Chapter X: Part I (7)

There are words which have, in our time, so simple and absolute a signification, that we apply them without consideration or scruple to times in which their actual significance was not recognized at all. The expression _free man_ is an example. If by it we mean the man who is not a slave, the man who is not the property of another man, and can neither be given nor sold as an article of traffic, there were a great number of free men from the fifth to the tenth centuries. But if we attach to this expression the political sense which it possesses in our days, that is to say, the idea of a citizen dependent on no other citizen, who depends for the safety of his person and his property only upon the state, and the laws of the state, the number of free men was very inconsiderable at the period of which we speak, and was continually diminishing. Most of those who were not serfs were engaged or were binding themselves with increasing frequency, either for the security of their persons or of their properties, to the service, and to a certain amount of dependency upon some man more powerful than themselves, who employed them in his house or protected them at a distance. The independence of the citizen as it existed in the republics of antiquity, and as it exists in our public communities, became more and more rare from the fifth to the tenth centuries. Eminent publicists, M. de Savigny among others, in his _Histoire du droit romain dans le moyen âge_, have affirmed that always at this period a numerous class of free men existed, true citizens, exempt from all personal dependence, depending only upon the state and forming the body of the nation. {146} This involves a complete confusion of times' and a misapprehension of the natural succession of events. Doubtless at the time of the invasion, and during the period which immediately followed it, there were many free men of this kind; the independence of individuals who live a wandering and barbarian life did not suddenly and completely vanish under the influence of the new circumstances which resulted from their territorial establishment. But, so far as regards the greater number of free men, this independence was rapidly absorbed by new ties, and by the very numerous and various forms of feudal hierarchy. We may think we have found, under certain names which are frequently to be met with in documents and historical works, such as, _Arimanni, Erimanni, Herimanni, Hermanni_, among the Lombards, and _Rachimburgi, Rathimburgi, Regimburgi_, among the Franks, a class of men actually free--citizens in the sense in which we use the words at the present time. But when we investigate more closely, we soon learn that no such class is to be found, and that nearly if not quite all the _Arimanni_ or _Rathimburgi_, were bound in the fetters of a feudal organization and depended far more on some superior individual than on the protection of the state.

Enfranchisement.

Many learned men also think that the practice of enfranchisement which prevailed at this period created many free men--as completely so, as if they had inherited their freedom as a birthright. This also is, I think, a mistake. Enfranchisement was frequent, but it conferred complete freedom on very few; it transformed many into cultivators and tributaries, or placed them in other analogous positions, which however did not insure entire liberty. In order to be convinced of this, we have only to examine the acts of enfranchisement themselves. There were several kinds, and each was attended with different consequences. We find, _First_, the _denariales_, or enfranchised with respect to the king; although their life was valued at 200 _solidi_, like the life of a Frank, yet their liberty was incomplete; they could not bequeath property to others than their children; the composition for their lives was paid to the king, not to their relatives, which plainly shows that the king regarded them, as _homines regii_. _Second_, those enfranchised with respect to the church, or _tribularii_. {147} Those thus enfranchised became _homines ecclesiastici;_ they could not become _denariales_ according to the laws of the Ripuarians, and their property went to the church if they died without issue. _Third_, those enfranchised _per chartam, chartulari_i. The expressions of the charter which gave them their liberty seem to be completely unambiguous; but it is doubtful whether the results were similarly unambiguous, since the _denariales_ themselves remained, in certain respects, in an inferior condition. The statutes of Charlemagne, which provide that the terms of composition for the _denariales_ should be paid to the king, and that they should not possess their liberty as a heritage till after the third generation, apply the same conditions also to the _chartularii_, and even to those who were enfranchised to the church, the _tabularii_.

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

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Lecture XVIII.

Simultaneous existence of three systems of institutions, after
the settlement of the Franks in Gaul.

Conflict of these three systems.

Summary of this conflict, its vicissitudes, and results.

Its recurrence in local and central institutions.

Of local institutions under the Frankish monarchy.

Of the assemblies of free men.

Of the authority and jurisdiction of the great landowners in
their estates.

Of the authority and jurisdiction of the dukes, counts, and
other royal officers.

Three Systems Of Institutions.

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

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

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

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

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

Decline Of Free Institutions.

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

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

Of Local Institutions.

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

[Footnote 14: That is, of course, districts analogous to
these divisions.]

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

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

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

Rudiments Of Feudalism.

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

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

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

Dukes And Counts.

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

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

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

Extension Of Seignorial Jurisdiction.

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

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

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Lecture XIX.

Government of Charlemagne.

Apparent revival of free institutions.

Individual independence and social liberty.

Organization of monarchical power under Charlemagne.

His active surveillance over his vassals and agents.

Rapid decline of monarchical institutions after his death.

Definitive predominance of the feudal system.

Central institutions during the same epoch: royalty.

Causes of the progress of royalty, and of the principle of
hereditary succession among the Franks.

Influence of the clergy.

Two Meanings Of Personal Liberty.

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

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

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

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Object Of Government.

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

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

Origin Of Despotism.

In the infancy of society, the liberty which almost all men desire and defend, is natural liberty--liberty to do nothing but what they please. This is caused by the imperfection of the moral development of each individual, and by the imperfection of the same development in the social powers; from which imperfection it results that these powers ill-understand the true law, never apply it, and are themselves directed by individual wills, as arbitrary as they are capricious. {156} On this account, the state of freedom with which we meet at the outset of all societies lasts for so short a time, and is so quickly superseded by the despotism of one or several persons. Society cannot exist if natural liberty, that is, individual independence, exists in all the extent of its desire: and as society is as yet ignorant both how to govern according to the moral law, and how to respect moral liberty, force seizes upon the government.

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

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The Monarchy Of Charlemagne.

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

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Decline Of The Frankish Monarchy.

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

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

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

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

Royalty Among The Franks.

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

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

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

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Fall Of The Merovingians.

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

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

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Authority And Liberty.

1. By the dispersion of the Franks. They ceased constantly, to
surround the king; his authority was but slight over those who
left him; but those who were habitually near him depended more
closely upon him; a court of barbarian servants succeeded to a
court of warriors.

2. By the subjugation of neighbouring chiefs or kings.

3. By the increasing inequality of wealth: the royal property
greatly augmented, and this was their principal source of
power; they devoted all their energies to the amassing of
treasure; it was useless to leave their children a kingdom,
unless they could at the same time bequeath to them a full
exchequer.

4. By the influence of religious and Roman ideas. In the
opinion of the Christians, the king was the successor of Saul
and of David; in that of the Romans, he was the representative
of the emperors. The Frankish kings were fully sensible of the
advantages of this two-fold position, and they eagerly accepted
the titles of Patrician and Consul. But the royal authority had
no definite character; it was proportionate to the ability and
energy of those who exercised it.

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

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

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Influence Of Religious Ideas.

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

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Lecture XX.

National assemblies of the Franks; their primitive character,
and rapid decline under the Merovingians.

They regain importance under the Carlovingians; and are held
regularly under Charlemagne.

Letter of Archbishop Hincmar _De ordine Palatii_.

National Assemblies Of The Franks.

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

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

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Letter Of Archbishop Hincmar.

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

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

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The Councils Of State.

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

"In the same assembly, if any measure were necessary either to
satisfy absent nobles, or to calm or excite the spirit of the
people, and such measure had not previously been taken, it was
discussed and adopted by the consent of those present, and it
was executed in concert with them by the orders of the king.
The year being thus terminated, the assembly of the following
year was arranged as I have said.

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"With regard to the councillors, both lay and ecclesiastic,
care was taken, as far as possible, to select such persons as,
from their condition and duties, were filled with the fear of
God, and animated, moreover, by unalterable fidelity, so as to
consider nothing superior to the interests of the king and
kingdom, except eternal life. Men were sought who could be
turned aside from the path of duty neither by friends, nor
enemies, nor relatives, nor gifts, nor flatteries, nor
reproaches; men were sought who were wise and skilful, not with
that sophistical skill and worldly wisdom which are so opposed
to God's will, but with a just and true wisdom that might
enable them not only to repress, but also fully to confound the
men who place all their reliance in the tricks and stratagems
of human policy. The maxim of the councillors thus elected, and
of the king himself, was, never to confide, without their
mutual consent, to their domestics or any other person, what
they might have said familiarly to one another, either upon the
affairs of the kingdom, or about any particular individuals. It
made no difference whether the secret ought to be kept for a
day or two, or more, or for a year, or even for ever.

"It invariably happens that, if the conversation held in such
meetings, with regard to any individual, either by way of
precaution, or in reference to any other public interest, come
afterwards to the knowledge of that individual, he cannot but
feel great anxiety, or be driven to despair thereby, or, which
is a much more serious matter, be stimulated to infidelity; and
thus a man who might perhaps still have done service to the
State, is rendered useless,--which never would have happened if
he had not known what was said about him. That which is true of
one man may be true of two, of a hundred, or of a greater
number, or of a whole family, or of an entire province, unless
the greatest caution be observed.

The Officers Of The Palace.

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

The Palatines.

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

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The Capitularies.

"At one or other of the two assemblies, and in order that they
might not appear to be convoked without reason, there were
submitted to the examination and deliberation of the great
personages whom I have mentioned, as well as of the chief
senators of the realm, and in virtue of the orders of the king,
those articles of law named _capitula_, which the king
himself had drawn up under the inspiration of God, or the
necessity of which had been manifested to him in the interval
between the meetings. After having received these
communications, they deliberated upon them for one, two, or
three days, or more, according to the importance of the matter.
Messengers from the palace, going and coming, received their
questions and brought back answers; and no stranger approached
the place of their meeting, until the result of their
deliberations was placed before the eyes of the great prince,
who then, with the wisdom which he had received from God,
adopted a resolution which all obeyed. This course was pursued
for one, two, or more capitularies, until, by the help of God,
all the necessities of the time had been duly regulated.

"Whilst these affairs were thus arranged out of the presence of
the king, the prince himself, in the midst of the multitude who
had come to the general assembly, was busied in receiving
presents, greeting the most important individuals, conversing
with those whom he saw but seldom, exhibiting an affectionate
interest in the old, laughing and joking with the young, and
doing these and similar things to ecclesiastics as well as
laymen. However, if those who were deliberating upon the
matters submitted to their judgment desired it, the king went
to them, and remained with them as long as they wished; and
there they reported to him, with entire familiarity, what they
thought of various matters, and what were the friendly
discussions which had arisen amongst them.