The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Liberty Fund Edition
• Editor’s Note
• Preface
• Part 1: Representative Institutions In England, France, and Spain, From the Fifth to the Eleventh Century
• Lecture I
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25
• Lecture 26
• Part 2: Essays of Representative Government In England, From the Conquest Till the Reign of the Tudors
• Lecture 1
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25

LECTURE 3

In my preceding lecture, I gave a general outline of the decay of the Roman empire, and of the progress of the barbarian invasions; and I enumerated the principal events in the history of the Anglo-Saxons in England. I now come to their institutions, which form the subject of my present lecture.

When we are about to speak of the institutions of a country at any given period, we must first understand what was the state of persons in that country at that period; for words are very deceptive. History, when speaking of the English nation or the Spanish nation, comprises under that name all the individuals who inhabit the country; but when we examine into the real state of the case, we quickly discover that the facts which history applies to an entire country, actually belong only to a very small section of its inhabitants. It is the work of civilization to raise up, from time to time, a greater number of men to take an active part in the great events which agitate the society of which they are members. As civilization advances, it reaches new classes of individuals, and gives them a place in history. The different conditions of society thus tend, not to confusion, but to arrangement, under different forms and in different degrees, in that superior region of society by which history is made.

The first question to be solved, then, is that of the state of persons; we must precisely understand which are those classes that really figure in history. Then will occur this other question: What are the institutions in accordance with which that political nation acts, which alone furnishes subject-matter for history?1

When we address the first question to antiquity, we find, as in Modern Europe, one great classification: freemen and slaves. But there is this difference that, in antiquity, slavery continued stationary and immutable. Its unchangeableness in this particular, was one of the principal characteristics of ancient civilization. Individuals were emancipated; but the great mass of slaves remained in bondage, everlastingly condemned to the same social nonentity. In Modern Europe, social conditions have been in a state of perpetual fluctuation; numerous masses of men have fallen into slavery, while others have emerged there-from; and this alternation of liberty and servitude is a novel and important fact in the history of civilization.

What was the condition of persons among the Anglo-Saxons? Here, as elsewhere, we at first perceive the two great divisions of freemen and slaves. The freemen, who are the only active elements in history, were divided into two classes, thanes and ceorls. The thanes were the proprietors of the soil, which was entirely at their disposal: hence the origin of freehold tenure. The ceorls were men personally free, but possessing no landed property. The thanes were subdivided into two classes; king’s thanes, and inferior thanes. This distinction is not merely a historical fact; the laws recognize these two divisions. The composition for the life of a king’s thane was twelve hundred shillings, while for that of an inferior thane it was only six hundred. Here, as in other states which came into existence at this epoch, punishment was made proportionate, not only to the gravity of the offence, but also to the rank of the person injured. By the substitution of an indemnity for retaliation, a step was taken by these peoples towards social justice. Early ideas of justice inflict evil for evil, injury for injury; but the highest point of its perfection is that decision of society which, embodying supreme reason and power, judges the actions of men accused of crimes, and acquits or condemns them in the name of the Eternal Justice. In the sixth century, society did not inflict punishment; life, like everything else, had its price; and this price was shared between the family of the dead man, the king, and the judge. The penalty of crime was as yet only the price paid for the renunciation of the right of revenge which belonged to every free man. Individuals who were injured, either in the possession of their goods, or in the life of their relatives, received a fixed composition from the guilty person.

I have pointed out the legal distinction which subsisted between the king’s thanes and the inferior thanes; but when we seek to discover what constituted the real difference of their condition, we find that this difference was very vague, and belonged to the time when they all led a nomadic life, rather than to their settled agricultural existence. In Germany, or on leaving Germany, bands, more or less numerous, united themselves to the company of some particular chief or king. After the conquest of a country, those chiefs who were nearest the king found themselves in a most favourable position for becoming large landed proprietors. These were called king’s thanes, because they belonged to the royal band. But there was nothing to separate them essentially from the other thanes. To be a king’s thane, it was necessary to possess about forty or fifty hides of land.* Bishops and abbots were admitted into this class. The inferior thanes were proprietors possessing less land, but able to dispose just as freely of their property as the king’s thanes. Some writers have asserted that the king’s thanes were the nobles, and that the others were simple freemen. An attentive examination of Anglo-Saxon institutions will prove that there was no such difference of position and rights between the two classes. It is a great error to expect to meet with clearly defined ranks and conditions, at the origin of society. Some writers, however, pretend to discover at the outset what time alone can introduce. We meet with no nobility, constituting a superior social condition, with recognized privileges: we perceive only the causes which will progressively form a nobility, that is, will introduce inequality of power and the empire of the strong. The formation of a class of nobles has been the work of ages. An actual superiority, transmitted from father to son, has gradually assumed the form and characteristics of a right. When societies have not been long in existence, we do not find in them social conditions thus distinctly marked, and the royal family is the only one that can, with any reason, be termed noble. It generally derives its title from some religious filiation; for instance, among nearly all the peoples of the north, in Denmark, in Norway, and in England, the kings descended from Odin; and their divine origin gave high sanction to their power.

Other writers have held that the relations which subsisted between the king’s thanes and the inferior thanes were of a different nature, corresponding to the feudal relations of lords and vassals. The king’s thanes, they say, were vassals of the king; the inferior thanes were vassals of the king’s vassals. We may certainly discover, in the connection of these two classes of men, some of the characteristics of feudalism. But feudalism, such as was established on the Continent as well as in England, after the conquest by William of Normandy, consisted essentially in the simultaneous hierarchy of lands and persons. Such were not the rudiments of feudalism discernible among the Anglo-Saxons. As yet, the only hierarchy existing among them was of persons. All the thanes held their lands in an equally free and independent manner. At a later period, feudalism received a more complete development; from the hierarchy of persons proceeded that of lands, and the latter soon predominated over the former. But this result was not manifested until after the Norman conquest. Before that period, there were no vassals properly so called, although the word vassus occurs in a biography of King Alfred. The causes which led to the subordination of persons, independently of their connection with land, are simple and may easily be conceived. When the barbarian chieftains entered the Roman territory, they possessed an influence over their companions which they endeavoured to retain after their settlement. The Saxon laws, with a view to bring this rude and floating state of society into an orderly state, provided for the maintenance of this primitive hierarchy; and compelled every freeman who had attained the age of twelve years, to enrol himself in some corporation of individuals, in a tithing or a hundred, or else to place himself under the patronage of a chieftain. This bond was so strong that the person who made the engagement could not absent himself without the permission of the captain of his corporation, or of his chieftain. A foreigner even might not remain forty days on the English soil without enrolling himself in this manner. This spirit of subordination, this obligation of discipline, is one of the principal characteristics of Anglo-Saxon legislation. All those kings who, after long-continued disorders, were desirous to reorganise society, exerted themselves to restore to vigorous operation these laws of police and classification. They have been attributed to Alfred, but he merely re-enacted them.

In my opinion, then, there is no legitimate ground for the doctrine that the relation of the king’s thanes to the inferior thanes, was a feudal relation. It was the natural relationship which necessarily arose, at the origin of society, between the various degrees of power and wealth. The poor and the weak lived under the surveillance and protection of those who were richer and more powerful.

As I have already observed, the freemen were divided into two classes—thanes and ceorls. I shall now speak of the second class. The ceorls were freemen who lived on the estates of the thanes, and cultivated them. Their free condition has been called in question, wrongly, as I think, for various reasons: 1st. The composition for the life of a ceorl was two hundred shillings, and the characteristic mark of his liberty is that a portion of this composition was paid to his family, and not to the proprietor of the estate on which he lived; whereas, the composition for the life of a slave was always paid to his owner. 2nd. In the early times of the Saxon monarchy, the ceorls were able to leave the land which they cultivated, whenever they pleased; by degrees, however, they lost this liberty. 3rd. They had the right of bearing arms, and might go to war; whereas, slaves did not possess this right. When Earl Godwin attacked King Edward, he armed all the ceorls on his estates; and, at the time of the Danish invasions, the ceorls fought in defence of their country. 4th. They were also capable of possessing property, and when they owned five hides of land they passed into the class of thanes, as did also merchants who had made three voyages to foreign lands. Hence the origin of the English yeomanry. The yeoman is the freeholder, who, possessing an income of forty shillings from land, votes at county elections, and may sit on juries; probus et legalis homo.2 5th. The ceorls were admitted to give evidence, only, it is true, in matters which had reference to persons of their own class: whereas slaves did not possess this right. 6th. Nearly all the ceorls were Saxons: we find in a canon of the clergy of Northumberland, that a ceorl accused of a crime, must bring forward as witnesses twelve ceorls and twelve Britons. The ceorls, then, were Saxons, and were distinguished from the ancient inhabitants of the country. It is impossible that so large a proportion of the conquerors should have fallen so quickly into servitude. We may rather feel astonished that they had no landed property in the country, which they had just conquered. But Tacitus, with the accustomed truthfulness and vigour of his pencil, makes us readily understand this circumstance. In the forests of Germany, the barbarian warriors always lived around their chieftains, who had to suggest and command expeditions in times of activity, and to lodge and support their men in times of repose. The same habits were kept up after the conquest of a country; the property acquired was not divided among all the victors. Every chieftain received a larger or smaller division of land, and his followers settled with him upon it. These men, accustomed to a wandering life, did not yet set a high value upon landed property. Being still harassed, moreover, by the ancient possessors of the soil, they found it necessary to keep together, and unite in their own defence. They formed species of camps around the dwelling of their chieftain, whose possessions, according to the ancient Saxon laws, were divided into two parts—inlands and outlands. And it is clear proof of the great difference then existing between the ceorls and the slaves, that the latter alone cultivated the land adjoining the habitation of the chief, while the ceorls, as a natural consequence of their personal freedom, tilled the outlands. This state of things, however, could not last long. A large number of the ceorls fell into servitude, and assumed the name of villeins (villani); while others acquired lands for themselves, and became the soc-men of England.

Summing up what we have said, we perceive, in the state of persons under the Anglo-Saxon monarchy, one great division into freemen and slaves: and, among the freemen, another distinction of thanes and ceorls. The thanes themselves are subdivided into king’s thanes and inferior thanes. The former are large landed proprietors, the latter hold smaller estates: but both classes possess equal rights. The ceorls are freemen, without landed property, at least originally. Most of them fall into a state of servitude. With regard to the slaves, we can say nothing except that they were very numerous, and were divided into domestic servants and rural serfs, or serfs of the glebe. The ancient inhabitants of the country did not all fall into servitude; some of them retained their possessions, and a law of King Ina authorized them to appear before courts of justice. They might even pass into the class of thanes if they possessed five hides of land.

The thanes alone, to speak truly, played an active part in history.

Passing now to the institutions which connected and governed these different classes, we find them to be of two kinds; central institutions, entirely in the hands of the thanes, the object of which was to secure the intervention of the nation in its own government; and local institutions, which regulated those local interests and guarantees which applied equally to all classes of the community.

At the origin of Anglo-Saxon society, there existed none but local institutions. In these are contained the most important guarantees for men whose life never goes beyond the boundaries of their fields. At such epochs, men are as yet unacquainted with great social life; and as the scope of institutions always corresponds to the scope of the affairs and relations to which they have reference, it follows that when relations are limited, institutions are equally so. They continue local, because all interests are local; there are very few, if any, general taxes and affairs of public concern; the kings live, like their subjects, on the income derived from their estates. The proprietors care little about what is passing at a distance. The idea of those great public agencies which regulate the affairs of all men, does not belong to the origin of societies. By degrees, in the midst of the chaos of the rising society, small aggregations are formed which feel the want of alliance and union with each other. They establish amongst themselves an administration of justice, a public militia, a system of taxation and police. Soon, inequality of strength is displayed among neighbouring aggregations. The strong tend to subjugate the weak, and usurp, at first, the rights of taxation and military service. Thus, political authority leaves the aggregations which first instituted it, to take a wider range. This system of centralization is not always imposed by force: it sometimes has a more legitimate cause. In times of difficulty, a superior man appears who makes his influence first felt in the society to which he belongs. When attacked, the society intrusts him with its defence. Neighbouring societies follow this example; soon the powers granted in time of war are continued in time of peace, and remain concentrated in a single hand. This victorious power retains the right to levy men and money. These are the rights of which the movement of centralization first deprives small local societies; they retain for a longer period the rights of administering justice, and establishing police regulations; they may even retain them for a very long while, and England offers us many such examples.

The preponderance of local institutions belongs to the infancy of societies.3 Civilization incessantly tends to carry power still higher; for power, when exercised from a greater distance, is generally more disinterested, and more capable of taking justice and reason for its sole guides. But frequently also, as it ascends, power forgets its origin and final destiny; it forgets that it was founded to maintain all rights, to respect all liberties; and meeting with no further obstacles from the energy of local liberties, it becomes transformed into despotism. This result is not, however, necessary and fatal; society, while labouring for the centralization of authority, may retain, or regain at a later period, certain principles of liberty. When central institutions have obtained too absolute a prevalence, society begins to perceive the defects inherent in an edifice which is detached, as it were, from the soil on which it stands. Society then constructs upon itself the exact opposite of what it built before; looks narrowly into the private and local interests of which it is composed; duly appreciates their necessities and rights; and, sending back to the different localities the authorities which had been withdrawn therefrom, makes an appropriate distribution of power. When we study the institutions of France, we shall be presented with the greatest and clearest example of this double history. We shall perceive the great French society formed from a multitude of little aggregations, and tending incessantly to the concentration of the different powers contained within it. One great revolution almost entirely destroyed every vestige of our ancient local institutions, and led to the centralization of all power. We now suffer from the excesses of this system; and having returned to just sentiments of practical liberty, we are desirous to restore to localities the life of which they have been deprived, and to resuscitate local institutions, with the concurrence and by the action of the central power itself. Great oscillations like these constitute the social life of humanity, and the history of civilization.

[1. ]Guizot’s ideas on the relation between the social and the political order had a profound impact on Tocqueville. Guizot emphasized the role of “the habits of the heart”—mores, customs, and laws—as well as their impact on the development of political institutions. The seminal point made by Guizot is that it is necessary to study first society, its composition, mores, and the relations between the different classes and properties in order to understand the nature of political institutions. He also addressed the same topic in his Essays on the History of France, originally published in 1823.

[* ]A hide of land was about 120 acres.

[2. ]Upright and lawful man.

[3. ]Guizot emphasized the importance of local institutions as safeguards of individual freedom and argued that, without local (municipal) institutions, there can be no liberties. Moreover, he considered the predominance of the municipal form and spirit to be the most important legacy of the ancient Roman civilization and went as far as to praise the barbarians’ keen sense of individual independence (for an extensive discussion of this topic, see HORG, pp. 156–60). Nonetheless, Guizot argued that, in the infancy of the European civilization, when the principle of individuality reigned supreme, the local assemblies and institutions did not contain the true principle of representative government, because they were based upon the principle of individual right. In Guizot’s view, the progress of civilization also implied a trend toward centralization; it is important to note that the tension between centralization and decentralization was a major theme in Guizot’s writings.