Chapter IX: Part I (6)

Mably thinks that benefices did not at first impose any particular obligation, and that those of Charles Martel were the first which were formally associated with civil and military services. This opinion is contrary to the nature of things;--the origin of benefices testifies to the contrary. They were, as, in Germany, gifts of horses or of arms and banquets had been, a mode of attaching companies to the benefactor. This relation in itself involves an obligation. Mably's idea is equally contradicted by facts. In all the disputes which arose between the incumbents and the Merovingian kings, the benefices are always vindicated in behalf of those who kept faith with their patron. No complaints were made when those were seen to be despoiled who had failed to render the fidelity that was due from them. Siggo we find losing the benefices of Chilperic in 576, because he had forsaken his allegiance and passed over to Childebert II. The law of the Ripuarians pronounced the confiscation of the goods of every man who had been unfaithful to the king. Marculf gives the formula of the act by which a man was received into the number of the faithful. Charles Martel, in giving benefices to his soldiers, only imposed upon them the obligations that had always followed on such appointments. Only these obligations became progressively more formal and explicit, precisely in the measure that the ancient relations of the chief and his associates tended to become weakened and to disappear, in consequence of the dispersion of his men and their settlement on their own properties.

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Vassalage.

Originally, the associates lived with their chief, around him, in his house and at his table, in peace, as well as in war: they were his vassals, according to the original sense of the word, which signified the _guest_, the _companion_, an individual attached to the house. [Footnote 13]

[Footnote 13: There are different etymologies of the word
_vassus_, from _haus_, a house; from _gast_, a
guest; from _fest_, fast, established; from
_geselle_ (vassallus). The word _Gasinde_, which
expresses the _familia_, so far as it comprises the
individuals inhabiting the house, the _guests_ in
opposition to the _mancipia_, induces me to think that
_vassus_ comes from _gast_. (Anton, _Gesch. der
Deuts. Land._, vol. i. p. 526.)

We read in the Salic law (tit. 43): _Si quis romanum
hominem convivam regis occiderit, sol. 300 culpabilis
judicetur_. The Roman editors of this law would have
rendered the word _gast_ by _conviva_.]

When most of the vassals had dispersed themselves, in order that each might reside in his own allodial or beneficiary estate, we may easily perceive the necessity that thus arose of determining the obligations that were then imposed upon them; but this was only done imperfectly and by degrees, as is generally the case where matters are at issue which have for a long time had a general and conventional adjustment. As the first race began to disappear and the second to arise in its place, the obligations attached to the conferring of benefices appear to be clearly determined. They range themselves under two principal heads. _First_, the obligation of military service on the requisition of the patron. _Secondly_, the obligation of certain judicial and domestic services of a more personal and household character. It is impossible at the present time to specify what these services were to which the incumbents were held. We see only, among a host of acts, that the kings imposed on the incumbents _servilia_, which obliged them to present themselves at court. These obligations were comprised under the general term _fidelity_. They were at first personal, and attached to the quality of _liege-man,_ independently of the possession of any benefice; a connexion identical with that between the ancient German associates and their monarch. When it had become necessary for the king to give lands as a benefice, in order to insure the fidelity of his liege subjects, the obligation attached itself to the quality of beneficiary. We constantly see benefices given under the condition of loyalty. Charlemagne, when he gave a benefice in perpetuity to Jean, annexed to it this condition. {123} There is reason to believe that benefices were also given, conditioned by the payment of certain fees (_census_). I do not find, at this period, the granting of any benefice in which the imposition of a rental is expressly indicated; but the nature of things seems to show that such must have been the case, and I do find mention made of benefices conferred _absque ullo censu_. Anxiety in certain cases to obtain exemption from the fees, proves that in other cases they were imposed. It is probable that rentals were attached to benefices, granted hereditarily, and not to those which were only given for the term of an individual life.

Oaths Of Fidelity.

Loyalty was at first due only to that chief to whom it had been expressly promised, and from whom a benefice had been received. Charlemagne attempted to change this into an obligation common to all the freemen in his States. Marculf has preserved to us the formula in which he wrote to his counts, requiring from all individuals the oath of fidelity. Thus did this prince endeavour to break through the feudal hierarchy which was consolidating itself, to bring himself into a direct relation with all freemen, and to make the relation between king and subject predominant over that between lord and vassal. The oath of fidelity was universally exacted by the successors of Charlemagne, Louis the Debonnair and Charles the Bald, but without any effective results; for the tendency to hierarchical and feudal aristocracy had become prevalent. We find besides numerous examples of the maintenance of the relations between incumbent and patron, even under Charlemagne. Under Charles the Bald this relation became more positive and independent of the king. The prince even, for the repression of public crimes, allowed his authority to be exercised through the intervention of the lord; he made each lord responsible for the crimes of his own dependents. It was therefore especially in the empire of the lord over his men, that the means were then sought of sustaining order and repressing crime. This alone will sufficiently indicate the continually growing force of feudal relations and the diminishing authority of royalty.

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Lecture XV.

Of benefices conceded by great landowners to men dependent
upon them:

_First_, benefices conceded for all kinds of services,
and as a mode of paying salary;

_Secondly_, larger proprietors usurp the lands adjoining
their own, and bestow them as benefices on their
subordinates;

_Thirdly_, the conversion of a great number of allodial
lands into benefices, by the practice of
_recommendation_.

Origin and meaning of this practice.

Permanence of freeholds, especially in certain parts of the
Frankish monarchy.

Tributary lands.

Their origin and nature.

Their rapid extension: its causes.

General view of the condition of territorial
property, from the sixth to the eleventh century:

_First_, different conditions of territorial property;

_Secondly_, the individual dependence of territorial
property;

_Thirdly_, the stationary condition of territorial
wealth.

Why the system of beneficiary property, that is to say, the
feudal system, was necessary to the formation of modern society
and of powerful states.

Donors Of Benefices.

Kings were not the sole donors of benefices; all the large proprietors gave them. Many leaders of bands of men were originally united under the conduct of the king; these chiefs became subsequently proprietors of large allodial estates. Portions of these were conceded as benefices to their immediate associates. Afterwards, they became large incumbents, and gave also as benefices portions of the benefice which they held from the king. Hence arose the practice of sub-enfeoffment. In the capitularies, we perpetually meet with the words, _vassalli vassallorum nostrorum_.

We find, during the whole of this period, even under Charlemagne, numerous examples of benefices held otherwise than from the king. Two letters of Eginhard expressly mention the concession, by way of benefice, of certain portions of royal benefices.

It is the opinion of Mably, that other persons than the king began to give benefices only after the reign of Charles Martel. This mistake arises from his not having apprehended that the relation of the chief to his associate, which afterwards grew into that of lord to his vassal, was at first a purely personal relation, entirely independent of and anterior to any concession of benefices. {125} It is impossible to determine at what particular time the conferring of benefices became connected with the relation of the beneficiary to his patron. This was probably almost immediately after the territorial establishment.

Character Of Benefices.

The number of benefices was soon very considerable, and became greater every day.

I. Benefices were given to free men belonging to quite an inferior order, and employed in subordinate services. The _majores villæ_, and the _poledrarii_, that is to say, the stewards of the estates, and the keepers of the horses of Charlemagne, had them. It was the policy of this prince to scatter widely his gifts, and to reward zeal and fidelity wherever he found them.

II. The larger proprietors continually made themselves masters of the lands adjoining their own, whether these were lands belonging to the royal domain, or such as were neglected, and had no very definite owners. They had them cultivated, and often procured subsequently the privilege of adding them to their benefices. The extent of this abuse becomes manifest under Charles the Bald, by the numerous expedients adopted by this prince to remedy it.

III. A large number of allods were converted into benefices by means of a tolerably ancient usage. Marculf has left us the formula by which this conversion was made; its origin we must seek in the practice of _recommendation_. Recommendation was not primitively anything else than the choice of a chief, or a patron. A law of the Visigoths, called a _lex antiqua_, and which must be referred to king Euric, towards the close of the fifth century, says: "If any one have given arms, or any other thing, to a man whom he has taken under his patronage, these gifts shall remain the property of him by whom they have been received. If this latter choose another patron, he shall be free to _recommend_ himself to whomsoever he will: this may not be forbidden to a free man, for he belongeth to himself; but he shall, in this case, return to the patron from whom he separates himself all that he has received from him."

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These were, then, the ancient Germanic customs. The relation of the individual _recommended_ to his patron was a purely personal one. The presents consisted in arms; his liberty remained unimpaired. The law of the Lombards left to every one the same liberty as the law of the Visigoths. Nevertheless, we see, by the same capitulary, that this liberty began to be restrained. Charlemagne defined the reasons by which any one might be allowed to quit his lord, when he had received anything from him. We may learn from this, that the ties contracted by recommendation began to be strengthened. This practice became very frequent. By these means order was promoted, so far as the law was concerned, and protection and safety as far as concerned the person recommended. When relations of service and protection bearing a purely personal character were thus established with a patron, other more tangible relations arose in which the property of the parties was considered. The person recommended received benefices from the lord, and became a vassal of his estate; or rather he recommended his lands, as he had previously recommended his person. _Recommendation_ thus became a part of the feudal system, and it contributed most importantly to the conversion of allodial estates into benefices.

There is, however, no reason to believe that all allods were thus converted into benefices. Originally, such a conversion, or even the mere acceptance of a benefice, was regarded by a free man as, to a certain extent, a surrender of his liberty, being an entrance upon a personal service. The large proprietors, who exercised an almost absolute sovereignty in their own domains, would not readily renounce their proud independence. Etichon, brother to Judith the wife of Louis the Debonnair, was unwilling any longer to receive his son Henry, who had accepted, without his knowledge, from the king his uncle a benefice of four hundred acres, and thereby entered upon the service of the crown. After the triumph of the feudal system, a considerable number of allods still remained in several provinces, particularly in Languedoc.

Tributary Lands.

After speaking of freeholds and benefices, it remains that I should allude to the tributary lands, whose existence is attested by all the memorials of this period. We do not necessarily understand by this term lands on which a public impost was levied, but lands which paid a fee, a rental, to a superior, and which were not the actual and absolute property of those who cultivated them.

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Their Rapid Increase.

This kind of property existed in Gaul before the invasion of the Franks. The conquest that resulted from this invasion contributed in various ways to augment their number. _First_, wherever a Barbarian possessed of some amount of power established himself, he did not take possession of all the lands, but he most probably exacted certain fees, or services equivalent to them, from almost all whose lands bordered on his own. This is certain from _à priori_ considerations, and is proved as a fact by the example of the Lombards, who invariably contented themselves at first with rendering all the lands of the conquered country tributary to themselves. They demanded a third of the revenue, and afterwards took the property itself. This fact shows clearly the mode of procedure that was adopted by the Barbarians. Almost all the lands possessed by Roman or Gallic chiefs, who did not possess sufficient power to rank with the Barbarians, were obliged to submit to a tributary condition.

_Secondly_, conquest was not the work of a single day; it continued to be carried on after the establishment of the invaders. All the documents of the period indicate that the principal officers and large proprietors continually exerted themselves, either to usurp the possessions of their less powerful neighbours, or to impose upon them rentals or other charges. These usurpations are proved by the multitude of laws that were enacted to prevent it. In the unsettled state of society that then existed, the feeble were entirely placed at the disposal of the strong; public authority had become incompetent for their protection; many lands which were at first free, and belonged either to their ancient owners, or to Barbarians of slender resources, fell into a tributary state; many of the smaller proprietors purchased for themselves the protection of the strong, by voluntarily placing their lands in this condition. The most common method of rendering lands tributary, was to give them either to churches or to powerful proprietors, and then to receive them again, on the tenure of usufruct, to be enjoyed during life, on the payment of fixed fees. This kind of contract is to be met with again and again, during this period. The same causes which tended to destroy allods, or to convert them into benefices, acted with even more energy in augmenting the number of tributary lands.

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_Thirdly_, many large proprietors, whether of allodial lands or of benefices, were unable themselves to cultivate the whole of their lands, and gave them up by small portions to simple cultivators, on the payment of certain fees and services. This alienation took place under a multitude of forms and a variety of circumstances; it certainly occasioned many lands to become tributary. The large number and endless variety of rentals and rights, known in a later time by the name of _feudal_, arose probably either from similar contracts, or from usurpations committed by the powerful proprietors. The constant recurrence in writers and laws of the period of the terms _census_ and _tributum_; the multitude of arrangements which relate to them; the general course of events; lastly, the state in which most landed property was found when order began to reappear,--all these circumstances render it probable that at the end of the period we are considering, the greater number of lands had fallen into a tributary condition. Property and liberty were alike devoted to be plundered. Individuals were so isolated, and their forces so unequal, that nothing could prevent the results of such a position.

Waste Lands.

The large number of waste lands, attested by the facility with which any one who was willing to cultivate them might obtain them, bears witness in its turn also to the depopulation of the country, and the deplorable condition in which property existed. The concentration of landed property is a decisive proof of this state of things. When this kind of property is safe and prosperous, it tends to become divided, because every one desires to possess it. When, on the other hand, we see it accumulated more and more in the same hands, we may almost certainly conclude that it is in an unsound condition, that the feeble cannot sustain themselves upon it, and that the strong alone can defend it. Landed property, like moveable property, is only to be found where it can continue to exist in safety.

There is reason to believe that most tributary lands, even those which were not originally the property of the cultivators who laboured on them, became at length by a right of occupancy in reality their possessions, though burdened by rentals and exactions of service. This is the natural course of things: it is very difficult to remove a cultivator who has with his family for a long time tilled the same soil.

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Different Kinds Of Landed Property.

Such were the vicissitudes of landed property, from the sixth to the eleventh century. I will now give a summary view of the general characteristics of this state of things, and endeavour to estimate their influence on the progress of general civilization, and more particularly of political institutions.

I. There was a great diversity in the conditions of property. In our days, the condition of property is uniform and everywhere the same; whoever the proprietor may be, he possesses his property, whatever may be its character, on the same tenure of right, and subject to the same laws as any other. Between properties which are the most distinct in character, there is thus far an identity. This is one of the most unequivocal symptoms and safest guarantees of the progress of legal equality. During the times of which we have been speaking, the diversified conditions under which property was held would necessarily lead to the formation of several classes in society, between which existed great, factitious, and permanent inequality. Men were not merely proprietors to a greater or less extent; besides the inequality in the amount of wealth, there was also an inequality in the nature of the wealth possessed, than which it is impossible to conceive of a more powerful instrument for oppression. Even this, however, was a step in advance out of the slavery existing among the ancients. The slave could possess nothing,--was essentially incapable of owning property. In the times of which I am speaking, the mass of the population had not become full and absolute possessors of property, but was attaining to a possession that was more or less imperfect and precarious, by which it had gained the means of yet loftier ascents.

Isolation Of Proprietors.

II. Landed property was then submitted to the restraints of dependence on individuals. At present, all property is free, and is at the disposal only of its owner. General society has been formed,--the State has been organized,--every proprietor is united to his fellow-citizens by a multitude of ties and relations, and to the state by the protection which he receives from it, and the taxes to which he is subject in return: there is, thus, independence without isolation. {130} From the sixth to the eleventh century, independence was necessarily accompanied by isolation: the proprietor of an allod lived upon his lands almost without buying or selling anything. He owed scarcely anything to a State which hardly existed, and which could not assure him of an efficient protection. The condition, therefore, of the allods and their proprietors was at that time a con that was to a considerable extent anti-social. In more ancient times, in the forests of Germany, men without landed properties lived at least in common. When they became proprietors, if the allodial system had succeeded in becoming prevalent, the chiefs and their associates would have been separated, without ever being summoned to meet and recognize one another as citizens. Society would not have been at all constituted. It exists in those relations which unite men together, and in the ties out of which these relations arise. It necessarily demands a law, a condition of dependence. And when it is not so far advanced as that a sufficient number of these relations and ties have been established between the State and the individual, then individuals become dependent one upon another; and it was to this state of things that the seventh century had arrived. It was the imperfection of society which caused the allodial system in regard to landed property to perish, and the beneficiary or tributary system to prevail. The independence of allods could only exist in connexion with their isolation, and isolation is anti-social. The hierarchical dependence of benefices became the tie to unite properties with one another, and society within itself.

Stationary Condition Of Wealth.

III. Out of this distribution and this character of landed property, a very important fact has resulted; namely, that during several centuries scarcely any means existed by which either the state or individuals could increase their wealth. Most proprietors of any importance did not cultivate the land at all; it was for them merely a capital, the revenues of which they gathered without troubling themselves to augment it, or to render it more productive. On the other side, most of those who cultivated the land were not proprietors, or were only so in a precarious and imperfect manner; they did not seek from the earth more than means of subsistence, and did not look to it as a means of enriching or elevating them. {131} Agricultural labour was almost unknown to the rich, and to the poor it yielded nothing beyond the bare necessities of existence. 'Hence, resulted the continual impoverishment of the larger proprietors, which forced them incessantly to have recourse to violence, in order to preserve their fortune and their rank. Hence, resulted also, at the same time, that stationary condition of the population of the country districts which was prolonged for so long a period. Landed property tended always to become concentrated, from the very circumstance that its products did not increase. Accordingly, it is not in the country districts and in agricultural labour, but in the towns, in their commerce and industry, that we shall find the earliest germs of the accumulation of public wealth, and of the progress of civilization. The indolence of the upper classes, and the misery of the lower classes, in the middle ages, proceeded chiefly from the nature and distribution of territorial property.

IV. Beneficiary property was one of the most influential principles in the formation of large societies. In the absence of public assemblies and of a central despotism, it nevertheless established a bond, and formed relations between men dispersed over a vast tract of country, and thereby rendered possible a federative hierarchy, which should embrace a still wider circle. Among the nations of antiquity, the extension of the State was incompatible with the progress of civilization; either the State must be dislocated, or despotism would prevail. Modern States have presented a different spectacle, and to this result the character of beneficiary property has powerfully contributed.

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Lecture XVI.

Of the state of persons, from the fifth to the tenth century.

Impossibility of determining this, according to any fixed and
general principle.

The condition of lands not always correspondent with that of
persons.

Variable and unsettled character of social conditions.

Slavery.

Attempt to determine the condition of persons according to
the _Wehrgeld_.

Table of twenty-one principal cases of _Wehrgeld_.

Uncertainty of this principle.

The true method of ascertaining the condition of persons.

Classification Of Persons.

We have investigated the condition of territorial properties, from the fifth to the tenth centuries. We have recognized three kinds of territorial property. _First_, allodial or independent; _Secondly_, beneficiary; _Thirdly_, tributary. If from this we should wish to deduce the state of persons, we should find three social conditions corresponding to these: _First_, the free men, or proprietors of allods, bound to, and dependent upon no one, excepting the general laws of the state; _Secondly_, vassals, or proprietors of benefices, dependent in certain respects upon the noble from whom they held their property, either during life or hereditarily; _Thirdly_, the proprietors of tributary lands, who were subject to certain special obligations. To which it is necessary to add a fourth class, namely, the serfs.

We should observe further, that the first of these classes tended to disappear and become absorbed in the second, third, and even the fourth classes. This arose from facts which we have already explained.

This classification of persons is in fact a real one, and is to be met with in history; but we must not regard it as a primitive, general, and perfectly regular classification.

The condition of persons preceded that of lands;--there were free men before there were freeholds; there were vassals and associates before benefices. The condition and relations of persons did not therefore originally depend on the condition and relations of territorial properties, and cannot be deduced from them.

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Earliest Condition Of Society.

Historians have fallen into a double mistake on this point. Some have wished to see in all the Franks, before the conquest, and the establishment of the system of landed estates, which we have already explained, men altogether free and equal, whose liberty and equality for a long time resisted the formation of this system. Others have been unwilling to recognize men as free, except as they are beheld in the condition of land proprietors, whether as allods or as benefices.

The matter is not thus simple and absolute. Social conditions were not thus framed and disposed of by a single process, to suit the convenience of subsequent antiquarians.

What do we find to be the character of liberty in the infancy of societies? Might is its condition, and it has scarcely any other guarantee. So long as society is of small extent and firmly compacted within itself, individual liberty remains, because each individual is important to the society of which he is a member: this was the case with the German tribes in its warrior bands of men. In proportion as society extends and disperses itself, the liberty of individuals is endangered because their personal strength is insufficient for their own protection. This was illustrated by the case of the Germans who established themselves in Gaul. A large number of his associates lived in the house of the chief, without being themselves proprietors or being anxious to become so, for which indifference they were indebted to that want of foresight which is natural to uncivilized men. Property became a prominent instrument for attaining force, yet many free men did not possess any.

The progress of civilization removes the guarantee of individual liberty from the power of the individual himself, and places it in the power of the community. But the very creation of such a public power, and the guarantee thereby of individual liberties, is a gradual and difficult process: it results from a social culture which is of slow growth and must triumph over many obstructions. Wherever there is no power belonging to the community, individual liberties have no guarantee for their continuance.

Hence the error of those who seek for liberty in the infancy of societies. We do in fact find it there, but only when society is quite in its cradle, when each separate individual is sufficiently strong to be able to defend his own liberty in a very limited community. But as soon as society rises and extends itself, we see this liberty perish; the inequality of different forces manifests itself, and individual power becomes incapable of preserving individual liberty. This is the birth-time of oppression and disorder.

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Principles Of Classification.

Such was the condition of the Franco-Roman community, at the period which we are considering. It seems somewhat puerile to inquire who was free then; no one was free, whatever his origin might be, if he was not strong. The real inquiry is, who was strong--a point which it is exceedingly difficult to determine.

In a fully settled society which has existed for a long time, it is easy to know who is strong. There is a constant transmission of properties and of ancient influences; power has permanent forms, men are classified. We see where strength resides and who possesses it. But at the time which we are considering, the various elements of social strength were struggling into existence;--they scarcely had a being, and they were not familiarly known, nor stably fixed, or in regular possession of power;--the violent customs which prevailed rendered property very moveable;--individual strength was a poor guarantee for liberty, indeed, it needed itself to be placed in guardianship.

The human mind can hardly believe in disorder, because it cannot picture clearly to itself such a state of things; it does not resign itself to the idea; it desires to introduce an order of its own, in order to discover the light. We must, however, accept facts as they actually are. We may therefore understand how difficult it is to exhibit the condition of men, from the fifth to the tenth centuries; to learn what men were free, and who were not, and especially what a free man really was in his position and influence. We shall understand this difficulty still better when we have attempted to determine the condition of life belonging to certain positions, according to the different principles of classification which we may bring to the task. We shall see that no one principle can be found, by which we can deduce the state belonging to different positions in a manner exactly conformable to known facts, and which is not contradicted at every step by these same facts, or at least shown by them to be utterly insufficient and untrustworthy.

Let us first apply the principle which is inferred from the state of landed property.

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Allodial And Beneficiary Proprietors.

The proprietors of allods might seem to be incontestably free men. An allodial proprietor who had extensive estates enjoyed complete independence, and wielded an almost absolute sovereignty throughout his territory, and among his associates.

Large allodial proprietors were sometimes able to remain for a considerable time in such a position. But it was not certainly the strongest, nor consequently the most free and fixed condition; for we have seen that allodial property degenerated and declined, until almost all the allodial proprietors became beneficiaries. We have seen how the anger of Etichon was excited. The general fact is a witness against the life of the allodial proprietor. His very independence was a cause of isolation, and therefore of feebleness. The proprietors of allods, wearied with living on their estates, shut out from all society, used to come and live with the king or some large proprietor of greater power than themselves. It was soon a practice to send their children thither, in order that they might become companions of the prince, or of some distinguished noble.

As to the smaller allodial proprietors, they could not keep their standing long; they were not strong enough to defend their independence. The records of the period show that their property was soon alienated, and at the same time many of them became merely cultivators of the lands. The condition of the freeholder thus became merged in that of the tributary. From thence there was but one step to a total loss of liberty. This step was actually taken by a large number of allodial proprietors--wearied out or ruined, they surrendered their liberty into the hands of proprietors more wealthy and powerful than themselves.

We come now to the beneficiaries.

Benefices originated large individual resources;--in them we find the source of the feudal aristocracy;--large beneficiaries became in time powerful nobles. But we must not from this conclude that the possession of benefices was, during the period we are considering, any security for a permanent social position, to which power and liberty necessarily belonged. _First_, this possession was precarious, moveable, attacked, in the case of the smaller beneficiaries, by the larger ones, and in the case of the latter by the king. {136} Beneficiary property hardly began to possess any fixity at the close of the ninth century. _Secondly_, a number of small benefices were conferred on individuals too weak efficiently to defend their position and their liberty. In order to secure the services of a man who was not a slave, a benefice was given to him--it was therefore a grant for the support of a retainer. The land itself was given for this purpose, as well as its productions. The benefices given to Charlemagne's stewards and the keepers of his horse were actual benefices, and not, as M. de Montlosier thinks, tributary lands. We are not then in a position to say that the rank of a beneficiary was the sign of a definitely marked social position, nor that it could measure the degree of importance and of freedom that belonged to individuals.

Various Classes Of Free Men.

When we have mentioned the allodial proprietors and the beneficiaries, it might be thought that the class of freemen is exhausted. Such is not, however, the case. There were different classes of possessors and farmers of tributary lands, known under various names; such as _fiscalini, fiscales, tributarii, coloni, lidi, aldi, aldiones,_ &c. These names do not all designate different conditions, but divers shades in conditions substantially the same. There were: _First_, free men, at once allodial proprietors and cultivators; _Secondly_, free men, both proprietors of benefices and cultivators; _Thirdly_, free men, neither properly freeholders nor beneficiaries, and cultivators; _Fourthly_, men not free, to whom the hereditary possession of tributary land had been granted on the payment of certain fees and services; _Fifthly_, men not free, who only enjoyed the permanent occupancy of tributary land. Here again we cannot find any general and fixed social condition which shall determine what were the rank, the rights, and other qualifications of the individuals belonging to it. We are mistaken if we imagine either that every proprietor was free, or that every free man was a proprietor. We find that the cultivators of lands under the king harassed and oppressed the smaller allodial proprietors who resided in their vicinity, and were too feeble to oppose any effectual resistance, although they were Franks.

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I need only mention slaves, in order to observe that many free men fell into this state of servitude by means of violence, and through an uncertainty in property which involved a corresponding uncertainty in position. Sometimes one man would surrender himself to his more powerful neighbour, and at the same time completely abandon his liberty. The surrender, however, was sometimes not an entire renouncement of liberty, although it was alienated for life, or a sum was agreed upon to be paid if the engagement should be broken.

Test Of Social Conditions.

It is evident that we cannot derive, from the state and the distribution of territorial properties, any true and fixed table of different social conditions, and of the importance of the rights belonging to each. These conditions were too undefined, too different, while nominally identical, and too fluctuating, to give us a standard to measure the amount of liberty possessed by each man and the place he occupied in society. The state of persons was almost individual; the measure of the importance of any individual was determined by the particular amount of strength which might belong to him, much more than by the general position which he apparently occupied. Individuals constantly passed from one condition into another, neither losing all at once every characteristic of the position which they left, nor assuming at once every characteristic of that upon which they newly entered.

Let us apply another principle.

The Wehrgeld

Attempts have been made to determine the condition of individuals, and to classify men according to the _wehrgeld;_ that is to say, according to the sum by which a man might compound for the commission of a murder, which was consequently the measure of the valuation of different lives. Shall we find here any more certain and unvarying principle by which social conditions may be classified?

I have made an abstract of all the cases of _wehrgeld_ stipulated in the Barbaric laws. I will not enumerate them all, but will bring before you twenty-one of the principal, ranging from the sum of 1800 _solidi_, the largest value that was legally placed on any man's life, down to 20 _solidi_.

The _wehrgeld_ amounted to:--

1800 sol. _(solidi_): for the murder of a free barbarian,
a companion of the king (_in truste regiâ_), attacked and
killed in his house by an ...

960 sol.: 1st. the duke, among the Bavarians; 2nd. the bishop,
among armed band, among the Salian Franks, the Germans.

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900 sol.: 1st. the bishop, among the Ripuarian Franks; 2nd. the
Roman, _in truste regiâ_, attacked and killed in his own
house by an armed band, among the Salian Franks.

640 sol.: the relatives of a duke, with the Barbarians.

600 sol.: 1st. every man _in truste regiâ_, with the
Ripuarians; 2nd. the same, with the Salian Franks, 3rd. the
count, with the Ripuarians; 4th. the priest, born free, with
the Ripuarians; 5th. the priest, with the Germans; 6th. the
count, with the Salian Franks; 7th. the _Sagibaro_ (a kind
of judge) free, _ibid._; 8th. the priest, _ibid_.;
the free man attacked and killed in his own house by an armed
band, _ibid_.

500 sol.: the deacon, with the Ripuarians.

400 sol.: 1st. the sub-deacon, with the Ripuarians; 2nd. the
deacon, with the Germans; 3rd. the same, among the Salian
Franks.

300 sol.: 1st. the Roman living with the king, with the Salian
Franks; 2nd. the young man brought up in the service of the
king, and those who had been enfranchised by the king, and made
counts, with the Ripuarians; 3rd. the priest, among the
Bavarians; 4th. the _Sagibaro_ who had been brought up in
the court of the king, with the Salian Franks; 5th. the Roman
killed by an armed band in his house, _ibid_.

200 sol.: the free-born clerk, with the Ripuarians; 2nd. the
deacon, with the Bavarians; 3rd. the free Ripuarian Frank; 4th.
the German of the middle classes; 5th. the Frank or Barbarian,
living under Salic law; 6th. the travelling Frank, with the
Ripuarians; 7th. the man who had become enfranchised by
purchase, with the Ripuarians.

160 sol.: 1st. the free man in general, among the Germans; 2nd.
the same, with the Bavarians; 3rd. the Burgundian, the German,
the Bavarian, the Frison, the Saxon, with the Ripuarians; 4th.
the free man cultivating ecclesiastical property, with the
Germans.

150 sol.: 1st. the _optimus_, or noble Burgundian, killed
by the man whom he had attacked; 2nd. the steward of a royal
domain, with the Burgundians; 3rd. the slave who could work
well in gold, _ibid_.

100 sol.: any man belonging to the middle classes (_mediocris
homo_) with the Burgundians, killed by the person whom he
had attacked; 2nd. the Roman possessing personal property, with
the Salian Franks; 3rd. the Roman while travelling, with the
Ripuarians; 4th. the man in the service of the king, or of a
church, _ibid_.; 5th. the planter (_lidus_) by two
charters of Charlemagne (an. 803 and 813); 6th. the steward
(_actor_) of a domain belonging to any but the king, with
the Burgundians; 7th. the slave, a worker in silver,
_ibid_.

80 sol.: those enfranchised in presence of the church, or by a
special charter, with the Germans.

75 sol.: any man of inferior condition (_minor persona_),
with the Burgundians.

55 sol.: the barbarian slave employed in the personal service
of a master, or as a bearer of messages, with the Burgundians.

50 sol.: the blacksmith (slave), with the Burgundians.

45 sol.: 1st. the serf of the church and the serf of the king,
with the Germans; 2nd. the tributary Roman, with the Salian
Franks.

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40 sol.: 1st. one merely enfranchised, with the Bavarians; 2nd.
the herdsman keeping forty swine, with the Germans; 3rd. the
shepherd over eighty sheep, _ibid_.; 4th. the seneschal of
the man who has twelve companions (_vassi_) in his house,
_ibid_.; 5th. the marshal who kept twelve horses,
_ibid_.; 6th. the cook who has an assistant
(_junior_), _ibid_.; 7th. the goldsmith,
_ibid_.; 8th. the armourer, _ibid_.; 9th. the
blacksmith, _ibid_.; 10th. the cartwright, with the
Burgundians.

36 sol.: 1st. the slave, with the Ripuarians; 2nd. the slave
who had become a tributary planter, _ibid_.

30 sol.: the keeper of swine, with the Burgundians.

20 sol.: the slave, with the Bavarians.

Impossibility Of Classification.

We see by this table, that, notwithstanding the common opinion to the contrary, the _wehrgeld_ is by no means an exact and certain indication of social conditions. It is not determined uniformly according to the origin, the quality, the position of individuals. The circumstances of the murder, the official character of the criminal, the greater or less usefulness or commonness of the man slain, all these variable elements enter into the determination of the _wehrgeld_. The simple fact of the murder having been committed at the court of the duke, while the victim is going to or returning from the house of the count, triples the _wehrgeld_ of every man, whether he be a slave or a freeman, a Barbarian or a Roman. The elements of the _wehrgeld_ are very numerous; it varies according to places and times. The Roman, the tributary, the slave, according to circumstances, may be valued at a greater or a less sum than a barbarian free man. We see many general indications which serve to show that the Roman was commonly less esteemed than a barbarian, the tributary or the slave less than the free man. This is very easily accounted for, and might have been anticipated. But it is not on this account less difficult to draw from such facts a positive indication of the state of individuals,--a precise and complete classification of social conditions.

True Test Of Social Conditions.

There is no resource left but to renounce the idea of classifying social conditions, and of determining the condition of persons, according to any general principle, resting either on the nature of territorial properties, or in the legal appreciation of the value of different lives. We must simply inquire, by the aid of historical facts, who were the strong and powerful at the time; what common name was given to them; what share of influence and of liberty fell to the lot of those who were simply called free men. {140} We shall thus arrive at clearer and more certain results. We shall often find that landed property is a great and principal source of strength, and that the _wehrgeld_ is an indication of the amount of importance or of liberty possessed by individuals; but we shall not attribute to these two principles a general and decisive authority, and we shall not mutilate facts in order that they may harmonize with our hypotheses.

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Lecture XVII.

Of the _Leudes_ or _Antrustions_.

Men, faithful to the king and to the large proprietors.

Different means of acquiring and retaining them.

Obligations of the _Leudes_.

The _Leudes_ are the origin of the nobility.

Bishops and heads of monasteries were reckoned among the
_leudes_ of the king.

Moral and material power of the bishops.

Efforts of the kings to possess themselves of the right of
nominating bishops.

Free men.

Did they form a distinct and numerous class?

The _arimanni_, and _rathimburgi_.

Mistake of M. de Savigny.

Rapid and general extension of the feudal hierarchy.

The freedmen.

Different modes of enfranchisement:

_First_, the _denariales_, enfranchised with
respect to the king:

_Second_, the _tabularii_, enfranchised with
respect to the church:

_Third_, the _chartularii_, enfranchised by a
charter.

Different consequences resulting from these different modes
of enfranchisement.

The Leudes Or Antrustions.

The first whom we meet with at this time occupying the highest place in the social scale are the _Leudes_, or _Antrustions_. Their name indicates their quality--_trust_ expresses fidelity. They were men who had proved faithful, and they succeeded the associates of the German chiefs. After the conquest, each of the chiefs established himself, together with his own men, on a certain territory. The king had a larger and more considerable number of followers. Many remained with him. He had different means, which he very assiduously employed, of attaching to himself his Leudes, or of acquiring them.

1st. This was evidently the result aimed at in conferring benefices. In 587, Gontran, giving his advice to Childebert II. on his conduct to those who were about him, points out to him "those whom he ought to honour by appointments and by gifts, and those to whom he ought to refuse them."

2nd. The organization of the house, the palace, the court, borrowed in part from the traditions of the Roman empire, the passing amusements and the permanent advantages which were attached to them, induced many men of influence to become Leudes, or gave importance to the original Leudes of the king. The following are names of some of their offices; "count of the palace, referendary, seneschal, mareschal, falconer, butler, chamberlain, porter, head-porter, &c."

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Obligations Of The Leudes.

3rd. Marculf has preserved to us the formula by which a man of importance, _cum arimanniâ suâ_, "with his freemen, his band," was accustomed to enrol himself among the king's Leudes. Charlemagne took various precautions in order that persons who came to him in order to become his trusty followers (_de truste faciendâ_), should meet with no obstacle.

4th. It was to their Leudes that the kings were in the habit of giving important public occupations, such as belonged to dukes, counts, &c. There is reason for believing that these functions originally belonged to the principal chief who established himself in a territory. In the natural course of events these chiefs became themselves Leudes of the king or were supplanted by those who were such.

5th. The number of Leudes was the principal source of strength; accordingly they were multiplied by all kinds of devices. In 587, in the treaty of Andely, between Gontran and Childebert II, "it was agreed that neither of them should attempt to draw over to himself the Leudes of the other, or receive them if they came of their own accord." We continually find Leudes of importance threatening the king to leave his service, and enter into some other.

The general obligation of the Leudes was fidelity, service in the palace, and military service. The price of this obligation was, for the Leudes, power and riches. They had also certain civil advantages, but of a more uncertain nature. Their _wehrgeld_ was a larger amount, whatever might otherwise have been their origin. We see that their prerogatives accumulated in proportion as their power was consolidated by the long possession of benefices. Charlemagne desired that his vassals should be honoured, and should hold, after himself, the first place in esteem. There were however among the Leudes of the king some who were less powerful, and some who even were poor.

Every large proprietor had his Leudes; his house was organized after the model of the king's; the same offices existed in each.

It is the opinion of Montesquieu, who is in this opposed by Montlosier, that the origin of the nobility is to be found in the Leudes. Neither of them has formed, in my judgment, a just and clear idea either of the condition of the Leudes or of the character of the nobility. The rank of the Leude and his advantages were purely of a personal character. {143} The rank of a free Barbarian was hereditary, as were also his advantages: but the rank of the Leude, that is to say, the advantages and the superiority which he derived from his position, tended to become hereditary; that of the free man, on the other hand, tended, when he was isolated and left to himself, to become effaced and to lose its advantages. Most free men who did not become beneficiaries, vassals, Leudes of some importance, ceased to be free at all. The aristocracy of the Leudes tended to be constituted, the liberty of the free men tended to be destroyed:--the free men were, viewed in contrast with those who were not free, an aristocracy on the decline; the Leudes were, compared with free men, an aristocracy on the increase.

Formation Of The Frankish Nobility.

Mannert, in his treatise entitled, _The liberty of the Franks, Freyheit der Franken_, has very clearly explained the formation of the nobility among the Franks. There were many Roman Gauls among the Leudes of the Frankish kings: we find, for example, the names of _Protadius, Claudius, Florentinianus,_ among the mayors of the palace towards the close of the sixth, and the commencement of the seventh century. They often changed their names into barbaric names. Thus the brother of Duke Lupus, born a Roman, called himself _Magn-Wulfus _(great wolf), and his son, who was bishop of Rheims, he called _Rom-Wulfus_ (Roman wolf). These Romans entered into the company of the Leudes because they needed the protection of the kings; because they were disposed to place what power they had in his service; because they were acquainted with the country, and knew that the king required them; because, lastly, the kings, when they embraced Christianity, became reconciled to many wealthy and influential Gauls.

Bishops, and the principal heads of monasteries, or of large ecclesiastical corporations, were reckoned among the number of the king's Leudes. The power of the bishops among the Gauls, before the arrival of the Germans, is proved directly by facts; their influence, their wealth, is proved indirectly by the eagerness with which the position of a bishop was sought. Their importance was greatly augmented after the establishment of the Barbarians. They protected the ancient inhabitants from the Barbarian kings, and served the latter by their power in governing the ancient inhabitants.

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Power Of The Bishops.

They, and scarcely any but they, had preserved some science, some intellectual culture; the influence of religious ideas and practices over the converted barbarians was powerful; the impressions formed were strong and vivid at that stage of civilization: the clergy could excite the imagination, could tranquillize or alarm the conscience. The bishops and heads of monasteries acquired, through a large number of sources, great wealth; they in process of time became large beneficiaries; most of the property given to churches were given as benefices, and consequently involved the obligations belonging to that title; some property was conferred "with the complete right of proprietorship." In 807, Charlemagne charged his son Pepin to prevent the dukes and counts to whom the government of the provinces had been committed, from exacting from churches all the services due in general from free men. In 816, Louis the Debonnair provided that each church should possess a farm absolutely free from all charge. Facts disclose at every step the importance of the bishops; they were employed in important transactions, and assisted in drawing up laws. Counts, dukes, large Barbarian proprietors, became bishops. The temporal consequences attached to ecclesiastical excommunication did not fail to put into their hands a powerful weapon of attack or defence. Churches obtained immunities of all kinds, from military service, rights of custom, &c.; they became asylums of refuge--a popular right which, during these times of brute violence, far more generally protected the innocent than shielded the guilty.

The nomination of bishops was an ancient right of the priests and the faithful. The importance of these functions, and the riches of the churches, induced the king to encroach upon this prerogative. Further, they urged some kind of claim to it, as being lords of the churches on which they had conferred benefices. They used the right of confirmation in order to possess themselves of the right of nomination. At first, bishops were the most sure and devoted Leudes of the king; kings and bishops had need of one another. Very soon afterwards the bishops became so powerful as to be able to act independently of the kings.

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At this epoch convents also assumed great importance, although their heads do not seem to have played so prominent a part in Prance as in England.

Upon the whole, the power of the clergy at this period was as useful as it was great. It awakened and developed moral necessities among the Barbarians;--it commanded and inspired a respect for the rights and sufferings of the feeble;--it gave an illustration of the reality of moral force, when everything was at the disposal of material force. That is a false notion which assumes that an institution or an influence is to be attacked by reason of the evil effects which it may produce after centuries of existence; we must consider and appreciate it in the times when it was originally formed.

Free Men.

From the Leudes, let us pass to those who were simply free men.