THIRD LECTURE.

Of the amalgamation of sovereignty and property, the second characteristic of the feudal system-True meaning of this fact-Its origin-It comes neither from the Roman society nor from the German band-Is it the result of conquest only ?-Of the system of feudal publicists on this subject-Two forms of society in Germany, the tribe and the band -Social organization of the tribe-Domestic sovereignty is there distinct from political sovereignty-Twofold origin of domestic sovereignty among the ancient Germans-It arose from family and from conquestWhat became of the organization of the German tribe, and especially of domestic sovereignty after the establishment of the Germans in Gaul -What it retained of the family spirit gradually diminished; what it retained of conquest became dominant-Recapitulation and true char acter of feudal sovereignty.

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We have studied the first of the great facts which constitute and characterize the feudal system; I mean the special nature of landed property, in its progressive development from the fifth to the tenth century. I now approach the second of these facts, the amalgamation of sovereignty and property.

It is first of all necessary to come to an understanding as to the meaning of these words, and as to the limits of the fact itself. Our business here is solely with the sovereignty of the possessor of the fief in his domains, and over their inhabitants. Beyond the fief, and in his relations with other possessors of fiefs, superior or inferior, and whatever the inequality between them, the lord was not a sovereign. No one in this association possessed the sovereignty. There other principles and other forms prevailed, which we shall study in treating of the third characteristic of the feudal system, that is to say, the hierarchical organization of the general society which the possessors of fiefs formed among themselves.

When I speak of the amalgamation of sovereignty and of property, I repeat that I speak solely of the sovereignty of the possessor of the fief within his own domains, and over their inhabitants not themselves possessors of fiefs.

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The fact thus limited, its certainty is incontestable. the eleventh century, feudalism once well established, the

possessor of the fief, great or small, possessed all the rights of sovereignty in his domains. No external or distant power gave laws there, established taxes, or administered justice; the proprietor alone possessed all this power.

Such, at least in principle and in the common thought, was feudal right. This right was often overlooked, then disputed, and lastly usurped by the superior and powerful lords, among others by the kings. It did not the less exist, nor was it the less claimed as primitive and fundamental. When the publicist friends of feudalism complain that the sovereignty of the simple lords was usurped by great barons, and that of the great barons by kings, they are quite accurate; such was the case. Originally, in the right, in the spirit of the system, each lord exercised the legislative, judicial, and military powers in his domains; he made war, coined money, &c.; in a word, he was a sovereign.

Nothing of the kind existed before the full development of the feudal system immediately after the invasion, in the sixth and seventh centuries. We then see the germ, the first rudiments of feudal sovereignty; but by its side, and even above it, there still exist imperial royalty, military royalty, the Roman administration, the assemblies and jurisdiction of free men. Various powers and systems coexisted and struggled with each other. The sovereignty was not concentred within each fief, and in the hands of its possessor.

How was the fact brought about from the fifth to the tenth century? How were all other sovereignties abolished, or at least effaced, in order to leave only that of the lord within his domain and over its inhabitants?

Assuredly it was not from Roman society that this fact could have taken its origin, for that contained nothing resembling it. So far from sovereignty there being inherent in property, and disseminated, as here, over the face of the country, it was not even politically divided; it resided wholly and completely in the centre of the empire, and in the hands of the emperor. The emperor alone made laws, imposed taxes, possessed the jurisdiction, regulated war and peace, in fact governed, either of himself or by his delegates. The remains of the municipal system still visible in cities, consisted of some administrative privileges, and in a certain degree of independence, which did not extend to the limits of sovereignty. A master, agents, and subjects—such was the entire social organization of the Roman empire, always

excepting slaves, who remained under the domestic jurisdiction.

It is evidently not from the bosom of Roman society that feudal sovereignty could have taken birth.

Nor could it have arisen from the German bands which invaded the Roman empire. There nothing resembling the amalgamation of sovereignty and power can be met with; for property (I mean landed property) is incompatible with the wandering life, and with regard to persons, the chief of such a band possessed no sovereignty over his companions; he had no right to give them laws, to tax them, or of himself to administer justice to them. There reigned common deliberation, personal independence, and a great equality of rights, although the principle of an aristocratical society germinated there, and at a later period was to develop itself.

Did the amalgamation of sovereignty and property take rise from conquest alone? and did the conquerors divide the territory and its inhabitants between them, to reign as sovereign each in his portion, in the sole right of the strongest?

This is what many publicists have believed and maintained. Correctly speaking, in truth, this is the idea which constitutes the basis of the system of all the defenders of the feudal régime, of M. de Boulainvilliers, for example. They do not formally express it; they do not say openly that force alone founded the sovereignty of the possessors of fiefs; but this is their principle, the only possible principle of their theory. The soil had been conquered, and with the soil, the inhabitants; thence the amalgamation of sovereignty and property. Both of them passed, and legitimately passed, to the bravest. Unless M. de Boulainvilliers takes this fact for granted, the whole of his system falls to the ground.

In fact as in right, M. de Boulainvilliers and the publicists of this school are mistaken. The amalgamation of sovereignty and property, that great characteristic of the feudal system, was not so simple, so purely material, so brutal, thus to speak, a fact so foreign both to the organization of the two societies which the invasion brought into contact, the Roman society and the German society, or to the general principles of social organization.

Let us seek its true origin; you will see, I think, that it is more complex, more remote, than the simple right of conquest.

When I spoke, in the last course, of ancient Germany, I

distinguished the two societies, or rather the two modes of social organization, differing in their principles and their results, which were visible there; on the one hand, the tribe or horde, and on the other, the band.

The tribe was a sedentary society, formed of neighboring proprietors, living on the produce of their lands and their herds.

The band was a wandering society, composed of warriors united around a chief, either for some special expedition, or to seek fortune at a distance, and living by pillage.

That these two societies coexisted among the Germans, and were essentially distinct, Cæsar, Tacitus, Ammianus Marcellinus, all the monuments, all the traditions of ancient Germany prove to us. Most of the nations mentioned by Tacitus, whose names fill his treatise Upon the Manners of the Germans, are tribes or confederations of tribes. The greater part of the invasions which ended in the destruction of the Roman empire, especially the first, were effected by wandering bands, who had quitted the German tribes to seek booty and adventures.

The ascendency of the chief over his companions formed the band, and pressed it around him. This was its origin. It was governed by common deliberation; personal independence and warlike equality played a great part in it.

The organization of the tribe was less irregular and less simple.

Its primitive element, its political unity, to speak in the language of publicists, was not the individual, the warrior, but the family, the chief of the family. The tribe, or the portion of the tribe which inhabited the same territory, was composed of families, of the proprietary heads of families established near each other. The proprietary heads of families were its true citizens, the cives optimo jure of the Ro

mans.

The dwellings of the families of the German tribe were not contiguous, and at a distance from the lands to be cultivated, as they are in our towns and villages; each chief of a family was established amidst his own lands; his family, and all who cultivated them with him, whether free or not, relations, laborers, or slaves, were established on them like himself, dispersed here and there, like their dwellings, over the face of the domains. The domains of the different chiefs of the family were adjacent, but not their dwellings.

It is in this way that the villages of the Indian tribes are still constructed in North America; in Europe, most of the villages of Corsica, and still nearer to us, at our very door, a large number of the villages of Normandy. There also the dwellings are not contiguous; each farmer, each small proprietor, lives in the midst of his fields, in an enclosure, called masure, mansura, dwelling, the mansus of our ancient docu

ments.

I dwell upon these circumstances, because they arise from the social organization of the tribe, and assist its proper comprehension. The general assembly of the tribe was formed of all the proprietary heads of families. They met, under the direction of the most aged, (grau, grav, the count, become at a later period, the lord,) to discuss together of common affairs, to administer justice upon important occasions, to occupy themselves with religious ceremonies in which the whole tribe was interested, &c. The political sovereignty belonged to this assembly.

By political sovereignty, I mean the government of the general affairs of the tribe. To that, in fact, the jurisdiction of the assembly was confined; it did not penetrate into the domains of the chief of the family; with him no authority had a right to interfere. By title of proprietor and chief of the family, he alone was sovereign there.

In the domains of the proprietary head of a family, and under his authority, lived: 1, his family, properly so called, his children and their families, grouped around him; 2, the laborers who cultivated his lands, some free, others enjoying only a half-freedom. These Coloni held certain portions of his domains from the chief of the family, and cultivated them on their own account, subject to a certain ground-rent. They did not by this acquire any right of property over these lands; yet they and their children established themselves there; they possessed and cultivated them hereditarily. Between them and the proprietary head of the family there were formed those ties which rest upon no title, confer no legal right, and nevertheless are true ties, a moral element of society; 3, after the bond-laborers came the slaves, properly so called, employed either in the house or to cultivate, for the chiefs of the family, those lands which he had not ceded to any one, and which generally lay immediately around his habitation.

Such was the extent of the family, and, so to speak, the