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 16

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.

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 in difference they were indebted to that want of foresight which is natural to un-civilized 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.1

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 un-trustworthy.

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

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. 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.

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.

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.

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.

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:

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 thewehrgeld of every man, whether he be a slave or a freeman, a Barbarian or a Roman. The elements of the wehrgeld are very numerous; it varies according to places and times. The Roman, the tributary, the slave, according to circumstances, may be valued at a greater or a less sum than a barbarian free man. We see many general indications which serve to show that the Roman was commonly less esteemed than a barbarian, the tributary or the slave less than the free man. This is very easily accounted for, and might have been anticipated. But it is not on this account less difficult to draw from such facts a positive indication of the state of individuals—a precise and complete classification of social conditions.

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

[1. ]Here Guizot argues that true liberty cannot exist in the infancy of societies when individuals struggle to maintain and assert their independence. In his view, true liberty cannot be secured in the absence of a genuine and stable political society which alone can provide guarantees for the continuance of individual liberties. That is why liberties can only be safeguarded by the institutions and principles of representative government; to use Guizot’s own words, “liberty cannot exist except by the possession of rights. . . . Where liberties are not rights, and where rights are not powers, neither rights nor liberties exist” (ibid., pp. 177, 331). This idea looms large in Guizot’s thought and should be related to his definition of liberty. In Lecture 19, he distinguished between two ways in which we usually conceive of 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” (ibid., p. 134).