The Online Library of Liberty

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• 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 23

At the commencement of the fifth century the subjects of the Empire were divided into three classes, forming three very distinct social conditions: 1. The privileged classes; 2. The curials; 3. The common people. I speak only of free men.

The privileged class included: 1. The members of the Senate, and all those who were entitled to bear the name of clarissimi; 2. The officers of the palace; 3. The clergy; 4. The cohortal militia, a sort of gendarmerie employed in the maintenance of the internal order of the State, and the execution of the laws; 5. The soldiers in general, whether included in the legions, or in the troops attached to the palace, or in the corps of barbarian auxiliaries. The class of curials comprehended all the citizens inhabiting towns, whether natives or settlers therein, who possessed a certain landed income, and did not belong, by any title, to the privileged class. The common people were the mass of the inhabitants of the towns, whose almost absolute want of property excluded them from a place among the curials.

The privileged members of the first class were numerous, of various rank, and unequally distributed among the five orders of which it was composed; but that which was, in fact, the most important and most sought after of their privileges, that which alone was more valuable than all the rest, was common to the five orders which constituted this class—I mean, exemption from municipal functions and offices.

When we come to treat of the curials, you will learn what was the extent of these duties; but you must first understand clearly who were exempt from them. 1. The whole army, from the lowest cohortalis to the magister equitum peditumve;1 2. The entire body of the clergy, from the simple clerk to the archbishop; 3. It is an easy matter to define the two foregoing classes; but it is not so clear who were the members of the class of senators and clarissimi. The number of the senators was unlimited; the emperor appointed and dismissed them at his will, and could even raise the sons of freedmen to this rank. All those who had filled the principal magisterial offices in the Empire, or who had merely received from the prince the honorary title belonging to those magistratures, were calledclarissimi, and had the right, when occasion required, of sitting in the Senate. Thus the class of clarissimi included all the functionaries of any importance: and they were all appointed and might be dismissed by the emperor.

The body of privileged individuals, then, was composed: 1. Of the army; 2. Of the clergy; 3. Of all the public functionaries, whether employed at the Court and in the palace, or in the provinces. Thus despotism and privilege had made a close alliance; and, in this alliance, privilege, which depended almost absolutely on despotism, possessed neither liberty nor dignity, except perhaps in the body of the clergy.

This privilege, and especially exemption from curial functions, was not purely personal, but also hereditary. It was so, in the case of military men, on condition that the children also should embrace the profession of arms; and in the case of civilians, it was continued to those children who were born since their fathers had belonged to the class of clarissimi, or had occupied posts in the palace. Among the classes exempt from curial functions was the cohortal militia, a subaltern service to which those who entered it were hereditarily bound, and from which there was no means of passing into a superior class.

The class of curials comprehended all the inhabitants of the towns, whether natives thereof, municipes, or settlers therein, incolae, who possessed a landed property of more than twenty-five acres, jugera, and did not belong to any privileged class. Members of the curial class became so either by origin, or by appointment. Every child of a curial was a curial also, and liable to all the charges attached to that quality. Every inhabitant who, by trade or otherwise, acquired a landed property of more than twenty-five acres, might be summoned to enter the curia, and could not refuse to do so. No curial could, by a voluntary act, pass into another condition. They were interdicted from dwelling in the country, entering the army, or engaging in employments which would have liberated them from municipal functions, until they had passed through every curial gradation, from that of a simple member of a curia to the highest civic magistracies. Then alone they might become military men, public functionaries, and senators. The children born to them before their elevation remained curials. They were not allowed to enter the clergy except by granting the enjoyment of their property to any one who agreed to be a curial in their place, or by making a present of their possessions to the curia itself. As the curials were incessantly striving to escape from their bondage, a multitude of laws were passed directing the prosecution of those who had escaped from their original condition, and succeeded in effecting their entrance furtively into the army, the clergy, public offices, or the Senate; and ordaining their restoration to the curia from which they had fled.

The following were the functions and charges of the curials thus con fined, voluntarily or perforce, in the curia. 1. The administration of the affairs of themunicipium, with its expenditure and revenues, either by deliberating thereon in the curia, or by discharging the magisterial offices of the town. In this double position, the curials were responsible not only for their individual management, but also for the necessities of the town, for which they were bound to provide out of their own resources, in case the municipal revenues were insufficient. 2. The collection of the public taxes, also under the responsibility of their private property in case of defaulters. Lands which were subject to the land-tax and had been abandoned by their possessors, were allotted to the curia, which was bound to pay the tax thereon until it had found some one willing to take them offits hands. If it could find no one, the tax on the abandoned land was divided amongst the other estates. 3. No curial could sell the property from which he derived his qualification, without the permission of the governor of the province. 4. The heirs of curials, when not members of the curia, and the widows or daughters of curials, who married men belonging to other classes, were bound to give a fourth part of their goods to the curia. 5. The curials who had no children could not dispose, by will, of more than a fourth of their property: the other three-fourths went, by right, to the curia. 6. They were not allowed to absent themselves from their municipium, even for a limited time, without permission from the judge of the province. 7. When they had withdrawn from their curia, and could not be brought back, their property was con-fiscated to the benefit of their curia. 8. The tax known by the name of aurum coronarium, and which consisted in a sum to be paid to the prince, on the occasion of certain events, was levied on the curials alone.

The only advantages granted to the curials in compensation for these burdens were: 1. Exemption from torture, except in very serious cases. 2. Exemption from certain affictive and dishonouring punishments which were reserved for the populace; such as being condemned to work in the mines, to be burned alive, and so forth. 3. Decurions who had fallen into indigence were supported at the expense of the municipium. These were the only advantages possessed by the curials over the common people, who, on the other hand, enjoyed the benefit that every career was open to them, and that, by entering the army, or engaging in public employments, they might raise themselves at once into the privileged class.

The condition of the curials, then, both as citizens and in relation to the State, was onerous and devoid of liberty. Municipal administration was a burdensome service, to which the curials were doomed, and not a right with which they were invested. Let us now see what was the condition of the curials, not in relation to the State, and to the other classes of citizens, but in the curia and amongst themselves. Here still existed the forms, and even the principles, of liberty. All the curials were members of the curia, and sat therein. The ability to bear the burdens of the office entailed that of exercising its rights, and taking part in its affairs; the names of all the curials of each municipium were inscribed, in an order which was determined according to their dignity, age, and other circumstances, in a book called the album curiae. When there was occasion to deliberate upon any matter, they were all convoked together by the superior magistrate of the town, the duumvir, aedilis or praetor, and they all gave their opinions and their votes; everything was decided by the majority of votes: and no deliberation of the curia was valid unless two-thirds of the curials were present.

The attributes of the curia as a body were: 1. The examination and decision of certain affairs; 2. The appointment of magistrates and municipal officers. Nowhere can I find an enumeration of the affairs which fell under the cognizance of the curia as a body. Everything, however, indicates that most of those municipal interests which required more than the simple execution of the laws or of orders already given, were discussed in the curia. The proper and independent authority of the municipal magistrates appears to have been very limited. For example, there is reason to believe that no expense could be incurred without the authorization of the curia. It fixed the time and place for holding fairs; it alone granted recompenses; and so forth.

There were even occasions on which the authorization of the curia was not sufficient, and when it was necessary to have the sanction of all the inhabitants, whether curials or not; for example, for the sale of any property belonging to the commune, or for the despatch of deputies to wait on the emperor in reference to any grievance or request. On the other hand, it is evident that, by the general progress of despotism, the imperial power continued daily to interfere more and more in the affairs of the municipia, and to limit the independence of the curiae. Thus they might not erect new buildings without the permission of the governor of the province; the reparation of the walls around the towns was subject to the same formality; and it was also necessary for the emancipation of slaves, and for all acts which tended to diminish the patrimony of the city. By degrees, also, even those affairs the final decision of which had previously belonged to the curiae fell, by way of objection or appeal, under the authority of the emperor and his delegates in the provinces. This occurred in consequence of the absolute concentration of judicial and fiscal power in the hands of the imperial functionaries. The curia and the curials were then reduced to be nothing more than the lowest agents of the sovereign authority. There was left to them hardly anything beyond the right of consultation and the right of complaint.

With regard to the appointment to municipal magistracies, it remained for a long time, in reality, in the hands of the curia, without any necessity for its confirmation by the governor of the province, except in exceptional cases of towns which it was specially intended to ill-use or punish. But even this right soon became illusory by reason of the power given to provincial governors to annul the appointment on the demand of the person elected. When municipal functions had become merely burdensome, all the curials elected to discharge these offices, who had any influence with the governor, were able, under some pretext or another, to get their election annulled, and thus to escape from the load.

There were two kinds of municipal offices: the first, called magistratus, which conferred certain honours and a certain jurisdiction; the second, calledmunera, simple employments without jurisdiction and without any particular dignity. The curia appointed to both kind of offices; only the magistrates proposed the men whom they thought competent to fulfil the munera; but even these were not really appointed until they had obtained the suffrages of thecuria.

The magistratus were: 1. Duumvir; this was the most usual name of the chief municipal magistrate. He was also called, in certain localities, quatuorvir, dictator, aedilis, praetor. His tenure of office was for a year; it corresponded pretty nearly with that of our mayors; the duumvir presided over the curia, and directed the general administration of the affairs of the city. He had a jurisdiction con fined to matters of small importance; he also exercised a police authority which gave him the right of inflicting certain punishments upon slaves, and of provisionally arresting freemen. 2. Aedilis; this was a magistrate generally inferior to the duumvir; he had the inspection of public edifices, of the streets, of corn, and of weights and measures. These two magistrates, the duumvir andaedilis, were expected to give public festivals and games. 3. Curator reipublicae; this officer, like the aedile, exercised a certain oversight over public edifices; but his principal business was the administration of the finances; he farmed out the lands of the municipium, received the accounts of the public works, lent and borrowed money in the name of the city, and so forth.

The munera were: 1. Susceptor, the collector of taxes, under the responsibility of the curials who appointed him. 2. Irenarchae, commissaries of police, whose duty it was to seek out and prosecute offences, in the first instance. 3. Curatores, officers charged with various particular municipal services; curator frumenti,curator calendarii, the lender out on good sureties of the money of the city, at his own risk and peril. 4. Scribae, subaltern clerks in the two offices. To this class belonged the tabelliones, who performed almost the same functions as our notaries.

In later times, when the decay of the municipal system became evident, when the ruin of the curials and the impotence of all the municipal magistrates to protect the inhabitants of the cities against the vexations of the imperial administration, became evident to despotism itself; and when despotism, suffering at length the punishment of its own deeds, felt society abandoning it on every side, it attempted, by the creation of a new magistracy, to procure for themunicipia some security and some independence. A defensor was given to every city; his primitive mission was to defend the people, especially the poor, against the oppression and injustice of the imperial officers and their agents. He soon surpassed all the other municipal magistrates in importance and influence. Justinian gave the defenders the right to exercise, in reference to each city, the functions of the governor of the province during the absence of that officer; he also granted them jurisdiction in all cases which did not involve a larger sum than 300 aurei. They had even a certain amount of authority in criminal matters, and two apparitors were attached to their person; and in order to give some guarantees of their power and independence, two means were employed; on the one hand, they had the right of passing over the various degrees in the public administration, and of carrying their complaints at once before the praetorian prefect; this was done with the intention of elevating their dignity by freeing them from the jurisdiction of the provincial authorities. On the other hand, they were elected, not by the curia merely, but by the general body of the inhabitants of themunicipium, including the bishop and all the clergy; and as the clergy then alone possessed any energy and influence, this new institution, and consequently all that still remained of the municipal system, fell into its hands almost universally. This was insufficient to restore the vigour of the municipia, under the dominion of the empire; but it was enough to procure for the clergy great legal influence in the towns after the settlement of the Barbarians. The most important result of the institution of defenders was to place the bishops at the head of the municipal system, which otherwise would have dissolved of itself, through the ruin of its citizens and the nullity of its institutions.

Such are the facts: they demonstrate the phenomenon which I indicated at the outset, namely, the destruction of the middle class in the empire; it was destroyed materially by the ruin and dispersion of the curials, and morally by the denial of all influence to the respectable population in the affairs of the State, and eventually in those of the city. Hence it arose that, in the fifth century, there was so much uncultivated land and so many towns almost deserted, or inhabited only by a famished and spiritless population. The system which I have just explained contributed, much more powerfully than the devastations of the Barbarians, to produce this result.

In order rightly to apprehend the true character and consequences of these facts, we must reduce them to general ideas, and deduce therefrom all that they contain in regard to one of the greatest problems of social order. Let us first examine them on the relations of the municipal system with political order, of the city with the State. In this respect, the general fact which results from those which I have stated, is the absolute separation of political rights and interests from municipal rights and interests; a separation equally fatal to the political rights and interests, and to the municipal rights and interests of citizens. So long as the principal citizens possessed, at the centre of the State, real rights and an actual influence, the municipal system was not wanting in guarantees of security, and continued to develop itself. As soon as the principal citizens lost their influence at head quarters these guarantees disappeared, and the decay of the municipal system was not long in manifesting itself.

Let us now compare the course of things in the Roman world, with what has occurred in the modern states. In the Roman world, centralization was prompt and uninterrupted. In proportion as she conquered the world, Rome absorbed and retained within her walls the entire political existence of both victors and vanquished. There was nothing in common between the rights and liberties of the citizen, and the rights and liberties of the inhabitant; political life and municipal life were not confounded one in the other, and were not exhibited in the same localities. In regard to politics, the Roman people had, in truth, only one head; when that was stricken, political life ceased to exist; local liberties then found themselves unconnected by any bond, and without any common guarantee for their general protection.

Among modern nations, no such centralization has ever existed. On the contrary, it has been in the towns, and by the operation of municipal liberties, that the mass of the inhabitants, the middle class, has been formed, and has acquired importance in the State. But when once in possession of this point of support, this class soon felt itself to be in straits, and without security. The force of circumstances made it understand that, so long as it was not raised to the centre of the State, and constitutionally established there; so long as it did not possess, in political matters, sights which should prove the development and pledge of those which it exercised in municipal affairs—these last would be insufficient to protect it in all its interests, and even to protect themselves. Here is the origin of all the efforts which, from the thirteenth century onwards, either by States General or Parliaments, or by more indirect means, were made for the purpose of raising the burghers to political life, and associating with the rights and liberties of the inhabitant, the rights and liberties of the citizen. After three centuries of endeavour, these efforts were unsuccessful. The municipal system was unable to give birth to a political system which should correspond with it and become its guarantee. The centralization of power was effected without any centralization of rights. Thenceforward the municipal system proved weak and incapable of defending itself; it had been formed in spite of feudal domination; it was unable to exist in presence of a central authority, and in the midst of administrative monarchy. The towns gradually lost, obscurely and almost unresistingly, their ancient liberties. No one is ignorant that, at the moment when the French revolution broke out, the municipal system in France was nothing more than a vain shadow, without consistency or energy.

Thus although, in the Roman world and amongst ourselves, matters have progressed in inverse proportion, although Rome began by the centralization of public liberties, and modern States by municipal freedom, in both cases facts alike reveal to us the double truth that the two orders of liberties and rights are indispensable to one another, that they cannot be separated without mutual injury, and that the ruin of one necessarily entails the ruin of that which at first survives.

A second result of no less importance is revealed to us by the same facts. The separation of the municipal from the political system led, in the Roman empire, to the legal classification of society and to the introduction of privilege. In modern States, an analogous classification and the presence of aristocratic privileges prevented the municipal system from raising itself to political influence, and from producing the rights of the citizen from the local rights of the inhabitant. Where, then, municipal and political life are strangers to one another, where they are not united in the same system and bound together in such a manner as reciprocally to guarantee each other’s security, we may be certain that society either is or soon will be divided into distinct and unchangeable classes, and that privilege either already exists or is about to make its appearance. If the burgesses have no share in the central power, if the citizens who exercise or share in the central power do not at the same time participate in the rights and interest of the burgesses, if political and municipal existence proceed thus collaterally, instead of being, as it were, included in each other, it is impossible for privilege not to gain a footing, even beneath the iron hand of despotism and in the midst of servitude.

If from all this we desire to deduce a still more general consequence, and to express it in a purely philosophical form, we shall acknowledge that, in order that right may certainly exist in any place, it must exist everywhere, that its presence at the centre is vain unless it be present also in localities; that, without political liberty, there can be no solid municipal liberties, and vice versa. If, however, we consider the facts already stated in reference to the municipal system taken in itself and in its internal constitution; if in these facts we look for principles—we shall meet with the most singular amalgamation of the principles of liberty with those of despotism; an amalgamation, perhaps unexampled, and certainly inexplicable to those who have not well understood the course of circumstances, both in the formation and in the decline of the Roman world.

The presence of principles of liberty is evident. They were these. 1. Every inhabitant possessing a fortune which guaranteed his independence and intelligence, was a curial; and, as such, called upon to take part in the administration of the affairs of the city. Thus, the right was attached to presumed capacity, without any privilege of birth, or any limit as to number;2 and this right was not a simple right of election, but the right of full deliberation, of immediate participation in affairs, as far as they related to what occurred in the interior of a town, and to interests which might be understood and discussed by all those who were capable of raising themselves above the cares of individual existence. The curia was not a restricted and select council, it was an assembly of all the inhabitants who possessed the conditions of curial capacity. 2. An assembly cannot administrate—magistrates are necessary. These were all elected by the curia, for a very short time; and they answered for their administration by their private fortune. 3. In circumstances of importance, such as changing the condition of a city, or electing a magistrate invested with vague and more arbitrary authority, the curia itself was not sufficient; the whole body of the inhabitants was called in to take part in these solemn acts.

Who, on beholding such rights, would not think that he saw a small republic, in which municipal and political life were merged in one another, and in which the most democratic rule prevailed? Who would think that a municipality thus regulated formed a part of a great empire, and depended, by narrow and necessary bonds, on a remote and sovereign central power? Who would not, on the contrary, expect to meet with all the outbreaks of liberty, all the agitations and cabals, and frequently all the disorder and violence which, at all periods, characterize small societies thus shut up and governed within their own walls?

Nothing of the kind was the case, and all these principles of liberty were lifeless. Other principles existed which struck them to death. 1. Such were the effects and exactions of the central despotism that the quality of curial ceased to be a right confessedly belonging to all who were capable of exercising it, and became a burden imposed upon all who were able to bear it. On the one hand, the government discharged itself from the care of providing for those public services which did not affect its own interests, and so cast the obligation on this class of citizens; and, on the other hand, it employed them to collect the taxes destined for its use, and made them responsible for the payment thereof. It ruined the curials in order to pay its own functionaries and soldiers; and it granted to its own functionaries and soldiers all the advantages of privilege, in order to obtain their assistance forcibly to prevent the curials from escaping from their impending ruin. Complete nullities as citizens, the curials lived only to be fleeced. 2. All the elective magistrates were, in fact, merely the gratuitous agents of despotism, for whose benefit they robbed their fellow-citizens, until they should be able, in some way or another, to free themselves from this unpleasant obligation. 3. Their election even was valueless, for the imperial delegate in the province could annul it, and they had the greatest personal interest in obtaining this favour from him; in this way also, they were at his mercy. 4. Lastly, their authority was not real, for it had no sanction. No effective jurisdiction was allowed them; they could do nothing that might not be annulled. Nay, more: as despotism daily perceived more clearly their impotence or ill-will, it daily encroached further upon the domain of their attributes, either by its own personal action, or by its direct delegates. The business of the curia vanished successively with its powers; and a day was not far distant when the municipal system would be abolished at a single stroke in the rapidly decaying empire, “because,” the legislator would say, “all these laws wander, in some sort, vaguely and objectless about the legal territory.”

Thus, the municipal power, having become completely estranged from political and civil power, ceased to be a power itself. Thus, the principles and forms of liberty, isolated remains of the independent existence of that multitude of towns which were successively added to the Roman empire, were impotent to defend themselves against the coalition of despotism and privilege. Thus, here also, we may learn what so many examples teach us; namely, that all the appearances of liberty, all the external acts which seem to attest its presence, may exist where liberty is not, and that it does not really exist unless those who possess it exercise a real power—a power, the exercise of which is connected with that of all powers. In the social state, liberty is participation in power; this participation is its true, or rather its only, guarantee. Where liberties are not rights, and where rights are not powers, neither rights nor liberties exist.

We must not, therefore, be surprised either at that complete disappearance of the nation which characterized the fall of the Roman empire, or at the influence which the clergy soon obtained in the new order of things. Both phenomena are explained by the state of society at that period, and particularly by that state of the municipal system which I have just described. The bishop had become, in every town, the natural chief of the inhabitants, the true mayor. His election, and the part which the citizens took in it, became the important business of the city. It is to the clergy that we owe the partial preservation, in the towns, of the Roman laws and customs, which were incorporated at a later period into the legislation of the State. Between the old municipal system of the Romans, and the civil-municipal system of the communes of the Middle Ages, the ecclesiastical municipal system occurred as a transition. This transition state lasted for several centuries. This important fact was nowhere so clearly and strongly developed as in the monarchy of the Visigoths in Spain.

[1. ]Chief of horsemen or foot-soldiers.

[2. ]The notion of capacity (capacité) plays a central role in Guizot’s political philosophy and his conception of representative government. In his view, political capacity requires a certain degree of wealth, education, independence, intellectual maturity, reason, and liberty and is defined as “the capacity to act according to reason and justice” (HORG, p. 61). This principle of distinction was predicated on a twofold assumption: (1) electors must have certain qualities in order to be allowed to vote; (2) elected representatives should be highly distinguished citizens who have a stake in the preservation of the social order. On this view, only those who possess a certain amount of wealth and education could be free from dependence on the will of others. They alone were considered capable of developing a sound, enlightened, and free political judgment, since they were free to dispose of their person and wealth and were in a position to rise to some ideas of social interest. Finally, it is important to note that Guizot and the other doctrinaires did not conceive of political capacity as a form of aristocratic inheritance. They insisted that limited suffrage was not supposed to create an oligarchy of wealth, “the most absurd of all types of oligarchies” according to Royer-Collard. For more details, see La vie politique de M. Royer-Collard: ses discours et ses écrits (Royer-Collard’s Political Life: His Discourses and Writings), ed. Prosper de Barante, Vol. I, Paris: Didier, pp. 409–10). As Guizot pointed out, “no one is recognized as possessing an inherent right to an office or a function . . . as soon as the capacity is presumed or proved, it is placed in a position where it is open to a kind of legal suspicion” (HORG, p. 62).