoman republic. Formation of the private domain of the kings of France. Character ot bene- fices. Error of Montesquieu on this subject . . . 109 LECTURE XIV. Proofs of the co-existence of various modes of conferring benefices, from the fifth to the tenth century. Of benefices that were absolutely and arbitrarily revocable. Of benefices conceded for a limited time ; the precaria. Of benefices granted for life. Of benefices granted hereditarily. General character of the concession of benefices. Their tendency to become hereditary. Its prevalence under Charles the Bald. Military service. Judicial and domestic service. Origin, meaning, and vicissi- tudes of the fidelity due by the vassal to his lord . .116 LECTURE XY. Of benefices conceded by great landowners to men dependent upon them : First, benefices conceded for all kinds of services, and as a mode of paying salary ; Secondly, larger proprietors usurp the lands adjoining their own, and bestow them as bene- fices on their subordinates ; Thirdly, the conversion of a great number of allodial lands into benefices, by the practice of recom- mendation. Origin and meaning ot this practice. Permanence of freeholds, especially in certain parts of the Frankish monarchy. Tributary lands. Their origin and nature. Their rapid ex- tension : its causes. General view of the condition of territorial property, from the sixth to the eleventh century : First, diffe- rent conditions of territorial property; Secondly, the individual dependence of territorial property; Thirdly, the stationary con- dition of territorial wealth. Why the system of beneficiary pro- perty, that is to say, the feudal system, was necessary to the formation of modern society and of powerful states . .124 LECTURE XVI. Of the state of persons, from the fifth to the tenth century. Im- possibility of determining this, according to any fixed and general principle. The condition of lands not always correspon- dent with that of persons. Variable and unsettled character of social conditions. Slavery. Attempt to determine the condi- tion of persons according to the Wehrgeld. Table of twenty-one principal cases of Wehrgeld. Uncertainty of this principle. The true method of ascertaining the condition of persons . 132 CONTENTS. X1U Page LECTURE XVII. Of the Leudes or Animations. Men, faithful to the king and to the large proprietors. Different means of acquiring and retain- ing 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 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 1 The arimanni, and rathimburgi. Mistake of M. de Savigny. Rapid and general extension of the feudal hierarchy. The freedmen. Different modes of en- franchisement : 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. ,' ; . ' * .', % .' . 141 LECTURE XVIII. Simultaneous existence of three systems of institutions, after the settlement of the Franks in Gaul. Conflict of these three systems. Summary of this conflict, its vicissitudes, and results. Its recurrence in local and central institutions. Of local institutions under the Frankish monarchy. Of the assemblies of free men. Of the authority and jurisdiction of the great landowners in their estates. Of the authority and jurisdiction of the dukes, counts, and other royal officers . . . 148 LECTURE XIX. Government of Charlemagne. Apparent revival of free institu- tions. Individual independence and social liberty. Organi- zation of monarchical power under Charlemagne. His active surveillance over his vassals and agents. Eapid decline of monarchical institutions after his death. Definitive predomi- nance 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 . . . . .154 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 Charle- magne. Letter of Archbishop Hincmar De ordine Palatii . 163 XIV CONTENTS. Page LECTURE XXI. Decay of national assemblies under Louis the Dlbonnair 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 . 171 LECTURE XXII. Political institutions of the Visigoths. Peculiar character of Visi- gothic legislation. Its authors and its influences. Destruction and disappearance of the middle class in the Eoman empire, at the time of the Barbarian invasion. History of the Koman municipal system. Three epochs in that history . . 177 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. Attri- butes of the curia as a body. Of the various municipal magis- tracies 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 Koman Empire and in modern societies . . . . . 193 LECTURE XXIV. Sketch of the history of Spain under the Visigoths. Condition of 'Spain under the Roman empire. Settlement of the Visigoths in the south-west of Gaul. Euric's collection of the laws of the Visigoths Alaric's collection of the laws of the Roman subjects. Settlement of the Visigoths in Spain. Conflict between the Catholics and Arians. Political importance of the Councils of Toledo. Principal kings of the Visigoths. Egica collects the Forum judicum. Fall of the Visigothic monarchy in Spain . 206 LECTURE XXV. Peculiar character of the legislation of the Visigoths. Different sorts of laws contained in the Forum judicum, It was a doc- trine as well as a code. Principles of this doctrine on the origin and nature of power. Absence of practical guarantees. Preponderance of the clergy in the legislation of the Visigoths. True character of the election of the Visigothic kings. The Visigothic legislation characterized by a spirit of mildness and equity towards all classes of men, and especially towards the slaves. Philosophical and moral merits of this legislation . 215 CONTENTS. XV Page LECTURE XXVI. Central institutions of the Visigothic monarchy. True character of the Councils of Toledo. Amount of their political influence. The Officium palatinum. Prevalence of Eoman maxims and institutions, among the Goths, over Germanic traditions. Proof of this in the local and central institutions of the Visigoths.- Eefutation of the errors of Savigny and the Edinburgh Review on this subject. Conclusion . ;-"* - .229 PART II. ESSAYS OF EEPEESENTATIVE GOVEENMENT IN ENGLAND, FROM THE CONQUEST TILL THE REIGN Of THE TUDORS. LECTURE I. Subject of the course : the history of the origin and establishment of representative government in Europe. Different aspects under which history is considered at various epochs. Poetic history ; philosophic history ; political history. Disposition of our time to consider history under these various aspects. Fundamental principle and essential characteristics of repre- sentative government. Existence of this principle and these characteristics in England at all times .... 257 LECTURE II. Sketch of the History of England, from William the Conqueror to John Lackland (1066-1199). William the Conqueror (1066- 1087). William Eufus (1087-1100). Henry I. (1100-1135). Stephen (1135-1154). Henry II. (1154-1189). Constitu- tions of Clarendon. Eichard Coeur de Lion (1189-1199) . 270 LECTURE III. Anglo-Saxon institutions. Effects of the Norman Conquest upon Anglo-Saxon institutions. Effects of the Conquest upon Nor- man institutions. Causes which made the Norman Conquest XVI CONTENTS. Page favourable to the establishment of a system of free institutions in England , . . . . . .281 LECTURE IV. The English Parliament in the earliest times of the Anglo-Norman Monarchy. Different names given to the King's Great Council. Its characteristics. Its constitution. Opinions of Whigs and Tories on this subject . . . . . .288 LECTURE V. The Anglo-Norman royalty : its wealth and power. Comparison of the relative forces of the Crown and of the feudal aristocracy. Progress of the royal power. Spirit of association and resist- ance among the great barons. Commencement of the struggle between these two political forces , . *. . . 295 LECTURE VI. History of English Charters. Charter of William the Conqueror (1071). Charter of Henry I. (1101). Charters of Stephen (1135-1136). Charter of Henry II. (1154) .> ' i" 302 LECTURE VII. Charter of John, or the Great Charter (1215). Three epochs in John's reign. Formation of a coalition among the barons. Civil war. Conference at Runnymead. Concession of the Great Charter. Analysis of this Charter. Its stipulations refer to national rights as well as to those of the barons. J ohn petitions and obtains from Innocent III. a bull to reverse the Great Charter. Resistance of the English clergy. Recommencement of the civil war (October, 1215). Louis of France, son of Philip Augustus, is appealed to by the barons. Death of John (October, 1216) 308 LECTURE VIII. Charters of Henry III. First Charter of Henry III. (November, 1216). Louis of France renounces his title to the Crown, and leaves England. Second Charter of Henry III. (1217). Forest Charter granted by Henry III. (1217). Confirmation of Charters (1225). Revocation of Charters (1227). New confir- mation of Charters (1237). Continual violation of Charters. Civil war. Renewal of Charters (1264). New confirmation of Charters (1267). Death of Henry III. (November 16, 1272) . 319 CONTENTS. XVU Page LECTUBE IX. Conclusion of the history of Charters under the reign of Edward L Political conflict follows civil war. The king frequently violates the Charters, especially in the matter of imposts. The barons resist energetically. Edward gives a definitive confir- mation to the Charters (1298-1301). A bull of Clement V., solicited by Edward I., annuls the Charters. Ita failure. Death of Edward I. (July 7, 1307) ^> ':> 32 ^ LECTURE X. Necessity of inquiring into the political sense of the word repre- sentation at the time when a representative government began to be formed. Mistaken theories on this subject. Kousseau's theory, which denies representation and insists on individual sovereignty. Theories of writers who attempt to reconcile the principle of representation with that of individual sovereignty. Erroneousness of the idea that the sovereignty belongs to the majority. True idea of representation . . . .334 LECTUBE XI. Formation of a Parliament. Introduction of county deputies into the Parliament. Relations of the county deputies to the great barons. Parliament of Oxford (1258). Its regulations, termed the Acts of Oxford. Hesitancy of the county deputies between the great barons and the crown ~ ^ . __ . . . 350 LECTUBE XII. Struggle between Henry III. and his Parliament. Arbitration of Saint Louis. The Earl of Leicester heads the great barons in their struggle with the king. He is defeated and killed at Evesham (1265). Admission of deputies from towns and boroughs into Parliament (1264). Koyalist reaction. Leices- ter's memory remains popular . . - ; ": 'i.Vx . 359 LECTURE XIII. Progress of the Parliament under the reign of Edward I. Fre- quent holding of Parliament. Different composition of Parlia- ments. Deputies from the counties and towns were not always present. Discretionary power of the king in the convocation of barons. The varying number of county and borough deputies . 368 LECTUBE XIV. Mode of election of the deputies of counties and boroughs. Who were the electors 1 No uniform principle to regulate elections in boroughs and towns. Voting in public . , . 377 XV111 CONTENTS. Page LECTURE XV. Philosophical examination of the electoral system in England in the fourteenth century. The system was the natural result of facts. Who were the electors ? Four principles which deter- mine the solution of this question . . .388 LECTURE XVI. Subject of the lecture. Continuation of the philosophical exami- nation of the electoral system in England in the fourteenth century. Characteristics of the elections. Examination of the principle of direct or indirect election . . . .401 LECTURE XVII. Origin of the division of the English Parliament into two Houses. Its original constitution. Reproduction of the classifications of society in the Parliament. Causes which led the representa- tives of counties to separate from the barons, and coalesce with the representatives of boroughs. Effects of this coalition. Division of the Parliament into two Houses in the fourteenth century ........ 418 LECTURE XVIII. Examination of the division of the legislative power into two Houses. Diversity of ideas on this subject. Fundamental prin- ciple of the philosophic school. Source of its errors. Charac- teristics of the historic school. Cause of the division of the British Parliament into two Houses. Derivation of this division from the fundamental principle of representative government. Its practical merit ...... 425 LECTURE XIX. Power and attributes of the British Parliament in the fourteenth century. At its origin, and subsequent to its complete develop- ment, the Parliament retained the name of the Great Council of the kingdom. Difference between its attributes and its actual power at these two epochs. Absorption of almost the entire government by the Crown; gradual resumption of its influence by the Parliament . .448 LECTURE XX. Condition and attributes of the Parliament during the reign of Edward II. (1307-1327). Empire of favourites. Struggle of CONTENTS. Xix Page the barons against the favourites. Aristocratic factions. Peti- tions to the king. Forms of deliberations on this subject. Deposition of Edward II. .... . 454 LECTURE XXI. Of petitions during the early times of representative government. Regulations on the subject. Transformation of the right of petition possessed by the Houses of Parliament into the right of proposition and initiative. Petitions ceased to be addressed to the king, and are presented to Parliament. Origin of the right of inquiry. Necessity for representative government to be complete. Artifices and abuses engendered by the right of petition . . '."; > '"' v . . . . 463 LECTURE XXII. Condition of the Parliament under Edward III. Progress of the power of the Commons. -Their resistance to the king. Regu- larity of the convocation of Parliament. Measures taken for the security of its deliberations. Division of the Parliament into two Houses. Speaker of the House of Commons. Firm- ness of the House of Commons in maintaining its right to grant taxes. Accounts given by the government of the collection of the taxes. Appropriation of the funds granted by Parliament. Parliamentary legislation. Difference between statutes and ordinances . , " W- , ' ''*.-. 476 LECTURE XXIII. Continuation of the history of the progress of the Commons House of Parliament during the reign of Edward III. Their inter- ference in questions of peace and war; and on the internal peace of the kingdom. Their resistance of the influence of the Pope, and of the national clergy, in temporal aft'airs. First efforts of the Commons to repress abuses at elections. First traces of function of Committees of both Houses to investigate certain questions in common . " * ' 484 LECTURE XXIY. State of the Parliament under Richard II. Struggle between absolute royalty and parliamentary government. Origin of the Civil List. Progress of the responsibility of ministers. Pro- gress of the returns of the employment of the public revenue. The Commons encroach upon the government. Reaction against the sway of the Commons. Violence and fall of Richard II. Progress of the essential maxims and practices of repre- sentative government . . . . . .494 XX CONTENTS. Page LECTURE XXV. Summary of the history of the Parliament from the death of Richard II. to the accession of the House of Stuart. Progress of the forms of procedure, and of the privileges of Parliament. Liberty of speech in both Houses. Inviolability of members of Parliament. Judicial power of the House of Lords. Deca- dence of the Parliament during the wars of the Roses, and under the Tudor dynasty. Causes of this decadence and of the pro- gress of royal authority, from Henry VII. to Elizabeth. Conclusion ..... 509 HISTORY OF THE OUIGIN OF REPRESENTATIVE GOVERNMENT IN EUEOPE. PAftT I. REPRESENTATIVE INSTITUTIONS IN ENGLAND, FRANCE, AND SPAIN, PEOM THE FIFTH TO THE ELEVENTH CENTUKY. LECTTTKE I. Simultaneous development of history and civilization. Two errors in our method of considering the past; proud disdain, or super- stitious admiration. Historic impartiality the vocation of the present age. Divisions of the history of the political institutions of Europe into four great epochs. Representative government was the general and natural aim of these institutions. Object of the course; inquiry into the origin of representative government in France, Spain, and England. State of mind appropriate to this inquiry. GTEKTLEMEK, Such is the immensity of human affairs, that, so far from exhibiting superannuation and decay with the progress of time, they seem to gain new youth, and to gird themselves afresh at frequent intervals, in order to appear under aspects hitherto unknown. Not only does each age receive, a vocation to devote itself especially to a particular region of inquiry ; but the same studies are to each age as a mine but little explored, or as an unknown territory where objects for discovery present themselves at every step. In the study of history this truth is especially apparent. The facts about which history concerns itself neither gain nor lose anything by being handed down from age to age ; what- ever we have seen in these facts, and whatever we can see, B 2 VIEWS OP HISTOET. has been contained in them ever since they were originally accomplished ; but they never allow themselves to be fully apprehended, nor permit all their meaning to be thoroughly investigated; they have, so to speak, innumerable secrets, which slowly utter themselves after man has become pre- pared to recognise them. And as everything in man and around him changes, as the point of view from which he considers the facts of history, and the state of mind which he brings to the survey, continually vary, we may speak of the past as changing with the present; unperceived facts reveal themselves in ancient facts; other ideas, other feel- ings, are called up by the same names and the same narra- tives ; and man thus learns that in the infinitude of space opened to his knowledge, everything remains constantly fresh and inexhaustible, in regard to his ever-active and ever-limited intelligence. This combined view of the greatness of events and the feeble- ness of the human mind, never appears so startlingly distinct as upon the occurrence of those extraordinary crises, which, so to speak, entirely delocalize man, and transport him to a different sphere. Such revolutions, it is true, do not unfold themselves in an abrupt and sudden manner. They are con- ceived and nurtured in the womb of society long before they emerge to the light of day. But the moment arrives beyond which their full accomplishment cannot be delayed, and they then take possession of all that exists in society, transform it, and place everything in an entirely new position ; so that if, after such a shock, man looks back upon the history of the past, he can scarcely recognise it. That which he sees, he had never seen before; what he saw once, no longer exists as he saw it ; facts rise up before him with unknown faces, and speak to him in a strange language. He sets himself to the examination of them under the guidance of other principles of observation and appreciation. "Whether he considers their causes, their nature, or their consequences, unknown prospects open before him on all sides. The actual spectacle remains the same, but it is viewed by another spec- tator occupying a different place ; to his eyes all is changed. What marvel is it, gentlemen, if, in this new state of things and of himself, man adopts, as the special objects of his study, questions and facts which connect themselves CUE HISTORICAL POSITION. 3 more immediately with the revolution which has just been accomplished, if he directs his gaze precisely towards that quarter where the change has been most profound? The grand crises in the life of humanity are not all of the same nature ; although they, sooner or later, influence the whole mass of society, they act upon it and approach it, in some respects, from different sides. Sometimes it is by religious ideas, sometimes by political ideas, sometimes by a simple discovery, or a mechanical invention, that the world is ruled and changed. The apparent metamorphosis which the past then undergoes is effected chiefly in that which corresponds to the essential character of the revolution that is actually going forward in the present. Let us imagine, if we can, the light in which the traditions and religious recollections of Paganism must have appeared to the Christians of the first centuries, and then we shall understand the new aspects under which old facts present themselves in those times of renovation, which Providence has invested with a pecu- liar importance and significance. Such is, gentlemen, up to a certain point, the position in which we ourselves are placed with regard to that subject which is to come before us in the present course of lectures. It is from the midst of the new political order which has commenced in Europe in our own days that we are about to consider, I do not say naturally, but necessarily, the history of the political institutions of Europe from the foundation of modern states. To descend from this point of view is not in our power. Against our will, and without our know- ledge, the ideas which have occupied the present will follow us wherever we go in the study of the past. Vainly should we attempt to escape from the lights which they cast there- upon; those lights will only diffuse themselves around on all sides with more confusion and less utility. "We will then frankly accept a position which, in my opinion, is favourable, and certainly inevitable. We attempt to-day, and with good reason, to reconnect what we now are with what we formerly were ; we feel the necessity of bringing our habits into asso- ciation with intelligent feeling, to connect our institutions with our recollections, and, in fine, to gather together the links in that chain ot time, which never allows itself to be entirely broken, however violent may be the assaults made upon it. B 2 4 SOUECES OF EEEOE. In accordance with the same principles, and guided by the same spirit, we shall not refuse the aid which can be derived from modern ideas and institutions, in order to guide our apprehension and judgment while studying ancient institu- tions, since we neither can, nor would wish to be separated from our proper selves, any more than we would attempt or desire to isolate ourselves from our forefathers. This study, gentlemen, has been much neglected in our days; and when attempts have been made to revive it, it has been approached with such a strong preoccupation of mind, or with such a determined purpose, that the fruits of our labour have been damaged at the outset. Opinions which are partial and adopted before facts have been fairly examined, not only have the effect of vitiating the rectitude of judgment, but they moreover introduce a deplorable frivo- lity into researches which we may call material. As soon as the prejudiced mind has collected a few documents and proofs in support of its cherished notion, it is contented, and concludes its inquiry. On the one hand, it beholds in facts that which is not really contained in them; on the other hand, when it believes that the amount of information it already possesses will suffice, it does not seek further knowledge. Now, such has been the force of circumstances and passions among us, that they have disturbed even eru- dition itself. It has become a party weapon, an instrument of attack or defence ; and facts themselves, inflexible and immutable facts, have been by turns invited or repulsed, per- verted or mutilated, according to the interest or sentiment in favour of which they were summoned to appear. In accordance with this prevailing circumstance of our times, two opposite tendencies are observable in those opinions and writings which have passed a verdict on the ancient political institutions of Europe. On the one hand, we see minds so overpowered by the splendour of the new day which has dawned upon mankind, that they see in the gene- rations which preceded, only darkness, disorder, and oppres- sion, objects either for their indignation or their con- tempt. Proud disdain of the past has taken possession of these minds, a disdain which exalts itself into a system. This system has presented all the characteristics of settled impiety. Laws, sentiments, ideas, customs, everything per- DISDAIN TOR THE PAST. 5 taining to our forefathers, it has treated with coldness or scorn. It would seem as if reason, regard for justice, love of liberty, all that makes society dignified and secure, were a discovery of to-day, made by the generation which has last appeared. In thus renouncing its ancestors, this generation forgets that it will soon join them in the tomb, and that in its turn it will leave its inheritance to its children. This pride, gentlemen, is not less contrary to the truth of things than fatal to the society which entertains it. Provi- dence does not so unequally deal with the generations of men, as to impoverish some in order that the rest may be lavishly endowed at their expense. It is doubtless true, that virtue and glory are not shared in a uniform degree by different ages ; but there is no age which does not possess some legitimate claim upon the respect of its descendants. There is not one which has not borne its part in the grand struggle between good and evil, truth and error, liberty and oppression. And not only has each age maintained this laborious struggle on its own account, but whatever advan- tage it has been able to gain, it has transmitted to its suc- cessors. The superior vantage-ground on which we were born, is a gift to us from our forefathers, who died upon the territory themselves had won by conquest. It is then a blind and culpable ingratitude which affects to despise the days which are gone. "We reap the fruits of their labours and sacrifices : is it too much for us to hallow the memory of those labours, and to render a just recompense for those sacrifices ? If those men who affect, or who actually feel, this irre- verent disdain or indifference for ancient times, were better acquainted with these times and their history, they would find themselves constrained to entertain a different opinion. When, in fact, we investigate the cause of this unnatural state of mind, only one explanation can be found. At the moment of grand social reforms, during epochs full of ambi- tion and hope, when important changes are on all sides demanded and necessary, the authority of the past is the one obstacle which opposes itself to all tendency to inno- vation. The present time seems devoted to errors and abuses, and the wisdom of centuries is appealed to by one party in order to resist the future to which the aspirations 6 TRUE VALUE OF THE PAST. of the other party are directed. Accordingly, a kind of blind hatred of the past takes possession of a great number of men. They regard it as making common cause with the enemies of present amelioration, and the weapons employed by these latter confirm this idea in their mind. Gentlemen, the notion is full of falsehood and misapprehension. It is not true that injustice and abuses alone can shelter them- selves under the authority of antiquity, that they only are capable of appealing to precedent and experience. Truth, jus- tice, and rectitude, are also graced by venerable titles ; and at no period has man allowed them to be proscribed. Take in succession all the moral needs, all the legitimate interests of our society, arrange them in systematic order, and then traverse the history of our country; you will find them constantly asserted and defended, all epochs will afford you innumerable proofs of struggles endured, of victories won, of concessions obtained in this holy cause. It has been carried on with different issues, but in no time or place has it been abandoned. There is not a truth or a right which can- not bring forward, from any period of history, monuments to consecrate, and facts to vindicate it. Justice has not retired from the world, even when it finds there least support : it has constantly sought and embraced, both with governments and in the midst of peoples, all opportunities for extending its dominion. It has struggled, protested, waited ; and when it has had only glory to bestow upon those who have fought for it, it has bestowed that glory with a liberal hand. Let us then, gentlemen, reassure ourselves with reference to the study of the past. It contains nothing which ought to alarm the friends of all that is good and true. It is into their hands, on the contrary, and in subservience to interests which are dear to them, that it will ever deposit the authority of antiquity and the lessons of experience. This unjust contempt for ancient institutions, however, this wild attempt to dissever the present from its connexion with former ages and to begin society afresh, thus delivering it up to all the dangers of a position in which it is deprived of its roots and cast upon the protection of a wisdom which is yet in its infancy, is not an error of which we have been the first to give an example. In one of those ephemeral parlia- ments which attempted to maintain its existence under the UNDUE VENERATION OF ANTIQUITY. 7 yoke of Cromwell, it was seriously proposed to deliver up to the flames all the archives in the Tower of London, and thus to annihilate the monuments of. the existence of England in former ages. These infatuated men wished to abolish the past, flattering themselves that they would then obtain an absolute control over the future. Their design was rejected, and their hope foiled; and very soon England, regaining, with new liberties, respect for all its recollections of the past, entered upon that career of 'development and pros- perity which it has continued up to our times. Side by side with this infatuation which has induced men, otherwise enlightened, to neglect the study of the ancient institutions of Europe, or only to regard their history with a hasty and supercilious glance, we have seen another infa- tuation arise, perhaps still more unreasonable and arrogant. Here, as elsewhere, impiety has been the herald of super- stition. The past, so despised, so neglected by the one party, has become to the other an object of idolatrous vene- ration. The former desire that society, mutilating its own being, should disown its former life ; the latter would have it return to its cradle, in order to remain there immovable and powerless. And as those lords of the future would in their own wild fancy create out of it, so far as regards government and social order, the most brilliant Utopias, so these, on the other hand, find their Utopia in their dreams of the past. The work might appear more difficult; the field open to the imagination may seem less open, and facts might be expected sometimes to press inconveniently against the conclusions sought. But what will not a preoccupied mind overcome? Plato and Harrington, giving to their thoughts the widest range, had constructed their ideal of a republic ; and we, with still more confidence, have constructed our ideal of feudalism, of absolute power, and even of bar- barism. Fully organized societies, adorned with freedom and morality, have been conceived and fashioned at leisure, in order thence to be transported into past ages. After having attempted to resolve, according to principles opposed to modern tendencies, the great problem of the harmony between liberty and power, between order and progress, we have required that ancient facts should receive these theories and adapt themselves to them. And since, in the vast 8 PKOGEESS, THE LAW OF NATURE. number of facts, some are to be found which lend themselves with docility and readiness to the purposes which they are required to serve, the discoverers of this pretended antiquity have not lacked either quotations or proofs which might seem to ghe it an ascertained and definite existence in the past. Thus, France, after having spent more than five cen- turies in its struggles to escape from the feudal system, has all at once discovered that it was wrong in liberating itself from this system, for that in this state it possessed true happiness and freedom ; and history, which believed itself to be chargeable with so many evils, iniquities, and convulsions, is surprised to learn that it only hands down to us recollec- tions of two or three golden ages. There is no necessity for me, gentlemen, to offer any very serious opposition to this fantastic and superstitious adora- tion of the past. -It would hardly have merited even a passing allusion, were it not connected with systems and tendencies in which all society is interested. It is one of the collateral circumstances of the grand struggle which has never ceased to agitate the world. The interests and ideas which have successively taken possession of society have always wished to render it stationary in the position which has given it over to their rule; and when it has escaped from them, it has ever, in so doing, had to withstand those seductive images and influences which these interests have called to their aid. There is no fear that the world will allow itself to be thus ensnared : progress is the law of its nature ; hope, and not regret, is the spring of its movement : the future alone possesses an attractive virtue. Peoples who have emerged from slavery have always endeavoured by laws to prevent enfranchised man from again falling into servi- tude. Providence has not been less careful with regard to humanity ; and the chains w r hich have not sufficed to confine it, are still less able to resume the grasp which they have lost. But the efforts of a retrograde system have often per- verted the study of ancient times. The Emperor Julian saw in the popular fables of Greece a philosophy capable of satisfying those moral necessities which Christianity had come to satisfy, and he demanded that men should see and honour in the history of decayed paganism that which only existed in his dreams. The same demands have been TUB DUTY OF IMPARTIALITY. 9 made with as little reason on behalf of the ancient political institutions of Europe. Justice, and justice alone, is due to that which no longer exists, as well as to that which still remains. Kespect for the past means neither approbation nor silence for that which is false, culpable, or dangerous. The past deserves no gratitude or consideration from us, except on account of the truth which it has known, and the good which it has aimed at or accomplished. Time has not been endowed with the unhallowed office of consecrating evil or error; on the contrary, it unmasks and consumes them. To spare them because they are ancient, is not to respect the past, but it is to outrage truth, which is older than the world itself. If I am not mistaken, gentlemen, we are at this time in an especially favourable position for avoiding both of the general errors which I have just described. Perhaps few persons think so ; but impartiality, which is the duty of all times, is, in my opinion, the mission of ours : not that cold and unprofitable impartiality which is the offspring of indif- ference, but that energetic and fruitful impartiality which is inspired by the vision and admiration of truth. That equal and universal justice, which is now the deepest want of society, is also the ruling idea which is ever foremost in position and influence, wherever the spirit of man is found. Blind prejudices, insincere declamation, are no longer any more acceptable in the world of literature, than are iniquity and violence in the world of politics. They may still have some power to agitate society, but they are not permitted either to satisfy or to govern it. The particular state of our own country strengthens this disposition, or, if you please, this general tendency, of the European mind. ~W~e have not lived in that state of repose in which objects appear con- tinually under almost the same aspects, in which the present is so changeless and regular as to present to man's view an horizon that seldom varies, in which old and powerful con- ventionalisms govern thought as well as life, in M-hich opinions are well nigh habits, and soon become prejudices ; we have been cast not only into new tracks, but these are continually interrupted and diversified. All theories, all practices, are displayed in union or in rivalry before our eyes. Facts of all kinds have appeared to us under a mul- 10 YALTJE OF EEYOLTJTIO^S. titude of aspects. Human nature has been urged impe- tuously onwards, and laid bare, so to speak, in all the elements of which it is constituted. Affairs and men have all passed from system to system, from combination to combination; and the observer, while himself continually changing his point of view, has been the witness of a spectacle which changed as often as he. Such times, gentle- men, offer but little tranquillity, and prepare tremendous difficulties for those which shall follow them. But they cer- tainly give to minds capable of sustaining their pressure, an independent disposition, and an extended survey, which do not belong to more serene and fortunate periods. The large number, and the unsettled character of the facts which appear before us, widen the range of our ideas ; the diver- sity of trials which all things undergo within so short an interval, teach us to judge them with impartiality ; human nature reveals itself in its simplicity, as well as in its wealth. Experience hastens to fulfil its course, and, in some sort, hoards its treasures ; in the short space of one life, man sees, experiences, and attempts that which might have sufficed to fill several centuries. This advantage is sufficiently costly, gen- tlemen, to act at least as an inducement to our reaping it. It does not become us to entertain narrow views and obsti- nate prejudices ; to petrify the form of our judgments by foregone conclusions ; in fine, to ignore that diffusion of truth, which has been attested by so many vissicitudes, and which imposes on us the duty of seeking it everywhere, and render- ing it homage wherever we meet it, if we would have its sanction to our thoughts, and its aid to our utterance. In this spirit, gentlemen, we shall attempt to consider the ancient political institutions of Europe, and to sketch their history. "While for this purpose we appropriate such lights as our age can furnish, w r e shall endeavour to carry with us none of the passions which divide it. "We shall not approach past times under the guidance of such impressions belonging to the present, as those whose influence we have just deplored ; we shall not address to them those questions which, by their very nature, dictate the answers which they shall receive. I have too much regard for those who listen to me, and for the truth after which I, in common with them, am seeking, to suppose that history can in any sense con- STUDY OF POLITICAL INSTITUTIONS. H sent to suppress that which it has asserted, or to utter what is not affirmed by the voice of truth. We must interrogate it freely, and then leave it to full independence. This study, gentlemen, requires a centre to which it may stand in relation, we must find for so large a number of facts, a bond which may unite and harmonize them. This bond exists in the facts themselves nothing can be less doubtful. Unity and consecutiveness are not lacking in the moral world, as they are not in the physical. The moral world has, like the system of celestial bodies, its laws and activity ; only the secret according to which it acts is more profound, and the human mind has. more difficulty in discovering it. "We have entered upon this inquiry so late, that events already accomplished may serve us as guides. "We have no need to ask oi some philosophical hypothesis, itself perhaps uncertain and incomplete, what, in the order of political development, has been the tendency of European civilization. A system which evidently, from a general view of the subject, adheres continually to the same prin- ciples, starts from the same necessities, and tends to the same results, manifests or proclaims its presence throughout the whole of Europe. Almost everywhere the representa- tive form of government is demanded, allowed, or established. This fact is, assuredly, neither an accident, nor the symptom of a transient madness. It has certainly its roots in the past political career of the nations, as it has its motives in their present condition. And if, warned by this, we turn our attention to the past, we shall everywhere meet with attempts, more or less successful, either made with a con- scious regard to this system so as to produce it naturally, or striving to attain it by the subjugation of contrary forces. England, France, Spain, Portugal, Germany and Sweden, supply us with numerous illustrations of this. If we look to one quarter we shall see these attempts after they have lasted for some time, and assumed an historical consistency ; in another, they have hardly commenced before they issue in failure ; in a third, they end in a kind of federation of the governments themselves. Their forms are as diverse as their fortunes. England alone continues these struggles without intermission, and enters at last into full enjoyment of their realization. But everywhere they take their place in 12 OEIGIX OF EEPEESEXTATIYE GOYEE3TMEXT. history, and influence the destinies of nations. And when at last, no longer finding even the shadow of a representative government on the Continent of Europe, and beholding it only in the parliament of Great Britain, a man of genius inquires into its origin, he says that " this noble system was first found in the woods of Germany," from whence the ancestors ot the whole of Europe have all equally proceeded. In this opinion, as will be afterwards seen, I do not agree with Montesquieu ; but it is evident, both from ancient facts and from those which we ourselves have witnessed, that the representative form of government has, so 'to speak, constantly hovered over Europe, ever since the founding of modern states. Its reappearance at so many times and in so many places, is not to be accounted for by the charm of any theory, or the power of any conspiracy. In the endeavour after it, men have often ignored its principles and mistaken its nature, but it has existed in European society as the basis of all its deepest wants and most enduring tendencies ; sovereigns have invoked its aid in their hours of difficulty, *and nations have ever returned to it during those intervals of prosperity and repose in which the march of civilization has been accelerated. Its most undeveloped efforts have left behind them indelible mementos. Indeed, ever since the birth of modern societies, their condition has been such, that in their institution, in their aspirations, and in the course of their history, the representative form of govern- ment, while hardly realized as such by the mind, has con- stantly loomed more or les& distinctly in the distance, as the port at which they must at length arrive, in spite of the storms which scatter them, and the obstacles which con- front and oppose their entrance. We do not then, gentlemen, make an arbitrary choice, but one perfectly natural and necessary, when we make the representative lorm of government the central idea and aim of our history of the political institutions of Europe. To regard them from this point of view will not only give to our study of them the highest interest, but will enable us rightly to enter into the facts themselves, and truly to appreciate them. We shall then make this form of govern- ment the principal object of our consideration. "We shall seek it wherever it has been thought to be discernible, POIJK EPOCHS IK EUEOPEAN HISTORY. 13 wherever it has attempted to gain for itself a footing, wherever it has fully established itself. "We shall inquire if it has in reality existed at times and in places where we have been accustomed to look for its germs. "Whenever we find any indications of it, however crude and imperfect they may be, we shall inquire how it has been produced, what has been the extent of its power, and what influences have stifled it and arrested its progress. Arriving at last at the country where it has never ceased to consolidate and extend itself, from the thirteenth century to our own times, we shall remain there in order to follow it in its march, to .unravel its vicissitudes, to watch the development of the principles and institutions with which it is associated, penetrating into their nature and observing their action, to study, in a word, the history of the representative system in that country where it really possesses a history which identifies itself with that of the people and their government. Before undertaking this laborious task, it will be necessary for me, gentlemen, to exhibit before you, in a few words, the chief phases of the political condition of Europe, and the series of the principal systems of institutions through which it has passed. This anticipatory classification, which is but a general survey of facts which will afterwards reappear before you and bring their own evidence with them, ia necessary, not only i order to clear the way before us in our study, but also to indicate the particular institutions and times which the point of view we have chosen for ourselves especially calls us to consider. The history of the political institutions of Europe divides itself into four general epochs, during which society has been governed according to modes and forms essentially distinct. The tribes of Germany, in establishing themselves on the Roman soil, carried thither with them their liberty, but none of those institutions by which its exercise is regulated and its permanence guaranteed. Individuals were free, a free society, however, was not constituted. I will say further, that a society was not then existent. It was only after the conquest, and in consequence of their territorial establishment, that a society really began to be formed either 14 THE FEUDAL SYSTEM. among the conquerors and the conquered, or among the victors themselves. The work was long and difficult. The positions in which they were placed were complicated and precarious, their forces scattered and irregular, the human mind little capable of extensive combinations and foresight. Different systems of institutions, or rather different tenden- cies, appeared and contended with each other. Individuals, for whom liberty then meant only personal independence and isolation, struggled to preserve it. Those who were strong succeeded in obtaining it, and became powerful ; those who were weak lost it and fell under the yoke of the powerful. The kings, at first only the chiefs of warrior bands, and then the first of the great territorial proprietors, attempted to confirm and extend their power ; but simulta- neously with them an aristocracy was formed, by the local success of scattered forces and the concentration of proper- ties, which did not allow royalty to establish itself with any vigour or to exert any wide-spread influence. The ancient liberty of the forest, the earliest attempts at monarchical system, the nascent elements of the feudal regime, such were the powers which were then struggling for pre- eminence in society. No general political order could esta- blish itself in the midst of this conflict. It lasted till the eleventh century. Then the feudal system had become pre- dominant. The primitive independence and wild equality of individuals had either become merged into a condition of servitude, or had submitted to the hierarchical subordination of feudalism. All central power, whether of kings or of ancient national assemblies, had well nigh disappeared; liberty existed co-ordinately with power ; the sovereignty was scattered. This is the first epoch.* The second epoch is that of the feudal system. Three essential characteristics belong to it ; 1st. The reduction of the mass of the people to slavery or a condition bordering thereon : 2nd. The hierarchical and federative organization of the feudal aristocracy, extending in its application both to persons and lands : 3rd. The almost entire dissolution of the sovereignty, which then devolved on every feudal proprietor capable of exercising and defending it; from whence resulted * On this see Guizot's History of Civilization in France. Lectures vii and viii. PROGRESS OP MONARCHICAL POWER. 15 the feebleness of the royal power and the destruction of monarchical unity, which disappeared almost as completely as national unity. This system prevailed until the thir- teenth century. Then commenced a new epoch. The feudal lord, already possessed of royal power, aspired after royal dignity. A portion of the inhabitants of the territory, having regained somewhat of the power they had lost, longed to become free. The feudal aristocracy was attacked on the one hand by the enfranchisement of the townsmen and tenants, on the other hand by the extension of the royal power. Sovereignty tended to concentration, liberty to diffusion; national unity began to shape itself at the same time as monarchical unity appeared. This was at once indicated and promoted by attempts after a representative form of government, which were made and renewed during nearly three centuries, wherever the feudal system fell into decay, or the monar- chical system prevailed. But soon sovereigns also began almost everywhere to distrust it in their turn. They could not behold with indifference that sovereignty, which after having been long diffused had been regained and concen- trated by their efforts, now again divided at its very centre. Besides, the people were deficient alike in such strength and knowledge as would enable them to continue, on the one hand, against the feudal system, a struggle which had not yet ceased, and to sustain, on the other hand, a new struggle against the central power. It was evident that the times were not fully matured ; that society, which had not thoroughly emerged from that condition of servitude which had been the successor of social chaos, was neither so firmly consoli- dated nor so mentally disciplined as to be able to secure at once order by the equitable administration of power, and liberty by the safeguards of large and influential public institutions. The efforts after representative government became more occasional and feeble, and at length disappeared. One country alone guarded and defended it, and advanced from one struggle to another, till it succeeded. In other places, the purely monarchical system prevailed. This result was accomplished in the sixteenth century. The fourth epoch has lasted from that time to our own days. It is chiefly marked in England by the progress of 16 SUBJECT OP THESE LECTURES. the representative system ; on the Continent, by the develop- ment of the purely monarchical system, with which are associated local privileges, judicial institutions which exercise a powerful influence on political order, and some remnants of those assemblies which, in epochs anterior to the present, appeared under a more general form, but which now con- fine themselves to certain provinces, and are almost ex- clusively occupied with administrative functions. Under this system, though political liberty is no longer met with, barbarism and feudalism finally disappear before absolute power; interior order, the reconciliation of dif- ferent classes, civil justice, public resources and information, make rapid progress; nations become enlightened and prosperous, and their prosperity, material as well as moral, excites in them juster apprehensions of, and more earnest longings for, that representative system which they had sought in times when they possessed neither the knowledge nor the power requisite for its exercise and preservation. This short epitome of facts has already indicated to you, gentlemen, the epochs towards which our studies will be principally directed. The objects of our search are the political institutions of various peoples. The representative system is that around which our researches will centre. "Wherever, then, we do not meet with those general institu- tions, under the empire of which people unite themselves, and which demand the manifestation of general society in its government, wherever we perceive no trace of the repre- sentative system, and no direct effort to produce it, there we shall not linger. All forms and conditions of society present rich and curious subjects for observation ; but in this inexhaustible series of facts we must choose only those which have a strict relation to one another, and a direct interest for us. The second and the fourth epochs therefore, that is to say, feudalism and absolute power, will occupy us but little. We shall only speak of them so far as a conside- ration of them is necessary to connect and explain the periods which will more directly claim our attention. I purpose to study with you the first and the third epochs, and the fourth, so far as it relates to England. The first epoch, which shows us the German people establishing themselves on Roman soil the struggle of their primitive institutions, or rather of LIMITS OP THE INQUIRY. 17 their customs and habits, against the natural results of their new position, in fine, the throes attending the earliest formation of modern nations, has especial claims on our notice. I believe that, so far as regards political institu- tions, this time possessed nothing which deserves the name ; but all the elements were there, in existence and commotion, as in the chaos which precedes creation. It is for us to watch this process, under which governments and peoples came into being. It is for us to ascertain whether, as has been asserted, public liberty and the representative system were actually there, whence some symptoms announced that they might one day emerge. When, in the third epoch, we see the feudal system being dissolved, when we watch the first movements towards a representative government appear at the same time with the efforts of a central power which aims at becoming general and organized, we shall recog- nize here, without difficulty, a subject which immediately belongs to us. We shall seek to learn what societies were then aroused, and by what means they have sought for trustworthy institutions, which might guarantee the con- tinuance at once of order and of liberty. And when we have seen their hopes deceived by the calamities of the times, w r hen we have detected in the vices of the social state, far more than in the influence of any disorderly or perverse desires, the causes of the ill-success of these mag- nanimous attempts, we shall be brought by our subject into the very midst of that people, then treated more leniently by fortune, which has paid dearly for free institutions, but which has guarded them to the last when they perished everywhere else, and which, while preserving and developing them for itself, has offered to other nations, if not a model, yet certainly an example. It would be a small matter for us, gentlemen, thus to limit the field of our inquiries so far as epochs are concerned, if we did not also assign some boundaries in respect to place. The inquiry would be too large and protracted were we to follow the course of political institutions throughout the whole of Europe, according to the plan I have just indi- cated. Moreover, the diversity of events and conditions has been so great in Europe, that, notwithstanding certain gene- ral characteristics and certain philosophical results which the 18 INTEREST OF THE SUBJECT. facts everywhere present, they very often resist all the attempts we may make to bring them under any uniform guiding principle. In vain do we strive to collect them together under the same horizon, or to force them into the same channel; ever do they release themselves from our grasp in order to assume elsewhere the place assigned to them by truth. We should therefore be compelled either to limit ourselves to generalities yielding but little instruction to those who have not sounded all their depths, or else con- tinually to interrupt the course of our inquiry, in order to rove from one people to another with an attention which would be continually distracted and soon wearied. It will be more profitable for us to take a narrower range. England, France, and Spain, will supply us with abundant materials for our undertaking. In these countries we shall study poli- tical institutions under the different phases and in the various epochs which I have just exhibited before you. There we shall find that these epochs are more clearly defined, and that the chief facts which characterize them appear under more complete and simple forms. In France and Spain, moreover, the general attempts after a representa- tive government, made in the thirteenth, fourteenth, and fifteenth centuries, assumed a more definite shape. We are therefore dissuaded by a variety of considerations from carrying our steps beyond these limits. Our researches will thereby gain both in interest and in solidity. This interest, gentlemen, I must say at the outset, is not that merely which attaches itself to human affairs, which are ever attractive to man, however trivial may be the attention which he bestows upon them. The study of the ancient political institutions of Europe demands serious and assi- duous effort. I am here to share this with you, not to under- take it for you. I shall be frequently obliged to enter into details, which may appear dry at first, but which are impor- tant because of the results to which they lead. I shall not content myself with merely presenting before you these results as a general expression of facts ; I shall feel called upon to put you in possession of the facts themselves. The truths which they contain must be seen by yourselves to proceed naturally from them, and must not be allowed a final lodgment in your minds except as they are fortified by such evidence DIFFICULTY OF ATTAESTffQ TETJTH. 19 as can establish them. Gentlemen, it is to be borne in mind that truth, wheresoever we may seek it, is not easy of access. "We must dig deep for it, as for precious metals, before we find it ; we must not shrink from the difficulties, nor from the long duration of the enterprise. It only surrenders itself to resolute and patient endeavour. And not only on behalf of our peculiar study do I urge upon you that you should never allow yourselves to be baffled by the fatigue attendant upon some portions of the work ; a more elevated motive, a more comprehensive claim, gives you this advice. Thrasea, when dying, said to his son-in-law, Helvidius Priscus, "Observe, young man: thou art living in times when it is well that the spirit should become fortified by such a scene as this ; and learn how a brave man can die." Thankful should we be to Heaven that such lessons as these are not now required by us, and that the future does not demand such hard discipline in order that we may be prepared to meet it. But the free institutions which we are called upon to receive and maintain these demand of us, from our earliest youth, those habits of laborious and patient application which will consti- tute our fittest preparation. They require that we should, among our first lessons, learn not to shrink either from the pain, or from the length and arduousness of duty. If our destiny is to be sublime, our studies must be severe. Liberty is not a treasure which can be acquired or defended by those who set a disproportionate value on personal ease and gratification ; and if ever man attains it after having toiled for it under the influence merely o luxurious or impatient feelings, it denies to him those honours and advantages which he expected to gain from its possession. It was the error of the preceding age that, while it aimed at urging the minds of men into a wider and more active career, it yet fostered the impression that all was then to become easy, that study would be transformed into amusement, and that obstacles were removed from the first steps of a life that was to issue in something great and impressive. The effeminate weakness of such sentiments were relics of the feebleness of times when liberty did not exist. We who live in the present day, know that freedom requires from the man who would enjoy it a sterner exercise of his powers. We know that it allows neither indolence ot soul nor fickleness of mind, and that c 2 20 NECESSITY OP HAED STUDY. those generations which devote their youth to laborious study can alone secure liberty for their manhood. You will find, gentlemen, as you watch the development of the political institutions of Europe, that the experience of all ages confirms this of our own. You will not find that those grand designs that have been formed for the promotion of truth, justice, and progress, have ever emanated from the abode of sloth, of frivolity, and antipathy to all that demands labour and patience. As you trace back such enterprises to their source, you will always find there, serious aspect and grave determi- nation, existing, so to speak, in their early life. Only by men formed in this mould have public laws and liberties been defended. They have, according as the wants of their age impelled them, resisted disorder or oppression. In the gravity of their own life and thoughts they have found a true measure of their own dignity, and, in their own, of the dignity of humanity. And, gentlemen, do not doubt, in following their example, of achieving also their success. You will soon become convinced that, in spite of the tests to which it has been exposed, our age is not among the most unrestrained that have existed. You will see that patriotism, a respect for law and order, a reverence for all that is just and sacred, have often been purchased at a far heavier price, and have called for severer self-denial. You will find that there is as much feebleness as ingratitude in the disposition that is intimidated and discouraged by the sight of obstacles which still present themselves, when obstacles of a far more formid- able character have not wearied the resolution of noble men of former times. And thus, while early exercising your minds in all those habits which will prepare man for the duties of an exalted destiny, you will meet with nothing that will not continually deepen your attachment to your age and to your country. So far as I myself am concerned, may I be allowed, gen- tlemen, in entering with you to-day upon the study of the ancient political institutions of Europe, to congratulate my- self on being able to approach the subject with the liberty that is suitable to it. It was in works of a similar character that I commenced my intellectual life. But at that time the public exposition of such facts and of the ideas related to them, was hardly permitted. Power had arrived at that CHARACTERISTICS OF THE PRESENT TIME. 21 condition in which it fears equally any representation of the oppression of peoples, and of their efforts to obtain liberty ; as if it must necessarily meet in these two series of historical reminiscences at once the condemnation of its past acts, and the prediction of its future perils. We are no longer in this deplorable position ; the institutions which France has re- ceived from its sovereign have liberated at once the present and the past. Such is the moral strength possessed by a legitimate and constitutional monarchy, that it trembles neither nt the recitals of history nor at the criticisms of rea- son. It is based upon truth, and truth is consequently neither hostile nor dangerous to it. "Wherever all the wants of society are recognised, and all its rights give each other mutual sanction and support, facts present only lessons of uti- lity, and no longer hint at unwelcome allusions. The volume of history can now be spread out before us ; and wherever we find the coincidence of legitimacy and constitutional order, we shall behold the prosperity both of governments and of peoples the dignity of power ennobled and sustained by the dignity of obedience. In all positions, and however great may be the interval which separates them, we shall see man rendering honour to man ; we shall see authority and liberty mutually regarding one another with that conside- ration and respect which can alone unite them in lasting connexion and guarantee their continued harmony. Let us congratulate ourselves, gentlemen, that we are living at a time in which this tutelary alliance has become a necessity, in which force without justice could only be an ephemeral power. The times to which we shall direct our attention experienced a harder lot ; they more than once beheld despotism root itself deeply in its position, and at the same time saw injustice assert its claim to a lasting rule. We, gentlemen, who have seen so many and diversified forms of oppression, we have seen them all fall into decay. Neither their most furious violence, nor their most imposing lustre, have sufficed to preserve them from the corruption that is in- herent in their nature ; and we have at length entered upon an order of things which admits neither the oppression offeree which usurps power, nor that of anarchy which destroys it. Let us, gentlemen, reap all the advantages connected with 22 CONCLTJSICXN". such an order : let us .show our respect for the distinguished author of this Charter by approving ourselves worthy of receiving, and capable of employing, the noble institutions which he has founded. Our gratitude can offer no purer homage. TALL OP THE EOMAN EMPIBE. 23 LECTTTKE II. General character of political institutions in Europe, from the fourth to the eleventh century. Political sterility of the Roman Empire. Progress of the Germanic invasions. Sketch of the history of the Anglo-Saxons. I HATE divided the history of the political institutions of modern Europe into four great epochs, the first of which extends from the fourth to the eleventh century. This long interval was required to introduce a little light and fixity into the changeful chaos of those new empires which the successive invasions of the Roman territory by the bar- barians had called into being, and whence issued those mighty states whose destiny constitutes the history of modern Europe. The essential characteristics of this epoch are : the conflict and fusion of Germanic customs with Eoman institutions, the attempt to establish monarchical govern- ment, and the formation of the feudal regime. No general system of political institutions then existed ; no great domi- nant influence can be discerned; all was local, individual, confused, obscure. A multitude of principles and forces, mingling and acting (as it were) by chance, were engaged in conflict to resolve a question of which men were com- pletely ignorant, and the secret of which God alone pos- sessed. This question was : What form of government would issue from all these different elements, brought so violently into contact with each other. Five centuries elapsed before the question was decided, and then feudalism was the social state of Europe. Before entering, however, upon the history of institutions, let me say a few words upon the progress of the fall of the Roman Empire, and of the invasions of the barbarians. Erom the accession of Augustus to the death of .Theo- dosius the Great, the Roman Empire, in spite of its great- ness, presents a general character of impotence and sterility. Its institutions, its government, its philosophy, its litera- ture, indeed everything connected with it, bears this sad impress ; even the minds of its most illustrious citizens were 24 CATJSES OF ITS DECAY. confined to a circle of antiquated ideas, and wasted in vain regrets for the virtues and glories of the Republic. The fermentation of new ideas produces no decadence ; but when, in a great empire, society, feeling itself oppressed and diseased, can conceive no new hopes, no grand ideas, when, instead of pressing onwards towards the future, it invokes only the recollections and images of the past, then there is a real decline ; it matters not how long the state is in falling, its ruin is thenceforward continuous and inevitable. The fall of the Roman Empire occupied fifteen centuries ; and for fifteen centuries it continued to decline, until its downfall was consummated by the capture of Constantinople by the Turks. During this long period, no new idea, no regenerative principle, was employed to reinvigorate the life of the government; it -was sustained by its own mass. Towards the end of the third century, when the universal servitude seemed to be most firmly established, imperial despotism began to feel the precariousness of its position, and the necessity for organization. Diocletian created a vast system of administration. Throughout this immense machine, he established underworks in harmony with the principle of his government; he regulated the action of the central power in the provinces, and surrounded himself with a brilliant and puissant court : but he did not rekindle the moral life of the Empire; he merely organized more perfectly a material resistance to the principles of destruc- tion which were undermining it; and it was with this organization that, first in the West as well as in the East, and afterwards in the East alone, the Empire was able to struggle on, from the fourth to the fifteenth century. Theo- dosius the Great, who died in 395, was the last emperor who tightly held and skilfully managed the heterogeneous bundle of the Roman power. He was truly a great man ; for great men appear in disgraceful times, as well as in times of suc- cess; and Theodosius was still the master of the Roman world. As soon as he was dead, the dissolution broke out, under his sons Honorius and Arcadius.* There was now no real unity or central force in the government; Rome * Honorius succeeded peaceably to the sovereignty of the West, which he had received from his father in the preceding year ; while his elder brother Arcadius obtained possession of the East. ABANDONMENT OF ITS COLONIES. 25 gradually abandoned her provinces Great Britain, Armo- rica,* and Narbonnese Gaul.f Honorius informed the Britons that he should govern them no longer ; and directed the inhabitants of JSTarbonnese G-aul to elect deputies to meet at Aries, and take upon themselves the government of their country. The Empire had become a body destitute of sap and vigour; and in order to prolong the life of the trunk, it was necessary to lop off the branches. But, although despotism was withdrawn from these provinces, servitude remained. It is not easy to return at once to liberty and to political life; and these people, cast upon their own resources, were unable to defend themselves. Great Britain, though more populous than the north of Scotland, was unable to repel a few hordes of Picts and Scots, who, every month, descended from their mountainous abodes, and ravaged the British territory. The Britons besought the Emperor's assistance, and he sent them a legion, which had no difficulty in overcoming enemies who fled before it; but it was soon withdrawn. After its departure, the incursions recommenced, and Britain again implored the Emperor's aid. Honorius sent another legion ; but told the suppliants that they must provide for them- selves in future, for he would send them no more soldiers. The victorious legion left the country to return no more, and Britain, assailed on all sides by bands of barbarians, exhausted its energies in vain entreaties for deliverance. There still exists a letter, entitled Gemitus JBritannwn, in which the unfortunate inhabitants of that country depict their deplorable condition to 2Etius, the Patrician of Gaul. " The barbarians," they wrote, " drive us to the sea, and the sea drives us back to the barbarians ; so that, between the two, we must be either slaughtered or drowned." With patriotic susceptibility, some English writers among others Mr. Sharon Turner, in his History of the Anglo-Saxons^ have cast doubts upon the authenticity of this letter, as if * The country on the north-west coast of Gaul, from the Loire to the Seine. f The Roman province in the south of Gaul, so called from its chief city, Narbo or Narbonne ; Caesar calls it simply Provincia, and hence comes the modern name of Provence. Turner's History of the Anglo-Saxons, vol. i., pp. 180-181. 26 INVASIONS OP THE GERMANS. the honour of England were at all involved in the weak- nesses of the Britons of the fourth century. However this may be, and whether bis aid were besought or not, the Emperor had other matters to attend to, and left the Britons to themselves. He abandoned, in like manner, Nar- bonnese G-aul and Armorica. This last province, which was less corrupted by the influence of Roman civilization, dis- played greater energy than the other two. It took measures for its own defence, by forming a kind of federative league against maritime invasions. Spain, which was also deserted, endeavoured to maintain itself in the same manner against attacks of the same nature ; but acted with little vigour, and met with small success. In Great Britain, as well as in Gaul, the Roman government had destroyed the energy of their native independence, and had substituted in its stead nothing but its own artificial and despotic organization. "When the Romans withdrew, the children of the Gauls, inhabiting Roman cities, were incapable alike of self-govern- ment or self-defence, and fell an easy prey to a few bands of foreign marauders, who had come in search of booty and adventures. Let us briefly glance at the progress of their conquests. No determinate epoch can be accurately assigned to the first invasions of the Germans. In all ages, their hordes were wont to descend from their forest-fastnesses into coun- tries less wild and more cultivated than their own. Among their early irruptions, the first regarding which we have any precise historical information is that of the Cimbri and Teutones, who, three hundred thousand in number, ravaged Italy during the time of Marius.* Erom the age of Augus- tus to the fifth century, these invasions continued, but were very unequal in importance. Bands of men, unable to find means of subsistence in their own country, entered the imperial territory, and pillaged as they went ; their fate was decided by the event of a battle; they were dispersed or annihilated by a defeat, or, if victorious, they took possession of some district which pleased them. Frequently, also, they settled in the country by the consent of the emperors. In the third century, Probus received three or four thousand * In B.C. 113-101. Marius finally defeated the Teutones at Aix, in the year 102; and the Cimbri, near Vercelli, in the year 101. FOUNDATION OF BAE33ABIAN KINGDOMS. 27 Franks into Auvergne. A band of Alans took up their resi- dence in the neighbourhood of Orleans ; there was a colony of Groths in Thrace, and another of Vandals in Lorraine. Those of the barbarian warriors who preferred war and pillage to a fixed habitation, entered the Roman armies. Their chieftains became generals, and even supplied the imperial court with ministers of state. Thus the barbarians were everywhere settled in the country, serving in the armies, surrounding the person of the prince; formidable allies, whose assistance the weakness of the empire was forced to accept, and who were destined to increase in power and influence in proportion as the imperial power decayed. As soon as the Roman government, by abandoning several of its provinces, proclaimed its inability to maintain its own integrity, the question was decided, the empire passed to the G-ermans. During the interval which elapsed between the beginning of the fifth and the end of the sixth century, they founded eight great monarchies, some of which were established by force, whilst others received the partial assent of the emperors. In 409, the Vandals, Alans, and Suevi, after having ravaged Gaul, and crossed the Pyrenees, founded by armed force, in Spain, three monarchies, which were speedily incor- porated into one ; and this one, in its turn, was, ere long, destroyed by the Visigoths. In 429, the Vandals passed from Spain into Africa, and founded a monarchy, which was overthrown by Belisarius. In 414, the Burgundians founded a kingdom in Graul, with the consent of the emperors. In 416, the Visigoths penetrated into Southern Gaul, where they founded the kingdom of Aquitaine ; and entered by the north-east into Spain, where they settled, after having destroyed the monarchy of the Suevi. In 450, the Saxons, led by Hengist and Horsa, invaded Great Britain, and founded the Saxon Heptarchy. In 476, the Heruli, under the command of Odoacer, founded a monarchy in Italy. In 481, the Franks, with Clovis at their head, established themselves in Graul. In 568, the Lombards, under the command of Alboin, conquered Italy in their turn, and founded a monarchy. 28 POWER Or THE EMPERORS. I do not propose to write the history of these monarchies ; but I shall endeavour to delineate their leading institutions and their social condition. In the first place, however, I shall say a few words on the method of their foundation. We must not suppose that there was, in every instance, a cession or com- plete abandonment of sovereignty by the Roman empire. The residence of a barbarian chieftain in the country was recog- nised as a fact. He continued to command his own warriors, but no legal authority was granted him over the old inhabi- tants. The cities long maintained their connexion with Rome ; several of them remained municipalities, and continued to appoint their own magistrates. Several towns in Spain, while the country was under the dominion of the Visigoths, received their civic rulers from Constantinople. The empe- rors, though daily despoiled of some new territory, never- theless retained, in almost every quarter, an appearance of empire. Thus we find them conferring on the Prankish kings the titles of Patrician of Graul, and of Consul. This was their protest against the invasion. In scarcely any case was there a transference of sovereign rights. Societies, when abandoned by their government, either received a new one at the hands of the victor, or endeavoured to create one for themselves. Among these rising states, I shall first refer to the Anglo- Saxons ; then I shall pass on to the Franks ; and, finally, to the Visigoths in Spain. I have selected these three nations, because, among them, the institutions of this period are most distinctly marked. The Anglo-Saxons, especially, were placed in a position most favourable for this rapid and com- plete development. JSTot only were they more isolated than other peoples; they were also less disturbed by continual invasions of a formidable character. They soon became sole masters of the country. The Britons were almost extermi- nated; some of them retired into Cornwall, Wales, and Armorica; the others were dispersed, or reduced to servi- tude. The Anglo-Saxons, moveover, were less under the influence of the old Roman institutions. Among modern nations, they are the people who, so to speak, have lived most upon their own resources, and given birth to their own civilization. This character is discernible in their whole history, and even in their literature. The Greek and Latin THE ANGLO-SAXONS. 29 classics have produced but little effect upon them ; primitive and national customs have maintained their sway in England, and received an almost unmixed development. Among the Franks and Visigoths, the old Germanic national assemblies were either suspended for a long period, or entirely trans- formed ; among the Anglo-Saxons, they never ceased ; year after year, they occurred to perpetuate ancient recollections, and to exert a direct influence upon the government. It was, then, among the Anglo-Saxons, that, from the fifth to the eleventh century, institutions received the most natural and complete development. This fact has induced me to commence our studies with their history. Let me briefly refer to the events which occurred during the period of the Anglo-Saxon Heptarchy. From 426 to 450, the Britons, left to themselves, struggled as they could against the inhabitants of the north of Scotland. In 449, some Saxons from the banks of the Elbe disembarked upon the island. This descent was neither novel nor unforeseen. It was a fact so ancient, that the Roman emperors had appointed a magistrate comes littoris Saxonici whose spe- cial duty it was to provide for the defence of the coast. It is affirmed, and Hume has repeated the statement, that this Saxon expedition had been summoned by Vortigern, who was then chief of the Britons, to assist him against the Picts and Scots. This appears to me neither natural nor probable ; and I find in the chronicler JSTennius, a passage which completely disproves the assertion : " Meanwhile," he says, "there arrived from Germany three vessels full of Saxon exiles." * They came therefore spontaneously, ac- cording to their custom. The Britons, reduced to extremi- ties by their untiring enemies, the Picts and Scots, endea- voured at first to use the Saxons against them. But the new-comers quickly discovered their strength, attempted the conquest of the country which they had promised to defend, and succeeded in their attempt. The Britons re- sisted, and even displayed somewhat of the energy of their ancestors, under King Arthur and other leaders. A long time elapsed before they were finally subjugated or expelled. During the period from 455 to 582, the Saxons founded the seven or eight kingdoms which, composed the Heptarchy, or * Nennius, cap. 31. 30 EEiaN OF KING ALFEED. the Octarchy, as Mr. Sharon Turner maintains.* The king- dom of Kent was the'first, founded by Hengist. The others were the kingdoms of Sussex, Wessex, Essex, Northumber- land (or Bernicia and Deira), East Anglia, and Mercia. This division continued until the year 800. At that time, Egbert, King of Wessex, attempted to subjugate the other kingdoms, and succeeded in reducing five under his sway ; but Northumberland and Mercia continued separate, though subordinate kingdoms, until the end of the ninth century. It was at this period that the Danes and Normans made their way into England : they long contested the possession of the country with the Saxons ; and, at the accession of Alfred, the last new-comers held sway almost all over the land. You are all acquainted with the history of this monarch, the greatest of the kings of England. In the marshes where he had been compelled to seek refuge from the pursuit of his enemies, he formed his plans for the deli- verance of his country. Disguised as a harper, he entered the Danish camp for the purpose of learning the amount of their forces ; and finally reconquered his kingdom, after a protracted struggle. Restored thus to his throne, Alfred laid the foundation of English institutions, or rather, he reduced them to order, and gave them authority. It is the custom, however, to date their origin from him ; and his reign is an era in English legislation. Alfred is a glorious instance of a truth exemplified by GKistavus Yasa and Henry IV. of France in later times, namely, that the greatest princes are those who, though born to the throne, are nevertheless obliged to conquer its possession. To their acknowledged right they thus join ample proof of their merit. They have lived as common individuals in the midst of their people; and have thus become better men and better kings. After the death of Alfred, the Danes, whose conquests had been suspended only by the victories of that prince, gained possession of England. Canute the Great took possession of the throne ; but he reigned with moderation, and did not change the laws of the country. This wisdom on the part of the conqueror mitigated the animosity of the vanquished; and the Danes and Saxons agreed so well * History of the Anglo-Saxons, vol. i. p. 320. THE NOEMAN CONQUEST. 31 together, that, not long after the death of Canute the Great, the old dynasty re-ascended the throne. Edward the v Confessor collected together the old Saxon laws; on this account, he is still respected in England as a national legis- lator. But the collection of laws which now exists under his name was not made by him ; that which he composed has unfortunately been lost. During the reign of Edward the Confessor, a striking exemplification was given of the power of some of the nobles, who were in fact, if not in right, rivals of their monarch. Earl Godwin was so powerful that he, so to speak, allowed Edward to ascend the throne, on condition that he should marry his daughter. At his death, his son Harold succeeded him, and increased his authority. Harold's influence extended all over the kingdom, and he only awaited the king's death to take possession of the crown. When Edward died, Harold naturally succeeded to throne. No one in England contested his usurpation. But William the Bastard, Duke of Normandy, one of his distant relations, alleged that Edward had bequeathed the crown to him by will. He crossed the sea to maintain his pretended rights, and, on the 14th of October, 1066, he gave battle to Harold, at Hastings. Harold was left dead on the field. William the Conqueror introduced into England the feudal institu- tions which were then in full vigour in Normandy. The reciprocal relations of persons might have conduced, in England, to the establishment of this system, and had pre- pared the way for it ; but the legal and hierarchical subor- dination of land had not yet taken firm hold in that country. The conquest of William of Normandy disturbed the natural course of the old Anglo-Saxon institutions, and mingled therewith foreign elements which had already been developed, among the Normans, by their position in Gaul, in the midst of Roman cities, and a Roman population. We shall pre- sently see what decisive influence this circumstance exerted over the political development of England. A^GLO-SAXON INSTITUTIONS. LECTUEE III. Subject of the lecture. A knowledge of the state of persons necessary to the proper study of institutions. Essential difference between antiquity and modern societies, as regards the classification of social conditions. State of persons among the Anglo-Saxons. Thanes and Ceorls. Central and local institutions. Predominance of the latter among the Anglo-Saxons. Its cause. IN my preceding lecture, I gave a general outline of the decay of the Eoman empire, and of the progress of the bar- barian invasions ; and I enumerated the principal events in the history of the Anglo-Saxons in England. I now come to their institutions, which form the subject of my present lecture. When we are about to speak of the institutions of a country at any given period, we must first understand what was the state of persons in that country at that period ; for words are very deceptive. History, when speaking of the English nation or the Spanish nation, comprises under that name all the individuals who inhabit the country ; but when we examine into the real state of the case, we quickly dis- cover that the facts which history applies to an entire country, actually belong only to a very small section of its inhabitants. It is the work of civilization to raise up, from time to time, a greater number of men to take an active part in the great events which agitate the society of which they are members. As civilization advances, it reaches new classes of individuals, and gives them a place in history. The different conditions of society thus tend, not to con- fusion, but to arrangement, under different forms and in different degrees, in that superior region of society by which history is made. The first question to be solved, then, is that of the state of persons ; we must precisely understand which are those classes that really figure in history. Then will occur this other question: What are the institutions in accordance THANES AND CEOEL3. S3 with which that political nation acts, which alone furnishes subject-matter for history ? "When we address the first question to antiquity, we find, as in Modern Europe, one great classification : freemen and slaves. But there is this difference that, in antiquity, slavery continued stationary and immutable. Its unchange- ableness in this particular, was one of the principal charac- teristics of ancient civilization. Individuals were emanci- pated ; but the great mass of slaves remained in bondage, everlastingly condemned to the same social nonentity. In Modern Europe, social conditions have been in a state of perpetual fluctuation j numerous masses of men have fallen into slavery, while others have emerged therefrom ; and this alternation of liberty and servitude is a novel and important fact in the history of civilization. What was the condition of persona among the Anglo- Saxons ? Here, as elsewhere, we at first perceive the two great divisions of freemen and slaves. The freemen, who are the only active elements in history, were divided into two classes, thanes and ceorls. The thanes were the proprietors of the soil, which was entirely at their disposal : hence the origin of freehold tenure. The ceorls were men personally free, but possessing no landed property. The thanes were subdivided into two classes ; king's thanes, and inferior thanes. This distinction is not merely a historical fact ; the laws recog- nize these two divisions. The composition for the life of a king's thane was twelve hundred shillings, while for that of an inferior thane it was only six hundred. Here, as in other states which came into existence at this epoch, punish- ment was made proportionate, not only to the gravity of the oifence, but also to the rank of the person injured. By the substitution of an indemnity for retaliation, a step was taken by these peoples towards social justice. Early ideas of justice inflict evil for evil, injury for injury ; but the highest point of its perfection is that decision of society which, embodying supreme reason and power, judges the actions of men accused of crimes, and acquits or condemns them in the name of the Eternal Justice. In the sixth century, society did not inflict punishment ; life, like every- thing else, had its price ; and this price was shared between the family of the dead man, the king, and the judge. The 34f DIFFERENT CLASSES OF THAKES. penalty of crime was as yet only the price paid for the renunciation of the right of revenge which belonged to every free man. Individuals who were injured, either in the pos- session of their goods, or in the life of their relatives, received a. fixed composition from the guilty person. I have pointed out the legal distinction which subsisted between the king's thanes and the inferior thanes ; but when we seek to discover what constituted the real difference of their condition, we find that this difference was very vague, and belonged to the time when they all led a nomadic life, rather than to their settled agricultural existence. In Germany, or on leaving Germany, bands, more or less numerous, united themselves to the company of some parti- cular chief or king. After the conquest of a country, those chiefs who were nearest the king found themselves in a most favourable position for becoming large landed proprietors. These were called king's thanes, because they belonged to the royal band. But there was nothing to separate them essentially from the other thanes. To be a king's thane, it was necessary to possess about forty or fifty hides of land.* Bishops and abbots were admitted into this class. The inferior thanes were proprietors pos- sessing less land, but able to dispose just as freely of their property as the king's thanes. Some writers have asserted that the king's thanes were the nobles, and that the others were simple freemen. An attentive examination of Anglo- Saxon institutions will prove that there was no such dif- ference of position and rights between the two classes. It is a great error to expect to meet with clearly defined ranks and conditions, at the origin of society. Some writers, how- evter, pretend to discover at the outset what time alone can introduce. We meet with no nobility, constituting a supe- rior social condition, with recognized privileges : we perceive only the causes which will progressively form a nobility, that is, will introduce inequality of power and the empire of the strong. The formation of a class of nobles has been the work of ages. An actual superiority, transmitted from father to son, has gradually assumed the form and characteristics of a right. "When societies have not been long in existence, we do not find in them social conditions thus distinctly marked, and * A hide of land was about 120 acres. THEia MUTUAL BELATIONS. 85 the royal family is the only one that can, with any reason, be termed noble. It generally derives its title from some religious filiation ; for instance, among nearly all the peoples of the north, in Denmark, in Norway, and in England, the kings descended from Odinj and their divine origin gave high sanction to their power. Other writers have held that the relations which subsisted between the king's thanes and the inferior thanes were of a different nature, corresponding to the feudal relations of lords and vassals. The king's thanes, they say, were vassals of the king ; the inferior thanes were vassals of the king's vassals. "We may certainly discover, in the connec- tion of these two classes of men, some of the characteristics of feudalism. But feudalism, such as was established on the Continent as well as in England, after the conquest by William of Normandy, consisted essentially in the simul- taneous hierarchy of lands and persons. Such were not the rudiments of feudalism discernible among the Anglo- Saxons. As yet, the only hierarchy existing among them was of persons. All the thanes held their lands in an equally free and independent manner. At a later period, feudalism received a more complete development ; from the hierarchy of persons proceeded that of lands, and the latter soon predominated over the former. But this result was not manifested until after the Norman conquest. Before that period, there were no vassals properly so called, although the word vassus occurs in a biography of King Alfred. The causes which led to the subordination of persons, independently of their connection with land, are simple and may easily be conceived. When the barbarian chieftains entered the Roman territory, they possessed an influence over their companions which they endeavoured to retain after their settlement. The Saxon laws, with a view to bring this rude and floating state of society into an orderly state, provided for the maintenance of this primitive hierarchy ; and compelled every freeman who had attained the age of twelve years, to enrol himself in some corporation of individuals, in a tithing or a hundred, or else to place him- self under the patronage of a chieftain. This bond was so strong that the person who made the engagement could not absent himself without the permission of the captain of his 1)2 30 FREEDOM OF THE CEOELS. corporation, or of his chieftain. A foreigner even might not remain forty days on the English soil without enrolling himself in this manner. This spirit of subordination, this obligation of discipline, is one of the principal characteristics of Anglo-Saxon legislation. All those kings who, after long-continued disorders, were desirous to reorganise society, exerted themselves to restore to vigorous operation these laws of police and classification. They have been attri- buted to Alfred, but he merely re-enacted them. In my opinion, then, there is no legitimate ground for the doctrine that the relation of the king's thanes to the inferior thanes, was a feudal relation. It was the natural relationship which necessarily arose, at the origin of society, between the various degrees of power and wealth. The poor and the weak lived under the surveillance and protec- tion of those who were richer and more powerful. As I have already observed, the freemen were divided into two classes, thanes and ceorls. I shall now speak of the second class. The ceorls were freemen who lived on the estates of the thanes, and cultivated them. Their free condition has been called in question, wrongly, as I think, for various reasons : 1st. The composition for the life of a ceorl was two hundred shillings, and the characteristic mark of his liberty is that a portion of this composition was paid to his family, and not to the proprietor of the estate on which he lived ; whereas, the composition for the life of a slave was always paid to his owner. 2nd. In the early times of the Saxon monarchy, the ceorls were able to leave the land which they cultivated, whenever they pleased ; by degrees, however, they lost this liberty. 3rd. They had the right of bearing arms, and might go to war ; whereas, slaves did not possess this right. When Earl Godwin attacked King Edward, he armed all the ceorls on his estates ; and, at the time of the Danish invasions, the ceorls fought in defence of their country. 4th. They were also capable of possessing property, and when they owned five hides of land they passed into the class of thanes, as did also merchants who had made three voyages to foreign lands. Hence the origin of the English yeomanry. The yeoman is the freeholder, who, possessing an income of forty shillings from land, votes at county elections, and may sit on juries ; prolus e CEOELS A^D SLATES. 3C' legalis "homo. 5tli. The ceorls were admitted to give evidence, only, it is true, in matters which had reference to persons of their own class : whereas slaves did not possess this right. 6th. Nearly all the ceorls were Saxons : we find in a canon of the clergy of Northumberland, that a ceorl accused of a crime, must bring forward as witnesses twelve ceorls and twelve Britons. The ceorls, then, were Saxons, and were distinguished from the ancient inhabitants of the country. It is impossible that so large a proportion of the conquerors should have fallen so quickly into servitude. "We may rather feel astonished that they had no landed property in the country, which they had just conquered. But Tacitus, with the accustomed truthfulness and vigour of his pencil, makes us readily understand this circumstance. In the forests of Germany, the barbarian warriors always lived around their chieftains, who had to suggest and command expeditions in times of activity, and to lodge and support their men in times of repose. The same habits were kept up after the conquest of a country , r the property acquired was not divided among all the victors. Every chieftain received a larger or smaller division of land, and his followers settled with him upon it. These men, accus- tomed to a wandering life, did not yet set a high value upon landed property. Being still harassed, moreover, by the ancient possessors of the soil, they found it necessary to keep together, and unite in their own defence. They formed species of camps around the dwelling of their chieftain, whose possessions, according to the ancient Saxon laws, were divided into two parts inlands and out- lands. And it is clear proof of the great difference then existing between the ceorls and the slaves, that the latter alone cultivated the land adjoining the habitation of the chief, while the ceorls, as a natural consequence of their personal freedom, tilled the outlands. This state of things, however, could not last long. A large number of the ceorls fell into servitude, and assumed the name of villeins (villani) ; while others acquired lands for themselves, and became the soc-men of England. Summing up what we have said, we perceive, in the state of persons under the Anglo-Saxon monarchy, one great division into freemen and slaves : and, among the freemen, another 38 LOCAL INSTITUTIONS. distinction of thanes and ceorls. The thanes themselves are subdivided into king's thanes and inferior thanes. The former are large landed proprietors, the latter hold smaller estates ; but both classes possess equal rights. The ceorls are freemen, without landed property, at least originally. Most of them fall into a state of servitude. With regard to the slaves, we can say nothing except that they were very numerous, and were divided into domestic servants and rural serfs, or serfs of the glebe. The ancient inhabitants of the country did not all fall into servitude; some of them retained their possessions, and a law of King Ina authorized them to appear before courts of justice. They might even pass into the class of thanes if they possessed five hides of land. The thanes alone, to speak truly, played an active part in history. Passing now to the institutions which connected and governed these different classes, we find them to be of two kinds ; central institutions, entirely in the hands of the thanes, the object of which was to secure the intervention of the nation in its own government ; and local institutions, which regulated those local interests and guarantees which applied equally to all classes of the community. At the origin of Anglo-Saxon society, there existed none' but local institutions. In these are contained the most important guarantees for men whose life never goes beyond the boundaries of their fields. At such epochs, men are as yet unacquainted with great social life ; and as the scope of institutions always corresponds to the scope of the affairs and relations to which they have reference, it follows that when relations are limited, institutions are equally so. They continue local, because all interests are local ; there are very few, if any, general taxes and affairs of public concern ; the kings live, like their subjects, on the income derived from their estates. The proprietors care little about what is pass- ing at a distance. The idea of those great public agencies which regulate the affairs of all men, does not belong to the origin of societies. By degrees, in the midst of the chaos of the rising society, small aggregations are formed which feel the want of alliance and union with each other. They estab- lish amongst themselves an administration of justice, a public militia, a system of taxation and police. Soon, inequality OEIGIN OP CENTRALIZATION. 39 of strength is displayed among neighbouring aggregations. The strong tend to subjugate the weak, and usurp, at first, the rights of taxation and military service. Thus, political authority leaves the aggregations which first instituted it, to take a wider range. This system of centralization is not always imposed by force : it sometimes has a more legiti- mate cause. In times of difficulty, a superior man appears who makes his influence first felt in the society to which he belongs. When attacked, the society intrusts him with its defence. Neighbouring societies follow this example ; soon the powers granted in time of war are continued in time of peace, and remain concentrated in a single hand. This vic- torious power retains the right to levy men and money. These are the rights of which the movement of centralization first deprives small local societies ; they retain for a longer period the rights of administering justice, and establishing police regulations ; they may even retain them for a very long while, and England offers us many such examples. The preponderance of local institutions belongs to the infancy of societies. Civilization incessantly tends to carry power still higher ; for power, when exercised from a greater distance, is generally more disinterested, and more capable of taking justice and reason for its sole guides. But fre- quently also, as it ascends, power forgets its origin and final destiny ; it forgets that it was founded to maintain all rights, to respect all liberties ; and meeting with no further obstacles from the energy of local liberties, it becomes trans- formed into despotism. This result is not, however, necessary and fatal ; society, while labouring for the centralization of authority, may retain, or regain at a later period, certain prin- ciples of liberty. When central institutions have obtained too absolute a prevalence, society begins to perceive the defects inherent in an edifice which is detached, as it were, from the soil on which it stands. Society then constructs upon itself the exact opposite of what it built before ; looks narrowly into the private and local interests of which it is composed ; duly appreciates their necessities and rights ; and, sending back to the different localities the authorities which had been withdrawn therefrom, makes an appropriate distri- bution of power. When we study the institutions of France, we shall be presented with the greatest and clearest example 40 EFFECTS OF THE FRENCH BEVOLTJTION. of this double history. "We shall perceive the great French society formed from a multitude of little aggregations, and tending incessantly to the concentration of the different powers contained within it. One great revolution almost entirely destroyed every vestige of our ancient local institu- tions, and led to the centralization of all power. We now suffer from the excesses of this system ; and having returned to just sentiments of practical liberty, we are desirous to restore to localities the life of which they have been deprived, and to resuscitate local institutions, with the concurrence and by the action of the central power itself. Great oscilla- tions like these constitute the social life of humanity, and the history of civilization. LOCAL INSTITUTIONS IN ENGLAND. 41 LECTTJEE IV. Local institutions among the Anglo-Saxons. Divisions of territory; their origin and double object. Internal police of these local asso- ciations. Importance of the county-courts; their composition and attributes. Complex origin of the Jury. Central institutions of the Anglo- Saxons. The Wittenagemot ; its composition, and the principle on which it was based. Increasing preponderance of the large landowners in the Anglo-Saxon monarchy. IN my preceding lecture I pointed out the causes of the special importance of local institutions, at that epoch in the development of civilization which now occupies our attention. I now proceed to examine into those institutions. They were of two kinds. One class bound man to a supe- rior, established a certain right of man over man, a personal pre-eminence and subordination, which were the source of mutual duties. On the Continent, this hierarchy of persons became the first principle of feudalism, which would perhaps have received only a very imperfect development in England, had not William the Conqueror transplanted it to that country in its complete state. The other class of local insti- tutions bound men of equal rank to each other, regulated their mutual relations, and defined their reciprocal rights and duties. The first class marked a relationship of protection and dependence; the second summoned all the inhabitants of the same territory, possessing the same rights and the same obligations, to deliberate in common upon affairs of common interest. These were the predominant institutions of the Anglo-Saxons. Norman feudalism could not entirely abolish them. At this period, England was divided into tithings, hundreds, and counties. This division has been attributed to King Alfred : he seems to be the founder of all the legislation of this epoch, because it all issues in a fixed and precise form from his reign ; but he found it already in existence, and did nothing more than arrange it in a written code. He did not, then, originate this division of territory, which appears to be based upon the ecclesiastical partition of the country. After 42 DIVISIONS or THE SOIL. their settlement in Great Britain, the Saxons did not divide it into systematically determined portions, but adopted what they found already established. The portions of territory which were under the direction of the decanus, the decanus rumlis, and the bishop, formed respectively the tithing, the hundred, and the county. We must not, however, suppose that these names correspond precisely to realities. .The tithings and hundreds were not all equal in extent of soil and number of inhabitants. There were sixty-five hundreds in Sussex, twenty-six in Yorkshire, and six in Lancashire. In the north of England, the hundreds bore another name ; they were called Wapentalces* Here the ecclesiastical divi- sion ceases, and a military circumscription prevailed, which still subsists in some counties. An analogous circumscrip- tion has continued to the present day in the Grisons, in Switzerland. These divisions of the soil had a double object. On the one hand, they formed the most certain means of insuring order and discipline ; and on the other hand, they supplied the inhabitants with the most convenient method for trans- acting their public business in common. By a police regulation which I have already mentioned, every free individual, above twelve years of age, was obliged to enrol himself in a certain association, which he could not abandon without the permission of the chief. A stranger might not remain for more than two days with a friend, unless his host gave surety for him, and at the end of forty days he was compelled to place himself under the surveillance of some association. It is remarkable that the details of these laws of classification and subordination were almost the same in all those parts of the Roman Empire occupied by the barbarians in Gaul and Spain, as well as in England. When one of the members of a special association had committed a crime, the association was obliged to bring him to trial. This point has given rise to much discussion among learned men. Some have maintained that the association was bail for its * From wapen, weapons, and tac, a touch, i. e. a shaking or striking of the arms ; or from the same wapen, and tac, a taking or receiving of the vassal's arms by a new lord in token of subjection ; or because the people, in confirmation of union, touch the weapon of their lord. See Blackstone, Introd., sec. 4. and Holinshed, vol. v. p. 37. THE COUNTY COTJETS. 43 members, not only for their appearance before the court of justice, but also for the crime which they might have com- mitted. I think that every Anglo-Saxon association was bound only to bring the culprit to trial. If he had made his escape, the association had to prove, sometimes by twelve and some- times by thirty witnesses, that it knew nothing of his where- abouts ; and it was fined only when it could not produce witnesses to prove that it had not abetted his escape. This obligation of every local corporation to pay for its guilty and absent members, existed also in Gaul at this time. The Gallic corporation was moreover answerable for the execution of the sentence : I do not think this was the case in England, where it was bound only to bring the culprit to trial. The second object of this division of the land was to appoint centres of union, where the inhabitants might discuss matters of common interest. In every county, and in every subdivision of a county, the landowners held meet- ings, at which they deliberated upon the affairs of the local association to which they belonged. Originally, therefore, there existed not only county-courts, but also courts of hundred and courts of tithing, which frequently met. By degrees, as the circle of the interests of these little associa- tions continually tended to become larger, the courts of tithing fell into desuetude. The courts of hundred survived for a longer period, and even now retain some shadow of existence. The Saxons, however, dispersed over the country, and busied with their warlike and agricultural labours, gradually lost the habit of attending these meetings. Having scarcely any written rights to defend, and being seldom disturbed in their dwellings, they lived without anxiety for a liberty which was never called in question. The principal guarantee of the liberty of individuals at that time was their isolation : the active surveillance which it requires, when government exercises a direct and frequent influence upon the governed, would have been to them a useless and fatiguing burden. It devolved upon the kings to compel them, as it were, to keep up their old institutions. Athelstane ordained that the county-courts should meet once in every three months. Eew persons attended them, and it became necessary to grant further indulgence. The county-courts were allowed to assemble only twice a year. All holders of 44 OEIGIK OF THE JTJET. land were entitled to attend their meetings. The matters discussed were the internal administration of the county, the maintenance of roads and bridges, the keeping in repair of the forts which the Romans had constructed to defend the country against the invasions of the Picts and Scots, and which were still used for the same purpose. All public business was transacted in the county-court, under the presi- dency of the alderman. At its meetings, military forces were levied, justice was administered, and ecclesiastical affairs were treated of. All public acts, sales, manumissions, wills, were conducted before it, and the publicity of the assembly gave an authentic character to these deeds. Every act, however, was authenticated by a certain number of wit- nesses, and the deeds were afterwards transcribed and intercalated in the parish Bible. In these meetings, also, we discern the origin of the Jury. "When there was a trial to be decided, the alderman sent a number of freemen belonging to the same class as the con- tending parties, to the place where the dispute had occurred, in order to learn the facts of the case. These men were called assessors, and when they returned to the county-court, furnished with the necessary information, they naturally became the judges in the case which they had investigated. The contending parties publicly pleaded their own cause, and were obliged to prove their right by witnesses, com- purgatores. It has been a question much debated whether the institution of the jury arose from these witnesses, or from the assessors. In my opinion, it was the product of neither exclusively, but of both combined. The establishment of a great institution has nearly always something complex about it. The jury came into existence in some measure spon- taneously, from the amalgamation of the different classes of persons who combined to investigate and decide the case. Under the Anglo-Saxon monarchy,, it was not a very clearly defined institution. It was not universally in practice, its rules were frequently infringed upon: and Alfred, who was the restorer of the ancient institutions of the country, hanged an alderman who had given judgment without the co-operation of his assessors. The presidents of these different territorial subdivisions, of the county-courts, the hundred-courts, and the tithing- APPOINTMENT OP MAGISTRATES. 45 courts, were at first elected by the landowners. I do not suppose the choice was made by individual votes, but rather by a tacit consent given to the personal influence of certain men. Sometimes, however, to repair long disorders, and destroy the injurious consequences of this influence, the central authority interfered in the appointment of these magistrates. When Alfred had vanquished the Danes, he was desirous to reform the abuses which the troubles of war had introduced into the administration of justice ; he assumed the right of choosing the centenarii and tithing- men, and this novelty was so far from being considered an usurpation of the rights of the nation, that contemporary historians praise the monarch for having given the people such good magistrates. The systematic conflict of the rulers with the ruled had not yet commenced; the limits of their respective rights and duties were neither fixed nor recognised, and as power was not yet extravagant in its exactions, the people did not feel their rights attacked; necessity, or temporary utility, were the tests which decided the value of a measure. We do not find that the kings who succeeded Alfred retained this right of appointment. Under Edward the Confessor, the county-magistrates were chosen by the landowners. The conquest of William the Norman destroyed, in great measure, these free customs. The alder- man, the centenarius, and the tithing-man, disappeared before the feudal lords, or became feudal lords themselves. The assemblies of freemen, however, still retained the right of appointing their respective officers. The sheriff was sub- stituted for the alderman, the centenarius merged in the high-constable, and the petty-constable took the place of the tithing-man. . These were the officers of the people, the municipal officers. Such is a summary of the local institutions which, under the Anglo-Saxon monarchy, maintained the internal order of the state, and constituted the safeguards of public liberty. Yigorous institutions were they, which feudalism could not overthrow, and which produced, at a later period, repre- sentative government in England, although they did not contain, as you will presently see, the true principle of representative government. Let us now pass to central institutions. Of these, there 4G THE WITTENAGEMOT. were two among the Anglo-Saxons : the national assembly, and the royal office. Tacitus has described to you the general assemblies of the ancient Germans. At those meetings, nothing was decided without the consent of every freeman. Each individual possessed and exercised his own personal rights and influ- ence. The influence of the chiefs was great. The leaders of their men in war, they became, when their conquest was completed, the principal, indeed almost the sole, landed pro- prietors, and thus they retained among themselves, although the others were not legally excluded, the practice of forming national assemblies. Each kingdom of the Saxon Heptarchy had its own, and it is probable that the thanes, or land- owners, enforced the adoption and execution of the resolu- tions of this assembly, among the ceorls who dwelt on their estates. "When the Heptarchy was combined into a single kingdom, one general assembly alone was established ; and as its meetings were held in a central locality, at a great distance from many parts of the realm, the large proprietors were the only persons who were able to attend regularly. This assembly was called the Wittenagemot, or the assembly of the wise men. From historical documents, we learn that it was composed of bishops, abbots, abbesses, dukes, and earls ; but we also find these words, the vagueness of which has given rise to very different explanations : " such a decision was taken coram proceribus alionmque fidelium infinitd multitudine" Some learned men, who are partisans of absolute power, have inferred from this that it existed at the very origin of society ; and they assert that the name of the assembly, Wittenagemot, was in itself sufficient to prove that it was composed only of the judges and delegates of the sovereign. Other writers, who are zealous advocates of the rights of the people, have held the opinion that this multi- tude of persons present were the representatives of the various counties and boroughs. I think that both these systems are false. As regards the first, it is evident that there was no distinct class of judges at this period ; public functionaries were, not then classified as they are now, and the expression wise men would apply equally to all those whose condition raised them above the l vulgar herd.' "With reference to the second system, I must say that no idea of ITS MEMBERS. 47 representation was entertained at that period. Whoever was entitled to attend the assembly went thither, and went in person. No proxies were allowed. No one was per- mitted to enter the assembly in any name but his own. When we come to treat of the principles of representative government, we shall see that the formation of the ancient Germanic assemblies was based upon the principles of individual right, and of the sovereignty of the multitude, principles from which representative government did not take its origin. Besides, the towns at this period were in so miserable a condition, that it was impossible for them to appoint representatives. York, the second city in England, contained fourteen hundred and eighteen families, and Bath sixty-four. A law of King Athelstane declares that no one entered, or could enter, the assembly, except upon his own account; every proprietor possessing five hides of land, it says, and every merchant who has made three voyages to foreign countries, shall be numbered among the thanes, and be admitted as such into the Wittenagemot. The inequality of conditions, however, continued to increase. Those national assemblies, in which, originally, all freemen were entitled to sit, soon became, as you have seen, restricted to landed pro- prietors. By-and-bye, as power became centralized, and predominant influences gained greater strength, the small proprietors ceased to use a right which had lost all value to them, and the large landowners remained the undisputed masters of the field. The disproportion between the two classes was so great, that a contest was impossible. As each man sat in his own name, each man brought his own personal influence and private interests with him. The general assembly became an arena for individual disputes. This was the necessary consequence of a principle, which, by summoning all persons to exercise the same right, placed inequalities in that position which was most favourable to the development of their power and egotism. It is the work of a widely different principle to seek out among the masses the persons best fitted to represent them, to send these individuals to the central assembly to provide for the safety of all rights in the name of justice, and thus to prevent the evil consequences which must result from the natural or social inequality of mankind, by creating a facti- 48 CnAEACTER OE THE A^GLO-SAXON MONAECHY. tious, but just, equality among their representatives, which leaves them only the legitimate influence of their talents and character. But the foundation of such a government is the work of ages. Nations, in their infancy, cannot possess it. The Anglo-Saxon monarchy was a continual conflict of individual interests, which was carried on in the AVit- tenagemot, as well as elsewhere, and its general tendency was to the continually increasing preponderance of large landed property. BUSINESS OF THE WITTENAGEMOT. 49 LECTTJEE V. The Wittenagremot ; its business and power. Method of its convoca- tion. Vicissitudes of its character and importance. The kingly office among the Anglo-Saxons. Extent and progress of the royal power. have already considered the origin and composition of the Wittenagemot, or general assembly of the Anglo- Saxons, it now remains for us to speak of its attributes and method of convocation. In the infancy of society, everything is confused and uncertain ; there is as yet no fixed and precise line of demarcation between the different powers in a state; and thus we find that the attributes of the Wittenagemot were rather indefinite. There was no settled boundary at which its power ceased, and that of the monarchy commenced; both united to transact all the business of the nation, and, if we would ascertain the part actually taken by the Wit- tenagemot in this business, we must inquire of history what were its real attributes. The defence of the kingdom was the chief business of the national assemblies. We must not suppose that the obliga- tion of military service is coeval only with feudalism ; inde- pendently of every feudal bond, it was an obligation imposed on every freeman in the nation, just as at the present day every French citizen is bound to present himself for con- scription. The Wittenagemot ordered levies of the land- owners, who, in their turn, convoked the freemen resident on their estates. The Wittenagemot also imposed taxes; at that period, however, there were hardly any public taxes ; the first was levied in consequence of the Danish invasion, and the law which imposed it expressly states that it received the con- sent of all the members present in the Wittenagemot. The county-courts, as we have seen, provided for the maintenance of the public roads, bridges, and forts. We 50 OVEESIGHT OF THE EOTAL DOMAIN. learn from the deliberations of the Anglo-Saxon national assembly, that such matters fell under its cognizance also. As the right of coining money did not belong exclusively to the king, but was also possessed by the church and by many powerful subjects, the Wittenagemot had the oversight of this matter, and prevented the debasement of the coinage. "We also find it ratifying or annulling those acts of county- courts which had reference not to private matters, but to affairs of general importance. The principle of the responsibility of the agents of power was not more clearly and firmly established in the Anglo- Saxon monarchy than the other great principles of free government ; but it was, nevertheless, confusedly practised. A vague feeling of justice pervaded these national assem- blies ; they repressed great abuses, but frequently punished injustice by injustice. The "Wittenagemot in England possessed a power which was not generally exercised by corresponding assemblies on the Continent ; it had the oversight of the royal domain. Origin- ally, the kings lived, like other landowners, on the income derived from their own private estates. Their property was a private domain, which they managed as they pleased. As time rolled on, this domain became very largely augmented by confiscations ; but the kings, compelled to defend their tottering authority from the frequent attacks to which it was subjected, were incessantly diminishing their estates by gifts to powerful and formidable chiefs. Frequently, also, when they were strong, they resumed the gifts which necessity had extorted from them. The little reliance to be placed upon these purely royal donations, unless they were ratified by the consent of the national assembly ; and the knowledge that, if the king were permitted these forced dilapidations of his own domains, the Wiitenagemot would one day be obliged to repair them, and compensate the monarch for the loss of his private estates, were the reasons which led to the interference of the national assembly in the adminis- tration of the royal domain. In France, this domain did not fall so soon under the influence of the national assem- blies, but remained for a much longer period the private property of the kings. One of the most important attributes of the "Witte- PIEECTION OP ECCLESIASTICAL AFFAIES. 51 nagemot was the direction of ecclesiastical affairs. The abbots and bishops, indeed all the high clergy, were mem- bers of this assembly. In France, although the clergy formed a part of the national assemblies, they treated of their own affairs as a separate body, and communicated directly with the king. In England, ecclesiastical matters, like all* other business, were discussed in the general assem- bly. For instance, when missionaries from Eome came to invite the kings of the Heptarchy to embrace the Christian religion, the kings replied that they must ask the consent of the "VVittenagemot. In Sweden, the king, who had already become a convert himself, proposed to the assembled Diet to adopt Christianity. The Diet sanctioned the new religion, but retained the old creed, and this simultaneous practice of the two religions lasted for a considerable time. The Wittenagemot had not always to discuss such important matters as the conversion of the nation ; it appointed bishops, and ordained or sanctioned the foundation of abbeys and monasteries. The last business of the Anglo-Saxon national assembly was to receive complaints and petitions in denunciation of abuses. It thus became sometimes a judicial court, adjudi- cating on the appeals of large landowners; but it seldom appears in this character: it was especially a political assembly, whilst, on the Continent, the national assembly frequently acted as a judicial tribunal. I have now pointed out the various functions of the Wittenagemot, and you have been able, from the acts of that assembly, to form a tolerably accurate idea of it. As regards its convocation, originally its meetings were frequent, but in order not to fatigue its members too much, it became necessary to reduce the meetings to two, held in spring and autumn, as on the Continent. The right of con- voking the "VVittenagemot became, ere long, one of the prerogatives of the crown. This abandonment of so impor- tant a privilege is very characteristic of an age in which political prudence is unknown, and distrust is manifested only at rare intervals, and then by revolt. It seemed natural that the king, the direct centre of all the interests and necessities of the nation, should convoke the assembly for exigencies with which he was better acquainted than E2 52 CHABACTEE OF THE WITTENAaEMOT. any other person ; at his death, the large landowners assembled spontaneously, to deliberate on a change of dynasty or the arrangement of the succession. The inviolability of the members of the Wittenagemot was recognized from the day on which they set out to attend the assembly, till the day on which they returned home again, provided they were not notorious brigands. Summing up what I have said, the general assembly of the Anglo-Saxons, as of most of the German nations, was, in Germany, composed of every freeman ; after the conquest, it consisted only of the landowners ; and, towards the end of the monarchy, it was attended by none but the most wealthy proprietors. Each man came in his own right, and on his own behalf j according to a charter of King Alheldiane, he might send a proxy in his place. This irre- fragable mark of individual right still exists in England. In the House of Peers, every peer may vote by proxy and in his own name. It is from the Wittenagemot, in this last phase of its existence, and from the rights of suzerainty which Norman feudalism conferred on the king over the great barons, who held their titles directly from him, that the English House of Peers, as it now exists, derives its origin. In the Wittenagemot of the last age of the Anglo-Saxon monarchy, we can discern neither of the two elements which composed the House of Commons at a later period. The towns had hardly any existence, and could not, therefore, send deputies : the counties had never sent any. The Wittenagemot was only an assembly of the powerful men of the state, who came on their own account, and in their own personal right. Most other persons neglected rights which were too difficult for them to exercise, and the real impotence of which they felt; by neglecting to exer- cise them, they eventually lost them ; and when the exigencies of liberty occurred to agitate a more advanced and less contented state of society, a new labour was necessary to restore to the citizens, rights which they had allowed to perish, through the want of necessity and capacity. The second of the central institutions of the Anglo- Saxons, was the kingly office. An important fact lias distinguished the formation of all states of Germanic origin, and this is, the speedy establishment of hereditary THE KINGLY OFFICE. 53 monarchy, which was the dominant character of this institu- tion at this period, whatever mixture of election may be discerned therein. The causes of this are simple. In warlike tribes, there is, in war at least, a single chieftain ; the man of greatest valour and largest experience, says to his comrades, " Come with me I will lead you where you may obtain rich booty ;" his proposition is accepted, and by common consent he becomes the leader of the expedition. Thus, at the origin of society, power is not conferred ; he who is able to do so, assumes it by the consent of the others. There is no election properly so called, but only a recogni- tion of authority. The leader who has conducted one or more fortunate expeditions, obtains great importance by success ; his influence increases with time, and he hands down to his family the influence and power which he has acquired. This family, thus invested with an actual superiority, gains a natural habit of command, which the others soon grow accustomed to acknowledge. Among the Germans, moreover, the idea of religious filiation contributed powerfully to the establishment of hereditary monarchy. It was almost a national duty to choose kings from the divine race ; and all the royal families were descendants of Odin. Thus hereditary monarchy prevailed among these peoples; but choice among the members of the royal family long existed. It was indispensably necessary that the king should be a capable man, in a state of society in which men were as yet ignorant of the artificial means which supply the deficiencies of royal incapacity. Thus Alfred himself did not simply found his right to the throne on a will of his father, and an agreement with his brother ; but he based it especially upon the consent of all the large proprietors of the kingdom of Wessex. Force sometimes gave severe checks to hereditary right ; but the usurpation of the throne was always associated with the idea of the violation of a right, and the usurpers invariably strove to atone for this violation, by marriage with one of the legitimate race. The kings, under the Anglo-Saxon monarchy, were at first called Heretogs, leaders of armies ; but it is a mistake to explain and limit their prerogatives by the name which they bore. The power of arms was then so great, and all other 54 DUTIES OP THE KINGS. powers seemed so inferior and subject to it, that they all fell under the generic term which contained within itself nearly every idea of force and empire. The most different powers were embraced under this single denomination, and we must not suppose that the kings limited their functions to those which it seems to indicate ; the Anglo-Saxon kings were not merely military leaders ; they managed all the internal administration of the realm, in concert with the "Wittenagemot. Their attributes were not more determinate than those of that assembly. With it, they directed all the affairs of the nation ; and their surveillance, being perpetual, was more close and active. They were addressed as the highest authority, and also as possessing the most informa- tion on public affairs. Thus the right of presiding over the general assemblies and proposing the subjects for deliberation, belonged exclusively to them. The royal authority, however, not being sustained by a strong and regular organization, decreased in power in proportion as the great proprietors increased in influence and became firmly established in their domains. Towards the end of the Anglo-Saxon monarchy, the large landowners, sole masters on their own estates, began to do everything by themselves. They coined money, administered justice, and levied soldiers. And we must not imagine that this assumption of sovereign rights by local chieftains waa regarded, by the people, as an act of iniquity and violence : it was a necessity of the social condition of the country. [Royalty was no more capable of wielding all the central power, than the nation was of maintaining and exercising all its liberties. PEINCIPLE OP EEPEESENTATIVE GOVEENMEXT. 55 LECTUEE YL The true principle of representative government. Error of classifying governments according to their external forms. Montesquieu's error with respect to the origin of the representative system. Necessary correlation and simultaneous formation of society and government. llousseau's mistaken hypothesis of the social con- tract. The nature of rightful sovereignty. Confused and contra- dictory ideas entertained on this subject. Societies, as individuals, possess the right of being placed under laws of justice and reason. Governments ought to be continually reminded of their obliga- tion to inquire into and conform to these laws. Classification of governments on this principle. I PEOPOSE to examine the political institutions of modern Europe in their early infancy, and to seek what they have in common with the representative system of government. My object will be to learn whether this form of government ha'd then attained to any degree of development, or even existed only in germ ; at what times, and in w r hat places it first appeared, where and under what circumstances it prospered or failed. I have just examined the primitive institutions of the Anglo-Saxons. Before leaving our con- sideration of England, it might be well for me to compare these institutions with the essential type of representative government, in order to see how they agree and in what they differ. But this type is not yet in our possession. In order to find it I shall revert to the essential principle of representative government, to the original ideas out of which it springs; and I shall compare this idea with the fundamental idea that underlies Anglo-Saxon institu- tions. The human mind is naturally led to judge of the nature of things, and to classify them according to their exterior forms; accordingly, governments have almost invariably been arranged according to distinctions which do not at all belong to their inherent character. Wherever none of those positive institutions have been immediately recognized which, 56 ERKOE OF MONTESQUIEU. according to our present notions, represent and guarantee political liberty, it has been thought that no liberty could exist, and that power must be absolute. But in human affairs, various elements are mingled : nothing exists in a simple and pure state. As some traces of absolute power are to be found at the basis of free governments, so also some liberty has existed under governments to all appearance founded on absolutism. No form of society is completely devoid of reason and justice, for were all reason and justice to be withdrawn, society would perish. We may sometimes see governments of apparently the most opposite character produce the same effects. During the seventeenth and eighteenth centuries, representative government raised England to the highest elevation of moral and material prosperity ; and France, during that same period, increased in splendour, wealth, and enlightenment, under an absolute monarchy. I do not intend by this to insinuate the impres- sion that forms of government are unimportant, and that all produce results of equal quality and value ; I merely wish to hint that we should not appreciate them by only a few of their results, or by their exterior indications. 'In order fully to appreciate a government, we must penetrate into its essential and constituent principles. We shall then perceive that many governments which differ considerably in their forms, are referable to the same principles ; and that others which appear to resemble one another in their forms, are in fundamental respects different. Wherever elections and assemblies have presented themselves to view, it has been thought that the elements of a representative system were to be found. Montesquieu, looking at representative government in England, endeavoured to trace it back to the old Germanic institutions. "This noble system," he says, "originated in the woods." Appearances deceived Montesquieu ; he merely took into consideration the exterior characteristics of representative government, not its true principles and its true tendencies. That is a superficial and false method which classifies governments according to their exterior characteristics ; making monarchy, government by one individual ; aristocracy, government by several ; demo- cracy, government by the people, the sovereignty of all. This classification, which is based only upon one particular SOCIETY AND GOVEBNHENT. 57 fact, and upon a certain material shape which power assumes, does not go to the heart of those questions, or rather of that question, by the solution of which the nature and tendency of governments is determined. This question is, " What is the source of the sovereign power, and what is its limit ? Whence does it come, and where does it stop ?" In the answer to this question is involved the real principle of government ; for it is this principle whose influence, direct or indirect, latent or obvious, gives to societies their tendency and their fate. Where are we to look for this principle ? Is it a mere conven- tional arrangement by man? Is its existence anterior to that of society ? The two facts society and government mutually imply one another ; society without government is no more possible than government without society. The very idea of society necessarily implies that of rule, of universal law, that is to say, of government. What then is the first social law ? I hasten to pronounce it : it is justice, reason, a rule of which every man has the germ within his own breast. If man only yields to a superior force, he does not truly submit to the law ; there is no society and no government. If in his dealings with his fellows, man obeys not only force, but also a law, then society and govern- ment exist. In the abnegation of force, and obedience to law, consists the fundamental principle of society and govern- ment. In the absence of these two conditions, neither society nor government can be properly said to exist. This necessary coexistence of society and government shows the absurdity of the hypothesis of the social contract. Rousseau presents us with the picture of men already united together into a society, but without rule, and exerting them- selves to create one ; as if society did not itself presuppose the existence of a rule to which it was indebted for its exis- tence. If there is no rule, there is no society ; there are only individuals united and kept together by force. This hypothesis then, of a primitive contract, as the only legiti- mate source of social law, rests upon an assumption that is necessarily false and impossible. The opposite hypothesis, which places the origin of society in the family and in the right of the father over his children, 58 PEINCIPLE OF GOVERNMENT. is less objectionable, but it is incomplete. There is, certainly, a form of society among parents and their rising offspring ; but it is a society in some sort unilateral, and of which one of the parties has not any true consciousness. Society, whether in the family or out of the family, is only complete when all its members, those who command as well as those who obey, recognize, more or less vaguely, a certain superior rule, which is neither the arbitrary caprice of will, nor the effect of force alone. The idea of society, therefore, implies necessarily another idea, that of government ; and the idea of govern- ment contains in it two others, the idea of a collection of individuals, and that of a rule which is applicable to them, a rule which constitutes the right of the government itself ; a rule which the individuals who submit to it have not them- selves created, and to which they are morally bound to submit. No government ever totally disregarded this supreme rule, none ever proclaimed force or caprice as the only laV of society. In seeking the principle of government, we have found the principle of social right to be the primary source of all legitimate sovereignty. In this law of laws, in this rule of all government, resides the principle of government. Two important questions now present themselves. How is the law formed, and how is it applied ? In this lies the distinctive character of the various forms of government ; in this they differ. Even until modern times, the belief has prevailed that the primitive and absolute right of law-making, that is, the right of sovereignty, resides in some portion of society, whether this right be vested in a single man, in several, or in all ; an opinion which has been constantly contradicted by facts, and which cannot bear the test of reason. The right of determining and enforcing a rule, is the right to absolute power; that force which possesses this right inherently, pos- sesses absolute power, that is to say, the right of tyranny. Take the three great forms of government, monarchy, aris- tocracy, and democracy, and see if a case can be found in which the right of sovereignty was held by one, by several or by all, in which tyranny did not necessarily arise. Pacts have been logically correct, they have inferred from the principle its necessary consequence. Such, however, is the force of truth, that this error could EIGHT OF SOVEEEIGNTT. 59 not reign alone and absolutely. At the very time when men appeared to believe, and did theoretically believe, that the primitive and absolute power of giving law belonged to some one, whether monarch, senate, or people, at the same time they struggled against that principle. At all times men have endeavoured to limit the power which they regarded as perfectly legitimate. Never has a force, although invested with the right of sovereignty, been allowed to develop that right to its full extent. The janissaries in Turkey some- times served, sometimes abrogated, the absolute power of the Sultan. In democracies, where the right of sovereignty is vested in popular assemblies, efforts have been continually made to oppose conditions, obstacles, and limits to that sovereignty. Always, in all governments which are abso- lute in principle, some kind of protest has been made against the principle. Whence comes this universal protest ? We might, looking merely at the surface of things, be tempted to say that it is only a struggle of powers. This has existed without doubt, but another and a grander element has existed along with it ; there is an instinctive sense of justice and reason dwelling in every human spirit. Tyranny has been opposed, whether it were the tyranny of individuals or of multitudes, not only by a consciousness of power, but by a sentiment of right. It is this consciousness of justice and right, that is to say, of a rule independent of human will, a consciousness often obscure but always powerful, which, sooner or later, rouses and assists men to resist all tyranny, whatever may be its name and form. The voice of humanity, then, has proclaimed that the right of sovereignty vested in men, whether in one, in many, or in all, is an iniquitous lie. If, then, the right of sovereignty cannot be vested in any one man, or collection of men, where does it reside, and what is the principle on which it rests ? In his interior life, in his dealings with himself, if I may be allowed the expression, as well as in his exterior life, and in his dealings with his fellows, the man who feels himself free and capable of action, has ever a glimpse of a natural law by which his action is regulated. He recognises a something which is not his own will, and which must regulate his will. He feels himself bound by reason or morality to do certain things j he sees, or he feels that there are certain things 60 TEUE LAW OF SOCIETY. which he ought or ought not to do. This something is the law which is superior to man, and made for him the divine law. The true law of man is not the work of man ; he receives, but does not create it ; even when he submits to it, it is not his own, it is beyond and above him. Man does not always submit ; in the exercise of his free will and imperfect nature, he does not invariably obey this law. He is influenced by other principles of action than this, and although he perceives that the motives which impel him are vicious, nevertheless he often yields to them. But whether he obey or not, the supreme law for man is always existent in his wildest dreams he recognises it, as placed above him. We see, then, the individual always in presence of a law, one which he did not create, but which asserts its claim over him, and never abandons him. If he enters into society with his fellows, or finds himself thus associated, what other rule than this will he possess ? Should human society involve an abdication of human nature ? No ; man in society must and does remain essentially the same as in his individual capacity ; and as society is nothing but a collection of indi- viduals, the supreme law of society must be the same as that which exercises a rightful control over individuals themselves. Here, then, have we discovered the true law of society, the law of government ; it is the same law as that which binds individuals. And as, for an individual, the true law is often obscure, and as the individual, even when he knows it thoroughly, does not always follow it implicitly ; in the same manner with regard to government, whatever it may be, its true law, which must ever reach it through the medium of the human mind, which is ever biassed by passion and limited by frailty, is neither at all times appre- hended nor always obeyed. It is then impossible to attribute to x one man or to several the possession of an inherent right to sovereignty, since this would be to suppose that their ideas and inclinations were in all cases correspondent to the dictates of justice and of reason, a supposition which the radical imperfection of our nature will not allow us for a moment to admit. It is, however, owing to the same imperfection that men have CLASSIFICATION OF GOVERNMENTS. 61 accepted, or rather created for themselves, idols and tyrants. A law ready made for them has appeared more convenient than that laborious and unremitting search after reason and justice which they felt themselves obliged to undertake by the im- perious voice of that conscience which they could not entirely silence. Nevertheless, men have never been able entirely to deceive their conscience, or to stifle its utterances. Conscience defeats all the arrangements of human ignorance or indifference, and forces men to fight for themselves despite their own unwillingness. Never, in fact, have men fully accepted the sovereignty, the right of which they have admitted ; and the impossibility of their thus consenting to it, plainly indicates the superhuman principle which sove- reignty involves. In this principle we must seek for the true distinction between governments. The classification which I am about to present is not, then, one that is merely arbitrary and factitious ; it does not concern the exterior forms, but the essential nature of govern- ments. I distinguish two kinds. First, there are those which attribute sovereignty as a right belonging exclusively to individuals, whether one, many, or all those composing a society; and these are, in principle, the founders of despotism, although facts always protest more or less strongly against the principle ; and absolute obedience on the one hand, and absolute power on the other, never exist in full vigour. The second class of governments is founded on the truth that sovereignty belongs as a right to no individual whatever, since the perfect and continued apprehension, the fixed and inviolable application of justice and of reason, do not belong to our imperfect nature. Representative government rests upon this truth. I do not say that it has been founded upon the full reflective acknow- ledgment of the principle in the form in which I have stated it. Governments do not, any more than great poems, form them- selves oil an a priori model, and in accordance with defined precepts. Wfiat I affirm is, that representative govern- ment does not attribute sovereignty as inherently residing in any person, that all its powers are directed to the dis- covery and faithful fulfilment of that rule which ought ever to govern their action, and that the right of sovereignty is only recognised on the condition that it should be con- tinually justified. C2 AIM OF EEPEESENTATIYE GOVERNMENT. Pascal has said, " Plurality which does not reduce itself to unity, is confusion. Unity which is not the result of plurality, is tyranny." This is the happiest expression and the most exact definition of representative government. The plurality is society; the unity is truth, is the united force of the laws of justice and reason, which ought to govern society. If society remains in the condition of plurality, if isolated wills do not combine under the guidance of common rules, if they do not all equally recognise justice and reason, if they do not reduce themselves to unity, there is no society, there is only confusion. And the unity which does not arise from plurality, which has been violently imposed upon it by one or many, whatever may be their number, in virtue of a prerogative which they appropriate as their exclusive possession, is a false and arbitrary unity ; it is tyranny. The aim of representative government is to oppose a barrier at once to tyranny and to confusion, and to bring plurality to unity by presenting itself for its recog- nition and acceptance. Let us now see, in the central fact of this method of government, by what means it arrives at its end, and under what forms its principle is developed. Representative government, wherever it . has existed or does exist, is composed of different elements of power, equal among themselves, although one of them, the monarchical or the democratic, ordinarily retains certain peculiar rights. The number and form of these' powers are not neces- sarily determinate or equal; in France, rat the present time, there are three, the royal power, the 'House of Peers, and the Chamber of Deputies. These three powers emanate from different sources, and result from different social neces- sities. Neither of them, isolated from the rest, possesses a right of sovereignty: it is required of them that they seek the legitimate rule in common, and they are supposed to possess it only when they have found it in a united delibe- ration, before or after action. Society owe* submission to this rule, thus discovered ; but as these powers are not all fixed and immutable, so the sovereignty of right does not reside constantly among them. The elective principle, which is by its very nature changeful, can alter its idea and pur- pose, and exercise upon the other powers an influence that is periodically variable. If the different powers do not POLITICAL EIGHTS OF THE NATION. 63 agree, they reduce themselves immediately to inaction. The sovereignty which exists in its own right then seems to hesitate to show itself, and government remains in suspense. In order to extricate it from this state, the right has been reserved to royalty of creating peers, and of dissolving the Chamber of Deputies. The powers then proceed afresh to seek for the true law, a work in which they ought not to rest until they have found it. Thus, no power is judged to possess fully the legitimate rule, which is rightfully the principle of sovereignty. The electors themselves are not its absolute interpreters, any more than are the peers, the deputies, or the king. The electors do not say at the outset to their deputies, " Such is our will : let that be the law." They enjoin upon them nothing precise ; they simply confer upon them the mission of examining and deciding accord- ing to their reason. They must necessarily trust in the enlightenment of those whom they elect; election is a trial imposed on those who aspire to political power, and a sovereign but limited right exercised by those who confer political power upon such of the claimants as they may select. From the political powers thus attributed to certain classes, let us now pass to the political rights which are vaguely distributed in the nation. These rights are among the essential conditions of representative government. The publicity of the debates in the deliberative assemblies imposes upon these powers the necessity of commending themselves to that sense of reason and justice which belongs to all, in order that every citizen may be convinced that their inquiries have been made with fidelity and intelligence, and that, knowing wherein they are deficient, he may himself have the opportunity, if he has the capacity, to indicate the remedy. Liberty opens up a career for this inquiry. In this way, every citizen may aid in the discovery of the true law. Thus does a representative government impel the whole body of society, those who exercise power, and those who possess rights, to enter upon a common search after reason and justice ; it invites the multitude to reduce itself to unity, and it brings forth unity from the midst of plurality. The public powers, royalty, the deliberative houses, the electors, are bound and incessantly made to return to this work, by 61 EFFECTS OF PUBLICITY. the essential nature of their relations, and by the laws of their action. Private citizens even can co-operate, by virtue of the publicity of the debates, and the liberty of the press. I might pursue this idea, and show that all the institu- tions which are regarded as inherent in representative government, even those which have not been regarded as assisting in the search for those general rules which ought to preside in the conduct of government, are derived from the same principle, and tend to the same result. The publicity of judicial proceedings, and those who compose the jury, for example, supply a guarantee for the legitimate application of the law to particular cases. But our present concern is especially to determine the principle of those essential combinations by which a representative govern- ment is constituted ; they all proceed evidently from this fact, that no individual is fully acquainted with and invari- ably consents to that reason, truth and justice, which can alone confer the right of sovereignty, and which ought to be the rule of sovereignty as actually exercised. They compel all powers to seek for this rule, and give to all citizens the right of assisting in this research, by taking cognizance of the mode in which the powers proceed to it, and in declaring themselves what they conceive to be the dictates of justice and of truth. In other words, to sum up what I have said, representative government rests in reality upon the follow- ing series of ideas. All power which exists as a fact, must, in order to become a right, act according to reason, justice, and truth, the sole sources of right. No man, and no body of men, can know and perform fully all that is required by reason, justice, and truth ; but they have the faculty to dis- cover it, and can be brought more and more to conform to it in their conduct. All the combinations of the political machine then ought to tend, on the one hand, to extract whatever of reason, justice, or truth, exists in society, in order to apply it to the practical requirements of govern- ment ; and, on the other hand, to promote the progress of society in reason, justice, and truth, and constantly to embody this progress of society in the actual structure of the government. CHANGES I2T LANGUAGE AND SOCIETY. C5 LECTURE VII. Comparison of the principles of different governments with the true principle of representative government. Aristocratic governments. Origin and history of the word aristocracy. Principle of this form of government ; its consequences. How the principle of repre- sentative government enters into aristocratic governments. Demo- cratic governments. Origin and consequences of the principle of the sovereignty of the people. This principle is not identical with that of representative government. In what sense representative government is the government of the majority. I HAYE, in my previous lecture, shown the error of those superficial classifications which only distinguish govern- ments according to their exterior characteristics; I have recognised and separated with precision between the two opposite principles, which are, both of them, the basis of all government; 1 have identified representative government with one of these principles; I have proved that it could not be deduced from the other ; I wish now to compare the principle of representative government with the contrary principle, and to show the opposite condition of govern- ments which refer to it as their starting-point. I will begin by an examination of that form of government which is usually termed aristocratic. There is a close connexion between the progressive changes that may be observed in language and those that belong to society. The word aristocracy originally signified the empire of the strong ; *Apr)s, apeiW, a/waroy, were, at ^first, terms applied to those who were physically the most power- ful ; then they were used to designate the most influential, the richest, and finally the best, those possessing the most ability or virtue. This is the history of the successive acceptations of the word in the language from which it is borrowed ; the same terms which were first applied to force, the superiority of force, came at length to designate moral and intellectual superiority virtue. Nothing can better characterise than this the progress of society, which begins with the predominance of force, and tends to pass under the empire of moral and intellectual 66 AEISTOCEATIC GOVERNMENT. superiority. The desire and tendency of society are in fact towards being governed by the best, by those who most thoroughly know and most heartily respond to the teachings of truth and justice; in this sense, all good governments, and pre-eminently the representative form of government, have for their object to draw forth from the bosom of society that veritable and legitimate aristocracy, by which it has a right to be governed, and which has a right to govern it. But such has not been the historical signification of the word aristocracy. If we take the word according as facts have interpreted it, we shall find its meaning to be. a govern- ment in which the sovereign power is placed at the disposal of a particular class of citizens, who are hereditarily invested with it, their only qualification being a certain descent, in a manner more or less exclusive, and sometimes almost com- pletely exclusive. I do not inquire whence this system of government has derived its origin; how, in the infancy of society, it has sprung almost invariably from the moral superiority of its first founders; how force, which was originally due to moral superiority, was afterwards perpetuated by itself, and became a usurper ; these questions, which possess the highest interest, would carry me away from my main point. I am seeking for the fundamental principle of aristocratic government, and I believe it can be summed up in the following terms; the right of sovereignty, attributed in a manner if not entirely exclusive, yet especially and chiefly to a certain class of citizens, whose only claim is that of descent in a certain line. This principle is no other than that of the sovereignty of the people confined to a small number of individuals, to a minority. ' In both cases, the right to sovereignty is derived, not from any presumed capacity to fulfil certain conditions, nor from intellectual and moral superiority proved in any particular manner, but from the solitary fact of birth, with- out any condition. In the aristocratic system, an individual is born to a position of sovereignty merely because he has been born into a privileged class ; according to the demo- cratic system, an individual is born to a position of sove- reignty by the circumstance that he is born into humanity. The participation in sovereignty is in each case the result ITS CONSEQUENCES. 67 of a purely material fact, independent of the worth of him who possesses it, and of the judgment of those over whom it is to be exercised. It follows evidently from this, that aristocratic governments are to be classed among those which rest on the idea that the right of sovereignty exists, full and entire, somewhere on the earth ; an idea directly contrary, as we have seen, to the principle of representative govern- ment. If we look at the consequences of this idea, such conse- quences as have actually manifested themselves in the history of governments of this kind, we shall see that they are not less contrary to the consequences, historical as well as natural, of a representative government. In order to maintain the right of sovereignty in the class to which it is exclusively attributed, it must necessarily establish a great inequality in fact, as well as in opinion, between this class and the rest of the citizens. Hence arise all those institutions and laws which characterise aristocratic governments, and which have for their object to concentrate, into the hands of the sole possessors of the sovereignty, all wealth and enlightenment, and all the various instruments of power. It is necessary that the sovereign class should not descend, and that others should not be elevated ; other- wise actual power ceasing to approximate to rightful power, the legitimacy of the latter would soon be questioned, and, after a short time, its continuance endangered. In the system of those governments which attribute to no individual upon earth a right of sovereignty, and which impose on the existing government the necessity of seeking continually for truth, reason, and justice, as the rule and source of rightful power, all classes of society are perpetually- invited and urged to elevate and perfect themselves. Legi- timate forms of supremacy are produced, and assume their position; illegitimate forms are unmasked and deposed. Factitious and violent inequalities are resisted and exhibited in their true colours ; social forces are, so to speak, brought into competition, and the forces which struggle to possess them are moral. A second consequence of the principle of aristocratic governments is their avoidance of publicity. When each one of those who participate in the rightful sovereignty 3? 2 68 CONFLICT OF GOOD AND EVIL. possesses it by the mere accident of birth, and exercises it on his own individual responsibility, he need not recognise any one as claiming a right to call him to account. No one has any right to inquire into the use which he makes of his power, for he acts in virtue of a right which no one can con- test, because no one can deprive him of it. It is a right which needs not to justify itself, since it is connected with a fact that is palpable and permanent. In the other system, on the contrary, publicity follows necessarily from the principle of government ; for since the right to power is derived from superiority in the knowledge and practice of reason, truth, and justice, which no one is supposed to possess fully and at all times, it is imperative that this right should justify itself both before it is assumed and all the time that it is exercised. It would be easy thus, proceeding continually within view of real facts, to compare the different consequences of the principle of purely aristocratic governments and those result- ing from the principle of representative government, and to show that they are always opposed to one another. We should thereby demonstrate most completely the opposition of the principles themselves, and bring their true nature into clearer light ; but I have already said enough on this point. And if any one asserts that I have too rigorously insisted upon inferences to be drawn from the principle of aristo- cratic governments, that the consequences which I have depicted do never fulfil themselves in so complete a manner, that, for example, the qualification of birth has never held exclusive possession of a right to sovereignty, that never has publicity been entirely quenched, I freely concede all this. At no time, in no place, has evil been allowed to gain exclusive possession of society and government; struggle between principles of good and evil is the permanent con- dition of the world. False ideas may achieve a more or less extended, a more or less durable success, they can never extirpate their godlike assailants. Truth is patient, it does not easily surrender its hold on society, it never abandons its purpose, it even exercises some sway over that region where error reigns most despotically. Providence never per- mits bad governments to become so bad as is logically de- manded by the principle upon which they rest. So we have SOVEEEIGNTY OF THE PEOPLE. C9 seen institutions of justice and liberty existing and even gain- ing a powerful existence, in the midst of societies ruled by the principle of hereditary right ; these institutions have battled against the principle, and have modified it. When the worse principle has prevailed, then have society and govern- ment fallen into impotence and decay ; this is the history of the Venetian republic. Elsewhere, the struggle has been attended with happier results: the good principle has possessed sufficient force to be able to introduce into the government elements, which have made it vital, which have protected society against the effects of the evil principle, which have even in some sort saved the evil itself, rendering it tolerable by the good with which it is associated. This is the history of England, that striking example of the mixture and struggle of good and evil principles. But their mixture, however intimate it may be, does not prove that they are confounded in their interior character. Good never springs from evil; and representative government has not sprung in England, any more than elsewhere, from the exclusive principle of aristocratic governments ; it has sprung from an entirely different principle ; and so far from the distinction which I established at the commencement being compro- mised by the facts to which I have alluded, it is on the other hand triumphantly confirmed by them. I have just proved, by a comparison between the principle of the aristocratic and that of the democratic form of govern- ment, that they are essentially different ; I intend now to show that there is as fundamental a difference between the principle of representative government, and that of demo- cratic government. No one has ever understood the sovereignty of the people to mean, that after having consulted all opinions and all wills, the opinion and will of the greatest number constitutes the law, but that the minority would be free to disobey that which had been decided in opposition to its opinion and will. And yet this would be the necessary consequence of the pretended right attributed to each individual of being governed only by such laws as have received his indi- vidual assent. The absurdity of this consequence has not always induced its adherents to abandon the principle, but it has always obliged them to violate it. The sovereignty of the people is contradicted at the outset, by its being 70 pEnrciPLE or DEMOCRACY. resolved into the empire of the majority over the minority. Jt is almost ridiculous to say that the minority may retire from the majority ; this would be to keep society continually on the brink of dissolution. On every question the majority and the minority would disagree, and if all the successive minorities should retire, society would very soon exist no longer. The sovereignty of the people then must neces- sarily be reduced to the sovereignty of the majority only. "When thus reduced, what does it amount to ? Its principle is, that the majority possesses right by the mere circumstance of its being the majority. But two very different ideas are included in the one expression the majo- rity ; the idea of an opinion which is accredited, and that of a force which is preponderant. So far as force is concerned, the majority possesses no right different from that possessed by force itself, which cannot be, upon this ground alone, the legitimate sovereignty. As to the expression of opinion, is the majority infallible? does it always apprehend and respect the claims of reason and justice, which alone constitute true law, and confer legitimate sovereignty ? Experience testifies to the contrary. The majority, by mere fact of its being a majority, that is to say, by the mere force of numbers, does not then possess legitimate sovereignty, either by virtue of power, which never does confer it, nor by virtue of infallibility, which it does not possess. The principle of the sovereignty of the people starts from the supposition that each man possesses as his birthright, not merely an equal right of being governed, but an equal right of governing others. Like aristocratic governments, it connects the right to govern, not with capacity, but with birth. Aristocratic government is the sovereignty of the people in the minority; the sovereignty of the people is aristocratic despotism and privilege in the hands of the majority. In both cases, the principle is the same; a principle contrary, in the first place, to the fact of the inequality established by nature, between the powers and capacities of different individuals ; secondly, to the fact of the inequality in capacity, occasioned by difference of position, a difference which exists everywhere, and which has its source in the natural inequality of men; thirdly, to the experience of the world, which has always seen the timid following the brave, the incompetent obeying the competent, PBINCIPLE OF EEPEESENTATIYE GOYENEMENT. 71 in one word, those who are naturally inferior recognising and submitting themselves to their natural superiors. The principle of the sovereignty of the people, that is to say, the equal right of all individuals to exercise sovereignty, OP merely the right of all individuals to concur in the exercise of sovereignty, is then radically false ; for, under the pretext of maintaining legitimate equality, it violently introduces equality where none exists, and pays no regard to legitimate inequality. The consequences of this principle are the despotism of number, the domination of inferiorities over superiorities, that is, a tyranny of all others the most violent and unjust. At the same time, it is of all others the most transient, for the principle is impossible of application. After its force has spent itself in excesses, number necessarily submits to capacity, the inferior retire to make room for the superior, these enter again into possession of their right, and societv is re-established. Such cannot be the principle of representative govern- ment. No one disputes that the true law of government is that of reason, truth, and justice, which no one possesses but which certain men are more capable than others of seek- ing and discovering. Faithful to this aim, representative government rests upon the disposition of actual power in proportion to the capacity to act according to reason and justice, from whence power derives its right. It is the principle which, by the admission of all, and by virtue of its simple appeal to the^ common sense of the community, is applicable to ordinary*life, and to the interest of individuals themselves. It is the principle which confers the sovereignty over persons, families, property, only to the individual who is presumed to be capable of using it reasonably, and which withdraws it from him who is seen to be positively incapable. Eepresentative government applies to general interests, and to the government of society, the same principle which the good sense of the human race has led it to apply to indi- vidual interests and to the control of each man's private life. It distributes sovereignty according to the capacity required for it, that is to say, it only places actual power, or any portion of actual power, where it has discovered the presence of rightful power, presumed to exist by certain symptoms, 72 GOVERNMENT OF THE MAJORITY. OP tested by certain proofs. It is remembered, that power though legitimate is not to be conceded fully and completely to any one, and not only is it not attributed to the mere fact of birth, but it cannot be allowed to remain by itself in irresponsible isolation, which is the second characteristic of representative government, by which, not less than by the preceding, it is distinguished from the sovereignty of the people. It has been often said, that representative government is the government of the majority, and there is some truth in the assertion ; but it must not be thought that this govern- ment of the majority is the same as that involved in the sovereignty of the people. The principle of the sovereignty of the people applies to all individuals, merely because they exist, without demanding of them anything more. Thus, it takes the majority of these individuals, and says, Here is reason, here is law. Representative government proceeds in another way : it considers what is the kind of action to which individuals are called ; it examines into the amount of capacity requisite for this action ; it then summons those individuals who are supposed to possess this capacity, all such, and such only. Then it seeks for a majority among those who are capable. It is in this way, in fact, that men have everywhere pro- ceeded, even when they have been supposed to act according to the idea of the sovereignty of the people. Never have they been entirely faithful to it ; they have always demanded for political actions certain conditions, that is to say, indi- cations of a certain capacity. They have been mistaken, more or less, and have excluded the capable, or invited the inefficient, and the error is a serious one. But they have followed the principle which measures right by capacity, even when they have professed the principle that right is derived from the simple fact of possessing a human nature. [Representative government, then, is not purely and simply the government of the numerical majority, it is government by the majority of those who are qualified to govern ; some- times assuming the existence of the qualification beforehand, sometimes requiring that it should be proved and exemplified. The peerage, the right to elect and to be elected, the royal power itself, are attached to a capacity presumed to exist, not [REPRESENTATION A!S T D DEMOCRACY. 73 only after certain conditions have been complied with, hut by reason of the position occupied by those men in whom the capacity is presumed, in their relations to other powers, and in the limits of the functions assigned to them. No one is recognised as possessing an inherent right to an office or a function. Nor is this all ; representative government does not content itself with demanding capacity before it confers power ; as soon as the capacity is presumed or proved, it is placed in a position where it is open to a kind of legal suspicion, and where it must necessarily continue to legiti- matize itself, in order to retain its power. According to the principle of the sovereignty of the people, absolute right resides with the majority ; true sovereignty exists wherever this force is manifested ; from this follows necessarily the oppression of the minority, and such has, in fact, gene- rally been the result. The representative form of govern- ment, never forgetting that reason and justice, and conse- quently a right to sovereignty, do not reside fully and constantly in any part of the earth, presumes that they are to be found in the majority, but does not attribute them to it as their certain and abiding qualities. At the very moment when it presumes that the majority is right, it does not forget that it may be wrong, and its concern is to give full opportunity to the minority of proving that it is in fact right, and of becoming in its turn the majority. Electoral precautions, the debates in the deliberative assemblies, the publication of these debates, the liberty of the press, the responsibility of ministers, all these arrangements have for their object to insure that a majority shall be declared only after it has well authenticated itself, to compel it ever to legitimatize itself, in order to its own preservation, and to place the minority in such a position as that it may contest the power and right of the majority. Thus, the considerations we have suggested show that a representative form of government regards the individuals whom it brings into activity, and the majority which it seeks, from quite another point of view than that involved in the sovereignty of the people. The latter admits that the right of sovereignty resides somewhere upon the earth ; the former denies it : this finds the right in question in a purely numerical majority ; that seeks it in the majority of those 74 EEPBESEtfTATION AND DEMOCRACY. qualified to pronounce on the subject : the one attributes it fully and entirely to number ; the other is satisfied with the presumption that it is there, admits at the same time that it may possibly not be there, and invites the minority to substantiate its claims, securing, meanwhile, every facility for its so doing. The sovereignty of the people sees legiti- mate power in the multitude; representative government sees it only in unity, that is to say, in the reason to which the multitude ought to reduce itself. , The sovereignty of the people makes power to come from below; representative government recognises the fact that all power comes from above, and at the same time obliges all who assume to be invested with it to substantiate the legitimacy of their pre- tensions before men who are capable of appreciating them. The one tends to lower those who are superior, the other to elevate those who are inferior, by bringing them into com- munication with those who are naturally above them. The sovereignty of the people is full at once of pride and of envy ; representative government renders homage to the dig- nity of our nature, without ignoring its frailty, and recognises its frailty without outrage to its dignity. The principle of the sovereignty of the people is contrary to all the facts which reveal themselves in the actual origin of power, and in the progress of societies ; representative government does not blink any one of these facts. Lastly, the sovereignty of the people is no sooner proclaimed, than it is compelled to abdicate its power, and to confess the impracticability of its aims; representative government moves naturally and steadily onward, and develops itself by its very existence. So far, then, from deriving its existence from the principle of the sovereignty of the people, representative government disowns this principle, and rests upon an entirely different idea, and one which is attended with entirely diiferent con- sequences. It matters little that this form of government has been often claimed in the name of the sovereignty of the people, and that its principal epochs of development have occurred at times when that idea predominated ; the reasons of this fact are easily discovered. The sovereignty of the people is a great force which sometimes interferes to break up an inequality which has become excessive, or a power which has become absolute, when society can no longer PRINCIPLES OF GOYEENMENT. 75 accommodate itself to them ; as despotism sometimes inter- feres, in the name of order, violently to restore a society on the brink of dissolution. It is only a weapon of attack and destruction, never an instrument for the foundation of liberty. It is not a principle of government, it is a terrible but transient dictatorship, exercised by the multitude, a dictatorship that ceases, and that ought to cease as soon as the multitude has accomplished its work of destruction. Briefly, to conclude : as the object of these lectures is to trace the course of representative government in modern Europe wherever it has found any footing, I have looked for the primal type of this government in order to compare it with the government of the Anglo-Saxon monarchy, which we have already examined, and with the other primitive govern- ments which we shall meet with in Europe. In order to distinguish precisely the character of a representative government, I have been obliged to go back to the source of all government. I think I have shown that we must classify all governments according to two different principles. The one class, allied to justice and reason, recognises these alone as their guides; and as it is not in the power of human feebleness, in this world, to follow infallibly these sacred leaders, these governments do not concede to any one the possession of an absolute right to sovereignty, and they call upon the entire body of society to aid in the discovery of the law of justice and reason, which can alone confer it. The other class, on the contrary, admitting a right inherent in man to make a law for himself, thus degrade the rightful sovereignty ; which, as it belongs only to justice and reason, ought never to come under the abso- lute control of man, who is ever too ready to usurp sove- reignty, in order to exercise it for the promotion of his private interests, or for the gratification of his passions. I have shown that a representative government alone renders homage to true principles, and that all other governments, democratic as well as aristocratic, ought to be arranged according to an entirely different scheme of classification. I have now to enter upon the examination of the exterior forms of representative government, and* to compare its principle with the historical principle of the Anglo-Saxon monarchy, as it is exhibited before us in its institutions. 76 POEMS OF GOYEENMENT. LECTUEE VIII. The forms of a government are related to its principle, but are swayed by circumstances, and vary according to different degrees of civiliza- tion. What are the forms essential to a representative government ] 1st. Division of powers; why this is absolutely essential to the principle of representative government; 2nd. Election ; 3rd. Publicity. THE forms of a government are immediately related to its principle: the principle determines the forms, the forms reveal the principle. It does not therefore follow that the forms correspond exactly to the principle, nor that the principle can only realize itself under a peculiar form. As the principle itself is never alone nor omnipotent in its influence upon the facts, forms are necessarily diverse and mingled. In proportion as the action of any principle extends itself, the form which is truly correspondent to it is developed ; but, in the course of this work, the principle embodies itself in the different forms which correspond to the condition of those facts which, in their aggregate, consti- tute society, and determine the position which it occupies in the scale of civilization. The same principle can then be contained, and act under different forms. If the forms are the best that can be supplied for the principle, considering the existing state of society, and if, although they do not fully correspond to its nature, they insure the constant and regular progress of its action, there is no blame that can be charged upon them; each epoch, each state of society only allows of a certain development of the principle upon which its govern- ment rests. "What is the measure of development possible to each epoch, and what is the form which corresponds to it in the present, which will secure for the future a more extended development, and which will bring with it new forms ? This is the whole extent of the question I mean, the question concerning the present, the only one with which political activity has to deal. TOEMS OP EEPEESENTATIVE GOYEBNHEtfT. 77 Nevertheless there are certain forms of government which are the general conditions of the presence and action of par- ticular principles. Wherever the principle exists, it neces- sarily produces these forms ; where they are wanting the principle does not exist or will soon cease to exist ; its action and progress imperatively demand them : so far as they gain consistency at any place, the principle which they suppose is latently present and tends to become predo- minant. What are the essential forms of the principle of represen- tative government ? By what external indications may we recognize the presence of this principle in a government ? What conditions are required in order that it may act and develop itself? We may, if I mistake not, reduce to three the conditions necessary, and the forms essential, to the representative system ; all three are perhaps not equally necessary ; their simultaneous existence is not perhaps indispensable in order to indicate the existence and secure the development of the principle from which they are derived. We may, however, justly consider them as fundamental. These forms are: 1st. The division of powers ; 2nd. Election ; 3rd. Publicity. We have seen that no really existing power can be a rightful power, except in so far as it acts according to reason and truth, the only legitimate rule of action, the only source of right. No existing power can fully know and constantly regard the guidance of reason and truth according to which it is bound to regulate its action. JSTo actual power then is, or can be, in itself, a power by inherent right. In other words, as no existing power can be found that is infallible, there is none that may retain its existence on the tenure of absolute right. Such is, however, the condition of human things that they need, as a last appeal, the intervention of a power which may declare the law to be the rule of government, and which shall impose it and cause it to be respected. In all the relations which the social state admits and to which it gives birth, from domestic order to political order, the presence of a power which may give and maintain the rule of action, is a necessary condition of the very existence of society. 73 PROBLEM OE GOVERNMENT. "We see then the dilemma in which society is placed. No actual power can vindicate a claim to become an absolute power; hence the necessity, in order to meet particular emergencies, of a power that is definite, that is to say, actually absolute. The problem of government is how to give society a guarantee that the power, which is in operation absolute, to which all social relations must necessarily be referred, shall be but the image, the expression, the organ of that power which is rightfully absolute and alone legitimate, and which is never to be found localized in this world ? This is also, as we have seen, the problem which the representative system formally proposes to itself, since all its arrangements assume the existence of this problem and are framed with a purpose to resolve it. To make actual power, as far as possible, identical with rightful power, by imposing upon it the abiding necessity of seeking for reason, truth, and justice the sources of right ; by investing it with practical power only when it has proved, that is to say, given a presumption of, its success in this search ; and by compelling it ever to renew and confirm this presumption under penalty of losing power if it is unable to do so, this is the course of the repre- sentative system, this is the end at which it aims and according to which it directs, in their relations and their movement, all the resources which it brings into action. In order to attain this end, it is indispensable that the existing power should not be simple, that is to say, that it should not be suffered to confine itself to one single instrument. As no force can possess in itself fully the right to authority, if there is one which possesses an abso- lute power, not only will it abuse this power, but it will very soon claim it as an inherent right. Alone it will become despotic, and in order to sustain its despotism it will call itself legitimately sovereign; and perhaps will end by believing and establishing the fiction. Such is the corrupt- ing effect of despotism, that it destroys sooner or later, both in those who exercise it and in those who submit to it, even the feeling of its illegitimacy. Whoever is solitarv in his sovereignty has only one step in order to become accredited, as infallible. Alexander was right in. wishing DIVISION OF POWERS. that he should be recognized as a god ; he deduced a conse- quence that strictly followed from the fulness of the power which he possessed: and they also are right, who, attri- buting sovereignty to the multitude, take for their maxim, Vox populij vox Dei. Everywhere where sovereignty rests with a single power, whatever may be the nature of that power, there is a danger that sovereignty will immediately be claimed as a right. A division of the actual sovereignty is then a natural consequence of the principle, that a right to sovereignty does not belong to any person. It is necessary that there should be several powers, equal in extent and supplemen- tary to each other in the exercise of actual sovereignty, in order that no one of them may be led to arrogate to itself the sovereignty of inherent right. The feeling of their reciprocal interdependence can alone prevent them from regarding themselves as entirely irresponsible. Further: it is only in this way that the ruling power can be constrained to perpetuate its search for reason, truth, and justice ; that is, for the rule which should govern its action, in order that it may become legitimate. The words of Pascal apply not only to the formation of power, they extend also to its exercise. Here are beings, individual or collective, who are called upon to perform the functions of sovereignty in common, each one under the supervision of his fellows. Do they possess among them, or by the fact of their existence, the right to power ? No : they must seek it, they must on every opportunity manifest the truth which they proclaim as law. Isolated and distinct, they are only a multitude ; when, after having deliberated and laboured, they find a ground of agreement in a common idea, from whence can proceed one will, then alone will the true unity, which resides in reason, be evolved ; then there will be a presumption that the ruling power knows accurately and is well disposed to that legitimate rule which alone confers rightful power. If this work were not enforced, if this laborious and common search for the true law were not the necessary result of the reciprocal independence of the seve- ral powers, the end of government would not be attained. All the relations of the four great political powers which constitute, with us, the government (that is, the king, the 80 ELECTION AND PUBLICITY. two houses of parliament, and the electors) are intended to compel them to act in harmony, that is to say, to reduce themselves to unity. The introduction of an elective, that is, a moveable ele- ment, into government, is as necessary as a division of forces to prevent the sovereignty from degenerating in the hands of those who exercise it into a full and permanent sovereignty of inherent right. It is therefore the necessary result of a representative government, and one of its principal charac- teristics. Accordingly we see that actual governments which have aimed at becoming absolute, have always endeavoured to destroy the elective principle. Venice gave a memorable illustration of this tendency, when, in 1319, it conferred an hereditary right on the grand council.* In the first age of governments, at the same time that we see power come from, above, that is to say, acquire for itself by its superiority, of whatever kind that may be, either ability, riches, or courage, we see it also obliged to make its title recognised by those who can judge it. Election is the mode of this recognition, it is to be found in the infancy of all govern- ments; but it is generally abolished after a time. It is when it reappears with sufficient energy to influence power- fully the administration of society, that a representative government is rising into being. Theoretically, publicity is perhaps the most essential characteristic of a representative government. ~VVe have seen that it has for its object to call upon all individuals who possess rights, as well as those who exercise powers, to seek reason and justice, the source and rule of legitimate sove- reignty. In publicity consists the bond between a society and its government. Looking, however, at facts, we find that of the elements essential to a representative government, this is the last which is introduced and gains a firm footing. Its history is analogous to that of the elective principle. The Champs de Mars and Mai were held in the open air : many persons were present at them who took no part in the deliberation. The assembly of the Lombards at Pavia took place circumstante immensd multitudine. It is probable that the same publicity attended also the Wittenagemot of the * This event is clearly and minutely related by Daru, ia his " His- toire de Venise" (Vol. i. pp. 449-464.) PUBLICITY IN ENGLAND. 81 Saxons. "When absolute or aristocratic government prevails, publicity disappears. When representative government begins to be formed by election, publicity does not at first enter into its constitution. In England, the House of Com- mons was for a long time a secret assembly ; the first step towards publicity was to cause its acts, addresses and reso- lutions, to be printed. This step was taken by the Long Parliament under Charles I. Under Charles II. its pro- ceedings again became secret ; some individuals demanded, but in vain, the publication of the acts passed by the House, the demand was resisted as dangerous. It was not till the eighteenth century that visitors were allowed to be present at the sittings of the English Parliament : this is not now granted as a right, and the demand of a single member who appeals to the ancient law, is sufficient to clear the gallery. Publicity has not then been invariably attached to a repre- sentative government ; but it flows naturally from its prin- ciples it is accordingly won almost necessarily, and may now be regarded as one of its most essential features. This result is owing to the press, which has rendered publicity easy without resorting to tumultuous meetings. We have found the fundamental principle and the exterior and essential characteristics of a representative government ; we have learnt what it is that constitutes it and distin- guishes it from other governments : we may now pass to its history. We shall take care to admit its existence only where we recognise the presence or the approach of its true principles ; and we shall be convinced that its progress has ever been identical with the development of these principles. 82 OEiGix or THE LECTURE IX. Primitive institutions of the Franks. Sketch of the history of the Frankish monarchy. The Franks in Germany. Their settlement in Belgium and in Gaul. Character and authority of their chiefs after their establishment in the Roman Empire. Early Frankish chieftains. Clovis : his expeditions, wars, andconquests. Decisive preponderance of the Franks in Gaul. IN order to pursue the object of this course, I now proceed to give a sketch of the Franks similar to that which I have already given of the Anglo-Saxons. I shall study with you their primitive institutions, seek out their leading principle, and compare it with that type of representative government which we have just delineated. But before we enter upon the examination of Frankish institutions, I think it advis- able briefly to refer to the leading events in the history of France. The institutions of a people cannot be thoroughly understood without a knowledge of their history. I shall devote this lecture to a view of the establishment of the Frankish monarchy ; on a future occasion we will trace its progress under the first and second races of its kings. I shall not now delay to discuss the somewhat uncertain origin of the Franks ; there is reason to believe that, in Grermany, they did not constitute a separate and homo- geneous nation. They were a confederation of tribes settled in the country between the Rhine, the Maine, the Weser, and the Elbe. The Romans seem to have been long ignorant of their existence even after the conquest of Gaul, and history mentions them, for the first time, during the reign of G-ordian, about the middle of the third century. A song, composed in celebration of the victories of Aurelian had the following refrain : "Mille Francos, mille Sarmatas, Semel et semel occidimus." After this period, we find the different tribes of Franks advancing from East to West with rather rapid progress. At the beginning of the fourth century, we meet with the THE FKANKISH CHIEFS. 83 Salian Franks settled in Belgium, and the Eipuarian Pranks on the two banks of the Ehine. These peoples established themselves on the frontiers of Gaul, sometimes by force, and sometimes with the consent of the emperors, who, after having defeated the barbarians, frequently assigned them lands on which to settle. This was the course pursued by Probus, Constantino, Julian, Constautius, and many others. The chiefs thus established in the Eoman territory retained, over their barbarian comrades, their ancient and independent authority, and received at the same time, from the emperors, certain titles to which were applied certain functions, and a certain amount of authority over the Eomana in their district. Thus we find them adorned with the names of Dux, Magister militia, Comes littoris, and so fortfy. Their position was almost identical with that of the leaders of the wandering Tartar tribes in the Eussian empire, who are elected by the men of their tribe, but receive their title and a certain jurisdiction from the Emperor of Eussia retaining their independent life, but bound at the same time to render military service, and to pay a tribute of furs. Childeric, the chief of a Prankish tribe at Tournai, had received the title of Magister militia from the empire. When, in consequence of domestic quarrels and treason, he was forced to take refuge in Thuringia, his tribe submitted in 460 to Egidius, master of the Eoman militia at Soissons. In 1653, the tomb of Childeric was discovered at Tournai, and several pieces of money were found in it, which are now deposited in the National Library, at Paris. At the termination of the fifth century, the epoch of the dissolution of the empire, when the provinces were left, according to the expression of Tacitus, magis sine domino qiiam cum libertate, nearly all these local chieftains, Eomans as well as barbarians, became independent, and no longer recognised the sovereignty of Eome. Siagrius, the son of Egidius, was appointed King of the Eomans at Soissons. He made war with Clovis, in his own name and on his own account. The Prankish chiefs, who had thus become petty sovereigns, penetrated still farther into the empire. Clodion, who had settled at Cambrai, carried his incursions to the banks of the Somme. Meroveus was present at the battle of Chalons-sur- G 2 84 WAES OF CLOVIS. Marne, at which Attila was conquered. It was, however, under the command of their chieftain Clovis, that these bands of Franks, who originally formed colonies on the frontiers, entered Gaul definitively as conquerors. Clovis was the son of Childeric, who reigned at Tournai ; and he succeeded his father in 481. He probably wielded a certain amount of authority in the name of the empire. Saint Remy, in a letter, gives him the title of Magister militia. Other Prankish chiefs were, about this period, almost in the same position as Clovis : Ragnachar ruled at Cambrai, Sigebert at Cologne, and Renomer at Mans. Clovis was the most ambitious, the ablest, and the most fortunate of them all. His nearest neighbour was Siagrius, who governed at Soissons. In 486, Clovis sent him a defiance; Siagrius accepted it, and appointed the battle-field at Nogent, near Soissons. Siagrius was conquered, and took refuge with Alaric, king of the Visigoths, who gave him up to his con- queror. In 491, Clovis conquered the district of Tongres, now the district of Liege. In 496, he penetrated still further in the same direction; he entered the country of the Alemanni, against whom Sigebert, king of Cologne, had requested his assistance. He defeated them at Tolbiac, and became a Christian in consequence of this victory. A party of the conquered Alemanni took refuge in Rhoetia, under the pro- tection of Theodoric, king of the Ostrogoths : there, under the name of Suevi, they became the stem of the Suabians. Another body remained on the banks of the Rhine, and became subject to Sigebert and Clovis. Thus this chieftain extended his dominion in the vicinity of the Rhine. At the same time he overcame most of the Prankish chiefs, his neighbours, and subjected their tribes to his power. In 497, he led an expedition against the Armoricans in the West. In 500, he fell upon the Burgundians in the East, took advantage of their dissensions, and gained a victory between Dijon, and Langres. In 507, he advanced into the centre of Prance, through Anjou and Poitou; near Poitiers, he attacked Alaric II., king of the Visigoths, and killed him. He penetrated as far as Angouleme, Bordeaux, arid Toulouse ; and boasted of having conquered Aquitaine. In 508, Clovis received the title of Patrician from Anastasius, the Emperor of the East. In 509, he returned to the Rhine, DEATH OF CLOVIS. 85 defeated his ancient ally, Sigebert, king of Cologne, and subjugated the Bipuarian Franks. In 511, he died, after having led his Frankish warriors, and extended his dominion, over the various parts of Graul. The wars and conquests of Clovis had little resemblance to what we understand by the same words at the present day. The principal object of the Frankish expeditions was to make booty, and carry off slaves ; this is what was called conquest in those days. The victor sometimes imposed a tribute ; but there resulted from his victory hardly any per- manent possession, and no civil settlement. Among other proofs of this assertion, I may instance the small number of the warriors who accompanied Clovis, w r ho was never attended, on his expeditions, by more than five or six thousand men. JSTow, with this number, no civil settlement, not even a military occupation, was possible. "When the conqueror had withdrawn, the conquered people gradually resumed their independence a new chieftain arose. Barely did the conquerors settle in the lands w r hich they had sub- jected ; thus it was necessary incessantly to make the same conquests over again. For a detailed narrative of these events, I refer you to the general histories of France, especially to the work of M. Sismondi. Nowhere do we obtain a better picture of the manners of the Greeks in the heroic age than that supplied by the Iliad. A similar authority, with reference to the expeditions and manners of the Grermanic people, exists in the poem of the Nibelungen. There you will best be able to obtain a correct knowledge and thorough comprehension of the state of society, and the nature of the wars at this epoch. At the death of Clovis, in 571, the Frankish monarchy was definitively established ; for he had made the Frankish name and people the most formidable and least contested power in Graul. 86 SUCCESSORS or. CLOVIS. LECTURE X. Division of territory among the sons of the Prankish kings. Eapid formation and disappearance of several Frank kingdoms. Neustria and Austrasia ; their geographical division. Early predominance of Neustria. Fredegonde and Brunehaut. Elevation of the Mayors of the Palace. True character of their power. The Pepin family. Charles Martel. Fall of the Merovingians. I HAVE already explained to you how we must understand the historical phrase which attributes to Clovis the founda- tion of the French monarchy. In the sense and within the limits which I have indicated, Clovis, at his death, was king of the whole of France, excepting the kingdoms of the Burgundians and Visigoths. After his decease, each of his four sons received a portion of his dominions. Theodoric ruled at Metz, Chlodomir at Orleans, Childebert at Paris, and Clotaire at Soissons. The nature of this division has given rise to considerable dissension among learned men ; but I think the question may be easily solved. In order to retain his power, it was necessary for the chieftain or king to possess large private domains ; in all his warlike expedi- tions, he acquired for himself large tracts of territory ; Clovis had thus obtained immense landed property wherever he had made a conquest. At his death, these estates were divided among his children, as were also his other posses- sions, flocks, herds, jewels, money, treasures of all kinds : these supplied their owners with the surest means of attain- ing power. Moreover, it was the custom of the Frankish kings to associate their sons with them in the government, by sending them to reside in that district or province which was afterwards to constitute their kingdom. They thus endeavoured to secure the prevalence of hereditary right over election. The sons of the king became in their turn the natural chieftains of the countries in which they actually possessed the most power. Thus we find that Clotaire II., in 622, associated with himself his son Dagobert, and sent him to Austrasia. Dagobert did the same, in 633, for his son Sigebert. PAETITIOXS OF THE EEALM. 87 Prom this division of private domains and participation in royal power, it was easy to pass to the political partition of the kingdom. It is more difficult to discover whether these partitions were made by the dying king, in his own authority, or by the national assembly. At a later period, under the second race, we find Pepin, Charlemagne and Louis the Debonnair, positively obtaining the consent of the assembly of barons to the division of their states among their children. Pacts are not so clear and authentic under the Merovingians. However, as the accession of the second race was a return to old Germanic manners, it is pro- bable that, in the time of Clovis and his successors, every heir, on receiving his portion, was obliged to gain the consent of the chiefs of the country. Pive partitions of this kind occurred under the Merovingians ; in 511, after the death of Clovis ; in 561, after Clotaire I. ; in 638, after Dagobert I. ; in 656, after Clovis II. Prom 678 to 752, the whole monarchy was actually united under the authority of the Pepin family, who were originally Mayors of the Palace of Austrasia, and nominally under that of titular kings, the first four and the sixth of whom descended from the kings of Neustria, and the fifth and seventh from those of Aus- trasia. The kingdoms which were constituted by the five partitions which I have just mentioned, were those of Metz, Orleans, Paris, Soissons, Austrasia, Burgundy, Neustria, and Aquitaine. I shall not here speak of the vicissitudes and perpetual dismemberments of these various kingdoms at various times. I ' should have only to relate a long series of wars and murders. The ancient kingdom of Burgundy was conquered by the children of Clovis I. ; a new kingdom of Burgundy arose, in which the kingdom of Orleans was incorporated. The new kingdom of Burgundy was invaded, sometimes by the kings of Neustria, sometimes by those of Austrasia. The kingdom of Aquitaine appears for a moment only under Childebert II., son of Clotaire II., in 628, and about 716, under Eudes, duke of Aquifcaine, who declared himself an independent monarch. At length, these four kingdoms disappeared; the fundamental conflict and division was between the kingdoms of Neustria and Austrasia, the two largest, and last surviving. 88 KEUSTBIA AND ATJSTRASIA. The geographical division of the kingdoms of ISTeustria and Austrasia is uncertain and variable. "We find the kings of Austrasia possessing countries far distant from the centre of their government countries, too, which seem to be naturally placed by their position under the sway of the kings of JN"eustria. Thus, they were the masters of Auvergne, and their dominion extended almost as far as Poitou. These incoherent possessions had their origin in the frequent expeditions of the two countries against each other, or into distant lands which belonged to neither of them. We can, however, obtain some few distinct boundary lines ; the forest of Ardennes separated Austrasia from Neustria ; Neustria comprised the country between the Meuse and the Loire ; Austrasia consisted of that between the Meuse and the Ehine. This division had a far greater importance than that of a mere geographical division ; and there is a deeper cause for the successive disappearance of the other Prankish king- doms, and the final predominance of these two. The countries which composed Austrasia were the first which were inhabited by the Franks. They adjoined Ger- many, and were connected with those portions of the Prankish confederacy which had not crossed the Ehine. They were, therefore, the cradle, the first fatherland, of the Franks. Moreover, after their expeditions, these tribes frequently returned with their booty to their ancient settlement, instead of establishing themselves in their new conquests. Thus Theodoric, son of Clovis, in the fifth century, led a great expedition into Auvergne, and returned afterwards to Austrasia. Roman civilization and manners had been almost completely expelled from that bank of the Ehine ; the ancient German manners predominated there. In the countries which composed Neustria, on the other hand, the Franks were less numerous, more scattered, more separated from their ancient fatherland and fellow-country- men. The ancient inhabitants of the country surrounded them on every side. The Franks were there like colonies of barbarians transported into the midst of Eoman civilization and a Eoman people. This state of things could not but lead to a far more profound and reasonable distinction between the two kingdoms, than could be occasioned by a purely PEEDOHIffANCE OP NEUSTBIA. 89 geographical division. On one side was the kingdom of the Germano-Franks, on the other that of the Eomano- Franks. Historic testimony positively confirms this probable deduc- tion from facts. Austrasia is termed Francia Teutonica, and Neustria, Francia Romana. The German language prevailed in the former country, and the Roman in the latter. Finally, under the first race of kings, events bear the evident impress of this fundamental distinction, or rather, they are its natural result. "When considering them in a general manner, it is impossible to recognize this character. I shall now give a summary of the principal proofs. I. The original predominance of the kingdom of ]S"eustria. This is an incontestable fact. Four kings, after Clovis, and before the destruction of the royal authority by the Mayors of the Palace, united the whole Frankish monarchy under one head. These were kings of Neustria ; Clotaire I., from 558 to 561 ; Clotaire II., from 613 to 628 ; Dagobert I., from 631 to 638 ; and Clovis II., from 655 to 656. This predominance of Neustria was the natural result, 1st, Of the establishment of Clovis in Neustria ; 2ndly, Of the central position of that kingdom with reference to the rest of Gaul; 3rd, Of the superior civilization and wealth which accrued to it from its Eoman population ; 4th, Of the rapid extension which the royal authority obtained in it, in consequence of the prevalence of Eoman ideas and customs ; 5th, Of the continual fluctuations occasioned in Austrasia, by the proximity of the German barbarians, by wars against the Thuringians and Saxons, and by other causes. II. The state of the two kingdoms, during the epoch of Fredegonde and Brunehaut, from 598 to 623. The struggle was constant between Neustria and Austrasia, under the name of these two queens. The power of Chilperic and of Fredegonde in Neustria was greater than that of the kings of Austrasia and of Brunehaut. Fredegonde acted upon a country in which the only Eoman administration still prevailed ; Brunehaut endeavoured in vain to overcome the rude independence of the chiefs of the German bands, who had become large landed proprietors. Her boldness and ability failed in its opposition to the Austrasian and Burgundian aristocracy. The Austrasian aristocracy formed 90 THE MAYO US OF THE PALACE. a secret alliance with that of Neustria. The fall and death of Brunehaut were evidently a triumph of the Austrasian aristocracy, which, being stronger and more compact than that of Neustria, imposed upon Clotaire II. the execution of his queen. The remnants of Roman despotism were overcome in Austrasia by the German aristocracy, and the consequences of that event were the enfeeblement of the royal authority and the predominance of Austrasian in- fluence. III. The elevation of the Mayors of the Palace, and the fall of the Merovingian race, are the third proof of the great fact which I have mentioned. The elevation of the Mayors of the Palace must be ascribed to the same causes in both kingdoms. It is an error to interpret this fact as the conflict of the victorious Franks against the Gauls and Romans. These last, more moulded to despotism, had found a ready access to the court of the barbarian kings, and it has been inferred from this, that it was in order to counteract their influence, that the German aristocracy created the Mayors of the Palace. This is an error; the Mayors of the Palace were the work and instrument of the barbarian aristocracy, whether Roman or Gallic, in opposi- tion to the royal authority. It has also been said that the kings were desirous of attaching to themselves one of the most powerful members of the territorial aristocracy, in order to control or oppress the others. This might have been the case originally, but the Mayor of the Palace soon found it more advantageous to make himself the leader and instrument of the nobility. He promoted their interests, and assumed the character of a protector to the large proprietors with whom, finally, his appointment rested. Prom this time forth, the royal authority was almost a dead letter. The same phenomenon is observable in both kingdoms ; but the Austrasian aristocracy was more purely German, and more compact, than that of Neustria. It was conse- quently more powerful, and its Mayors of the Palace became more deeply rooted in their authority. Thus we behold the family of Pepin gain the royal power by a progressive elevation, from 630 to 752. This family was descended from Carloman, the wealthy proprietor of the domain of FALL OF THE MEROVINGIANS. 91 Haspengau, situated on the Meuse, between the district of Liege and the duchy of Brabant. It was thoroughly Ger- man, and naturally placed itself at the head of the Franco- German aristocracy. The fall of the Merovingians was, therefore, the work of Austrasia, and, as it were, a second conquest of Roman France, by Germanic Prance. The kings of Roman France were unable to maintain their position, and the Neustrian Mayors of the Palace, the leaders of a mingled aristocracy of Franks and Gauls, were incompetent to take their place. It was from the banks of the Rhine and from Belgium, that is, from the ancient fatherland of the Franks, that the new conquerors came and these conquerors were the chiefs of a purely Germanic aristocracy. This was, undoubtedly, the true character of the fall of the Merovingians, and of the elevation of the Carlovingians, who founded a new Frankish monarchy in that Gaul in which the Neustrian Franks had so greatly degenerated. Thus we shall perceive, at this epoch, and in consequence of this revolution, a marked return towards the primitive institutions and manners of the Franks. This is per- ceptible, indeed, even in the manner in which the revolution was effected. The details of this event fully confirm what we have first said regarding the general progress of affairs. The Pepin family had lajboured for a century to place itself at the head of the Frankish nation. It derived its support not merely from the great landed aristocracy, but also from the patronage of the warriors employed in military expedi- tions. The development of the power of this family, in the first point of view, was the work of Pepin the Old and of Pepin de Heristal ; under the second, it was the- work of Charles Martel in particular. His continual wars against the Transrhenane Germans, against the Saracens, and against the petty tyrants of the interior, rendered him a more powerful warrior-chief than any of his ancestors. But Charles Martel employed other means also to attach his companions to his person. He seized the property of the church, and distributed it amongst them. He did not take this property, however, in so absolute a manner as is supposed. The various churches were in the habit of farming out their property for a fixed annual income, and 92 CIIAELES MARTEL. ecclesiastical estates thus farmed out were called precaria. Frequently the kings, when desirous of rewarding one of their chiefs, ordered a chapter to farm out an estate to the fa- vourite for a very moderate rent, under the title of aprecarium. Charles Martel, at first, merely generalised this practice. A very large number of his comrades received from him favours of this kind ; in the first instance, they received the ecclesiastical estates only for two or three years ; but, when that term had expired, the tenants were unwilling to re- store what they had appropriated to themselves by the habit of enjoyment. The conflict of the church against the usurping proprietors long perplexed the the kings of the second race. As they often required the help of the clergy, they strove to appease their complaints. Pepin the Short and Charlemagne restored to them a large portion of their property which had formerly been granted to their warriors as precaria ; or at least, increased the amount paid to the church by the new proprietors, who obstinately refused to consider themselves mere tenants. The predominance of the Pepin family had commenced before the time of Charles Martel, by their possessing the hereditary office of Mayor of the Palace. During the life of that great chieftain, there were several inter-reigns in Austrasia and Neustria, and he continued to exercise the supreme authority with the simple title of Duke of the Franks. At his death, his children, Pepin and Carloman, divided the kingdom between them, Pepin, still preserving some respect for appearances, made Childeric III. king in Neustria ; and soon, by the abdication of his brother Carlo- man, he found himself Duke of Austrasia, as well as the all-powerful Mayor of the Palace in Neustria. Such was, however, the influence already possessed by the idea of the hereditary legitimacy of the crown, that Pepin did not venture to seize, in the name of force alone, upon the throne which was considered to belong rightfully to the descendants of Clovis. He sought to justify his employment of force by popular election, and an appeal to religion. As the head of an aristocracy, he was obliged frequently to defer to its will, and to give it a share of authority. He revived the ancient assemblies of the large landowners, and restored to them their part in public affairs. Thenceforward 93 he might consider himself certain of his election; but even this did not suffice him. He thought that his usurpation needed a more august and sacred sanction. He gained over to his interests Boniface, bishop of Mayence, and charged him to sound Pope Zachary, who, on his side, was hard pressed by the Lombards, and needed the assistance of the Prankish chieftain. When Pepin was sure of the pontiff's concurrence, he sent Burckhardt, bishop of Wurtzburg, and Fulrad, abbot of St. Denis, to propose to him this question, in the form of a case of conscience. " When there is a king in fact and a king by right, which is the true king ?" The pope replied, that he who actually exercised the royal authority ought also to possess the royal title. In 752, Pepin convoked the national assembly at Soissons ; he was there elected king, and afterwards consecrated by Bishop Boniface. In 754, Pope Stephen III. made a journey into France, and again consecrated Pepin with his two sons and his wife Bertrade. The pope ordered the Pranks, on pain of excommunication, to take none as kings who did not belong to the family of Pepin, and the Franks swore an oath : lit nunquam de alterius lumbis regem in cevo prtesit- mant eligere. A second dynasty was thus established almost in the same manner as the first had been. The principal warrior-chief, the most powerful of the large landowners, has himself elected by his companions, confines future elections to members of his own family, and obtains the sanction of religion to his election. He holds the actual power from his fathers and from himself; he is desirous of holding the rightful power from God and from the people. German manners and institutions reappear, but in association with Christian ideas. Here is a second conquest of Gaul, accomplished by German warriors, and sanctioned, in the name of the Roman world, no longer by the Emperor, but by the Pope. The church has inherited the moral ascendancy of the empire. 94 TENDENCY TO CENTRALIZATION. LECTUEE XL General character of events under the Carlovingian empire. Reign of Pepin the Short. Reign of Charlemagne. Epoch of transition. Reigns of Louis the Debonnair and Charles the Bald. Norman invasions. The last Carlovingians. Accession of Hugh Capet. I HATE sketched the general progress of events in Prankish Gaul, under the Merovingians ; I have now to give a similar outline of the reign of the Carlovingians. I shall enter neither into an examination of the institutions, nor a detailed narrative of occurrences ; I shall seek to sum up the facts in the general fact which includes them all. The general tendency of events under the Merovingians was towards centralization ; and this tendency was natural. At that period, a society and a. state were labouring to form and create themselves; and societies and states can be created only by the centralization of interests and forces. The conquests and authority of Clovis, however fleeting and incomplete they may have been, indicate this need of centralization, which was then pressing upon Homan and barbarian society. After the death of Clovis, his dominions were dismembered, and formed into distinct kingdoms ; but these kingdoms could not remain separate ; they continually tended to reunite, and soon became reduced in number to two, which finally coalesced. A similar process took place in reference to the authority in the interior of each state. The royal power attempted at first to be the centralizing principle, but did not succeed ; the aristocracy of the chiefs, the great landowners, laboured to organize itself, and to produce its own government ; it produced it, at length, in the form of the Mayors of the Palace, who eventually became kings. After two hundred and seventy-one years of labour, all the Prankish kingdoms were reunited into one. The supreme power was more entirely concentrated in the hands of the king, aided by the concurrence of the national assem- blies, than it had ever been previously. Under Pepin the Short and Charlemagne, this centraliza- TENDENCY TO DISSOLUTION. 95 tion was maintained, extended and regulated; and it appeared to gain strength. New countries, new peoples, were incor- porated into the Frankish state. The relations of the sove- reign with his subjects became more numerous and regular. New bonds of union were established between the supreme power, its delegates, and its subjects. A state and a govern- ment seemed likely to be formed. After the death of Charlemagne, affairs presented quite another aspect, and assumed a contrary direction. In pro- portion as a tendency to the centralization, either of the different states among themselves, or of the internal power of each state, had been visible under the rule of the Mero- vingian race, in just that proportion did a tendency to the dismemberment, to the dissolution, both of the states them- selves and of the power in each state, become evident under the Carlovingians. Under the Merovingians, you have seen that five successive dismemberments took place, none of which was able to last ; after the death of Charlemagne, the kingdoms once separated do not reunite. Louis the Debon- nair divided the empire among his children, in 838, and made vain efforts to maintain some unity therein. The treaty of Verdun, in 843, definitively separated the three monarchies. Charles the Fat, in 884, made an attempt to unite them again; but this attempt also failed reunion was impracticable. In the interior of each state, and particularly in France, the same phenomenon was manifested. The supreme power which, under the Merovingians, had tended to become con- centrated in the hands, either of the kings, or of the Mayors of the Palace, and which had seemed to have attained this end under Pepin and Charlemagne, took a contrary direction from the reign of Louis the Debonnair, and tended constantly to dissolution. The great landed proprietors who, under the first race, had been naturally urged to coalesce against the royal authority, now laboured only to elevate themselves, and to become sovereigns in their own domains. The here- ditary succession of benefices and offices became prevalent. Royalty Vas nothing more than a direct lordship, or an. indirect and impotent suzerainty. Sovereignty was dis- persed; there no longer existed any state, or head of the state. The history of the Carlovingians is nothing but the 96 PEPIN THE SHORT. struggle of declining royalty against that tendency which was continually robbing and contracting it more and more. This was the dominant character, the general progress of events, from Louis the Debonnair to Hugh Capet. I shall now refer to the principal facts of this epoch ; in them I shall find proofs of the general fact just stated. I. Pepin the Short (752-768). As this monarch had risen to power by the aid of the large landowners, the clergy, and the pope, he was obliged, during the whole course of his reign, to treat with consideration those powers which had supported him. He frequently convoked national assemblies, and frequently met with opposition from them. It was not without extreme difficulty that he prevailed upon his chieftains to make war against the Lombards, at the request of Pope Stephen III. In order to retain the sup- port of the clergy, Pepin ordered the holders of ecclesiastical benefices to perform the conditions annexed to their tenure of them; he lavished, donations upon the churches, and greatly augmented the importance of the bishops. It is from Zachary's answer to Pepin, that the popes have assumed to deduce their historic right to make and unmake kings. Pepin thus favoured the aggrandizement of the aristocracy, the clergy, and the papacy, three powers which had been very useful, and were still of great service to him, which he knew how to manage and restrain, but which, under other circumstances, would assuredly labour to render themselves independent of the royal power, and would promote the dismemberment, after having assisted in the concentration of the kingdom. The moment most favourable for the development of these powers had arrived. They placed themselves at first at the service of the king, who was useful to them, and knew how to make them serviceable to himself; and thus they became able to free themselves from dependence upon him, and henceforward to act alone and on their own account. II. Charlemagne (768-814). Epochs of transition, in the history of society, have this singular characteristic, that they are marked sometimes by great agitation, and sometimes by profound repose. It is well worth while to study the causes of this difference between epochs which are fundamentally similar in nature, and which do not con- CHARLEMAGNE. 97 etitute a fixed and durable state of society, but only a passage from one state to another. When the transition occurs from a state of things which has long been esta- blished and is doomed to destruction, to a new state of things which it will be necessary to create, it is generally full of agitation and violence. When, on the other hand, there exists no previous state of society, which from its long duration is difficult to overthrow, the transition is only a momentary halt of society, fatigued by the disorder of its previous chaotic state, and by the labour of creation. This was the character of the reign of Charlemagne. The whole country of the Franks, wearied by the disorders of the first dynasty, and not having yet originated the social system which was destined to issue naturally from their conquest I mean the feudal regime stood still for a time under the government of a great man who procured for it greater order and more regular activity, than it had ever known before. Until then, the two great powers which agitated the country the great landowners and the clergy had not been able to take a settled position. The royal autho- rity was hostile to them, and they attacked it. Charlemagne knew how to restrain and satisfy them, and contrived to keep them employed without placing himself in their power. This knowledge constituted his strength, and was the cause of the temporary order which he established throughout his empire. In a future lecture, when studying the institutions of his epoch, we shall see what was the characteristic feature of his government. I am speaking now only of the fact itself of the singular circumstance of the authority of a very powerful king being interposed between an age in which royalty was held in slight esteem, and an age in which it almost ceased to be of any importance. Charle- magne made of barbarian monarchy all that he possibly could. He possessed within himself, in the necessities of his mind and life, an activity corresponding to the general exigencies ol his age, which, indeed, surpassed them. The Franks desired war and booty; Charlemagne desired con- quests, in order to extend his renown and dominion; the Franks were unwilling to be without a share in their own government ; Charlemagne held frequent national assemblies, and employed the principal members of the territorial aris- 98 LOUIS THE DEBOKffAIR. tocracy as dukes, counts, missi dominici, and in other offices. The clergy were anxious to possess consideration, authority, and wealth; Charlemagne held them in great respect, employed many bishops in the public service, bestowed on them rich endowments, and attached them firmly to him, by proving himself a munificent friend and patron of those studies of which they were almost the only cultivators. In every direction towards which the active and energetic minds ol the time turned their atten- tion, Charlemagne was always the first to look; and he proved himself more warlike than the warriors, more careful of the interests of the church than her most devout adhe- rents, a greater friend of literature than the most learned men, always foremost in every career, and thus bringing everything to a kind of unity, by the single fact that his genius was everywhere in harmony with his age, because he was its most perfect representative, and that he was capable of ruling it because he was superior to it. But the men who are thus before their age, in every respect, are the only men who can gain followers ; Charlemagne's personal superi- ority was the indispensable condition of the transitory order which he established. Order did not at that time spring naturally from society ; the victorious aristocracy had not yet attained the organization at which it aimed. Charlemagne, by keeping it employed, diverted it temporarily from its object. "When Charlemagne was dead, all the social forces which he had concentrated and absorbed became in want of aliment ; 'they resumed their natural tendencies, their intestine con- flicts; they began once more to aspire to the independence of isolation, and to sovereignty in their own neighbour-., hood. III. Louis the Debonnair (814-840). As soon as Louis became emperor, he lost the success which had attended him as king of Aquitaine. Facts soon gave proof of that tendency to dissolution which pervaded the empire of Charlemagne, and which dispersed the authority which he had been able to retain entire in his own hands. Louis gave kingdoms to his sons, and they were continually in revolt against him. The great landholders, the clergy, and the pope those three social forces which Charlemagne had BO ably managed and restrained escaped from the yoke CHARLES THE BALD. 99 of Louis the Debonnair, and acted sometimes in his favour, and sometimes against him. The clergy loaded him with reproaches, and forced him to do public penance at "Worms, ^ in 829. An attempt was made, in 830, to make him a' monk, after the assembly at Compiegne, where he had con- fessed his faults ; and he was deposed, in 833, by another assembly at Compiegne, in pursuance of a conspiracy into which Pope Gregory IV. had entered. During the whole course of this reign, nothing held together, everything was disjoined; both the states which constituted the empire, and the great social forces, lay and ecclesiatical, in each state. Each of these forces aspired to render itself inde- pendent. Louis the Debonnair presents a singular spec- tacle, in the midst of this dissolution, attempting to practise as a scholar the maxims of government laid down by Charle- magne, enacting general laws against general abuses, pre- scribing rules for the guidance of all those forces which had escaped from his hands, and even endeavouring to correct the particular acts of injustice which had been committed under the preceding reign. But the kings, the great land- owners, the bishops, all had acquired a feeling of their own importance, and refused to obey an emperor who was no longer Charlemagne. IV. Charles the Bald (840-877). The dissolution which had commenced under Louis the Debonnair continued under his son Charles the Bald. His three brothers,* rely- ing alternately upon the pretensions of the clergy and of the large landholders, .disputed with him for the vast empire of Charlemagne. The bloody battle of Fontenay, fought on the 25th of June, 841, made Charles the Bald king of Neustria and Aquitaine, that is, of France. His reign is nothing but a continual alternation, a scene of futile efforts to prevent the dismemberment of his dominions and of his power. At one time, he robs the clergy in order to satisfy the avidity of the great landholders, whose support he is anxious to gain ; at another time, he spoils the landholders in order to appease the clergy, of whose assistance he stands in need. His capitulars contain hardly anything but these impotent alternations. The hereditary succession of bene- * Lothaire, Pepin, and Louis the Germanic, the three elder sons of Louis the Debonnair. H2 100 THE NOEMANS. fices and appointments became triumphant, and every chief- tain laid the foundation of his own independence. V. The Normans. This is the generic name of the German and Scandinavian tribes, who inhabited the shores of the Bal- tic. Their maritime expeditions may be traced back to a very remote period. We meet with them under the first dynasty of Prankish kings ; they frequently occur towards the end of the reign of Charlemagne, and under Louis the Debon- nair ; and they continually appear under Charles the Bald. They constituted a fresh cause of the dismemberment of the empire, and of the royal authority. In the ninth century, the Frankish G-auls present the same appearance which the Roman Gauls had offered four centuries before : that of a government incapable of defending the country, and expelled or retiring in every direction, and of barbarians pillaging, imposing tribute, withdrawing on payment of large sums of money, and continually reappearing to levy fresh contribu- tions. Nevertheless, a notable difference is to be remarked between these two epochs. In both, the central government was equally incapable and worn out; but, in the ninth century, there existed within the Prankish territory a host of chieftains, who, though lately barbarian invaders them- selves, had become independent, and were surrounded by warriors who defended themselves against the new invaders with far greater energy than the Roman magistrates had done, and who took advantage of the disturbed state of society to consolidate firmly their own individual sove- reignties. Among these chieftains, we meet with Robert the Strong, the ancestor of the Capetian family, who became Duke of Neustria, in 861, and was killed in 866, while defending Neustria against the Normans. The Normans definitively established themselves in Neustria, in 9J2, under Charles the Simple, who yielded the province to their chief Hollo, and gave him his daughter Grisella in marriage. VI. Charles the Pat. In 884, Charles the Pat, son of Louis the Germanic, temporarily collected under his rule nearly all the dominions of Charlemagne. The maintenance of this new concentration of territory and power was impos- sible, and it was dissolved even before the death of Charles the Pat. TENDENCY TO DISSOLUTION. 101 VII. In 888, Elides, and in 923, Eaoul, made themselves kings. The first, a count of Paris, was the son of Robert the Strong, and assumed the title of king, at the national assembly held at Compiegne. The second was Duke of Burgundy, and husband of Emma, the grand-daughter of Robert the Strong, and sister of Hugo the Great, Duke of France. These kings were not, like the Mayors of the Palace at the termination of the first dynasty, the repre- sentatives of a powerful aristocracy. The landed aristocracy of the tenth century had no further need of representation ; no power could struggle effectively against them. Every great landowner was absolute master in his own estates, and the kings were only great barons, who, having become independent, assumed the title of kings, with the aid of their vassals. A portion of the lords who had thus become inde- pendent, remained indifferent to quarrels which did not disturb their rights and their power. They cared little whether there was a king, or who was king. The descend- ants of Charlemagne retained for some considerable time a party of adherents, for the idea and feeling of the right- fulness of a hereditary succession to the crown, that is, of legitimacy, were already powerful ; but in 987, the conflict ceased, and Hugh Capet became king. The general fact which characterizes this epoch, a ten- dency to dismemberment and dissolution, is frequently met with in the course of the history of the human race. At first, we see the interests, forces, and ideas which exist in society, labouring to become united, to concentrate them- selves, and to produce a suitable form of government. When this concentration has been once effected, and this government has been once produced, we find that, at the end of a certain time, it becomes exhausted and incapable of maintaining it entirely ; new interests, new forces, and new ideas, which do not harmonize with each other, arise and come into action; then the dissolution begins, the elements of society become separated, and the bonds of government are relaxed. A conflict commences between the forces which tend to separation, and the authority which strives to maintain union. When the dissolution shall be consummated, then will begin a new work of con- centration. This occurred after the fall of the second dynasty 102 TOEMATION AND DISSOLUTION. in France. The prevalence of the feudal system had caused the dissolution of the government and the state ; the govern- ment and the state laboured to reconstitute themselves, and to regain their unity and consistency. This great work was not definitively accomplished until the reign of Louis XIY. ; the social forces had then become once more con- centrated in the hands of royalty. Our own times have witnessed a fresh dissolution. What we observe, then, during the years from 481 to 987, is a general phenomenon, characteristic of the progress of the human race. This phenomenon occurs not only in the political history of societies, but also in every occupa- tion in which the activity of man finds exercise. In intel- lectual order, for example, we find at first that chaos reigns ; the most divergent attempts to resolve the great questions of the nature and destiny of man, are made in the midst of the universal ignorance. By degrees, opinions become assimilated, a school is formed, founded by a superior man ; it is joined by almost all men of mind. Ere long, in the midst of this very school, diverse opinions arise, contend, and become separated; dissolution begins once again in intellectual order, and will continue until a new unity is formed, and regains the empire. Such, also, is the course of nature herself in her great and mysterious operations. This continual alternation of formation and dissolution, of life and death, recurs in all things, and under all forms. Spirit gathers matter together and gives it animation, uses, and then abandons it. It falls a prey to some fermentation, after which it will reappear under a new aspect, to receive once more that spiiit which alone can impart to it life, order, and unity. PRIMITIVE INSTITUTIONS OF THE FBANKS. 103 LECTUEE XII. Ancient institutions of the Franks. They are more difficult of study than those of the Anglo-Saxons Three kinds of landed property; allodial, beneficiary, and tributary lands. Origin of allodial lands. Meaning of the word allodium. Salic land amongst the Franks. Essential characteristics of the allods. THE primitive institutions of the Franks are much more difficult of study than those of the Anglo-Saxons. I. In the Prankish monarchy, the old G-allo-B-oman people still subsisted ; they in part retained their laws and customs ; their language even predominated ; Graul was more civilised, more organised, more Romanised than Great Britain, in which nearly all the original inhabitants of the country were either destroyed or dispersed. II. Graul was divided among various barbarian peoples, each of whom had its own laws, its own kingdom, its own history ; the Franks, the Visigoths, the Burgundians ; and the continual alternations of the Frankish monarchy between dislocation and re-union, long destroyed all unity in ita history. III. The conquerors were dispersed over a much larger extent of territory ; and central institutions were weaker, more diverse, and more complicated. IV. Of the two systems of social and political order, con- tained in the cradle of modern nations I mean the feudal system and the representative system the latter has long prevailed in England, while the former long maintained its sway in France. The ancient national institutions of the Franks were absorbed into the feudal system, in whose train came absolute power. Those of the Saxons, on the other hand, were more or less maintained and perpetuated, to end at length in the representative system, which rendered them clear by giving them due development. Perhaps, also, the difficulty of the study of the ancient Frankish institutions arises in some measure from the fact that we possess more documents respecting the Franks than VIEWS OF HULLMABTKT. respecting the Saxons. Because we are acquainted with more facts, we have greater trouble in harmonizing them. We believe we are better informed because we know less. Such being the case, I wish to state with precision the object of my researches, so as not to lose time in useless digressions. I do not propose that we should study together either the state of Prankish society in all its departments, or the history of all its vicissitudes. I am desirous to inves- tigate and explain to you, first, what constituted in France, from the fifth to the tenth century, the political part of the nation, possessing political rights and liberties ; and secondly, by what institutions these rights were exercised, and these liberties guaranteed. We shall frequently be obliged to make excursions beyond these limits in search of the facts necessary to the solution of the questions contained therein ; but we shall not dwell long upon such extraneous matter. In the pursuit of this study, we shall find the works of German authors of incontestable utility, A principal cause of the errors of the leading French writers who have treated of the subject, is that they have attempted to derive all our institutions from Germany, from the condition of the Franks before the invasion, and that, at the same time, they have been unacquainted with the language, the history, and the learned researches of the purely German peoples, that is, of the nations which have most thoroughly retained the primi- tive elements of Frankish society, and which formed a consi- derable portion of the Frankish monarchy. Dr. Hullmann, a professor at the University of Bonn, has written a book on the origin of the various social states or conditions, the object of which is to prove that all modern social order, political as well as civil, derives its origin from the circumstance, that the peoples of modern times have been agriculturists, devoted to the possession and fixed cultivation of land. This view, although incomplete, is of much impor- tance. It is certain that, in the history of Europe, ever since the fall of the Roman Empire, the condition of persons has been closely connected with that of landed property, and that the one throws light upon the other. Though all history would not prove that this has been the case from the begin- ning, yet the long-continued predominance of the feudal system, which consists precisely in the intimate connection CONDITION OF LANDS. 105 and amalgamation of the relations of lands with those of persons, would alone be sufficient to demonstrate it unques- tionably. At the outset, the condition of persons gave rise to that of lands ; according as a man was more or less free, more or less powerful, the land which he possessed or cultivated assumed a corresponding character. The condition of lands afterwards became the symbol of the condition of persons ; according as a man possessed or cultivated such and such a domain, he was more or less free and more or less important in the State. Originally, the man gave its character to the estate ; in the sequel, the estate gave his character to the man : and as symbols quickly become causes, the condition of persons was at length not only indicated, but determined by, and consequent upon, the condition of lands. Social conditions became in some degree incorporated with the soil : and a man found himself possessed of a certain rank and of a certain degree of liberty and social importance, cor- responding to the character of the land which he occupied. In studying modern history, we must not for a moment lose sight of these vicissitudes in the condition of lands, and of the varied influence they exerted upon the condition of persons. There is some advantage in first studying the condition of lands, in so far as it was a symbol of the condition of persons, because the former is somewhat more determinate than the latter. It is also less complicated ; the condition of persons frequently varied upon lands of the same condition; and the same persons have possessed lands of different con- ditions. Our information, respecting the condition of lands, is also more than exact. In studying the condition of landed property and its vicis- situdes, I do not propose to investigate its civil condition, or to consider property in all its civil relations, such as suc- cessions, bequests, and alienations. I intend to consider it only in its relation to the condition of persons, and as a symbol or cause of the various conditions of society. In the period which we are about to study, from the fifth to the tenth century, we have this advantage : that it contains a complete system, both as regards landed property, and also with respect to the condition of persons and the political institutions of the nation. 106 ALLODIAL LANDS. At this period, we meet with three kinds of landed property : 1st. Allodial lands ; 2nd. Beneficiary lands ; and 3rd. Tributary lands. 1st. Of allodial lands orAllods. These were lands possessed in absolute right, which the proprietor held from no one, on account of which he owed nothing to any superior, and of which he had full liberty to dispose. The lands taken or received as booty by the Franks, at the time of the conquest of Gaul, or in their subsequent conquests, were originally allodial. At a later period it was said that a man held an allodium, only from Grod and his sword. Hugh Capet said that he held the crown of France in this manner, because he had received it from no one. Such tenures were mementos of conquest. The word alode itself indicates that the first allods were lands, which fell to the conquerors either by lot or division ; loos, lot ; allotted, allotment ; whence also came the French word, loterie. Among the Burgundians, Visigoths, Lom- bards, and others, we find positive traces of this division of the lands allotted to the conquerors. They took possession of two-thirds of the land, that is, not of the whole extent of the country, but of the land in any locality, where a barba- rian of any importance took up his residence. The lands which thus fell to the barbarians, were called Sortes Rwrguii- dionum, GotJiorum, and so on. We do not find among the Franks positive traces of such a division of the land ; but we know, nevertheless, that they divided their booty by lot. The word alode, then, was probably applied at first only to the lands taken by the victors in virtue of their conquests. Another proof of this is that allodial property, properly so called, was long distinguished from the lands held also in absolute right, and entailing no acknowledgment of a superior, but which had been acquired by purchase or in any other way. A distinction was also made among allodial lands, of salic land, which could be inherited only by males. This was probably the original allod, the land acquired at the tune of the conquest, and which thereupon became the pri- mitive and principal establishment of the head of the family. Terra salica is the terra aviatica of the Bipuarian Franks, the terra sortis titulo adquisita of the Burgundians, the hcere- ditas of the Saxons, and the terra paterna of the formulas of SALIC LAND. 107 Marculf. Various explanations have been given of the term salic land. Montesquieu thinks that it was the land belonging to the house, from the word, sal, hall. This explanation is supported by Hullmann. It would thus be the in-land of the Anglo-Saxons. It is probable that originally the terra salica was in fact the land connected with the house, the residence of the chieftain. The two explanations would thus coincide ; but the former is more complete and historical than the latter. The name of allod was extended by degrees to all lands possessed in absolute right, and held from no superior, whether they were the original allods or not. The words proprium, possessio^ pr&dium, hareditas, were then employed as synonymes of allodium. It was probably at this period also that the rigorous interdict which excluded females from succession to salic land, fell into desuetude. It would have been too harsh to exclude them from succession to all allodial property. There were some doubts entertained on this point as early as the time when the salic law was drawn up ; and Marculf has transmitted to us a formula which proves that, although it was the common law to deprive females of all succession to primitive allods, a father might, never- theless, by his will, give his daughter an equal share with his sons in the division of all his property, of whatever nature. The essential and primitive characteristic of the allodium, consisted in the absoluteness of the property ; the right to give it away, to alienate it, to bequeath it by inheritance or will, &c. Its second characteristic was that it depended upon no superior, and involved no service or tribute of any kind to any individual. But although allodial lands were exempt from all private charges towards individuals, does it follow that they were also exempt from all public charges as regarded the state, or the king as head of the State ? This question has been differently answered by learned men. At the period to which we allude, there were no public charges properly so called, no obligations imposed and fulfilled as regarded the State, or its head. All was limited to personal relations between individuals ; and from the relations of man with man arose the mutual relations of landed property, which were not carried further than those 108 CHARGES Off ALLODIAL LAKDS. of persons. We have already seen this ; the position of the Franks after the conquest resulted from the combination of their anterior relations with their new position. The freeman, who held his land from no one, had no obligations or charges to fulfil to any one on account of his land. In such a state of civilization, liberty is the appanage of force. The Franks who possessed allodial lands, and were strong enough to be under no obligation of duty to any more powerful individual, would not have comprehended the necessity of owing service to an abstract being like the State, with which, moreover, they had no personal relation. However, as society cannot exist in such a state of disso- lution, arising from the isolation of individuals, new relations were progressively formed between the proprietors of allodial lands, which relations imposed certain charges on them. 1st. The gifts presented to the kings either at the holding of the Champs de Mars or Mai, or when they come to pass any time in any particular province. The kings had no fixed habitation. These gifts, though at first purely volun- tary, became gradually converted into a sort of obligation, from which allodial lands were not exempt. That these gifts had become obligatory is proved by a list drawn up at Aix-la-Chapelle in 817, during the reign of Louis the Debon- nair, which enumerates the monasteries which had to pay them, and those which had not. 2nd. The supply of provisions and means of transport to the king's ambassadors, and to the foreign envoys, on their pas- sage through the country. 3rd. Of the various barbarian nations which were succes- sively incorporated into the kingdom of the Franks, several paid tribute to the Frankish kings ; and of this tribute it ia probable that the free or allodial lands, possessed by these nations, contributed their share. It consisted of a certain number of cows, hogs, and horses. The nature of these tributes proves that they were not distributed among the lands, but imposed upon the nation as a whole. 4th. A more important charge, namely, military service, was imposed upon allodial lands. In our next lecture, we shall see how this charge was introduced. ORIGIN OF MILITARY SERVICE. LECTURE XIII. Origin of military service ; its cause and limits. It was made a genen * obligation by Charlemagne. Allodial lands were originally exemp, from taxation. Origin of benefices. Change in the position of the German chiefs, in consequence of their territorial settlement. Their wealth. No public treasury. The cerarium and fiscus of the old Roman republic. Formation of the private domain of the kings of France. Character of benefices. Error of Montesquieu on this subject. I HAVE indicated some of the new relations which became progressively established between the proprietors of allodial lands and the services that resulted from them. I have to occupy you to-day with the consideration of military service and benefices. Originally, military service was imposed on a man by virtue of his quality, his nationality before the conquest, and not by reason of his wealth. After the conquest, there was no legal obligation to it whatever; it was a natural result of the position occupied by the Franks, who were constantly called upon to defend what they had conquered, and of their taste for warlike expeditions, and for pillage. It was, also, a kind of moral obligation which each man owed to the chief whom he had chosen. This connexion continued the same as in Germany ; the chief proposed an expedition to his men, and if they approved of it, they set out. Thus, we find Theodoric proposed to the Austrasian Franks an expedition against Thuringia. Often the warriors them- selves summoned their chief to conduct them on some particular expedition, threatening to forsake him, and seek another chief, in the event of his refusal. Under the Mero- vingians, a kind of regularity, some sort of legal obligation, was introduced into the military convocations, and a penalty was inflicted upon those who did not present themselves. The obligation was imposed, and the penalty inflicted, even in cases where no movement was required in defence of the country. The proprietors ol allodial lands were not exempted; 110 EXEMPTION OF FREEHOLDS FEOM IMPOSTS. many, doubtless, went on their own free choice, but the feeble were constrained. This was, however, an obligation attached rather to the quality of a free man, a Prank, or an associate, than to property. Not until the reign of Charlemagne, do we see the obliga- tion to military service imposed on all free men, proprietors of freeholds, as well as of benefices, and regulated by pro- perty qualifications. This service now appeared no longer as a voluntary act ; it was no longer the consequence of the simple relation between a chief and his associates, but a truly public service imposed on every individual of the nation, in proportion to the nature and extent of his territorial possessions. Charlemagne was very vigilant in seeing that the system of recruiting which he had esta- blished, should be faithfully carried out; we have a proof of this in his capitulary, issued in the form of instructions to the missi dominici, in the year 812. This is an exceedingly minute account of the particulars and charges of military service. These charges remained under the same conditions during the reigns of Charlemagne's immediate successors. Under Charles the Bald, they were restricted to the case of an invasion of the country by a foreigner (landweJir) . The relation of the vassal to his lord, at that time, prevailed completely over that of the citizen to the chief ruler of the state. Although allodial lands were exempt from imposts, pro- perly so called, more because there were no general imposts whatever than because of any special immunity from them possessed by allodial lands, yet we find the kings used every favourable opportunity to attempt to attach imposts to men and lands, which they believed rightfully exempt from them ; complaints were made of these attempts as acts of injustice ; they were resisted, and sometimes redress was sought, as under Chilperic, in 578, in Austrasia ; under Theodebert, in 547 ; and under Clovis II., in 615. "We find also, that, on the occasion of great and alarming emergencies, the kings imposed certain charges on proprietors, without distinction, requiring them to lend their assistance, either to the poor, or to the state. Thus, Charlemagne, in 779, during a famine, and Charles the Bald, in 877, in order to pay the tribute due to the Normans, made such general claims. In DISTRIBUTION OP LANDS. Ill both these cases, the charge was adjusted to the quality of persons and properties. There is reason to believe that, originally, allodial lands did not exist in large numbers, especially among the Pranks. There is no ground for supposing that the Franks took possession of, and shared the lands, wherever they made expeditions and conquests. They rather cared for the booty which they carried off, and the cattle which they took with them, instead of forming a settlement themselves. For a long time, the greater part of the Franks did not often forsake their first habitations on the banks of the Meuse and the Ehine; thither they returned after their expeditions. We may conclude that lands were most probably dis- tributed in the following manner. Each chief took a portion for himself and his associates, who lived on the land of their chief. It would be absurd to suppose that each band would dissolve itself, and the separated individuals then retire each to his isolated share of land ; there were no individual shares, or, certainly, but few. This is sufficiently proved by the fact that the greater number of Franks appear to have been without landed property, living as cultivators on the lands, and in the villce of a chief, or of the king. Often, even, a man would place himself not only under the protection, but at the disposal of another, to serve him during his life, on condition of being fed and clothed, and yet without ceasing to be free. This kind of contract, the formula for which has been preserved, must have been very common, and explains the circumstance that so large a number of free men are found to have lived and served on lands not belong- ing to themselves. Probably, the number of Franks who became successively proprietors, by means of benefices, was greater than the number of those who were primitively allo- dial proprietors. The larger number ol small allodial proprietors were gradually robbed of their possessions, or reduced to the condition of tributaries, by the usurpation of their neigh- bours, or of powerful chiefs. Of this, there are innumerable examples. The laws made, from the seventh to the tenth century, give evidence of the tendency of large allodial estates or benefices to absorb small freeholds. The statute of Louis the Debonnair, referring to the complaints of the Spanish 112 BENEFICIAET LANDS. refugee3 in the south, explains pretty accurately the system according to which properties changed hands. Donations to churches also tended incessantly to reduce the number of allodial estates. They would probably soon have disappeared altogether, had not a cause of an oppo- site character tended continually to create new ones. As allodial property was sure and permanent, while benefices were precarious and more dependent, the proprietors of benefices constantly sought to convert their benefices into allodial estates. The capitularies which remain to us prove this at every step. It is probable that large new allodial estates were thus created, but small ones tended to disappear. Finally, under Charles the Bald, a singular circumstance presents itself. This was the very time when the system of allodial property was preparing, so to speak, to merge itself in the system of beneficiary property, which is synonymous with feudalism; and precisely at that time the name of Allods is more frequent than ever. We find it applied to properties which are evidently benefices. This name still designated a property more surely hereditary and inde- pendent, and as benefices were ordinarily hereditary and independent, they were called allods, just in order to indi- cate their new character; and the king himself, whose interest it especially was that his benefices should not become allods, gave them this name, as if it had become their conventional designation. Sixty years previously, Charlemagne had made the greatest efforts to prevent bene- fices from becoming allods. Having thus explained the nature and changes of allods, I pass on to the consideration of benefices. Benefices, which constituted the cradle of the feudal system, were a natural result of the relations anciently subsisting in Germany between a chief and his associates. As the power of these chiefs resided only in the strength of their band of associates, all their attention was directed to the means of enlarging the number of these followers. Tacitus relates how, being charged with the maintenance and pre- servation of their followers, they gained and kept them by means of constant warfare, by dividing to them the spoils of the empire, by gifts of arms and horses. After the con- quest, when the territorial establishment took place, the PEIYATE DOMAINS OF THE KINGS. 113 position of the chiefs was altered. Hitherto, in their wan- dering life, they had lived solely upon rapine; then they possessed two kinds of wealth, moveable booty and lands. They made their companions other presents, which engaged them in another kind of life. These riches, both moveable and fixed, remained for the chiefs, as for all others, as their personal and private property. The Frankish society had not then arrived at any ideas of public property. It con- sisted only of individuals, powerful by reason of their courage and their talent for war, by the antiquity of their family, and the renown of their name, who collected around them other individuals, who passed their life in the same precarious manner. The republics of antiquity did not commence thus. Rome had soon its public treasure its cerariitm. Till nearly the close of the republic, the cerariwm still remained. Augus- tus established the fiscus, the treasury of the prince, which was destined to absorb the cerarium. The fiscus, at first, received only private gifts to the prince, but it soon usurped all the public revenues, till it became at length the only repository for public wealth. Thus, despotism trans- formed a public into a private domain. The states founded on the ruins of the Roman empire have followed an opposite course. At their commencement, all property was private property. It is in consequence of the development of civili- zation, and free institutions, that in almost all monarchies private domains have gradually become public property. The private domains of the chiefs of bands, and parti- cularly of the Frankish kings, were at first composed of lands taken from the inhabitants of the countries in which they established themselves. I have already stated that they did not take all the lands, but a large number of them. The share of the chief must have been considerable, as is indicated by the numerous domains of the chiefs of the first two races, in Belgium, in Flanders, and on the banks of the Rhine, where they first formed their settlements. Hullmanii has given a list of a hundred and twenty-three domains beyond the Meuse belonging to the Carlovingian family. The private property of the chiefs of conquered peoples were, to a great extent at least, incorporated into the domain of the conquering chief. Clovis subjected to himself succes- sively several petty monarchs in his neighbourhood Ragna- 114 TENTJBE OP BENEFICES. chair at Cambray, Chararich in Belgium, and Siegbert at Cologne ; and took possession of all their personal property. The substitution of the royalty of one family for that of another, augmented the private domain of the king; the new king would add to his own personal possessions the property of the dethroned king. Thus the large domains possessed by the family of the Pepins, in Belgium, and on the Rhine, became royal domains. Legal confiscations, as a punishment for crime, cases in which no legal heir was to be found for property, unjust and violent confiscations were other sources of personal wealth to kings. In these ways, the private domain of the kings increased rapidly, and it was employed by them especially as a means of attaching their associates to them, and of gaining new ones. Benefices, then, are as ancient as the establishment of the Franks on a fixed territory. The fundamental question which has divided historians, whether those who are merely scholars or the philosophers, is were benefices given for a time and revocable at will, or were they for life and yet revertible, or were they here- ditary? Montesquieu has aimed at establishing a histo- rical progression among these different modes ; he asserts that benefices were at first revocable, being given for a time, then for life, and then hereditary. I believe he is mistaken, and that his mistake arises from an attempt to systematize history, and bring its facts into regular marching order. In the giving and receiving of benefices, two tendencies have always coexisted: on the one hand, those who had received benefices wished to retain them, and even to make them hereditary ; on the other hand, the kings who granted them wished to resume them, or to grant them for only a limited period. All the disputes that occurred between kings and their powerful subjects, all the treaties which arose out of these disputes, all the promises which were made with a view to appease the dissatisfaction of malcontents, prove that the kings were in the habit of taking back, by violence, the benefices they had granted, and that the nobles attempted to retain them also by violence. The Mayors of the Palace acquired their power by placing themselves at the head of the large possessors DISPUTES ABOUT BENEFICES. 115 of benefices, and by seconding their pretensions. Under the administration of Pepin the Short and Charlemagne, the struggle appeared to cease, because the kings had for a time great superiority in force ; but, in reality, the kings were now the aggressors in their turn, who endeavoured to bring the benefices again into their own hands, and to preserve to themselves the free disposal of them. Under Charles the Bald, the kings again began to get feeble, and, in consequence the treaties and promises became again favourable to the beneficiaries. In fact, the history of bene- fices, from the time of Clovis till the full establishment of the feudal system, is only a perpetual struggle between these two opposing tendencies. An attentive and accurate examination of the facts will prove that the three modes of conceding benefices did not follow one another in regular chronological succession, but that they are to be found exist- ing and operating simultaneously during the whole course of this period. 12 116 TEANSFEEENCE OF BENEFICES. LECTTTEE XIV. Proofs of the co-existence of various modes of conferring benefices, from the fifth to the tenth century. Of benefices that were absolutely and arbitrarily revocable. Of benefices conceded for a limited time ; the precaria. Of benefices granted for life. Of benefices granted here- ditarily. General character of the concession of benefices. Their tendency to become hereditary. Its prevalence under Charles the Bald. Military service. Judicial and domestic service. Origin, meaning, and vicissitudes, of the fidelity due by the vassal to his lord. EEOM the time of the invasion of the G-auls by the Franks up to the moment when the feudal system was definitely constituted, we find during the whole course of this epoch : I. That benefices were revoked, not only as a consequence of legal condemnation, but also by the arbitrary will of the donor. The power of absolute and arbitrary transference of benefices was practically in existence under the Merovingian kings. It is however very doubtful whether this has ever been recognised as the right of the donors. Such an act pos- sessed a character of suddenness and violence which gave a shock to ideas of natural justice. Few men would consent to receive a favour of which they might legally have been deprived at the first moment of caprice. Montesquieu affirms that benefices were first held on an entirely uncer- tain tenure. The proofs which he gives are but of little weight. First, the clause contained in the treaty concluded at Andely, in 587, between the two monarchs, Gontran and Childebert, proves the fact but not the right. Secondly, the formula of Marculf again does not prove anything more than a common practice. Besides, the giver of the benefice presents a motive in this formula, namely, the necessity of the exchange. Thirdly, the law of the Lombards merely characterises the benefice as a precarious property, which it indubitably was. Fourthly, the Book of Fiefs compiled in the twelfth century, probably converted the fact into a right. Fifthly, the letter oi the bishops to Louis the Germanic THE PRECAEIA. 117 also proves merely the fact. It is evident that the right has always been contested, and that attempts have always been made to prevent the permanency of benefices is a fact also. "Charlemagne," says Eginhard, "did not suffer that every noble should take away from his vassal the bene- fices which he had granted to him upon any outburst of anger." The capitulary of Louis the Debonnair, which allows a year to the rejected incumbent whose benefice is in a bad condition before it can be finally taken from him, proves likewise that certain forms were observed with this view, and protests against a purely arbitrary disposition. That the patron had a right to take away the benefice, when the occupant had failed to discharge his obligations, is an indis- putable fact. Now it would be very easy to abuse this principle of taking away benefices under a pretext of disor- derly conduct or infidelity to the trust reposed ; accordingly all the protestations that were made, and all the treaties that were enforced, were designed to oppose such a pro- cedure. Thus we find, from the fifth to the tenth century : First, numerous examples of benefices being arbitrarily taken away ; this was the practice of the giver, when his power corresponded to his desire. Secondly, benefices taken away on account of unfaithfulness, disorder, treachery ; this was a right. II. As to benefices granted for a limited time, Montes- quieu afiirms, after the Book of Fiefs, that they were at first granted for one year. I have not been able to find any positive example of this. It is not however impossible that there may have been such, similar to the precaria belonging to churches. Precarium, among the Romans, signified a grant of property on the tenure of usufruct for a limited time, which was generally pretty short. Under the monarchy of the Franks, we have seen that the churches often consoli- dated their wealth in this way, in order to secure a permanent revenue. Charles the Bald decreed that the precaria should be held for five years and renewed every five years. The only benefices which appear to me to have been granted for a time, ostensibly so at least, are those which arose out of the ecclesiastical wealth taken by Charles Martel (about A.D. 720), and which -were then possessed under the designa- 118 SEIZTJBE OF CHUBCH PBOPEBTY. tion precarious. Before this period we find kings and mayors interposing their authority in order to obtain, under the title of precarious, the enjoyment of certain church wealth for cer- tain persons. It appears that Charles Martel did more at that time than grant or cause the retention of church property, under the title ofprecaria, he also completely stripped the churches, in order to confer their wealth as benefices. But, after him, Pepin and Carloman, his sons, while they also took the wealth of churches in order to confer them on their vassals, only took it on the title of precaria. The ecclesiastics protested vigorously against the spoliation of Charles Martel, and it was upon their protestations that Pepin ordained that the wealth which could be restored should be actually returned, and that what could not be so restored, should be held under the title precaria, at fixed rentals, till they could again be transferred to the church. Pepin and Charlemagne used rigorous measures to secure that the holders, in precario, of church wealth should ful- fil their obligations to its primitive proprietors; and we may gather, from the frequency of their orders, that these orders were often treated with contempt. It is never- theless evident that the practice of taking the goods of the church, and placing them in other hands, whether absolutely, or under the title of precarious, continued under even the most feeble and superstitious kings. The bishops said that Charles the Bald suffered himself to be led astray, being often seduced, partly because of his youth, partly through feebleness of character, by evil counsellors, and often con- strained by the threats of the occupants, who told him "that if he did not allow them to possess this consecrated property, they would abandon him immediately." It is probable that but little of this property was restored to the churches, and that the greater part of what was held sub precario became, along with the other benefices, the hereditary possession of the occupants. "We see that far from Charles Martel having any claim to be regarded as the first originator of the practice of granting benefices for life, the benefices, on the contrary, which arose either from the act by which he despoiled churches and monasteries, or from acts similar to his, were for a long time more precarious than any others, and even ought legally to HEREDITARY BENEFICES. 119 have been restored to the churches ; certainly at the death of the occupants, and if possible before. III. We find during the whole of the epoch which we are considering, and at its close as much as at its commencement, benefices conferred for life. It is evident that under Pepin and Charlemagne most benefices were given on this tenure. This was owing to the various precautions taken by the kings to prevent their being transformed into allodial estates. Louis the Debonnair took the same precautions. Mabillon quotes a charter of this king containing the formal concession of a benefice to be held for life. In 889, King Eudes conferred a benefice on Eicabod his vassal, " in beneficiary right, and on a tenure of usufruct ;" with this addition, that, if he should have a son, the benefice should pass to his son for his life. "We see, under Pepin, a vassal die who had a sor, and yet his benefice was given immediately to another vassal. IV. We find also, during the whole of this epoch, that benefices were given or held hereditarily. In 587, it was stipulated by the treaty of Andely, with regard to the concessions made by queen Clotilda, that they should be perpetual. The law of the Visigoths (of Chindasuinth, about 540) provides that the concessions made by the princes should not be revoked. Marculf gives the formulary for a hereditary concession. In 765, Charlemagne gave to an individual named Jean, who had conquered the Saracens in the province of Barcelona, a domain (says Fontaines) situated near Narbonne ; " in order that he and his posterity may possess it without any fee or trouble, so long as they remain faithful to us or to our children." The same Jean presented himself to Louis the Debonnair, with the gift of Charlemagne, and demanded his confirmation of it. Louis confirmed it, and added to it new lands. In 884, Jean being dead, his son Teutfred presented himself to Charles the Bald with the two donations just mentioned, and asked him to confirm them to him. The king granted this, as it is expressed, " in order that thou mayest possess them, thou and thy posterity, without any fee." These successive de- mands of confirmation, either at the death of the original bestower, or at that of the original incumbent, prove that the hereditary character of benefices was not then consi- dered as a right, even when it had been promised, and 120 TENTJBE OF BENEFICES. consequently that it rested on no general law that was recognized by the state. These three modes of granting benefices, of which I have rust given examples, existed therefore at the same time, and I believe that we may assert from them two general facts, which however are not without exceptions : First, the usual condition of benefices, during this period, was that they should be given on a tenure of usufruct and for life; Secondly, the tendency of the time was to render the benefice a hereditary p'ossession. This result was eventually realized when the feudal or aristocratic system triumphed over the monarchical system. We see under Charlemagne, at which time the monarchical system reached its culminating point, that most benefices were held on a tenure of usufruct for life, and not as personal property. Not only was Charle- magne unwilling that the property in benefices should be usurped, but he was especially vigilant with regard to their right administration. Under Charles the Bald, when the aristocratic system prevailed, benefices came to be held as hereditary possessions. This mode of possession partly arose out of the immense number of hereditary concessions which were made during this reign, and which were com- menced under Louis the Debonnair ; partly also out of some general arrangements in the capitularies of Charles the Bald, which recognized or conferred upon those who were faithful to the king the right to transmit their benefices hereditarily. "We must conclude from this that the hereditary character of benefices at that time prevailed almost universally as a custom, and began to be avowed as a principle, but that it w T as not yet a general and recognized right. It was demanded and received in individual instances, which would not have been the case had it existed as a common right. In the monarchies consequent on the dismemberment of Charle- magne's empire in Grermany, for example it was not recognized as a right, and prevailed still less as a custom. Let us never forget I repeat it that all these general facts are subject to exceptional cases, and that diiferent methods of conferring benefices have existed at all times. It would follow, from the nature of things, that the common condition of benefices was, at first, that of possession for life. The relations of the chief to his associates were all personal, CONDITIONS ATTACHED TO BENEFICES. 121 hence his benefactions were personal also. Not less did it follow from the nature of things, that when the Franks were once established and fixed, the associates of the monarch who were able to acquire an independent existence, and to become powerful in their turn, tended to separate themselves from their ancient chief, and to settle themselves in their own possessions, in order that they also might become the centre of groups of men. Hence resulted all the efforts to make benefices hereditary. After having determined the origin and the mode of conferring and transmitting benefices, it remains that we should learn what conditions were attached to them, and what relations were thereby formed between the giver and the incumbent. Mably thinks that benefices did not at first impose any particular obligation, and that those of Charles Martel were the first which were formally associated with civil and military services. This opinion is contrary to the nature of things ; the origin of benefices testifies to the contrary. They were, as, in Germany, gifts of horses or of arms and banquets had been, a mode of attaching companies to the benefactor. This relation in itself involves an obligation. Mably' s idea is equally contradicted by facts. In all the disputes which arose between the incumbents and the Merovingian kings, the benefices are always vindicated in behalf of those who kept faith with their patron. No com- plaints were made when those were seen to be despoiled who had failed to render the fidelity that was due from them. Siggo we find losing the benefices of Chilperic in 576, because he had forsaken his allegiance and passed over to Childebert II. The law of the fiipuarians pronounced the confiscation of the goods of every man who had been unfaithful to the king. Marculf gives the formula of the act by which a man was received into the number of the faithful. Charles Martel, in giving benefices to his soldiers, only imposed upon them the obligations that had always followed on such appointments. Only these obligations became progressively more formal and explicit, precisely in the measure that the ancient relations of the chief and his associates tended to become weakened and to disappear, in consequence of the dispersion of his men and their settle- 122 VASSALAGE. merit on their own properties. Originally, the associates lived with their chief, around him, in his house and at his table, in peace, as well as in war : they were his vassals, according to the original sense of the word, which signified the guest, the companion, an individual attached to the house.* When most of the vassals had dispersed themselves, in order that each might reside in his own allodial or beneficiary estate, we may easily perceive the necessity that thus arose of deter- mining the obligations that were then imposed upon them ; but this was only done imperfectly and by degrees, as is generally the case where matters are at issue which have for a long time had a general and conventional adjustment. As the first race began to disappear and the second to arise in its place, the obligations attached to the conferring of benefices appear to be clearly determined. They range themselves under two principal heads. First, the obligation of military service on the requisition of the patron. Secondly, the obligation of certain judicial and domestic services of a more personal and household character. It is impossible at the present time to specify what these services were to which the incumbents were held. We see only, among a host of acts, that the kings imposed on the incumbents servilia, which obliged them to present themselves at court. These obligations were comprised under the general term fidelity. They were at first personal, and attached to the quality of liege-man, independently of the possession of any benefice ; a connexion identical with that between the ancient Grerman associates and their monarch. When it had become neces- sary for the king to give lands as a benefice, in order to insure the fidelity of his liege subjects, the obligation attached itself to the quality of beneficiary. We constantly see benefices given under the condition of loyalty. Charlemagne, when he gave a benefice in perpetuity to Jean, annexed to it this * There are different etymologies of the word vassus, from haus, a house ; from gast, a guest ; from fest, fast, established ; from geselle (vas- gallus). The word Gasinde, which expresses the familia, so far as it comprises the individuals inhabiting the house, the guests in opposition to the rnancipia, induces me to think that vassus comes from gast. (Anton, Gesch. der Deuts. Land., vol. i. p. 526.) We read in the Salic law (tit. 43) : Si quis romanum hominem con- vivam regis ocdderit, sol. 300 culpabilis judicetur. The Roman editors of this law would have rendered the word gast by conviva. OATHS OF FIDELITY. 123 condition. There is reason to believe that benefices were also given, conditioned by the payment of certain fees (census) . I do not find, at this period, the granting of any benefice in which the imposition of a rental is expressly indicated ; but the nature of things seems to show that such must have been the case, and I do find mention made of benefices conferred absque ullo censu. Anxiety in certain cases to obtain exemption from the fees, proves that in other cases they were imposed. It is probable that rentals were attached to benefices, granted hereditarily, and not to those which were only given for the term of an individual life. Loyalty was at first due only to that chief to whom it had been expressly promised, and from whom a benefice had been received. Charlemagne attempted to change this into an obligation common to all the freemen in his States. Marculf has preserved to us the formula in which he wrote to his counts, requiring from all individuals the oath of fidelity. Thus did this prince endeavour to break through the feudal hierarchy which was consolidating itself, to bring himself into a direct relation with all freemen, and to make the relation between king and subject predominant over that between lord and vassal. The oath of fidelity was univer- sally exacted by the successors of Charlemagne, Louis the Debonnair and Charles the Bald, but without any effective results ; for the tendency to hierarchical and feudal aristocracy had become prevalent. We find besides numerous examples of the maintenance of the relations between incumbent and patron, even under Charlemagne. Under Charles the Bald this relation became more positive and independent of the king. The prince even, for the repression of public crimes, allowed his authority to be exercised through the interven- tion of the lord ; he made each lord responsible for the crimes of his own dependents. It was therefore especially in the empire of the lord over his men, that the means were then sought of sustaining order and repressing crime. This alone will sufficiently indicate the continually growing force of feudal relations and the diminishing authority of royalty. 124 DONOBS OF BENEFICES. LECTTJBE XV. Off benefices conceded by great landowners to men dependent npon them : First, benefices conceded for all kinds of services, and as a mode of paying salary ; Secondly, larger proprietors usurp the lands adjoining their own, and bestow them as benefices on their sub- ordinates; Thirdly, the conversion of a great number of allodial lands into benefices, by the practice of recommendation, Origin and meaning of this practice. Permanence of freeholds, especially in certain parts of the Frankish monarchy. Tributary lands. Their origin and nature. Their rapid extension : its causes. General view of the condition ot territorial property, from the sixth to the eleventh century : First, different conditions of territorial property; Secondly, the individual dependence of territorial property; Thirdly, the stationary condition of territorial wealth. Why the system of beneficiary property, that is to say, the feudal system, was necessary to the formation of modern society and of powerful slates. were not the sole donors of benefices; all the large proprietors gave them. Many leaders of bands of men were originally united under the conduct of the king ; these chiefs became subsequently proprietors of large allo- dial estates. Portions of these were conceded as benefices to their immediate associates. Afterwards, they became large incumbents, and gave also as benefices portions of the benefice which they held from the king. Hence arose the practice of sub-enfeoffment. In the capitularies, we per- petually meet with the words, vassalli vassallorum nostrorttm. We find, during the whole of this period, even under Char- lemagne, numerous examples of benefices held otherwise than from the king. Two letters of Eginhard expressly mention the concession, by way of benefice, of certain portions of royal benefices. It is the opinion of Mably, that other persons than the king began to give benefices only after the reign of Charles Martel. This mistake arises from his not having appre- hended that the relation of the chief to his associate, which afterwards grew into that of lord to his vassal, was at first a purely personal relation, entirely independent of and anterior to any concession of benefices. It is impossible to CHABACTEE OP BENEFICES. 125 determine at what particular time the conferring of bene- fices became connected with the relation of the beneficiary to his patron. This was probably almost immediately after the territorial establishment. The number of benefices was soon very considerable, and became greater every day. I. Benefices were given to free men belonging to quite an inferior order, and employed in subordinate services. The majores villce, aud the poledrarii, that is to s.ay, the stewards of the estates, and the keepers of the horses of Charlemagne, had them. It was the policy of this prince to scatter widely his gifts, and to reward zeal and fidelity wherever he found them. II. The larger proprietors continually made themselves masters of the lands adjoining their own, whether these were lands belonging to the royal domain, or such as were neglected, and had no very definite owners. They had them cultivated, and often procured subsequently the privilege of adding them to their benefices. The extent of this abuse becomes manifest under Charles the Bald, by the numerous expedients adopted by this prince to remedy it. III. A large number of allods were converted into bene- fices by means of a tolerably ancient usage. Marculf has left us the formula by which this conversion was made ; its origin we must seek in the practice of recommendation. Recommendation was not primitively anything else than the choice of a chief, or a patron. A law of the Visigoths, called a lex antiqua, and which must be referred to king Euric, towards the close of the fifth century, says : " If any one have given arms, or any other thing, to a man whom he has taken under his patronage, these gifts shall remain the pro- perty of him by whom they have been received. If this latter choose another patron, he shall be free to recommend himself to whomsoever he will : this may not be forbidden to a free man, for he belongeth to himself; but he shall, in this case, return to the patron from whom he separates him- self all that he has received from him." These were, then, the ancient Germanic customs. The relation of the individual recommended to his patron was a purely personal one. The presents consisted in arms ; hia 126 TEIBTJTAEY LANDS. liberty remained unimpaired. The law of the Lombards left to every one the same liberty as the law of the Visigoths. Nevertheless, we see, by the same capitulary, that this liberty began to be restrained. Charlemagne denned the reasons by which any one might be allowed to quit his lord, when he had received anything from him. "We may learn from this, that the ties contracted by recommendation began to be strengthened. This practice became very frequent. By these means order was promoted, so far as the law was concerned, and protection and safety as far as concerned the person recommended. "When relations of service and protection bearing a purely personal character were thus established with a patron, other more tangible relations arose in which the property of the parties was considered. The person recommended received benefices from the lord, and became a vassal of his estate ; or rather he recommended his lands, as he had previously recommended his person. Recommendation thus became a part of the feudal system, and it contributed most importantly to the conversion of allodial estates into benefices. There is, however, no reason to believe that all allods were thus converted into benefices. Originally, such a conversion, or even the mere acceptance of a benefice, was regarded by a free man as, to a certain extent, a surrender of his liberty, being an entrance upon a personal service. The large pro- prietors, who exercised an almost absolute sovereignty in their own domains, would not readily renounce their proud independence. Etichon, brother to Judith the wife of Louis the Debonnair, was unwilling any longer to receive his son Henry, who had accepted, without his knowledge, from the king his uncle a benefice of four hundred acres, and thereby entered upon the service of the crown. After the triumph of the feudal system, a considerable number of allods still remained in several provinces, particularly in Languedoc. After speaking of freeholds and benefices, it remains that I should allude to the tributary lands, whose existence is attested by all the memorials of this period. We do not necessarily understand by this term lands on which a public impost was levied, but lands which paid a fee, a rental, to a superior, and which were not the actual and absolute pro- perty of those who cultivated them. THEIB EAPID INCBEASE. 127 This kind of property existed in G-aul before the invasion of the Franks. The conquest that resulted from this invasion contributed in various ways to augment their number. First, wherever a Barbarian possessed of some amount of power established himself, he did not take posses- sion of all the lands, but he most probably exacted certain fees, or services equivalent to them, from almost all whose lands bordered on his own. This is certain from a priori considerations, and is proved as a fact by the example of the Lombards, who invariably contented themselves at first with rendering all the lands of the conquered country tributary to themselves. They demanded a third of the revenue, and afterwards took the property itself. This fact shows clearly the mode of procedure that was adopted by the Barbarians. Almost all the lands possessed by Roman or Gallic chiefs, who did not possess sufficient power to rank with the Bar- barians, were obliged to submit to a tributary condition. Secondly, conquest was not the work of a single day ; it continued to be carried on after the establishment of the invaders. All the documents of the period indicate that the principal officers and large proprietors continually exerted themselves, either to usurp the possessions of their less powerful neighbours, or to impose upon them rentals or other charges. These usurpations are proved by the multi- tude of laws that were enacted to prevent it. In the unsettled state of society that then existed, the feeble were entirely placed at the disposal of the strong ; public autho- rity had become incompetent for their protection; many lands which were at first free, and belonged either to their ancient owners, or to Barbarians of slender resources, fell into a tributary state; many of the smaller proprietors purchased for themselves the protection of the strong, by voluntarily placing their lands in this condition. The most common method of rendering lands tributary, was to give them either to churches or to powerful proprietors, and then to receive them again, on the tenure of usufruct, to be enjoyed during life, on the payment of fixed fees. This kind of contract is to be met with again and again, during this period. The same causes which tended to destroy allods, or to convert them into benefices, acted with even more energy in augmenting the number of tributary lands. 128 WASTE LAKDS. Thirdly, many large proprietors, whether of allodial lands or of benefices, were unable themselves to cultivate the whole of their lands, and gave them up by small portions to simple cultivators, on the payment of certain fees and services. This alienation took place under a multitude of forms and a variety of circumstances; it certainly occasioned many lands to become tributary. The large number and endless variety of rentals and rights, known in a later time by the name of feudal, arose probably either from similar contracts, or from usurpations committed by the powerful proprietors. The constant recurrence in writers and laws of the period of the terms census and tributmi; the multitude of arrange- ments which relate to them ; the general course of events ; lastly, the state in which most landed property was found when order began to reappear, all these circumstances render it probable that at the end of the period we are considering, the greater number of lands had fallen into a tributary condition. Property and liberty were alike devoted to be plundered. Individuals were so isolated, and their forces so unequal, that nothing could prevent the results of such a position. The large number of waste lands, attested by the facility with which any one who was willing to cultivate them might obtain them, bears witness in its turn also to the depopula- tion of the country, and the deplorable condition in which property existed. The concentration of landed property is a decisive proof of this state of things. When this kind of property is safe and prosperous, it tends to become divided, because every one desires to possess it. When, on the other hand, we see it accumulated more and more in the same hands, we may almost certainly conclude that it is in an unsound condition, that the feeble cannot sustain them- selves upon it, and that the strong alone can defend it. Landed property, like moveable property, is only to be found where it can continue to exist in safety. There is reason to believe that most tributary lands, even those which were not originally the property of the cultivators who laboured on them, became at length by a right of occu- pancy in reality their possessions, though burdened by rentals and exactions of service. This is the natural course of things : it is very difficult to remove a cultivator DIFFERENT KINDS OF LANDED PKOPEKTY. 129 who has with his family for a long time tilled the same soil. Such were the vicissitudes of landed property, from the sixth to the eleventh century. I will now give a sum- mary view of the general characteristics of this state of things, and endeavour to estimate their influence on the progress of general civilization, and more particularly of political institutions. I. There was a great diversity in the conditions of pro- perty. In our days, the condition of property is uniform and everywhere the same ; whoever the proprietor may be, he possesses his property, whatever may be its character, on the same tenure of right, and subject to the same laws as any other. Between properties which are the most distinct in character, there is thus far an identity. This is one of the most unequivocal symptoms and safest guarantees of the progress of legal equality. During the times of which we have been speaking, the diversified conditions under which property was held would necessarily lead to the formation of several classes in society, between which existed great, factitious, and permanent inequality. . Men were not merely proprietors to a greater or less extent ; besides the inequality in the amount of wealth, there was also an inequality in the nature of the wealth possessed, than which it is impossible to conceive of a more powerful instrument for oppression. Even this, however, was a step in advance out of the slavery existing among the ancients. The slave could possess nothing, was essentially incapable of owning property. In the times of which I am speaking, the mass ot the population had not become full and absolute possessors of property, but was attaining to a possession that was more or less imperfect and precarious, by which it had gained the means of yet loftier ascents. II. Landed property was then submitted to the re- straints of dependence on individuals. At present, all property is free, and is at the disposal only of its owner. General society has been formed, the State has been organized, every proprietor is united to his fellow-citizens by a multitude of ties and relations, and to the state by the protection w r hich he receives from it, and the taxes to which he is subject in return : there is, thus, independence without 130 ISOLATION OF PEOPEIETOES. isolation. From the sixth to. the eleventh century, inde- pendence was necessarily accompanied by isolation: the proprietor of an allod lived upon his lands almost without buying or selling anything. He owed scarcely anything to a State which hardly existed, and which could not assure him of an efficient protection. The condition, therefore, of the allods and their proprietors was at that time a con- dition that was to a considerable extent anti-social. In more ancient times, in the forests of Germany, men with- out landed properties lived at least in common. When they became proprietors, if the allodial system had succeeded in becoming prevalent, the chiefs and their associates would have been separated, without ever being summoned to meet and recognize one another as citizens. Society would not have been at all constituted. It exists in those relations which unite men together, and in the ties out of which these relations arise. It necessarily demands a law, a condition of depend- ence. And when it is not so far advanced as that a suffi- cient number of these relations and ties have been established between the State and the individual, then individuals become dependent one upon another; and it was to this state of things that the seventh century had arrived. It was the imperfection of society which caused the allodial system in regard to landed property to perish, and the beneficiary or tributary system to prevail. The independence of allods could only exist in connexion with their isolation, and isola- tion is anti-social. The hierarchical dependence of benefices became the tie to unite properties with one another, and society within itself. III. Out of this distribution and this character of landed property, a very important fact has resulted ; namely, that during several centuries scarcely any means existed by which either the state or individuals could in- crease their wealth. Most proprietors of any importance did not cultivate the land at all; it was for them merely a capital, the revenues of which they gathered without troubling themselves to augment it, or to render it more productive. On the other side, most of those who culti- vated the land were not proprietors, or were only so in a precarious and imperfect manner; they did not seek from the earth more than means of subsistence, and did not look to STATIONARY CONDITION OF WEALTH. 131 it as a means of enriching or elevating them. Agricultural labour was almost unknown to the rich, and to the poor it yielded nothing beyond the bare necessities of existence. 'Hence, resulted the continual impoverishment of the larger proprietors, which forced them incessantly to have recourse to violence, in order to preserve their fortune and their rank. Hence, resulted also, at the same time, that sta- tionary condition of the population of the country districts which was prolonged for so long a period. Landed pro- perty tended always to become concentrated, from the very circumstance that its products did not increase. Accord- ingly, it is not in the country districts and in agricultural labour, but in the towns, in their commerce and industry, that we shall find the earliest germs of the accumulation of public wealth, and of the progress of civilization. The indo- lence of the upper classes, and tjie misery of the lower classes, in the middle ageSj proceeded chiefly from the nature and distribution of territorial property. IV. Beneficiary property was one of the most influ- ential principles in the formation of large societies. In the absence of public assemblies and of a central despotism, it nevertheless established a bond, and formed relations between men dispersed over a vast tract of country, and thereby rendered possible a federative hierarchy, which should em- brace a still wider circle. Among the nations of antiquity, the extension of the State was incompatible with the pro- gress of civilization ; either the State must be dislocated, or despotism would prevail. Modern States have presented a different spectacle, and to this result the character of bene- ficiary property has powerfully contributed. 132 CLASSIFICATION OF PEESONS. LECTUEE XVI. Of the state of persons, from the fifth to the tenth century. Impossi- bility of determining this, according to any fixed and general prin- ciple. The condition of lands not always correspondent with that of persons. Variable and unsettled character of social conditions. Slavery. Attempt to determine the condition of persons according to the Wdirgeld. Table of twenty-one principal cases of Wehrgeld. Uncertainty of this principle. The true method of ascertaining the condition of persons. have investigated the condition of territorial pro- perties, from the fifth to the tenth centuries. We have recognized three kinds of territorial property. First, allo- dial or independent; Secondly, beneficiary; Thirdly, tributary. If from this we should wish to deduce the state of persons, we should find three social conditions corresponding to these : First, the free men, or proprietors of allods, bound to, and dependent upon no one, excepting the general laws of the state ; Secondly, vassals, or proprietors of benefices, dependent in certain respects upon the noble from whom they held their property, either during life or hereditarily ; Thirdly, the proprietors of tributary lands, who were subject to certain special obligations. To which it is necesary to add a fourth class, namely, the serfs. We should observe further, that the first of these classes tended to disappear and become absorbed in the second, third, and even the fourth classes. This arose from facts which we have already explained. This classification of persons is in fact a real one, and is to be met with in history ; but we must not regard it as a primitive, general, and perfectly regular classification. The condition of persons preceded that of lands ; there were free men before there were freeholds ; there were vassals and associates before benefices. The condition and relations of persons did not therefore originally depend on the condition and relations of territorial properties, and cannot be deduced from them. Historians have fallen into a double mistake on this point. Some have wished to see in all the Franks, before the con- quest, and the establishment of the system of landed estates, EARLIEST CONDITION OF SOCIETY. 133 which we have already explained, men altogether free and equal, whose liberty and equality for a long time resisted the formation of this system. Others have been unwilling to recognize men as free, except as they are beheld in the condition of land proprietors, whether as allods or as benefices. The matter is not thus simple and absolute. Social conditions were not thus framed and disposed of by a single process, to suit the convenience of subsequent antiquarians. What do we find to be the character of liberty in the infancy of societies ? Might is its condition, and it has scarcely any other guarantee. So long as society is of small extent and firmly compacted within itself, individual liberty remains, because each individual is important to the society of which he is a member : this was the case with the German tribes in its warrior bands of men. In proportion as society extends and disperses itself, the liberty of individuals is endangered because their personal strength is insufficient for their own protection. This was illustrated by the case of the Grermans who established themselves in Gaul. A large number of his associates lived in the house of the chief, without being themselves proprietors or being anxious to become so, for which indifference they were indebted to that want of foresight which is natural to uncivilized men. Property became a prominent instrument for attaining force, yet many free men did not possess any. The progress of civilization removes the guarantee of individual liberty from the power of the individual himself, and places it in the power of the community. But the very creation of such a public power, and the guarantee thereby of individual liberties, is a gradual and difficult process : it results from a social culture which is of slow growth and must triumph over many obstructions. Wherever there is no power belonging to the community, individual liberties have no guarantee for their continuance. Hence the error of those who seek for liberty in the infancy of societies. We do in fact find it there, but only when society is quite in its cradle, when each separate indi- vidual is sufficiently strong to be able to defend his own liberty in a very limited community. But as soon as society rises and extends itself, we see this liberty perish j 134 PRINCIPLES OF CLASSIFICATION. the inequality of different forces manifests itself, and indi- vidual power becomes incapable of preserving individual liberty. This is the birth-time of oppression and disorder. Such was the condition of the Franco-Roman community, at the period which we are considering. It seems somewhat puerile to inquire who was free then; no one was free, whatever his origin might be, if he was not strong. The real inquiry is, who was strong a point which it is exceed- ingly difficult to determine. In a fully settled society which has existed for a long time, it is easy to know who is strong. There is a constant trans- mission of properties and of ancient influences ; power has permanent forms, men are classified. We see where strength resides and who possesses it. But at the time which we are considering, the various elements of social strength were struggling into existence ; they scarcely had a being, and they were not familiarly known, nor stably fixed, or in regular possession of power ; the violent customs which prevailed rendered property very moveable ; individual strength was a poor guarantee for liberty, indeed, it needed itself to be placed in guardianship, The human mind can hardly believe in disorder, because it cannot picture clearly to itself such a state of things ; it does not resign itself to the idea ; it desires to introduce an order of its own, in order to discover the light. We must, however, accept facts as they actually are. We may there- fore understand how difficult it is to exhibit the condition of men, from the fifth to the tenth centuries ; to learn what men were free, and who were not, and especially what a free man really was in his position and influence. We shall understand this difficulty still better when we have attempted to determine the condition of life belonging to certain posi- tions, according to the different principles of classification which we may bring to the task. We shall see that no one principle can be found, by which we can deduce the state belonging to different positions in a manner exactly conform- able to known facts, and which is not contradicte'd at every step by these same facts, or at least shown by them to be utterly insufficient and untrustworthy. Let us first apply the principle which is inferred from the state of landed property. ALLODIAL AKD BENEFICIAET PBOPEIETOES. 135 The proprietors of allods might seem to be incontestably free men. An allodial proprietor who had extensive estates enjoyed complete independence, and wielded an almost absolute sovereignty throughout his territory, and among his associates. Large allodial proprietors were sometimes able to remain for a considerable time in such a position. But it was not certainly the strongest, nor consequently the most free and fixed condition ; for we have seen that allodial property degenerated and declined, until almost all the allodial pro- prietors became beneficiaries. "We have seen how the anger of Etichon was excited. The general fact is a witness against the life of the allodial proprietor. His very inde- pendence was a cause of isolation, and therefore of feebleness. The proprietors of allods, wearied with living on their estates, shut out from all society, used to come and live with the king or some large proprietor of greater power than themselves. It was soon a practice to send their children thither, in order that they might become companions of the prince, or of some distinguished noble. As to the smaller allodial proprietors, they could not keep their standing long ; they were not strong enough to defend their independence. The records of the period show that their property was soon alienated, and at the same time many of them became merely cultivators of the lands. The condition of the freeholder thus became merged in that of the tributary. From thence there was but one step to a total loss of liberty. This step was actually taken by a large number of allodial proprietors -wearied out or ruined, they surrendered their liberty into the hands of proprietors more wealthy and powerful than themselves. We come now to the beneficiaries. Benefices originated large individual resources; in them we find the source of the feudal aristocracy; large beneficiaries became in time powerful nobles. But we must not from this conclude that the possession of benefices was, during the period we are considering, any security for a permanent social position, to which power and liberty necessarily belonged. First, this possession was precarious, moveable, attacked, in the case of the smaller beneficiaries, by the larger ones, and in the case ol the latter by the king. Beneficiary 136 YAEIOTJS CLASSES OF FEEE ME2T. property hardly began to possess any fixity at the close of the ninth century. Secondly, a number of small benefices were conferred on individuals too weak efficiently to defend their position and their liberty. In order to secure the services of a man who was not a slave, a benefice was given to him it was therefore a grant for the support of a retainer. The land itself was given for this purpose, as well as its productions. The benefices given to Charlemagne's stewards and the keepers of his horse were actual benefices, and not, as M. de Montlosier thinks, tributary lands. "We are not then in a position to say that the rank of a beneficiary was the sign of a definitely marked social position, nor that it could measure the degree of importance and of freedom that belonged to individuals. When we have mentioned the allodial proprietors and the beneficiaries, it might be thought that the class of freemen is exhausted. Such is not, however, the case. There were different classes of possessors and farmers of tributary lands, known under various names; such &$fiscalini,fiscales, tribu- tarii, coloni, lidi, aldi, aldiones, &c. These names do not all designate different conditions, but divers shades in con- ditions substantially the same. There were : First, free men, at once allodial proprietors and cultivators ; Secondly, free men, both proprietors of benefices and cultivators ; Thirdly, free men, neither properly freeholders nor beneficiaries, and cultivators ; Fourthly, men not free, to whom the hereditary possession of tributary land had been granted on the pay- ment of certain fees and services ; Fifthly, men not free, who only enjoyed the permanent occupancy of tributary land. Hece again we cannot find any general and fixed social con- dition which shall determine what were the rank, the rights, and other qualifications of the individuals belonging to it. We are mistaken if we imagine either that every proprietor was free, or that every free man was a proprietor. We find that the cultivators of lands under the king harassed and oppressed the smaller allodial proprietors who resided in their vicinity, and were too feeble to oppose any effectual resistance, although they were Franks. I need only mention slaves, in order to observe that many free men fell into this state of servitude by means of violence, and through an uncertainty in property which TEST OF SOCIAL CONDITIONS. 137 involved a corresponding uncertainty in position. Some- times one man would surrender himself to his more powerful neighbour, and at the same time completely abandon his liberty. The surrender, however, was sometimes not an entire renouncement of liberty, although it was alienated for life, or a sum was agreed upon to be paid if the engage- ment should be broken. It is evident that we cannot derive, from the state and the distribution of territorial properties, any true and fixed table of different social conditions, and of the importance of the rights belonging to each. These conditions were too undefined, too different, while nominally identical, and too fluctuating, to give us a standard to measure the amount of liberty possessed by each man and the place he occupied in society. The state of persons was almost individual ; the measure of the importance of any individual was determined by the particular amount of strength which- might belong to him, much more than by the general position which he apparently occupied. Individuals constantly passed from one condition into another, neither losing all at once every charac- teristic of the position which they left, nor assuming at once every characteristic of that upon which they newly entered. Let us apply another principle. Attempts have been made to determine the condition of individuals, and to classify men according to the wehrgeld ; that is to say, according to the sum by which a man might compound for the commission of a murder, which was con- sequently the measure of the valuation of different lives. Shall we find here any more certain and unvarying principle by which social conditions may be classified ? I have made an abstract of all the cases of weJiryeld stipu- lated in the Barbaric laws. I will not enumerate them all, but will bring before you twenty-one of theprincipal, ranging from the sum of 1800 solidi, the largest value that was legally placed on any man's life, down to 20 solidi. The wehrgeld amounted to : 1800 sol. (solidi) : for the murder of a free barbarian, a companion of the king (in truste regid), attacked and killed in his house by an 960 sol. : 1st. the duke, among the Bavarians; 2nd. the bishop, among armed band, among the Salian Franks, the Germans. 138 THE WEHEGELD. 900 sol. : 1st. the bishop, among the Ripuarian Franks ; 2nd. the Roman, in truste regid, attacked and killed in his own. house by an armed band, among the Salian Franks. 640 sol. : the relatives of a duke, with the Barbarians. 600 sol. : 1st. every man in truste regid, with the Ripuarians; 2nd. the same, with the Salian Franks , 3rd. the count, with the Ripuarians ; 4th. the priest, born free, with the Ripuarians ; 5th. the priest, with the Germans ; 6th. the count, with the Salian Franks ; 7th. the Sagi- baro (a kind of judge) free, ibid.-, 8th. the priest, ibid.; the free man attacked and killed in his own house by an armed band, ibid. 500 sol. : the deacon, with the Ripuarians. 400 sol. : 1st. the sub-deacon, with the Ripuarians ; 2nd. the deacon, with the Germans; 3rd. the same, among the Salian Franks. 300 sol. : 1st. the Roman living with the king, with the Salian Franks ; 2nd. the young man brought up in the service of the king, and those who had been enfranchised by the king, and made counts, with the Ripuarians ; 3rd. the priest, among the Bavarians ; 4th. the Sagibaro who had been brought up in the court of the king, with the Salian Franks ; 5th. the Roman killed by an armed band in his house, ibid. 200 sol.: the free-born clerk, with the Ripuarians; 2nd. the deacon, with the Bavarians; 3rd. the free Ripuarian Frank ; 4th. the German of the middle classes ; 5th. the Frank or Barbarian, living under Salic law ; 6th. the travelling Frank, with the Ripuarians ; 7th. the man who had become enfranchised by purchase, with the Ripuarians. 160 sol.: 1st. the free man in general, among the Germans; 2nd. the same, with the Bavarians; 3rd. the Burgundian, the German, the Bavarian, the Prison, the Saxon, with the Ripuarians ; 4th. the free man cultivating ecclesiastical property, with the Germans. 150 sol. : 1st. the optimus, or noble Burgundian, killed by the man whom he had attacked ; 2nd. the steward of a royal domain, with the Burgundians ; 3rd. the slave who could work well in gold, ibid. 100 sol. : any man belonging to the middle classes (mediocris homo) with the Burgundians, killed by the person whom he had attacked ; 2nd. the Roman possessing personal property, with the Salian Franks; 3rd. the Roman while travelling, with the Ripuarians; 4th. the man in the service of the king, or of a church, ibid. ; 5th. the planter (lidus) by two charters of Charlemagne (an. 803 and 813); 6th. the steward (actor} of a domain belonging to any but the king, with the Burgundians ; 7th. the slave, a worker in silver, ibid. 80 sol. : those enfranchised in presence of the church, or by a special charter, with the Germans. 75 sol. : any man of inferior condition (minor persona}, with the Bur- gundians. 55 sol. : the barbarian slave employed in the personal service of a master, or as a bearer of messages, with the Burgundians. 50 sol. : the blacksmith (slave), with the Burgundians. 45 sol. : 1st. the serf of the church and the serf 01 the king, with the Germans ; 2nd. the tributary Roman, with the Salian Franks. IMPOSSIBILITY OF CLASSIFICATION. 139 40 sol.: 1st. one merely enfranchised, with the Bavarians; 2nd. the herds- man 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 black- smith, ibid. ; 10th. the cartwright, with the Burgundians. 36 sol. : 1st. the slare, with the Kipuarians ; 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 use- fulness 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 welirgeld 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 con- dition 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 140 TEUE TEST OF SOCIAL CONDITIONS. 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 weJirgeld 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. THE LETJDES OB AffTBUSTIONS. 14:1 LECTUEE XVII. Of the Lendes or Animations. 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 hierachy. The freedmen. Different modes of enfranchisement : First, the denariales, enfran- chised 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 A.ntrustions. 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, Grontran, 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." 142 OBLIGATIONS OF THE LEUDES. 3rd. Marculf has preserved to us the formula by which a man of importance, cum arimannid sud, "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 faciendd) , 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 obliga- tion was, for the Leudes, power and riches. They had also certain civil advantages, but of a more uncertain nature. Their weJirgeld was a larger amount, whatever might other- wise 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 j ust and clear idea either of the condition of the Leudes or of the character of the nobility. The rank of the Leude and FORMATION OP THE PRANKISH NOBILITY. 143 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 w r ere, viewed in contrast with those who were not free, an aristocracy on the decline ; the Leudes were, compared with free men, an aris- tocracy on the increase. Mannert, in his treatise entitled, The liberty of the Franks, Freyheit der Franken, has very clearly explained the forma- tion of the nobility among the Franks. There were many Roman Gauls among the Leudes of the Prankish kings : we find, for example, the names of Protadius, Claudius, Floren- tinianus, 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 Eoman, 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 ancieut inhabitants from the Barbarian kings, and served the latter 144 POWEB, OF THE BISHOPS. 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 bene- ficiaries ; 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. Pacts 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 con- sequences 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, FREE MEX. 145 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 conside- ration 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 incon- siderable 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 His- toire du droit romain dans le moyen age, have affirmed that always at this period a numerous class of free men existed, true citizens, exempt from all personal dependence, depending 146 ENFBAtfCHISEMENT. only upon the state and forming the body of the nation. This involves a complete confusion of times' and a misappre- hension 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 Rachim- fiurgi, Rathiniburgi, 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 Ratliimburgi, 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 enfran- chisement 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,'l think, a mistake. Enfran- chisement was frequent, but it conferred complete freedom on very few ; it transformed many into cultivators and tribu- taries, 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 EKFBANCHISEMENT. 147 the church, or tcibularii. 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 ot the charter which gave them their liberty seem to be com- pletely 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 authen- ticated, 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 exten- sion of servitude, under different forms and in varying degrees, than towards the maintenance or the advancement of liberty. L 2 148 THKEE SYSTEMS OF INSTITUTIONS. LECTTJEE XVIII. Simultaneous existence of three systems of institutions, after the settle- ment of the Franks in Gaul. Conflict ot these three systems. Summary of this conflict, its vicissitudes, and results. Its recurrence in local and central institutions. Of local institutions under the Prankish monarchy. Of the assemblies of free men. Of the authority and jurisdiction ot the great landowners in their estates. Of the authority and jurisdiction of the dukes, counts, and other royal officers. PEOM 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 after- wards 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 attach- ment 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 bene- ficiaries or vassals, colonists, or even serfs ; a hierarchy waa formed among the landowners. Hence arose those aristo- cratic 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 DECLINE OP TREE INSTITUTIONS. 149 Concession of benefices, and the predominance of the prin- ciple 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 Charlemague, this attempt reached its apogee, and seemed likely to succeed. But the monarchical system succumbed beneath the feudal system. Thus, free institutions, aristocratic institutions, monar- chical 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, trans- acting public affairs and administering justice, even in oppo- sition 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 con flict 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 sys- tem most frequently to the latter. Charlemagne attempted to render the institutions of liberty auxiliary to the triumph of the monarchical system. "We observed something analo- gous 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 Tranks > the simultaneity and 150 LOCAL INSTITUTIONS. conflict of the three systems were more distinct and ani- mated ; the first was the weakest and perished early. In treating of the Pranks, 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 Charle- magne alone ; and thirdly, how the feudal system, that is to say, the aristocratic and hierarchical organization of terri- torial properties and sovereignties, could not but prevail, as it really did in the end. OF LOCA.L INSTITUTIONS. In Prankish Gaul, as among the Anglo-Saxons, the terri- tory was divided into counties, hundreds, and tythings.* The counts were called grafen, judices ; the centeniers, cent" grafen; and the ty thing-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 com- mon deliberation, of separate localities. These primitive plaids correspond to the ancient assemblies of the Germans in Germany. * That is, of course, districts analogous to these divisions. KUDIHENTS OF FEUDALISM. 151 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 proprie- torship 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 prin- ciple 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 land- owners. 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 prelect. 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. 152 DUKES AND COUNTS. The counts became Leudes, and vice 'Versa, 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 Merovin- gians, 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 dis- tinction 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, EXTENSION OF SEIGNORIAL JURISDICTION. 153 counts, and patricians. The margraves were the counts of the marches or frontiers. The men of the court, the dele- gates 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, pro- prietors having authority and jurisdiction ; 3. the adminis- trators 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 indi- vidual to the individual, in virtue of protection, vassalage, patronage, or colonage, prevailed. Seignorial jurisdictions, both lay and ecclesiastical, became extended. Their exten- sion 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. 154 TWO MEANINGS OF PERSONAL LIBEETT. LECTURE XIX. Government of Charlemagne. Apparent revival of free institutions. Individual independence and social liberty. Organization of monar- chical 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 endea- vour 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 enfran- chisement 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 con- sidered 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 govern- ment of true law. If the independence of the individual is regarded as the condition of liberty, we may be certain that ' OBJECT OP GOVERNMENT. 155 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. Grood 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 extend- ing 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 inde- pendence, 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 imper* lection of the same development in the social powers ; from 156 OEIGItf OP DESPOTISM. 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 accord- ing 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 him- self 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 grati- tude even which he inspires, and which lasts as long as the state of things which originated his power. In truth, the loftiest superiority, that which is most naturally called to empire by the disorder and dissolution of society, soon becomes corrupted and rude, by becoming itself a purely individual will, full of egotism and caprice : but that which constituted its force and credit, at the outset, was its better comprehension of the general wants of society ; it had obtained a deeper knowledge of the true law which must govern society ; and it rescued society from its losing battle with a multitude of ignorant or ferocious individual wills. THE MONAKCHY OF CHABLEMAGKE. 157 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 employ- ment 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 trans- gressed \ 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 PRANKISH 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 dis- orderly 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 sus- tained 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 Eobert did not succeed to his dukedom, and assigns as the reason, that their tender age rendered them incapable of repulsing the Normans. The sons of two counts of Austria were not put into possession of the counties of their fathers ; so their relations took arms, and drove out the usurper. The power of the counts, now they had become hereditary seigneurs, was augmented by the authority they had exercised, under that title, as delegates of the king. The feudal hierarchy, strong by its own intrinsic power, thus gained additional strength from the wreck of royal authority. Hence resulted a new order of local institutions, which I cannot now explain. The picture of central institutions reproduces, under another aspect, the same facts, and leads to the same EOTALTT AMONG THE FKANKS. 159 results. Central institutions, as you are aware, may bo reduced to two royalty, and the general assemblies of the nation. 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. Tinder 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 demon- strate 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 hia 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 j 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 pre- vail. 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 pri- vate domain among the sons led to the partition of the royal dominions; but the partition of the kingdom was almost 160 FALL OP THE MEROVINGIANS. 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. We have already seen w^hat were the causes which occa- sioned the fall of the Merovingian race, and the accession of Carlovingians. The faR of the latter, in the tenth century presents some features of similarity to that of the Merovin- gians, 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 aristo- cracy 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 011 Roman territory being nothing but the power of the chief of a warlike band, always restrained by the presence of the free men, his comrades it became extended and strengthened after the conquest by various causes: AUTHORITY AND LIBERTY. Xt5l" 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 subju- gation 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 Eoman 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 Prankish 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 autho- rity 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. We must not, however, believe that religious ideas exer- cised no other influence, in regard to the royal authority, than to extend it, and to represent it as absolute and M 162 INFLUENCE OF BELIGIOUS IDEAS. 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 subor- dinated it to the divine laws, in which the moral laws are comprised. The limits which Prankish 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 Prankish 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 Pranks 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 eccle- siastics, 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. NATIONAL ASSEMBLIES OP THE THANKS. 1C3 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 were held among the Franks long previously to their settlement in the Eomaia 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 uncer- tain 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 inde- pendently, 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 Pranks 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 regu- lated 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 assem- M 2 164 LETTEIl OP ARCHBISHOP HItfCMAE, . blies less frequent. They reappear, however, at the esta- blishment of the authority of the Mayors of the Palace. As leaders of the aristocracy of the great independent land- owners, 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 govern- ment, 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 hereto- fore unknown. * In order to form a correct idea of what they were under Tiis 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 Bheims, 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 him- self informs us, does nothing but copy a treatise On the Order of the Palace, De or dine Palatii, written before 826 by the celebrated Adalhard, abbot of Corbia, and one of the prin- cipal advisers of Charlemagne. It is, therefore, a contem- porary document, and its authority is great. " It was the usage at that time," says Hincmar, " to hold in each year two assemblies, (placitai) 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 eccle- siastic; the more influential (seniores), to discuss business and agree on decisions; the less influential (minores), to receive these decisions, and sometimes also to deliberate upon them and confirm them, not by a formal consent, but by the exercise of their opinion and the assent of their understanding. " The other assembly, in which the general gifts of the realm were received, was composed only of the more influ- ential members (seniores] of the first assembly, and of the principal councillors. Here the affairs of the following . THE COUNCILS OF STATE. 165 year were treated of, if there were any which it was neces- sary 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 atten- tion without delay. For example, if, in any part of the kingdom, the governors of the frontiers (marchisi) had con- cluded 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 king- dom, any measures which certain persons, when informed thereof, might wish to prevent, or frustrate, or render diffi- cult, by any artifice, those persons might never have the power to do so. " In the same assembly, if any measure were necessary either to satisfy absent nobles, or to calm or excite the spirit of the people, and such measure had not previously been taken, it was discussed and adopted by the consent of those present, and it was executed in concert with them by the orders of the king. The year being thus terminated, the assembly of the following year was arranged as I have said. " "With regard to the councillors, both lay and ecclesiastic, care was taken, as far as possible, to select such persons as, from their condition and duties, were filled with the fear of God, and animated, moreover, by unalterable fidelity, so as to consider nothing superior to the interests of the king and kingdom, except eternal life. Men were sought who could be turned aside from the path of duty neither by friends, nor enemies, nor relatives, nor gifts,* nor flatteries, nor 1G6 THE OFFICEBS OE THE PALACE. 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 coun- cillors 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 indi- vidual, 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 num- ber, or of a whole family, or of an entire province, unless the greatest caution be observed. " 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 meet- ings, giving the greatest attention to the matters discussed thereat, correcting his erroneous ideas, learning that of which he was ignorant, and retaining in his memory that which had been ordained and determined. The object of this was, that, if any unforeseen accident occurred, either THE PALATINES. 167 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. " 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 dis- order Avere manifested, it might at once be repressed and extirpated. If the affair were urgent, but might neverthe- less 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 Grod 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 Grod, everything that concerned the king and king- dom 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. " 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 168 THE CAPITITL ABIES. 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 com- munications, 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 1 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 DUTIES OF THE KING. 169 multitude, until the time came, when, whether the king were present or absent, they all met together; and then the nobles above-mentioned, the clergy on their side, and the laymen on theirs, proceeded to the hall which was assigned to them, and where seats had been honourably prepared for them. When the lay and ecclesiastical lords were thus separated from the multitude, it was in their power to sit either together or separately, according to the nature of the affairs which they had to discuss, whether ecclesiastical, secular, or mixed. In the same way, if they wished to send for any one, either to bring them food, or to answer any question, and to dismiss him after having obtained what they desired, it was in their power to do so. Thus proceeded the examination of the affairs which the king proposed for their deliberation. " 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 king- dom ; 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." 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. 170 POLICY OP CHAELEMAGNE. 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 land- owners and the great beneficiaries. He wished to rally toge- ther 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. DECAY OF NATIONAL ASSEMBLIES. 171 LECTURE XXI. Decay of national assemblies under Louis the Dgbonnair 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. AFTER the death of Charlemagne, and under Louis the Debonnair, national assemblies were still frequently held. The movement which Charlemagne had begun, had not yet entirely ceased. Unable to create, Louis the Debonnair 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 land- owners, 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 him- self 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 j and nearly three 172 ESTEOSPECT OF FETE CENTUEIES. centuries elapsed before anything analogous to them was established. 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 institu- tions, 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 Prance 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 Graul. 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 pos- sessor ; these petty sovereigns are hierarchically united and constituted by the bonds of suzerainty and vassalage. No- where 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 distri- bution 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. I have said that this system was the natural result of the condition of the Franks in Graul after the conquest ; its definitive success is proof of this. Another circumstance, ATTACKS OX THE FEUDAL SYSTEM. 173 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 sup- ported 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 conibatants -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 CHARACTER OF FEUDALISM. 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, whicli 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. 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 con- stituent elements of social order. The feudal system brought the master into close con- nection with the subject, and the sovereign with those who depended upon him ; in this sense it was a cause of oppres- sion 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 opression. This will explain the intensity of feudal oppression, and the profound hatred which it inspired. INFLUENCE OF FEUDALISM. 175 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 w T as a right ; the suzerain had absolute need ot 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 com- mon 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 senti- ment, fidelity instead of submisson, 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 tinder 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 follpw in their train. 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 inde- pendence of individuals, sometimes to the power of the king, sometimes to the predominance of the great land- owners. But there is no political organization founded upon ideas of general law and public interest ; all institu- tions have reference to private rights and interests. Two opposite forces are in conflict ; there is nothing to reveal the division of powers, and their tendency towards one common object. There are no representatives of the rights 176 ABSENCE OF THE EEPBESENTATIVE SYSTEM. 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 charac- teristics of representative government, can anywhere be met with. LAWS OP TEE VISIGOTHS. 177 LECTTJBE XXII. Political institutions of the Visigoths. Peculiar character of Visigothic legislation. Its authors and its influences. Destruction and disap- pearance of the middle class in the lloman empire, at the time of the Barbarian invasion. History of the Boman municipal system. Three epochs in that history. 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 Pranks, from the fifth to the tenth century. I now come to those of the Visigoths, the third of the Bar- barian 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 Eoman territory ; customs handed down and gathered together from age to age. The Visigoths have a code which was system- atically 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 Eoman 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 muni- 178 TALL OF THE BOMAtf EMPIEE. clpal system its form and efficacy. 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 king- dom of the Visigoths. As I have already observed, the fall of the Eoman 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 con- dition, without acting, speaking, or even appearing. This phenomenon is not merely strange, it is unexampled. Despotism has reigned elsewhere than in the Eoman empire ; more than once, foreign invasion and conquest have devas- tated 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 Eoman 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 pro- vinces 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 Eoman population still covered the soil, history would give us good reason to doubt its existence. It was especially in the provinces which had long been subject to Borne, and wherein civilization was more advanced, STATE OP THE EOMAtf COLONIES. 179 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 Q-aul, Italy, and Spain were covered with towns, which had lately been wealthy and populous ; civiliza- tion 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 ot this strange phenomenon. But it is easy thus to enunciate in a genera] manner a cause which, though appa- rently 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. N 2 ISO BOMAN 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 pheno- menon of which I speak, is the destruction and disappearance of the middle class from the Eoman 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 Eoman empire was especially the result of a municipal system, which had rendered it com- pletely 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 muni- cipal 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 Eoman society, cannot properly understand the history of these times. In the constitution and existence of cities, within the Eoman world, we may discern three epochs, very distinct from each other, and clearly marked out by actual revolu- tions. It is well known that the Eomans, 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 con- dition of most of the neighbouring nations, against which Eome 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. Moreover, the nations which, in ancient TREATMENT OF CONQUEKED TOWNS. 181" 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 Home. 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 commence- ment of their conquests, exercised a decisive influence upon the fate of nations. 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 van- quished, 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 Coere 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 utcum Gceretibus pullice hospitiumfieret. This system prevailed and received continual development. The conquered towns were united to Rome by receiving the right of citizenship. Some of them, like Coere, 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 Graul received the right of Roman citizenship in all its plenitude. The towns thus admitted to all the rights of Roman citizen- ship were called municipia. When the whole of Italy was 182 ADMISSION TO CITIZENSHIP. invested with these rights, those towns which had not at first fully possessed them retained for a considerable period the names of colonies, 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 colonies, some of which were Roman, and othersLatin, of populi liberi, civitates fcederatce, reges amid, provincice. 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 refer- ring 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 sepa- rated 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 re- paired 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 enu- merated. At this degree of civilization, neither the rulers nor the ruled feel the necessity of foreseeing, denning, and regulating everything ; they trust to the good sense of man- kind, and to the nature of things. History, however, MUNICIPAL OFFICERS. 183 indicates the principal prerogatives which continued local. 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 pos- sessed 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 pur- poses 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. 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 conse- quence 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 headof ten families, like the tythwy-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 r At a later period, the decurions were called curiales. 18-1 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 poli- tical life, in short, was centralized at Rome, not merely morally and by law, but materially and in fact. Within the Avails 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 impor- tance. 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 advan- tageous to the rising despotism, and met with no opposition. PROGRESS OF PUBLIC INDIFFERENCE. 185 Here, as in every instance, the necessary consequences of general facts are revealed in particular and positive facts, tip to that time, no political act could be performed, and no suffrage be exercised, elsewhere than within the walls of Koine. 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 pro- perly 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 Eome, 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 indis- criminately 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 con- dition 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 inevi- tably 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 com- plete disappearance of political rights and life; and this compensation naturally resulted from the change which had occurred. A portion of the importance which Rome had 186 GEOWING IMPOETA^CE OP THE MUHTCIPIA. 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 consti- tuted 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 ofjidei corn- missus ; and, ere long, they were authorized to receive them directly. Hadrian granted them the right of receiving lega- cies, and ordained that any administrator who should mis- appropriate 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 oi citizens were contained. DANGEES OF EOMAN DESPOTISM. 187 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 revolu- tions, 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 Eoman 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 Eoman 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 Eoman 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 Eoman 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, 188 BUEDENS OP THE MUNICIPIA. and grant it daily fresh concessions. This position imposed immense burdens on despotism. In order to obtain re- sources, 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 Hono- rius, had no other object but to extend over society a net- work of functionaries, who were incessantly occupied in extracting from it wealth and strength, which they after- wards deposited in the hands of the emperors. The revenues of the towns, like those of private indivi- duals, 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 Con- stantine, 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 dis- posed 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 expen- diture, 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 decu- rion 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 GROWTH OP CHEISTIAHITT. 189 the men and the classes whom they felt it necessary to gain. Thus arose within the State, as a necessary result of des- potism, an immense class of privileged persons. In propor- tion 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 curice. 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 coun- try, into the army, wherever they attempted to take refuge, in order to restore them to the curi&, 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. 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 per- form, as charges, functions which had formerly been con- sidered as rights, the second cause to which I have alluded, Christianity, was labouring to dissolve or dismantle muni- cipal 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 Eomans. 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 whicji 100 EEPECTS OF CHEISTIANITT. neither oppression nor misfortune can completely extinguish throughout a nation. 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 trans- ported. When such a displacement has occurred in the moral order of things, it speedily becomes consummated in the material order also. The conversion of Constantiiie, 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 con- struction 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 magis- trates 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 dis- solved ; 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 DECAY OP THE MUNTCIPIA. 191 which induced men to leave every other association, in order to enter into the only one in which they could find honour and protection. 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 sup- port 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 cer- tain 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 neces- sity weighed upon the municipia; and whenever the muni- cipal 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 curitz, 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 Eoman territory, found the towns, their magistrates, and their inha- bitants. In the East, the agony of the municipia was prolonged 192 ABOLITION OF THE MUNICIPAL SYSTEM. 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 main- tained 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 cwrice and decuriones, there are some which impose intolerable burdens on the decurions, and con- fer on the curice 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 impe- rial majesty, these laws wander, in some sort, vainly and without object around the. legal territory; we therefore abolish them by the present decree."* Such were, during the period of twelve centuries which elapsed between the treaty of Rome with Coere and the reign of Leo the Philosopher, the great revolutions of the municipal system in the Roman world. We may charac- terize them by saying that, during the first period, the municipal system was a liberty granted, in fact, to the inha- bitants 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. * Novell. Leo. 46. SOCIAL CONDITIONS IN THE EOMAN EMPIEE, ]93 LECTUEE XXIII. Of the various social conditions in the Eoman Empire, before the final invasion of the Barbarians. The privileged classes; and the 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 Eoman Empire and in modern societies. 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 pro- perty 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 pri- vileges, 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. When we come to treat of the curials, you will learn what was the extent of these duties ; but you must first under- o 194 THE PEIYILEGED CLASS. stand clearly who were exempt from them. 1. The whole army, from the lowest coJiortalis 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 prin- cipal 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 im- portance : and they were all appointed and might be dismissed by the emperor. The body of privileged individuals, then, was composed : 1. Of the army; 2. Of the clergy; 3. Of all the public func- tionaries, 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, incolce, who possessed a landed property of more than twenty-five acres, juf/era, and did not belong to any privileged class. Members of the curial class became so .either by origin, or by appointment. Every child of a curial FUNCTIONS AND CHAEGES OF THE CUEIALS. 195 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 posses- sions 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. 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 pro- vide 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 oft' its hands. If it could find no one, the tax on the abandoned land was divided amongst the other estates. 3. No curial could sell the property from which he derived his qualification, without o 2 196 ADVANTAGES GEANTED TO THE CUEIALS. the permission of tlie 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 with- drawn 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. 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 en- tailed 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 ATTEIBUTES OP THE CURIA. 197 the album curice. When there was occasion to deliberate upon any matter, they were all convoked together by the superior magistrate of the town, the duumvir, cedilis or pr&tor, 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. The attributes of the curia as a body were : 1. The examination and decision of certain affairs; 2. The appoint- ment of magistrates and municipal officers. Nowhere can I find an enumeration of the affairs which fell under the cogni- zance 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 inde- pendent 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 curice. 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 curies 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 108 MUNICIPAL OFFICES. reduced to be nothing more than the lowest agents of the sovereign authority. There was left to them hardly any- thing beyond the right of consultation and the right of complaint. 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 func- tions 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. Duunwir ; this was the most usual name of the chief municipal magistrate. He was also called, in certain localities, quatuorvir, dictator, cedilis, pr&tor. 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. jEdilis ; 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 cedilis, were expected to give public festivals and games. 3. Curator reipiiblicce ; this officer, like the sedile, exercised a certain oversight over public edifices ; but his principal business was the adminis- THE DEFEKDEES OF CITIES. 199 tration of the finances ; lie farmed out the lands of the municipiwn, 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. IrenarchcB, 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. Scribce, subaltern clerks in the two offices. To this class belonged the tabelliones, who performed almost the same functions as our notaries. In later times, when the decay of the municipal system became evident, when the ruin of the curials and the impo- tence of all the municipal magistrates to protect the inhabi- tants 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 administra- tion, and of carrying their complaints at once before the praetorian prefect; this was done with the intention of elevating their dignity by freeing them from the jurisdiction of the provincial authorities. On the other hand, they were elected, not by the curia merely, but by the general body of 200 DESTETJCTION OF THE MIDDLE CLASS. 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 Bar- barians. The most important result of the institution of defenders was to place the bishops at the head of the muni- cipal system, which otherwise would have dissolved of itself, through the ruin of its citizens and the nullity of its institutions. 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 pro- duce 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, THE EOMAN EMPIEE AtfD MODEBN STATES. 201 and the decay of the municipal system was not long in manifesting itself. Let us now compare the course of things in the Homan world, with what has occurred in the modern states. In the Roman world, centralization was prompt and uninter- rupted. 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 inha- bitants, 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 inha- bitant, 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. Thence- forward the municipal system proved weak and incapable of 202 BESTJLTS OP THE C03IPAEIS05T. defending itself; it had been formed in spite of feudal domi- nation ; 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 unresis- tingly, 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. Thus although, in the Eoman 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 clas- sification 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 inha- bitant. "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 gua- rantee each other's security, we may be certain that society either is or soon will be divided into distinct and unchange- able 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 partici- pate 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. If from all this we desire to deduce a still more general consequence, and to express it in a purely philosophical PEIKCIPLES OP IIBEETT. 203 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 versa. If, however, we consider the facts already stated in reference to the muni- cipal 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 unexam- pled, and certainly inexplicable to those who have not well understood the course of circumstances, both in the formation and in the decline of the Eoman 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 par- ticipation 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 circum- stances 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 iri 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 demo- cratic rule prevailed? "Who would think that a municipality thus regulated formed a part of a great empire, and depended, 204s PRINCIPLES OF DESPOTISM. by narrow and necessary bonds, on a remote and sovereign central power ? Who would not, on the contrary, expect to meet with all the outbreaks of liberty, all the agita- tions 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 ? Nothing of the kind was the case, and all these principles of liberty were lifeless. Other principles existed which struck them to death. 1. Such were the effects and exac- tions of the central despotism that the quality of curial ceased to be a right confessedly belonging to all who were capable of exercising it, and became a burden imposed upon all who were able to bear it. On the one hand, the govern- ment discharged itself from the care of providing for those public services which did not affect its own interests, and so cast the obligation on this class of citizens ; and, on the other hand, it employed them to collect the taxes destined for its use, and made them responsible for the payment thereof. It ruined the curials in order to pay its own func- tionaries and soldiers; and it granted to its own functionaries and soldiers all the advantages of privilege, in order to obtain their assistance forcibly to prevent the curials from escaping from their impending ruin. Complete nullities as citizens, the curials lived only to be fleeced. 2. All the elective magistrates were, in fact, merely the gratuitous agents of despotism, for whose benefit they robbed their fellow-citizens, until they should be able, in some way or another, to free themselves from this unpleasant obligation. 3. Their election even was valueless, for the imperial delegate in the province could annul it, and they had the greatest personal interest in obtaining this favour from him ; in this way also, they were at his mercy. 4. Lastly, their authority was not real, for it had no sanction. No effective jurisdiction was allowed them ; they could do nothing that might not be annulled. Nay, more : as despotism daily perceived more clearly their impotence or ill-will, it daily encroached further upon the do- main of their attributes, either by its own personal action, or by its direct delegates. The business of the curia vanished successively with its powers ; and a day was not far distant when the municipal system would be abolished at a single stroke in the rapidly decaying empire, " because," the legis- GENEBAL CONCLUSIONS. 205 lator would say, "all these laws wander, in some sort, vaguely and objectless about the legal territory." Thus, the municipal power, having become completely estranged from political and civil power, ceased to be a power itself. Thus, the principles and forms of liberty, isolated remains of the independent existence of that multi- tude of towns which were successively added to the Eoman empire, were impotent to defend themselves against the coalition of despotism and privilege. Thus, here also, we may learn what so many examples teach us ; namely, that all the appearances of liberty, all the external acts which seem to attest its presence, may exist where liberty is not, and that it does not really exist unless those who possess it exercise a real power a power, the exercise of which is connected with that of all powers. In the social state, liberty is participation in power ; this participation is its true, or rather its only, guarantee. Where liberties are not rights, and where rights are not powers, neither rights nor liberties exist. f "We must not, therefore, be surprised either at that com- plete disappearance of the nation which characterized the fall of the Eoman empire, or at the influence which the clergy soon obtained in the new order of things. Both phe- nomena are explained by the state of society at that period, and particularly by that state of the municipal system which I have just described. The bishop had become, in every town, the natural chief of the inhabitants, the true mayor. His election, and the part which the citizens took in it, became the important business of the city. It is to the clergy that we owe the partial preservation, in the towns, of the Eoman laws and customs, which were incorporated at a later period into the legislation of the State. Between the old municipal system of the Eomans, and the civil-municipal system of the communes of the Middle Ages, the ecclesiastical municipal system occurred as a transition. This transition state lasted for several centuries. This important fact was nowhere so clearly and strongly developed as in the monarchy of the Visigoths in Spain. 20(5 SPAIN TJNDEE TEE HOiTAN EiiriEE. LECTUEE XXIV. Sketch of the history of Spain under the Visigoths. Condition of Spain under the Roman empire. Settlement of the Visigoths in the south-west of Gaul. Euric's collection of the laws of the Visigoths. Alaric's collection of the laws of the Eoman subjects. Settlement of the Visigoths in Spain. Conflict between the Catholics and Arians. Political importance of the Councils of Toledo. Principal kings of the Visigoths. Egica collects the Forum judicum. Fall of the Visigothic monarchy in Spain. TINDER the Eoman empire, before the Barbarian invasions, Spain enjoyed considerable prosperity. The country was covered with roads, aqueducts, and public works of every description. The municipal government was almost inde- pendent ; the principle of a landed census was applied to the formation of the curies ; and various inscriptions prove that the mass of the people frequently took part with the Senate of the town, in the acts done in its name. There were convents juridici, or sessions held by the presidents of the provinces and their assessors in fourteen towns of Spain; and eonventus provinciates^ or ordinary annual assemblies of the deputies of the towns, for the purpose of treating of the affairs of the province, and sending deputies to the emperor with their complaints and petitions. All these institutions fell into decay at the end of the fourth century. The imperial despotism, by devolving all its exactions upon the municipal magistrates, had rendered these offices onerous to those who filled them, and odious to the people. On the other hand, since the emperor had made himself the centre of all, the provincial assemblies were useless except as intermediaries between the cities and the emperor ; when the municipal organization had become enervated, and the emperor had almost entirely disappeared, these assemblies were found to be inconsistent and powerless in themselves. The sources whence they emanated, and the centre at which they terminated, were devoid of strength, and perished. Such was the condition of Spain when, in 409, the Vandals, BAIiBABIAN INVASIONS OF SPAIN. 207 Alans, and Suevi crossed the Pyrenees. The Vandals remained in Galicia and Andalusia until 429, at which period they passed into Africa; the Alans, after having dwelt for a time in Lusitania and the province of Cartha- fena, emigrated into Africa with the Vandals. The Suevi )unded a kingdom in Gralicia, which existed as a distinct State until 585, when Leovigild, king of the Visigoths, reduced it under his sway. Finally Ataulphus, at the head of the Visigoths, entered Southern Gaul, acting -sometimes as an ally, and sometimes as an enemy of the empire. He was assassinated at Barcelona, in the year 415. I shall now pass in rapid review the principal events which mark the history of the Visigoths in Spain, subse- quently to the death of Ataulphus. 1. Wallia, king of the Visigoths, from 415 to 419, made peace with the Emperor Honorius, on condition of making war against the other Barbarians in Spain. He was fur- nished with supplies, and authorized to establish himself in Aquitaine. He fixed his residence at Toulouse, and waged war against the Alans and Vandals. The Eomans regained possession of a part of Spain; "Wallia's Goths, mingled with the Alans, settled in the province of Tarragona. Cata- lonia (Cataulania, GotJi-Alani) derives its name from this commingling of the two nations. The settlement of the Goths in Gaul lay between the Loire, the Ocean, and the Garonne, and comprehended the districts of Bordeaux, Agen, Perigueux, Saintes, Poitiers, and Toulouse. 2. Theodoric I. (419 451.) Under this monarch, the Visigoths extended their dominion in the south-east of Gaul. Their principal wars were with the Eoman empire, which, after having made use of the Goths against the Vandals and Suevi, was now using the Huns against the Goths. In 425, occurred the siege of Aries by Theodoric ; in 436, the siege of Narbonne. There was a disposition among the inhabitants of the country to range themselves under the dominion of the Goths, who were able to defend them against the other Barbarians, and to renounce their allegiance to Borne, which was bringing other Barbarians to subdue the Goths. About 449, the kingdom of the Visi- goths extended as far as the Rhone. Theodoric made several expeditions into Spain ; generally as the price of peace with 208 VISIGOTHIC MOtfAECHY IN GAUL. the Eomans. In 451, Theodoric was killed at a battle fought against Attila, either at Chalons-sur-Marne, or Mery-sur- Seine. 3. Thorismund (451 453). A victory was gained over Attila, who had attacked the Alans settled on the Loire and in the neighbourhood of Orleans. It was evidently the Visigoths who drove the Huns out of Gaul. Thorismund was assassinated. 4. Theodoric II. (453 466). Avitus, Magister militicB in the south of Roman Gaul, travelled to Toulouse to treat of peace with Theodoric, and was made emperor by the aid of the Visigoths. In concert with the Eomans, Theodoric II. made an expedition into Spain against the Suevi. Rechiar, king of the Suevi, was defeated on the 5th of October, 450, near Astorga. This was rather an expedition than a conquest on the part of the Visigoths, Theodoric II., a curious portrait of whom has been left us by Sidonius Apollinarius, was assassinated in 462 ; he had acquired the district of Narbonne. 5. Euric (466 484). This reign was the culminating point of the Visigothic monarchy in Gaul. Euric led expe- ditions beyond the Loire against the Armoricans ; in 474, he conquered Auvergne, which was then ceded to him by treaty; he had already conquered Aries and Marseilles, so that the monarchy of the Visigoths then extended from the Pyrenees to the Loire, and from the Ocean to the Alps, thus adjoining the monarchies of the Burgundians and Ostrogoths. Euric had also extended his dominions into Spain, where he possessed the Tarragonese district and Boetica, which he had conquered from the Suevi. Euric had the laws and customs of the Goths written in a book. A passage of Sidonius Apollinariua which speaks of Theodoriciance leges, has led to the belief that Theodoric commenced this collection ; but Euric is also called Theodoric. 6. Alaric II. (484 507.) This reign was the epoch of the decay of the Visigothic monarchy in Gaul. Alaric, less warlike than his predecessors, gave himself up to the pursuit of pleasure. He was defeated by Clovis, at Vouille near Poitiers, and left dead on the field. The Franks in the east, and the Burgundians in the west, dismembered the Visigothic monarchy, which thus became reduced to Languedoc, THE BEEVIAEIUM AfflANI. 209 properly so called, and a few districts adjacent to th& Pyrenees. Alaric did for his Eoman subjects what Euric had done for the Goths. He collected and revised the Eoman laws, and formed them into a code called the Codex Alaricianus. This code was based upon the Codex Theodosianus published in 438 by Theodosius the Younger, and upon the Codex Gregorianus, the Codex Hermogenianus, the Pauli Sententice, and the Constitutiones Imperiales, published subsequently to the reign of Theodosius. This code was also called the Breviarium Aniani. It has been thought that Anianus, the referendary of Alaric, was its principal editor; but Pere Sirmond has proved that Anianus only published it by order of the king, and sent authentic copies of it into the provinces. By an act of Alaric, the Koman legislation was, so to speak, revived, rearranged, and adapted to the monarchy of the Goths. It thenceforth emanated from the Gothic king himself. In the north of Gaul, whilst the Barbarian laws ceased to be customs and became written laws, the Eoman laws lost their force as a whole, and became customs ; in the south, on the other hand, they remained written laws, and retained much greater power, exercising an important influence upon the laws of the Barbarians. It would appear that this twofold written legislation must tend necessarily to maintain the separation of the two nations ; but it contri- buted on the contrary to bring it to an end. 7. After the death of Alaric II., his legitimate son Ama- laric, still a child, was taken into Spain. His natural son, Gesalic, became a king in Gaul. At this period, the mo- narchy of the Visigoths was transferred from Gaul into Spain. The Franks, Burgundians, and Ostrogoths, seized the Gallic possessions of the Visigoths. Gesalic was defeated, and Amalaric reigned under the protection of his grandfather Theodoric, and the tutelage of Theudes. 8. On the death of Amalaric, Theudes was elected king, and reigned from 531 to 548. He fixed the seat of the Visigothic monarchy in Spain. He waged long wars against the Franks, and, though an Arian, behaved with tolerance towards the Catholics. He authorized the bishops to meet annually in council at Toledo. Until the reign of Theudes, the principle of hereditary succession to the throne appears 210 REIGN OF LEOYIGILD. to have prevailed among the. Visigoths ; after Theudes, the principle of election prevailed in fact and in law. 9. From 548 to 567, reigned Theudegisil, Agila, Athana- gild. There were continual wars between the Franks, the Suevi, and the Eomans. To obtain the assistance of the Romans in his rebellion against Agila, Athanagild gave up to the Emperor Justinian several places between Valentia and Cadiz. Eoman garrisons were accordingly sent into those towns. The Eomans had also retained possession of other towns in Spain. Athanagild took up his residence at Toledo. He was the father of Queen Brunehault. At his death, the grandees remained five months without electing his successor. At length they elected Liuva, the governor of Narbonne, who associated his brother Leovigild with him on the throne. Leovigild governed Spain, and Liuva, Visi- fothic Gaul. Liuva died in 570, and Leovigild became sole ing. "With him commences, to speak truly, the com* plete and regular monarchy of the Visigoths in Spain. 10. Leovigild, from 570 to 586, consolidated and extended the monarchy. He gained great victories over the Greco- Eornans who had recovered a part of Spain, and won from them Medina-Sidonia, Cordova, and other towns. He also defeated the Vascons* who had maintained their independent occupation of the country on both sides of the Pyrenees. In 586, he completely subdued the Suevi ; he greatly extended the royal power, made large confiscations of the property of the church and the nobles, persecuted the Catholics, and con- voked a council of Arian bishops at Toledo, in 582, to endea- vour to explain Arianism in such a manner as to satisfy the people, and to insure its general reception in his dominions. A civil war broke out between Leovigild and his son Her- menegild, who was a Catholic. After various vicissitudes, Hermenegild was taken, confined at Seville in a tower which bears his name, and put to death in 684. Before his insurrection, he was associated with his father in the crown, as was also his brother Eecared, who governed the provinces in Gaul. Leovigild corrected and completed the laws of Euric. Up to this period, there was no unity in the Visigothic monarchy. General institutions were wanting. The national * Probably the Basques of the present day. BEIQff OF EECARED. 211 assemblies were more irregular than in other countries. Neither the principle of hereditary succession, nor that of election, prevailed as regarded the kingly office. Out of four- teen kings, six had been assassinated. There was no cohe- rence among the provinces of the kingdom. The clergy were deeply divided amongst themselves. The king gave a fac- titious preponderance to the Arian minority. 11. In 586, Eecared I. succeeded Leovigild, declared him- self a Catholic, and convoked the third general council of Toledo, in 587. A union was effected between the royal and ecclesiastical authority. Eecared found himself in a position somewhat analogous to that of Constantine the Great, after his conversion to Christianity. He was energetically supported by the Catholic clergy, whom he, in his turn, as zealously maintained. At the third council of Toledo, the two powers made in common the laws of which they both had need. An important fact should be noticed in the tenure of this council. During the first three days the ecclesiastics sat alone, and regulated religious affairs exclu- sively. On the fourth day, laymen were admitted; and affairs both civil and religious were then treated of. Eecared made war against the Pranks of Gothic Gaul, and against the Eomans in Spain. This last war was termi- nated by the intervention of Pope Gregory the Great, who negociated a treaty between the Emperor Maurice and Eecared, the latter of whom, since 590, had sent ambas- sadors to the Pope. The Arian clergy excited several rebellions against Eecared. 12. In 601, Eecared was succeeded by his son Liuva II., who was assassinated in 603. "Withemar, his successor, was assassinated in 610. Gundemar was then elected, but he died in 612. Sisebut acceded to the throne in 613, and made war against the remnant of the Roman Empire in Spain. He reduced to a mere nullity the possessions which the emperor had until then retained. He imposed upon the Jews the necessity of being baptized. Heraclius had com- menced this persecution in the Eastern Empire; and it entered as a condition into the treaty which he made with Sisebut. The Jews, when driven from Spain, took refuge in Gaul, where they were equally persecuted by Dagobert : so that they knew not whither to flee for refuge. The laws p 2 2J2 TJSTJBPATION OF SISENAtfD. of Sisebut were issued in virtue of the king's authority alone, without the concurrence of the councils. 13. Recared, the second son of Sisebut, reigned for a few months. He was succeeded, in 621, by Suinthila, son of Recared I., who was elected king. Suinthila had served as a general under Sisebut. We frequently meet with similar cases in the history of the Visigoths ; and they prove thafe the idea of hereditary succession was still not firmly esta- blished. Suinthila made a great expedition against the Basques. He drove them to the other side of the Pyrenees, and built a fortress which is believed to have been Font- arabia. He completely expelled the Eomans from Spain, by sowing dissension between the two patricians who still governed the two Roman provinces, and by granting the Roman troops who remained in the country permission to return home. 14. In 631, occurred the usurpation of Sisenand by the aid of King Dagobert, who sent an army of Pranks, which penetrated as far as Saragossa. Suinthila abdicated the throne. Sisenand succeeded him, and reigned from 631 to 636. In 634, Sisenand' s usurpation was confirmed by the fourth council of Toledo. The crown was declared elective by the bishops and nobles, and ecclesiastical privileges received great extension. From 636 to 640, Chintila reigned. During his reign, the fifth and sixth councils of Toledo passed lawa regarding the elections of kings and the condition of their families after their death, against the Jews, and on other subjects. Chintila was succeeded by his son Tulga, who was deposed in 642. 15. Chindasuinth reigned tyrannically from 642 to 652. Two hundred of the principal Goths were put to death, and their property confiscated; many of the inhabitants emi- grated; Chindasuinth convoked the seventh council of Toledo, the canons of which against the emigrants were very rigorous. In all the measures of his government, we may discern the influence of the Catholic clergy, intimately connected with the king against the Arian faction. One canon ordained that every bishop residing near Toledo, should spend one month in every year at the court of the king. Chindasuinth revised and completed the collection of the laws relating to different classes of his subjects, and entirely abolished HECESUINTH AND DIYINE EIGHT. 2 13 the special employment of the Roman law in his dominions. In 649, he associated his son Recesuinth with him in the crown, and obtained his recognition as his successor. On opening the eighth council of Toledo, Eecesuinth said ; " The Creator raised me to the throne by associating me in the dignity of my father, and by his death the Almighty has trans- mitted to me the authority which I have inherited." These words are the expression of the theory of divine right. Reces- uinth directed the council to revise and complete the collection of laws; imposed a fine of thirty pounds of gold on any one who should appeal to any other than the national law ; per- mitted marriages between the Romans and Groths, which had been until then interdicted ; revoked the laws of his father against the emigrants; and restored a portion of the confiscated property. A law was also passed, separating the private domain of the king from the public domain. The preponderance of the bishops in the council is evident. The canons are signed by seventy-three ecclesiastics, and by only sixteen counts, dukes, orproceres. Recesuinth died on the 1st September, 672. 16. Wamba, elected on the 19th September, 672, mani- fested great repugnance to accept the crown. He repressed the rebels in Gothic Graul, and besieged Narbonne and Nismes. He also vigorously opposed the descents of the Saracens, who were beginning to infest the coasts of Spain, as the Normans were infesting those of Graul. He fortified Toledo and many other towns. During his reign the division of the kingdom into dioceses took place ; six archbishoprics and seventy bishoprics were established. "Wamba made several laws for organizing military service, and repressing the excesses of the clergy. 17. In 680, Wamba was deposed by the intrigues of Erwig, who was supported by the clergy. "Wamba abdicated, and withdrew to a convent. Erwig convoked the twelfth council of Toledo, at which Wamba' s voluntary abdication was announced, and Erwig appointed his successor. The new monarch directed the council to revise and modify the laws of Wamba regarding military service, and the penalties to be imposed upon delinquents. A less severe legislation was the work of the twelfth and thirteenth councils of Toledo. 214 THE FOEUM JUDICUM. 18. Erwig had given his daughter Cixilone in marriage to Egica, a near relation of Warnba. In 687, Egica succeeded Erwig. He charged the sixteenth council of Toledo to make a complete collection of the laws of the Visigoths ; and this collection, under the name of the Forum judicim, or J?uero , long ruled the Spanish monarchy. 19. Egica had associated with himself his son Witiza, who succeeded him in 701. Witiza was tyrannical and dissolute. He allowed the priests to marry, recalled the Jews, entered into conflict with the Spanish clergy and the Pope ; violently persecuted the principal lay lords, among others Theutfred and Favila, dukes of Cordova and Biscay, and sons of king Chindasuinth ; and fell a victim, in 710, to a conspiracy formed against him by Eoderic, son of Theutfred. Eoderic, or Rodrigo, became king of the Visigoths, and his reign was the last of this monarchy. I shall not relate to you hia wars with the Saracens, or the celebrated adventure of Count Julian and his daughter La Cava, who was violated by Roderic, or any of the last scenes of this history which have now become popular poetry.* Political institutions are now the sole subject of our study. In my next lectures, I shall tell you of the Forum judicum, a very remarkable legis- lative work, which deserves our serious examination and attention. * For the legend of Count Julian, and other information regarding this most interesting period of Spanish history, see Washington Irving's " Legends of the Conquest of Granada and Spain," in Bohn's edition of his works. CHAEACTEB OP TISIGOTHIC LEGISLATION. 215 LECTURE XXV. Peculiar character of the legislation of the Visigoths. Different sorts of laws contained in the Forum judicum-. It was a doctrine as well as a code. Principles of this doctrine on the origin and nature of power. Absence of practical guarantees. Preponderance of the clergy in the legislation of the Visigoths. True character of the election of the Visigothic kings. The Visigothic legislation characterized by a spirit of mildness and equity towards all classes of men, and especially towards the slaves. Philosophical and moral merits of this legislation. OF all the Barbarian codes of law, that of the Visigoths ia the only one which remained in force, or nearly so, until modern times. "We must not expect to find in this code itself the only, or even the principal, cause of this circum- stance. And yet the peculiar character of this code contri- buted powerfully to determine its particular destiny ; and more than one phase in Spanish history is explained, or at least elucidated, by the special and distinctive character of its primitive legislation. This character I wish to make you thoroughly understand. I cannot now deduce therefrom all the consequences which it contains ; but I think they will readily be perceived by the careful observer. The legislation of the Visigoths was not, like that of the Franks, Lombards, and others, the kw of the Barbarian conquerors. It was the general law of the kingdom, the code which ruled the vanquished as well as the victors, the Spanish Romans as well as the Goths. King Euric, who reigned from 466 to 484, had the customs of the Goths written out. Alaric II., who ruled from 484 to 507, collected and published in the Breviarium -Aniani, the Roman laws which were applicable to his Roman subjects. Chindasuinth, who reigned from 642 to 652, ordered a revision and com- pletion of the Gothic laws, which had already been frequently revised and augmented since the time of Euric; and completely abolished the Roman law. Recesuinth, who reigned from 216 LJLWS or THE FORUM JTJDICFM. 652 to 672, by allowing marriages between the Goths and Romans, endeavoured completely to assimilate the two nations: thenceforward, there existed, or at least there ought to have existed, on the soil of Spain, one single nation formed by the union of the two nations, and ruled by one single code of laws, comprising the essential parts of the two codes. Thus, whilst the system of personal laws, or laws based on the origin of individuals, prevailed in most of the Barbarian monarchies, the system of real laws, or laws based upon land, held sway in Spain. The causes and conse- quences of this fact are of great importance. Four different kinds of laws may be distinguished in the Forum judicum. 1. Laws made by the kings alone, in virtue of their own authority, or merely with the concurrence of their privy council, pfficium palatinum. 2. Laws made in the national councils held at Toledo, in concert with the bishops and grandees of the realm, and with the assent, more frequently presumed than expressed, of the people. At the opening of the council, the king proposed, in a book called tomus regius, the adoption of new laws or the revision of old ones ; the council deliberated thereupon ; and the king sanctioned and published its decisions. The influence of the bishops was predominant. 3. Laws without either date or author's name, which seem to have been literally copied from the various collections of laws successively compiled by Euric, Leovigild, Reeared, Chindasuinth, and other kings. 4. Lastly, laws entitled antiqua noviter emendata, which were mostly borrowed from the Roman laws, as is formally indicated by their title in some manuscripts. The Forum judicum, as we possess it at the present day, is a code formed of the collection of all these laws, as finally collected, revised, and arranged at the sixteenth council of Toledo, by order of King Egica. The most ancient Castilian version of the Forum judicum appears to have been made during the reign of Ferdinand the Saint (1230-1252). Legislation is almost always imperative ; it prescribes or interdicts ; each legal provision usually corresponds to some fact which it either ordains or prohibits. Rarely does it happen that a law, or code of laws, are preceded by a theory on the origin and nature of power, the object and philosophic TISIGOTHIC THEOET OF LAW. 217 character of law, and the right and duty of the legislator. All legislations suppose some solution or other to these primary questions, and conform thereto ; but it is by a secret bond, frequently unknown to the legislator himself. The law of the Visigoths has this singular characteristic, that its theory precedes it, and is incessantly recurrent in it a theory formally expressed, and arranged in articles. Its authors wished to do more than ordain and prohibit ; they decreed principles, and converted into law philosophical truths, or what appeared to them to be such. This fact alone indicates that the Forum judicum was the work of the philosophers of that period ; I mean, the clergy. Never did such a proceeding occur to the mind of a new people, still less to a horde of Barbarian conquerors. Assur- edly a doctrine which thus serves as preface and commentary to a code, merits our best attention. " The law," says the Forum judicum, "is the emulator of divinity, the messenger of justice, the mistress of life. It regulates all conditions in the State, all ages of human life ; it is imposed on women as well as on men, on the young as well as on the old, on the learned as well as on the ignorant, on the inhabitants of towns as well as on those of the country ; it comes to the aid of no particular interest ; but it protects and defends the common interest of all citizens. It must be according to the nature of things and the customs of the State, adapted to the time and place, prescribing none but just and equitable rules, clear and public, so as to act as a snare to no citizen." In these ideas on the nature and object of written law, the fundamental idea of the theory is revealed. There is an unwritten, eternal, universal law, fully known to God alone, and which the human legislator seeks after. Human law is good only in so far as it is the emulator and messenger of the divine law. The source of the legitimacy of laws is, then, not to be found on earth ; and this legitimacy originates, not in the will of him or them who make the laws, whoever they may be, but in the conformity of the laws themselves to truth, reason, and justice which constitute the true law. All the consequences of this principle were certainly not present to the mind of the Spanish bishops, and many of the consequences which they deduced were very false ; but 218 THEOET ON THE KATUEE OP POWEE. the principle was there. They deduced from it this other principle, then unknown to Europe, that the character of law is to be universal, the same for all men, foreign to all private interests, given solely for the common interest. On the other hand, it was the character of the other Barbarian codes that they were conceived for the furtherance of the private interests, either of individuals or of classes. Thus the whole system of laws, whether good or bad, which issued therefrom, bore this imprint ; it was a system of privileges, private leges. The councils of Toledo alone attempted to introduce into politics the principle of equality in the sight of the law, which they derived from the Christian idea of equality in the sight of God. Thus, the law of the Visigoths was, at this period, the only one that could be called lex From this theory on the nature of law, resulted the fol- lowing theory on the nature of power. 1. No power is legitimate except in so far as it is just, as it governs and is itself governed by the true law, the law of justice and truth. No human will, no terrestrial force can confer on power an external and borrowed legitimacy ; the principle of its legiti- macy resides in itself and in itself alone, in its morality and its reason. 2. All legitimate power comes from above. He who possesses and exercises it, holds it solely by reason of his own intellectual and moral superiority. This superiority is given to him by Grod himself. He does not, therefore, receive power from the will of those over whom he exercises it ; he exercises it legitimately, not because he has received it, but because he possesses it in himself. He is not a dele- gate or a servant, but a superior, a chief. This two-fold consequence of the definition of law fre- quently occurs in the legislation of the Visigoths. " The king is called king (rex) in that he governs justly (recte). If he acts with justice, he legitimately possesses the name of king ; if he acts with injustice, he miserably loses it. Our fathers, therefore, said with reason : Rex ejus eris si recta fads ; si autem nonfacis, non eris. The two chief virtues of royalty are justice and truth." " The royal power, like the whole of the people, is bound to respect the laws. Obeying the will of heaven, we give, to ourselves as well as to our subjects, wise laws, which our own greatness and that of oar LIMITS OF THESE TIIEOEIES. 219 successors is bound to obey, as are also the whole population of our realm." " God, the Creator of all things, in arranging the structure of the human body, raised the head above, and willed that thencefrom should issue the nerves of all the members. And he placed in the head the torch of the eyes, that thence might be detected all things that might be injurious. And he established therein the power of intellect, charging it to govern all the members, and wisely to regulate their action. We must therefore first regulate that which concerns princes, watch over their safety, protect their life ; and then ordain that which has relation to peoples, in such sort that while suitably guaranteeing the safety of kings, we may at the same time better guarantee that of the peoples. " After having established that that power is alone legiti- mate which acts according to justice and truth, which obeys and prescribes the true law, and that all legitimate power comes from above, and derives its legitimacy from itself, and not from any terrestrial will, the theory of the councils of Toledo comes to a stop. It does not regard that which is actually occurring in the world : it forgets that, with such a definition, no one here below possesses legitimate power or can fully possess it, and that, nevertheless, society has a right to exact that actual power should be legitimate. This theory knows and lays down the true principles of power ; but it neglects its guarantees. Here we come to the junction-point of the two doctrines which have ever contested, and still contest, the possession of the world. One maintains that power comes from below ; that, in its origin as well as in right, it belongs to the people, to numbers ; and that those who exercise it, exercise it only as delegates, as servants. This theory misunderstands the true principles and the true nature of power ; but it tends to constitute those guarantees which rightfully belong to society. Considered as a theory, it maintains, and assumes to render legitimate, the despotism of numbers. But as, in practice, this despotism is impossible, it soon violates its own prin- ciple, and limits its operation to the organization of a system of guarantees, the object and result of which is to constrain actual power to become, in its conduct, rightful and legiti- mate power. The opposite theory, which is more profound 220 CONSEQUENCES OF THE YISIGOTHIC THEOBY. and true at its starting-point, assigns absolute power and sovereignty to that Being alone, in whom resides all truth and justice: it refuses it, at the outset, to chiefs, as well as to peoples ; it subordinates both alike to eternal laws which they did not make, and which they are equally bound to observe. It reasonably affirms that all legitimate power comes from above, that it is derived from superior reason, not from number, and that number should submit to reason ; but soon, forgetting that it has placed sovereignty beyond the earth, and that no one here below is God, it becomes dazzled by its own lustre ; it persuades itself, or tries to do so, that the power which comes from above, descends upon earth as full and absolute as it is at its source ; it is indignant that limits should be affixed to its exercise, and if there is nothing to stop its progress, it establishes, in fact, a permanent des- potism, after having denied, in principle, its legitimacy; whereas, the opposite theory, which assumes to found des- potism in principle, almost invariably ends by destroying it in fact, and by establishing only a limited power. Such, then, are the consequences of the theory regarding power and law, conceived by the Visigothic legislators. I do not say the consequences which logically flow from it, when the theory is held in all its bearings and faithfully followed out ; but the actual consequences which it almost always entails, by the natural tendency of things, and by the deviation into which they are forced by the passions of mankind. 1. The best depositaries of legitimate power, those who most pro- bably possess a knowledge of the true law, are the eccle- siastics. Ministers of the divine law in the relations of man with God, they naturally hold the same office in the relations of man with man. It may then be presumed that, wherever this theory prevails, the political predominance of the clergy is already established, and will continue to increase. The theory is at first its symptom, and becomes afterwards its cause. 2. The political predominance of the clergy does not well accord with the principle of hereditary monarchy. The history of the Jews furnishes an example of this. The trans- mission of actual power taking place altogether indepen- pently of the men who are thought to possess rightful power in a higher degree than all others, is an inconsistency. The theory will, therefore, tend to make monarchy elective, or at POLITICAL PREDOMINANCE OF THE BISHOPS. 221 least to place every monarch, at his accession, under the necessity of obtaining the recognition and sanction of the clergy. 3. The election of the monarch, or the necessity for his recognition, must be the only political guarantee, the only limit affixed to the exercise of actual power. This power, once constituted in this manner, is sovereign ; for the depositaries of true sovereignty, which emanates from God, have conferred it upon its possessor by election. It would be absurd and impious to seek for guarantees against its excess in powers of an inferior order, less enlightened and less pure. Therefore, every institution the object of which is either to divide power, or to limit it in its exercise by opposing to it other powers emanating from other sources, is proscribed by this theory. Elective monarchical power is absolute. All the inferior powers necessary for the govern- ment of society are derived from it, and are instituted by it in its own name. These consequences are met with in the legislation of the Visigoths to as great an extent as the necessary incoherence of human affairs will allow. I. The political predominance of the bishops in the Yisi- gothic monarchy, is a fact evident throughout its history. The councils of Toledo made both the kings and the laws. The principal Gothic laymen who attended and deliberated thereat were few in number, as is proved by the signatures to the canons of the councils. The phrases with which we sometimes meet, cwm totopopulo,populo assentiente, are mere formulas which pay a kind of homage to ancient facts rather than to present and real facts. Excommunication is the legal punishment decreed against bad kings, against attempts at usurpation, insurrection, and other crimes. The predomi- nance of the bishops was not confined to the councils. The oversight of local functionaries and judges was also intrusted to them, and they had the power of provisionally overruling any judgments of which they disapproved. The bishops and the king were the only persons who could not personally defend their own cause, and who were bound to appear by proxy in such cases, lest their personal presence should influ- ence the decision of the judge. The personal and real privi- leges granted to the clergy, the facility and perpetuity accorded to donations made to churches, everything in fact 222 ELECTION OF KINGS. in the laws as well as in history, testifies that, in political matters, the bishops occupied the foremost rank, and that their predominance daily increased. It must not however be supposed that this predominance was unlimited, or that it was established without efforts ; it Was a difficult task to subjugate a Barbarian king and people to an almost exclusively moral power, and the code of the Visigoths contains several enactments tending to restrain the independence of the clergy, and to keep them under obe- dience to the civil power. Ecclesiastics of every rank were bound, under the same penalties as laymen, to appear and defend their causes before the civil judges. These same judges were competent to punish licentious priests, deacons, and sub-deacons. The eleventh council of Toledo ordained that bishops guilty of certain crimes should be judged by the ordinary laws, and punished in the same cases as laymen, by the lex talionis. The laws of Wamba compelled ecclesi- astics as well as laymen to do military service, and other duties of a corresponding kind. In a word, that clergy which we behold at the head of society and constituting the national assembly almost by themselves, was at the same time less isolated from the civil order, and less constituted as a distinct body by jurisdiction and privilege, than it was elsewhere at the same period. However, the coincidence of these two facts is natural. We feel less need of separation from a society, as we become nearer subduing it. II: As to the election of kings, which may be regarded as the natural consequence of the system, or simply of the theocratic tendency, it is formally laid down as a principle in the Fornm judicial, and was the- common law of the Visi- gothic monarchy : but we must not mistake as to the origin and character of this institution ; in Spain, it was much less an institution of liberty than an institution of order, a means of preventing civil wars and the disorders attendant upon usurpations. From causes difficult to discover, the principle of the regular hereditariness of royalty did not prevail among the Visigoths as among the other Barbarian peoples. The throne at the death of the kings, and even during their lifetime, was the object aimed at by a host of ambitious individuals, who contested for it vi et drmis, and seized or lost it according to FKEQUEtfCY OF USTJEPATIOtf. 223 the powers of the claimants and their factions. It was against this state of things, much more than with a view to establish or maintain the right of the nation to choose its own sovereign, that the election of the monarch by the bishops and grandees assembled in council at Toledo, was instituted. The text of the law clearly lays this down. " Henceforth the sovereigns shall be chosen for the glory of the kingdom, in such sort that, in the royal town, or in the place in which the prince shall have died, his successor shall be chosen by the consent of the bishops, the grandees of the palace, and the people : and not at a distance by the conspiracy of a few perverse persons, or by a seditious tumult of an ignorant multitude." Various canons of the fifth, sixth, seventh and thirteenth councils of Toledo, inserted as laws in the Forum judicum, have as their only object the repression of attempts at usurpation, and interdict all seizure of the throne by force, determine what classes of men can never be eligible to the kingly office, and also guarantee the lives and property of the families of the dead kings, against the violence and avidity of their elected successors. In a word, all tends to prove that this election was intended to counteract violent usurpation much more than to prevent regular hereditary succession. Historical facts lead us to the same result. The succession of the Visigothic kings was a series of violent usurpations. Scarcely do we meet with one or two examples of veritable elections, made freely and without any anterior constraint, in consequence of the throne falling vacant. Almost always the election by the council only sanctioned the usurpation ; and at the same time that we may doubt of its liberty, we see that its special object is to prevent the return of a great dis- order. Neither is there anything to indicate that when, by reason of the preponderance of a more powerful or more popu- lar king, the principle of hereditary succession was on the point of introducing itself, the councils either attempted to oppose its entrance, or considered the act as an infraction of their fundamental law. In every circumstance, at this period, in this state of society, and particularly in great monarchies, the want of order, of rule, of some check to restrain the irre- gular operation of force, was the dominant want felt by men w-ho, like the bishops, were much more enlightened and 224) PEOGEESS OF ECCLESIASTICAL PEETENSIOFS. much more civilized than the Barbarian conquerors; and political institutions, as well as civil laws, were framed rather with this object than with a view to the assurance of liberty. Such being its true nature, the election of the kings by the councils of Toledo could evidently not have rested entirely in the hands of the clergy. Armed and ambitious Barbarians would not have endured patiently to receive the crown at the will of bishops, nearly all of whom were Romans. Originally, the bishops exercised, in fact, no other right than that of sanctioning present usurpation, by anathematizing similar conduct in the future. In proportion as their moral influence and real power became consolidated and extended, they attempted higher things, and appeared to aspire to the famous right of giving and taking away the crown. The Forum judicum furnishes two remarkable proofs of this progress. The fourth council of Toledo, held during the reign of Sisenand, in 671, decreed by its seventy-fifth canon, " that when the king had died in peace, the grandees of the realm and the bishops should elect his successor, by common consent." At a later period, when this canon was transported as a law into the national code, it was amplified in these terms : " Let no one, therefore, in his pride, seize upon the throne ; let no pretender excite civil war among the people ; let no one conspire the death of the prince ; but, when the king is dead in peace, let the principal men of the whole kingdom, together with the bishops, wlio have received power to bind and to loose, and whose blessing and unction confirm princes in their authority, appoint his successor by common consent and with the approval of Grod." A similar interpolation occurs in the insertion of a canon of the eighth council, which began : " We, the bishops, priests, and other inferior clerks, in concert with the officers of the palace, and the general assembly, decree," &c. In the Forum judicum, after the word priests, these words are added : " Who have been established by our Lord Jesus Christ, to be the directors and heralds of the people" Such phrases as these clearly indicate the progress of ecclesiastical pretensions, and their success. It is, however, certain as a fact, that the councils of Toledo never really disposed of the crown, but that it was almost always taken by force ; and that the election of DUTIES OF THE SOVEREIGN. 225 the kings by the grandees and bishops, though established as a principle by the laws, must not be considered as a proof either of the complete predominance of the theocratic system, or of the extent of the national liberty. III. But if, after having ascertained who possessed the right of appointment to the highest political office, and the mode in which this office was conferred, we endeavour to discover, from the laws of the Visigoths, what duties were imposed on their kings, and what guarantees they gave their subjects for the performance ol those duties, the consequences which we have already indicated, as likely to result from the theory that presided over this code, become clearly revealed. Good precepts abound, but real guarantees are wanting. To those who read these laws, the legislator appears much better aware of the duties of the sovereign, and of the rights and necessities of the people, than were the other Barbarian legislators ; and, in fact, he was so. But if they next inquire where were the independent forces capable of procuring or insuring the maintenance of these principles, and how the citizens exercised their rights or defended their liberties, they find absolutely nothing. The code of the Visigoths, though more enlightened, more just, more humane, and more complete than the laws of the Franks or Lombards, left despotism at greater liberty, and almost entirely dis- armed freedom. Texts in abundance might be quoted ia support of this assertion. If, from these general principles, we descend to the details of legislation, we shall find that the code of the Visigoths was, in this respect also, much more provident, more complete, more wise, and more just, than any other Barbarian code. The various social relations were much better defined therein; and their nature and effects more carefully ana- lyzed. In civil matters, we meet with repetitions of the Roman law at almost every step ; in criminal matters, the proportion of punishments to crimes was determined according to moral and philosophical notions of considerable justice. We discern therein the efforts of an enlightened legislator struggling against the violence and inconside- rateness of Barbarian manners. The title, T>e ccede et morte Tiominum, compared with the corresponding laws of other peoples, is a very remarkable example of this. In other Q 226 PEINCIPLE OF CEIMINAL LAW. codes the injury done seems almost alone to constitute the crime, and the punishment is fixed in that material reparation which results from a pecuniary composition. In this code, crime is measured by its moral and true element intention. The various shades of criminality, absolutely involuntary homicide, homicide by inadvertence, homicide by provo- cation, homicide with or without premeditation, are' all distinguished and defined almost as accurately as in our codes, and the punishments vary in an equitable proportion. The justice of the legislator went further than this. He attempted, if not to abolish, at least to diminish that diver- sity of legal value established among men by the other Barbarian codes. The only distinction which it maintained was that between the freeman and the slave. In regard to freemen, the punishment does not vary, either according to the origin or rank of the dead man, but simply according to the different degrees of the moral culpability of the mur- derer. "With regard to slaves, though not daring completely to deprive masters of the right of life and death, the Forum judictim at least attempted to subject them to a public and regular course of procedure : " If no one who is guilty or accomplice of a crime should ^' * remain unpunished, how much more should those be punished who have committed homicide wickedly and with levity. Thus, as cruel masters, in their pride, frequently put to death their slaves without any fault on their part, it is fitting alto- gether to extirpate this license, and to ordain that the present law shall be eternally observed by all. No master or mis- tress may, without a public trial, put to death any of their male or female slaves, or any person dependent upon them. If a slave, or any other servant, commit a crime which may lead to his capital condemnation, his master or accuser shall immediately give information thereof to the judge of the place where the action was committed, or to the count, or to the duke. After the discussion of the affair, if the crime be proved, let the culprit sufier, either by sentence of the judge, or of his master, the punishment of death which he has deserved ; in such sort, however, that if the judge will not put the culprit to death, he shall draw up a capital sentence against him, in writing, and then it shall be in the power of the master to kill him or to keep him in life. In truth, if LAWS BEGABDING SLATES. 227 the slave, by a fatal boldness, while resisting his master, has struck him or attempted to strike him with a weapon, or a stone, or by any other blow, and if the master in self-defence has killed the slave in his anger, the master shall in no wise suffer the punishment of homicide. But he must prove that this was the case ; and he must pro^e it by the testimony or oath of the slaves, both male and female, who were present at the time, and by the oath of himself, the author of the deed. "Whosoever, from pure wickedness, and by his own hand or that of another, shall have killed his slave without bringing him to public trial, shall be branded with infamy, declared incapable of giving evidence, and doomed to pass the rest of his life in exile and penitence ; and his property shall be given to his nearest relatives, to whom the law grants it as an inheritance." This law alone, and the efforts which its passage reveals, do great honour to the Visigothio legislators ; ^for nothing honours the laws and their authors so much as a courageous moral conflict against the bad customs and evil prejudices of their age and country. "We are often forced to believe that the love of power has a great share in the construction of laws which aim at the maintenance of order and the repres- sion of violent passions ; the excess of passion borders closely on the rights of liberty, and order is the hackneyed pretext of despotism. But here, power has nothing to gain ; the law is disinterested ; it seeks after justice only ; it seeks after it laboriously, in opposition to the strong who reject it, and for the benefit of the weak who are unable to call in its aid perhaps, even, in opposition to the public opinion of the time, which, after having had great difficulty in looking on a Bom an as a Goth, had still more in regarding a slave as a man. This respect for man, whatever may be his origin or social condition, is a phenomenon unknown to Barbarian legislation ; and nearly fourteeji centuries elapsed before the doctrine passed from religion mto politics, from the Gospel into the codes. It is therefore no Slight honour to the Visigothic bishops that they did their best to guard and transfer into the laws this noble sentiment, which it is so difficult to disentangle from the meshes of fact, and which ' is continually in danger of being crushed beneath the pressure of circumstance. It continually recurs in their Q 2 228 PBESENCE OF A GOOD PEINCIPLE. legislation, both in general precepts and in special regu- lations ; and when it yields, either before the inconsiderate brutality of Barbarian customs, or before the despotic triditioriS of Homan jurisprudence traditions with which the minds of the Spanish bishops themselves were imbued we still discern, even in these bad laws, the obscure pre- sence of a good principle labouring to surmount the obstacles beneath which it has succumbed. t DEFECT OF VISIGOTHIC LEGISLATION. 229 LECTUBE XXVI. Central institutions of the Visigothic monarchy. True character of the Councils of Toledo. Amount of their political influence. The Officium palatinum. Prevalence of Roman maxims and institu- tions, among the Goths, over Germanic traditions. Proof of this in the local and central institutions of the Yisigoths. Refutation of the errors of Savigny and the Edinburgh Review on this subject. Conclusion. MY last lecture, I think, convinced you, gentlemen, that the code of the Visigoths, taken in itself, and in its inten- tions as expressed by written laws, gives the idea of a better social state, a juster and more enlightened government, a better regulated country, and, altogether, a more advanced and milder state of civilization, than that which is revealed to us by the laws of the other Barbarian peoples. But to this more humane and wise legislation, to the general prin- ciples dictated by superior reason, there is wanting, as I have already .observed, an actual sanction, an effective gua- rantee. The laws are good ; but the people, for whose benefit they were enacted, have hardly any share in their execution, and the business resulting therefrom. Up to a certain point, the code bears testimony to the wisdom and good intentions of the legislature ; but it presents no evidence of the liberty and political life of the subjects. Let us first look at the centre of the State. The single fact of the political predominance of the bishops, the sole name of the councils of Toledo, indicate the decay of the old Germanic customs, and the disappearance of national assemblies. The Anglo-Saxons had their Wittenagemot ; the Lombards their assembly at Pavia, circumstante immensd multitudine; the Franks their Champs de Mars and Champs de Mai, and their placita generalia. Doubtless, the existence of these assemblies entailed scarcely any of the consequences which we attach at the present day to the idea of such institutions; and they certainly constituted a very slight guarantee of liberty, w T hich it was then impossible to gua- 230 THE COUNCILS OF TOLEDO. rantee. In reality, also, they took a very small part in the government. Nevertheless, the simple fact of their exist- ence attests the prevalence of Germanic customs ; arbitrary power, though exercised in fact, was not established in prin- ciple ; the independence of powerful individuals struggled against the despotism of the kings ; and in order to dispose of these isolated independencies, to form them into a national body, it was necessary occasionally to convoke them together in assemblies. These assemblies live in the laws as well as in history ; the clergy were received therein, because of their importance and superior knowledge, but they were merely received. Far from being their sole constituents, they did not even form their centre. In Spain, instead of entering into the national assembly, the clergy opened the assembly to the nation. Is it likely that the name only was changed, and that Gothic warriors came to the council, as formerly to their Germanic assemblies ? We have beheld the same name applied to very different things: for example, judicial parliaments have superseded political parliaments ; but we have never seen the same thing represented under different names, especially during the infancy of nations. When existence consists almost solely of traditions and customs, words are the last things to change and perish. The councils of Toledo, then, were actually councils, and not Champs de Mai or placita. Morally, this fact is pro- bable; historically, it is certain. Their acts have come down to us, and they are acts of an entirely ecclesiastical assembly, specially occupied with the affairs of the clergy ; and into which laymen entered only occasionally, and in small numbers. The signatures of laymen, affixed to the canons of the thirteenth council, only amount to twenty-six ; and in no other are they so numerous. These councils were not held, like the Champs de Mars or de Mai and the placita generalia of the Carlo vingians, at fixed, or at least, frequent periods. Between the third and fourth councils, forty-four years elapsed ; between the tenth and eleventh, eighteen years. The king convoked them at his pleasure, or as necessity required. The Visigothic code ordains absolutely nothing in this respect, either on the kings, or on the members of the assembly. None of its THEIB POLITICAL INFLUENCE. 231 enactments have reference, even indirectly, to a national assembly. The nature of these councils of Toledo being thus clearly determined, it remains for us to inquire what influence they exerted in the government. What were they as guarantees of the public liberties, and of the execution of the laws ? Before consulting special facts, the very nature of these assemblies may furnish us with some general indications with regard to their political influence. The clergy, taking a direct and active part in the government, were never in a natural and simple position. I do not speak either of the ecclesiastical law, or of the special mission of the clergy, or of the separation of the spiritual from the temporal order, which are questions still involved in obscurity. I examine facts alone. In fact, in the States of modern Europe, and at their origin, as well as in later times, the clergy did not govern , they neither commanded armies, nor administered justice, nor collected the taxes, nor held sway over the provinces. They penetrated to a greater or less distance, by more or less regular means, along the various paths of political life ; but they never traversed them fully, freely, and thoroughly ; politics never were their special and avowed career. In a word, the social powers, from the lowest to the highest degree, never were, either in law, or in fact, naturally lodged in their hands. When the bishops, there- fore, in council assembled, interfered in the civil government, they were called to regulate affairs which did not concern them, and to occupy themselves about matters which did not constitute the habitual and recognised business of their position and life. This intervention, therefore, necessarily bore an equivocal and uncertain character. Great influence might have been attached thereto ; but it could not possess any power of energetic and effectual resistance. If warrior chiefs meet together in assembly around their monarch, they can rely on their comrades and their soldiers to support their resolutions ; if elected deputies assemble to vote taxes and ratify the laws of the country, they are sustained by the number, credit, and opinion of those w r ho chose and deputed them. If bodies charged with the administration of justice are, at the same time, called to deliberate upon certain acts of 232 POSITION OP THE VISIGOTHIC BISHOPS. the sovereign, they may, by suspending the exercise of their functions, place the government in an almost untenable position. In these various combinations, a positive force, more or less regular in its character, stands at the back of the men appointed to control the supreme power. On the part of the clergy, any decisive resistance, in political matters, is almost impracticable, for not one of the efiective forces of society is naturally at their disposal ; and, in order to gain possession of such a force, they must abandon their position, abjure their character, and thus compromise the moral force whence they derive their true point of support. Thus, by the nature of things, the clergy are but ill-adapted to be constituted into a political power, with the mission of exercising control, and offering resistance. If they desire to remain within the limits of their position, they find them- selves, at the decisive moment, unprovided with effective and trusty weapons. If they seek after such weapons, they throw the whole of society into disturbance, and incur the legitimate reproach of usurpation. Modern history, at every step, demonstrates this two-fold truth. When the clergy have believed themselves strong enough to resist in the same way as civil powers would have done, they have com- promised themselves as clergy, and have increased disorder rather than obtained reform. "When they have not made such attempts, their resistance has almost invariably been ineffectual at the moment when it was most necessary ; and as, in such cases, ecclesiastics generally feel conscious of their weakness, they have not opposed any solid barrier to the encroachments of power ; and, when they have not con- sented to be the instruments of its will, they have yielded after an impotent admonition. Such was the position of the Visigothic bishops. They had not yet acquired, in temporal matters, sufficient force to struggle openly against the crown. They felt that a great part of their importance was due to their close alliance with the royal power, and that they would be great losers by breaking off the connection. They could not, therefore, carry their resistance very far, or establish in reality an independent political assembly. They went as far as to sanction the royal power, and to associate themselves with it by becoming its advisers; but they attempted nothing INFLUENCE OF THE COUNCILS OF TOLEDO. 233 beyond. Tacts prove this. These councils of Toledo, whither usurpers came to be elected, and which gave ari entire code to the Visigoths, exercised in fact, over the great events of this period in Spain, less influence than was exerted in Prance by the Champs de Mars and de Mai. They occupied, but did not supply, the place of the old Germanic assemblies, for they did not possess their brute force, and were not in a position to substitute for it any sufficient regular force. Spain was indebted to them for a much better legislation than that possessed by other Bar- barian nations, and probably also, in their daily practice, for a more enlightened and humane administration of justice; but in vain do we seek to find therein the principle of a great institution of liberty, and the characteristics of a veri- table resistance of absolute power. During the period which now occupies our attention, the reigning power in the other States founded by the Barbarians was force disorderly, capricious, and unsettled force, sometimes dis- tributed amongst a multitude of almost independent chief- tains ; sometimes concentrated, for a brief space, and accord- ing to circumstances, in the hands of one man, or of a brutal and transitory aristocracy. No principle was acknowledged; no right was legal ; all was matter of fact, liberty as well as power ; and the germs of free institutions existed in the dis- orderly relations of these independent or ill-united forces, although, to speak the truth, liberty was nowhere visible. In Spain, and through the influence of the clergy, the govern- ment undoubtedly assumed greater generality and a more regular form; the laws afforded greater protection to the weak ; the administration paid more attention to their con- dition ; and there was less disorder and violence in society at large. Broader and more elevated moral ideas frequently governed the exercise of power. But, on the other hand, power was constituted under a more absolute form ; Roman maxims prevailed over Germanic traditions ; theocratic doc- trines lent their aid to the arbitrary power of the Barbarians. The councils of Toledo modified and enlightened despotism, but did not limit the exercise of power. Some writers have thought they perceived, in another institution which existed at the centre of the Visigothic monarchy, the principle and instrument of a limitation of 231 THE OFFICIUM PALATINUM. the sovereign authority. I refer to the officium pdlatinwn, a species of council formed around the king, by the grandees of his Court, and the principal functionaries of the govern- ment. The importance of this council, and its participation in public business, are attested by a large number of laws passed either independently of the councils of Toledo, or in virtue of their deliberation. The words, cum omni palatino officio, cum assensu sacerdotum majormique palatii, ex palatino officio, and the like, frequently occur in the code of the Visi- goths. These texts and the voice of history do not admit of a doubt that the officium palatinum frequently. interfered in the legislation, in the government, and even in the elevation of kings. It wouJd be a mistake, however, to regard it as a political institution, a guarantee of liberty, a means of exercising control and offering resistance. Power could not, in any case, subsist alone, by itself and in the air; it must, of sheer necessity, conciliate interests, appropriate forces, in a word, surround itself with auxiliaries, and maintain its posi- tion by their aid. In the Eoman Empire, this necessity had given birth to the creation of the Court and of the officium palatinum^ instituted by Diocletian and Constantine. In the Barbarian States, it led the kings to surround themselves with Antrustions, Leudes, sworn vassals, and all those natural or factitious grandees, who, becoming dispersed at a later period, and settling in their own domains, became the principal members of the feudal aristocracy. From these two sources arose the officium palatinum of the Visigothic kings, with this difference, that, in this point as in others, Eoman. institutions prevailed over Barbarian customs, to the great advantage of absolute power. The officium palatinum of the Visigoths was composed of the grandees of the realm (proceres), whom the kings attached to themselves by donations of lands and offices, and of the principal functionaries, dukes, counts, vicars, and others, who held their functions from the kings. This court undoubtedly formed a sort of aristocracy which was frequently consulted on public affairs, which sate in the councils, and which furnished the king with assessors whenever he delivered judgments. The necessity of things required that it should be so ; and as necessity always entails consequences which INFLUENCE OF THE AEISTOCEACT. 235 far exceed the wishes of those who are constrained to yield to its sway, there is also no doubt that this aristocracy, on many, occasions, thwarted the kings who could not dispense with its assistance, and thus limited their empire. But human nature is the same amongst barbarian nations as amongst civilized peoples ; and the coarseness ol forms, the brutality of passions, and the limited range of ideas, do not prevent similar positions from leading to the same results. Now, it is in the nature of an aristocracy that is closely pent up around the prince, of a Court aristocracy, to use power for their own advantage rather than to limit it for the benefit of the State. It almost inevitably becomes a focus of faction and intrigue, around which individual interests are set in motion, and not a centre of controlment and resistance in which the public interest finds a place. If the times are barbarous and manners violent, individual interests assume the forms of barbarism and use the means of violence ; if satisfied, they obey with the same servility as before ; if discontented, they poison, assassinate, or dethrone. Such was the case in the monarchy of the Visigoths. All usurpations and revolutions in power originated in the offi- cium palatinum; and when a king attempted to subject the nobles to the performance of public services, to limit or even to examine into the concessions which they demanded, that king lost the empire. Such was the fate of Wamba. The Visigothic sovereigns had, moreover, in the bishops, a powerful counterpoise, which they set in opposition to the nobles of their Court, in order to prevent them from aspiring to entire independence. The influence of the clergy, too weak to act as an effectual check on the power of the prince, was strong enough, in the hands of the prince, to prevent the check from coming from any other quarter. The reign of Chindasuinth affords an example of this. Finally, as I have already said, the predominance of Eoman maxims and institutions in Spain was so great, that the central aristocracy bore more resemblance to the officium palatinum of the emperors than to the Antrustions or Leudes of G-ermanic origin. Elsewhere, these last were not slow to obtain sufficient strength to assert their independence, to isolate themselves from the prince, and finally to become petty sovereigns in their own domains. In Spain, things 236 % CHABACTEB OF THE GOTHS. did not occur precisely thus. It appears that the proceres received from the king dignities and offices in greater abun- dance than lands, and thus acquired less individual and personal strength. Perhaps the equality granted to the Roman population, and the fusion of the two peoples, did not permit so great a dilapidation of property and distri- bution of domains as that which took place in Prance. What would have occurred if the monarchy of the Visigoths had not been interrupted in its course by the conquest of the Arabs ? Would the dismemberment of the royal power and the dispersion of the Court have led to the olispersion and independence of the landed aristocracy? We cannot say. This much is certain, that the phenomenon which was exhi- bited in Prance, at the fall of the Carlovingians, did not occur among the Visigoths, in the eight century : the officium palatinum had neither destroyed nor divided the royal power, and made but feeble attempts to limit it. One fact must be added, which, though universally attested, is not explained in a satisfactory manner. Of the various German peoples, the Goths preserved in the smallest degree their primitive institutions and manners. The Ostrogoths in Italy, under Theodoric, like the Visigoths in Spain, allowed Eoman habits to prevail amongst them, and per- mitted their kings to arrogate to themselves the plenitude of imperial power. We even find, among the Goths of Italy, still fewer traces of the existence of the old national assem- blies, and of the participation of the people in the affairs of the State. It would therefore be vain to seek, in the Visigothic monarchy, for the principles, or even the remnants, of any great institution of liberty, or of any effectual limitation of power. Neither the councils of Toledo, nor the officium