Chilperic. Childebert sends ambassa- nor teams of oxen, etc- dors to tell him that he should not give THE SPIRIT OF LAWS No doubt but these barbarians retained in their respective conquests the manners, incHnations, and usages of their own country; for no nation can change in an instant their manner of thinking and acting. These people in Germany neglected agriculture. It seems by Caesar and Tacitus that they applied themselves greatly to a pastoral life; hence the regulations of the codes of barbarian laws almost all relate to their flocks. Roricon, who wrote a history among the Franks, was a shep- herd.fe 7. — Diiferent Ways of dividing the Land After the Goths and Burgundians had, under various pre- tences, penetrated into the heart of the empire, the Romans, in order to put a stop to their devastations, were obliged to provide for their subsistence. At first they allowed them corn; I but afterwards chose to give them lands. The em- perors, or the Roman magistrates, in their name, made par- ticular conventions with them concerning the division of lands,w as we find in the chronicles and in the codes of the Visigoths n and Burgundians.o The Franks did not follow the same plan. In the Salic and Ripuarian laws, we find not the least vestige of any such divi- sion of lands; they had conquered the country, and so took what they pleased, making no regulations but among them- selves.
Let us, therefore, distinguish between the conduct of the Burgundians and Visigoths in Gaul, of those same Visigoths in Spain, of the auxiliary troops under Augustulus and Odo- acer in Italy,/» and that of the Franks in Gaul, as also of the Vandals in Africa.9 The former entered into conventions with the ancient inhabitants, and in consequence thereof made a division of lands between them; the latter did no such thing.
k Nothing definite is known concern- toribus diviserunt." — Marius's " Chroning this Roricon; and his works are icle " in the year 456.
rathei- reveries and fables than any- n Book X. tit. i, sees. 8, 9, and 16.
thing else. See the article in " Mer- oChap. liv. sees, i and 2. This dicure " for October, 1741. — Ed. vision was still subsisting in the time / The Romans obliged themselves to of Louis the Debonnaire, as appears by this by treaties. See Zosimus V upon his capitulary of the year 829, which the distribution of corn demanded by has been inserted in the law of the Alaric. — Ed. Burgundians, tit. 79, sec. i.
m " Burgundiones partem Galliae oc- p See Procopius, " War of the Goths."
cuparunt, terrasque cum Gallicis sena- q Ibid., " War of the Vandals."
176 MONTESQUIEU 8. — The same Subject continued What has induced some to think that the Roman lands were entirely usurped by the barbarians is, their finding in the laws of the Visigoths and the Burgundians that these two nations had two-thirds of the lands; but this they took only in certain quarters or districts assigned them.
Gundebald says, in the law of the Burgundians, that his peo- ple at their establishment had two-thirds of the lands allowed, them; r and the second supplement to this law notices that only a moiety would be allowed to those who should hereafter come to live in that country.^ Therefore, all the lands had not been divided in the beginning between the Romans and the Bur- gundians.
In those two regulations we meet with the same expressions in the text, consequently they explain one another; and as the latter cannot mean a universal division of lands, neither can this signification be given to the former.
The Franks acted with the same moderation as the Burgun- dians; they did not strip the Romans wherever they extended their conquests. What would they have done with so much land? They took what suited them, and left the remainder.
9. — A just Application of the Law of the Burgundians, and of that of the Visigoths, in relation to the Division of Lands It is to be considered that those divisions of land were not made with a tyrannical spirit; but with a view of relieving the reciprocal wants of two nations that were to inhabit the same country.
The law of the Burgundians ordains that a Burgundian shall be received in an hospitable manner by a Roman. This is agreeable to the manners of the Germans, who, according to Tacitus, were the most hospitable people in the world.
By the law of the Burgundians, it is ordained that the Bur- gundians shall have two-thirds of the lands, and one-third of the bondmen. In this it considered the genius of two nations, and conformed to the manner in which they procured their subr " Licet eo tempore quo populus s " Ut non amplius a Burgundionibus noster mancipiorum tertiam et duas qui infra venerunt rcquiratur quam ad terrarum partes accepit," etc. — Law of praesens necessitas fuerit, medietas terthe Burgundians, tit, 54, sec. 1. rae."— Art. n.
THE SPIRIT OF LAWS.177 sistence. As the Burgundians kept herds and flocks, they wanted a great deal of land and few bondmen, and the Romans from their application to agriculture had need of less land and of a greater number of bondmen. The woods were equally divided, because their wants in this respect were the same.* We find in the code of the Burgundians,^ that each barbarian was placed near a Roman. The division, therefore, was not general; but the Romans who gave the division were equal in number to the Burgundians who received it. The Roman was injured least. The Burgundians as a martial people, fond of hunting and of a pastoral life, did not refuse to accept of the fallow grounds; while the Romans kept such lands as were properest for culture: the Burgundian's flock fattened the Ro- man's field.
10. — Of Servitudes The law of the Burgundians notices « that when those peo- ple settled in Gaul, they were allowed two-thirds of the land, and one-third of the bondmen. The state of villanage was, therefore, established in that part of Gaul before it was in- vaded by the Burgundians.'^^ The law of the Burgundians, in points relating to the two nations, makes a formal distinction in both, between the nobles, the free-born and the bondmen.w Servitude was not, there- fore, a thing peculiar to the Romans; nor liberty and nobility to the barbarians.
This very same law says,-*^ that if a Burgundian freed-man had not given a certain sum to his master, nor received a third share of a Roman^ he was always supposed to belong to his master's family. The Roman proprietor was therefore free, since he did not belong to another person's family; he was free, because his third portion was a mark of liberty.
We need only open the Salic and Ripuarian laws to be sat- isfied, that the Romans were no more in a state of servitude among the Franks than among the other conquerors of Gaul.
The Count de Boulainvilliers o is mistaken in the capital • " De Moribus Germanorum." w " Si dentem optimati Burgundioni tAnd in that of the Visigoths. vel Romano nobili excusserit." Tit. 26, « Tit. 54. sec. 1, " et si mediocribus personis V This is confirmed by the whole title ingenuis tarn Burgundionibus quam of the code " de Agricolis et Censitis Romanis."— Ibid. sec. 2.
a Sec Mercure," March, 1784.— Ed.
178 MONTESQUIEU point of his system: he has not proved that the Franks made a general regulation which reduced the Romans into a kind of servitude.
As this author's work is penned without ait, and as he speaks with the simplicity, frankness, and candor of that ancient nobility whence he descends, every one is capable of judging of the good things he says, and of the errors into which he has fallen. I shall not, therefore, undertake to criticise him; I shall only observe, that he had more wit than enlightenment, more enHghtenment than learning; though his learning was not contemptible, for he was well acquainted with the most valuable part of our history and laws.
The Count de Boulainvilliers and the Abbe du Bos b have formed two different systems, one of which seems to be a con- spiracy against the commons, and the other against the nobil- ity. When the sun gave leave to Phaeton to drive his chariot, he said to him, " If you ascend too high, you will burn the heavenly mansions; if you descend too low, you will reduce the earth to ashes; do not drive to the right, you will meet there with the constellation of the Serpent; avoid going too much to the left, you will there fall in with that of the Altar: keep in the middle." c II. — The same Subject continued What first gave rise to the notion of a general regulation made at the time of the conquest was our meeting with an im- mense number of forms of servitude in France, towards the be- ginning of the third race; and as the continual progression of these forms of servitude was not perceived, people imagined in an age of obscurity a general law which was never framed.
Towards the commencement of the first race we meet with an infinite number of freemen, both among the Franks and the Romans; but the number of bondmen increased to that de- gree, that at the beginning of the third race, all the husband- men and almost all the inhabitants of towns had become bond- 6 See M. Thierry in the Introduction Inferius, terras: medio tutissimus to the " Recits Merovingiens." — Ed. ibis.
c " Nee preme, nee summum molire Neu te dexterior tortum deelinet per sethera currum; ad An^uem; Altius ^ressus, coelestia tecta Neve sinisterior pressam rota ducremabis; cat ad Aram; Inter utrumque tene." — Ovid, " Metam." lib. II.
THE SPIRIT OF LAWS 179 men: d and whereas, at the first period, there was very nearly the same administration in the cities as among the Romans, namely, a corporation, a senate, and courts of judicature; at the other we hardly meet with anything but a lord and his bond- men.
When the Franks, Burgundians, and Goths made their sev- eral invasions, they seized upon gold, silver, movables, clothes, men, women, bovs, and whatever the army could car- ry; the whole was brought to one place, and divided among the army.^ History shows, that after the first settlement, that is, after the first devastation, they entered into an agreement \sdth the inhabitants, and left them all their political and civil ri^its. This was the law of nations in those days; they plun- dered everything in time of war, and granted everything in time of peace. Were it not so, how should we find both in the Salic and Burgundian laws such a number of regulations ab- solutely contrary to a general servitude of the people?
But though the conquest was not immediately productive of servitude, it arose nevertheless from the same law of nations which subsisted after the conquest.^ Opposition, revolts, and the taking of towns were followed by the slavery of the inhabi- tants. And, not to mention the wars which the conquering nations made against one another, as there was this peculiarity among the Franks, that the different partitions of the mon- archy gave rise continually to civil wars between brothers or nephews, in which this law of nations was constantly practised, servitudes, of course, became more general in France than in other countries: and this is, I believe, one of the causes of the difference between our French laws and those of Italy and Spain, in respect to the right of seigniories.
The conquest was soon over, and the law of nations then in force was productive of some servile dependences. The cus- tom of the same law of nations, which obtained for many ages, gave a prodigious extent to those servitudes.
Theodoric g imagining that the people of Auvergne were not faithful to him, thus addressed the Franks of his division: d While Gaul was under the dominion f See the " Lives of the Saints."
of the Romans they formed particular g See Gregory of Tours, book III., bodies; these were generally freed-men, for Montesquieu's deviation from the or the descendants of freed-men. actual sense of the writer. — Ed.
e See Gregory of Tours, book II. chap, xxvii. Almoin, book I. chap. xii.
i8o MONTESQUIEU " Follow me, and I will carry you into a country where you shall have gold, silver, captives, clothes, and flocks in abun- dance; and you shall remove all the people into your own country."
After the conclusion of the peace between Gontram and Chilperic the troops employed in the siege of Bourges, having had orders to return, carried such a considerable booty away with them, that they hardly left either men or cattle in the country.^ Theodoric, King of Italy, whose spirit and policy it was ever to distinguish himself from the other barbarian kings, upon sending an army into Gaul, wrote thus to the general:i "It is my will that the Roman laws be followed, and that you re- store the fugitive slaves to their right owners. The defender ol liberty ought not to encourage servants to desert their mas- ters. Let other kings delight in the plunder and devastation of the towns which they have subdued; we are desirous to con- quer in such a manner, that our subjects shall lament their hav- ing fallen too late under our government." It is evident that his intention was to cast odium on the kings of the Franks and the Burgundians, and that he alluded in the above passage to their particular law of nations.
Yet this law of nations continued in force under the second race. King Pepin's army, having penetrated into Aquitaine, returned to France loaded with an immense booty, and with a number of bondmen, as we are informed by the Annals of Metz.y Here might I quote numberless authorities; k and as the public compassion was raised at the sight of those miseries, as several holy prelates, beholding the captives in chains, em- ployed the treasure belonging to the church, and sold even the sacred utensils, to ransom as many as they could; and as sev- eral holy monks exerted themselves on that occasion, it is in the " Lives of the Saints " that we meet with the best explana- tions on the subject.^ And, although it may be objected to the fe See Gregory of Tours, book VI. Longobardoruin,"_ lib. III. cap._ xxx., chap. 31. and lib. IV. cap. i., and the " Lives of i Letter 43, lib. iii. " in Cassiod." the Saints " in the next quotation.
;■ In the year 763. " Innumerabilibus / See the lives of St. Epiphanius, St.
spoliis et captivis totus ille exercitus Eptadius, St. Caesarius, St. Fidolus, St.
ditatus, in Franciam reversus est." Porcian, St. Treverius, St. Eusichius; k See the " Annals " of Fuld, in the and of St. Leger, the miracles of St.
year 739; Paulus Diaconus, " de Gestis Julian, etc.
THE SPIRIT OF LAWS i8i authors of those Hves that they have been sometimes a little too credulous in respect to things which God has certainly per- formed, if they were in the order of his providence; yet we draw considerable light thence with regard to the manners and usages of those times.
When we cast an eye upon the monuments of our history and laws, the whole seems to be an immense expanse, a bound- less ocean;w all those frigid, dry, insipid, and hard writings must be read and devoured in the same manner as Saturn is fabled to have devoured the stones.
A vast quantity of land which had been in the hands of free- men « was changed into mortmain. When the country was stripped of its free inhabitants; those who had a great multi- tude of bondmen either took large territories by force, or had them yielded by agreement, and built villages, as may be seen in different charters. On the other hand, the freemen who cultivated the arts found themselves reduced to exercise those arts in a state of servitude; thus the servitudes restored to the arts and to agriculture whatever they had lost.
It was a customary thing with the proprietors of lands, to give them to the churches, in order to hold them themselves by a quit-rent, thinking to partake by their servitude of the sanctity of the churches.
12. — That the Lands belonging to the Division of the Bar- barians paid no Taxes A people remarkable for their simplicity and poverty, a free and martial people, who lived without any other industry than that of tending their flocks, and who had nothing but rush cot- tages to attach them to their lands,o such a people, I say, must have followed their chiefs for the sake of booty, and not to pay or to raise taxes. The art of tax-gathering was invented later, and when men began to enjoy the blessings of other arts.
The temporary tax of a pitcher of wine for every acre,/* which was one of the exactions of Chilperic and Fredegonda, related only to the Romans. And, indeed, it was not the Franks that tore the rolls of those taxes, but the clei:gy, who in those days m " Deerant quoque littora ponto."— Censitis et Colonis," and the 20th of Ovid, lib. I. the same title.
n Even the husbandmen themselves 0 See Gregory of Tours, book II.
were not all slaves: see the i8th and /> Ibid, book V.
23d law in the code " de AgricoHs et i82 MONTESQUIEU were all Romans.g The burden of this tax lay chiefly on the inhabitants of the towns; r now these were almost all inhabited by Romans.
Gregory of Tours relates,^ that a certain juige was obliged, after the death of Chilperic, to take refuge in a church, for having under the reign of that prince ordered taxes to be levied on several Franks who in the reign of Childebert were ingenui, or free-bom: " Multos de Francis, qui tempore Childeberti re- gis ingenui fuerant, publico tributo subegit." Therefore the Franks who were not bondmen paid no taxes.
There is not a grammarian but would turn pale to see how the Abbe du Bos has interpreted this passage.^ He observes, that in those days the freedmen were also called ingenui. Upon this supposition he renders the Latin word ingenui, by the words " freed from taxes "; a phrase which we indeed may use in French, as we say " freed from cares," " freed from punish- ments "; but in the Latin tongue such expressions as ingenui a tributis libertini a tributis, manumissi tributorum, would be quite monstrous."
Parthenius, says Gregory of Tours,^' had like to have been put to death by the Franks for subjecting them to taxes. The Abbe du Bos finding himself hard pressed by this passage w very coolly assumes the thing in question; it was, says he, a surcharge.
We find in the law of the Visigoths,J^ that when a barbarian had seized upon the estate of a Roman, the judge obliged him to sell it, to the end that this estate might continue to be tribu- tary; consequently the barbarians paid no land taxes.y The Abbe du Bos,^' who would fain have the Visigoths sub- jected to taxes,a quits the Hteral and spiritual sense of the law, and pretends, upon no other indeed than an imaginary foundaq See Gregory of Tours, book VIII. y The Vandals paid none in Africa. — r "Quae conditio universis urbibus Procopius, " War of the Vandals," lib.
per Galliam constitutis summopere est I. and II. " Historia Miscella." lib.
adhibita."— " Life of St. Aridius." XVI. p. io6. Observe that the cons Book VII. querors of Africa were a mixture of t " Establishment of the French Mon- Vandals, Alans, and Franks. " Historia archy," tom. iii. chap. xiv. p. 515. Miscella." lib. XIV. p. 94. « See Baluzius, ii. p. 187. z " Establishment of the Franks in V Book III. chap, cxxxvi. Gaul," tom. iii. chap. xiv. p. 510. w Tom. iii. p. 514., o He lays a stress upon another law *■ " Judices atque praepositi terras of the Visigoths, book X. tit. i, art. 11, Romanorum, ab illis qui occupatas which proves nothing at all; it says tenent, auferant, et Romanis sua exac- only that he who has received of a lord tione sine aliqua dilatione restituant, ut a piece of land on condition of a rent nihil fisco debeat deperire." — Lib. X. or service ought to pay it. tit. I, cap. xiv.
THE SPIRIT OF LAWS 183 tion, that between the establishment of the Goths and this law, there had been an augmentation of taxes which related only to the Romans. But none but Father Harduin are allowed thus to exercise an arbitrary power over facts.
This learned author b has rummaged Justinian's code/ in search of laws to prove, that among the Romans, the military benefices were subject to taxes. Whence he would infer that the same held good with regard to fiefs or benefices among the Franks. But the opinion that our fiefs derive their origin from that Institution of the Romans is at present exploded; it ob- tained only at a time when the Roman history, not ours, was well understood, and our ancient records lay buried in ob- scurity and dust.
But the abbe is in the wrong to quote Cassiodorus, and to make use of what was transacting in Italy, and in the part of Gaul subject to Theodoric, in order to acquaint us with the practice established among the Franks; these are things which must not be confounded. I propose to show, some time or other, in a certain work, that the plan of the monarchy of the Ostrogoths was entirely different from that of any other government founded in those days by the other barbarian na- tions; and that so far from our being entitled to affirm that a practice obtained among the Franks because it was established among the Ostrogoths we have on the contrary just reason to think that a custom of the Ostrogoths was not in force among the Franks.
The hardest task for persons of extensive erudition is, to seek their proofs in such passages as bear upon the subject, and to find, if we may be allowed to express ourselves in as- tronomical terms, the position of the sun.
The same author makes a wrong use of the capitularies, as well as of the historians and laws of the barbarous nations. When he wants the Franks to pay taxes, he applies to freemen what can be understood only of bondmen; d when he speaks of their military service, he applies to bondmen what can never relate but to freemen.^ h Book III. p. sii. where he quotes the 28th article of the c Lee. iii. tit. 74, lib. XI. Edict of Pistes. See farther on.
d " Establishment of the French Mon- e Ibid. torn. iii. chap. iv. p. 298. archy," torn. iii. chap. xiv. p. 513, 1 84 MONTESQUIEU 13. — Of Taxes paid by the Romans and Gauls in the Monarchy of the Franks I might here examine whether, after the Gauls and Romans were conquered, they continued to pay the taxes to which they were subject under the emperors. But, for the sake of brevity, I shall be satisfied with observing, that if they paid them in the beginning, they were soon after exempted, and that those taxes were changed into a military service. For, I confess, I can hardly conceive how the Franks should have been at first such great friends, and afterwards such sudden and violent enemies, to taxes.
A Capitulary f of Louis the Debonnaire explains extremely well the situation of the freemen in the monarchy of the Franks. Some troops of Goths or Iberians,^ flying from the oppression of the Moors, were received into Louis's dominions. The agreement made with them was that, like other freemen, they should follow their count to the army; and, that upon a march they should mount guard and patrol under the command also of their count; h, and that they should furnish horses and car- riages for baggage to the king's commissaries,^ and to the am- bassadors in their way to or from court; and that they should not be compelled to pay any further impost, but should be treated as the other freemen.
It cannot be said, that these were new usages introduced at the commencement of the second race. This must be referred at least to the middle or to the end of the first. A capitulary of the year 864;' says in express terms that it was the ancient custom for freemen to perform military service, and to furnish likewise the horses and carriages above mentioned; duties particular to themselves, and from which those who possessed the fiefs were exempt, as I shall prove hereafter.
This is not all; there was a regulation which hardly per- mitted the imposing of taxes on those freemen. ^ He who had f In the year 815, chap, i., which is; " Ut pagenses Franci, qui caballos agreeable to the Capitulary of Charles habent, cum suis cotnitibus in hostem the Bald, in the year 844, arts, i and 2. pergant." The counts are forbidden to g " Pro Hispanis in partibus Aquita- deprive them of their horses, " ut niae, Septimanise, et Provinciae consis- hostem facere, et debitos paraveredos tentibus." — Ibid. secundum antequam consuetudinem ex- it " Excubias et explorationes quas solvere possint."— Edict of Pistes in Wactas dicunt."— Ibid. Baluzius, p. i86.
t They were not obliged to furnish k Capitulary of Charlemagne, in the any to the count.— Ibid. art. 5. See year 812, chap. i. Edict of Pistes in Marc. form. VI. lib. I. the year 864, art. 27.
THE SPIRIT OF LAWS 185 four manors was always obliged to march against the enemy: I he who had but three was joined with a freeman that had only one; the latter bore the fourth part of the other's charges, and stayed at home. In like manner, they joined two freemen who had each two manors; he who went to the army had half his charges borne by him who stayed at home.
Again, we have an infinite number of charters, in which the privileges of fiefs are granted to lands or districts possessed by freemen, and of which I shall make further mention here- after.wt These lands are exempted from all the duties or ser- vices which were required of them by the counts, and by the rest of the king's officers; and as all these services are particu- larly enumerated without making any mention of taxes, it is manifest that no taxes were imposed upon them.
It was very natural that the Roman system of taxation should of itself fall out of use in the monarchy of the Franks; it was a most complicated device, far above the conception, and wide from the plan of those simple people. Wtre the Tartars to overrun Europe, we should find it very difficult to make them comprehend what is meant by our financiers.
The anonymous author of the " Life of Louis the Debon- naire," n speaking of the counts and other officers of the nation of the Franks, whom Charlemagne established in Aquitania, says, that he intrusted them with the care of defending the frontiers, as also with the military power and the direction of the de- mesnes belonging to the crown. This shows the state of the royal revenues under the second race. The prince had kept his demesnes in his own hands, and employed his bondmen in improving them. But the indictions, the capitations, and other imposts raised at the time of the emperors on the persons or goods of freemen had been changed into an obligation of de- fending the frontiers, and marching against the enemy.
In the same history,<? we find that Louis the Debonnaire, having been to wait upon his father in Germany, this prince asked him, why he, who was a crowned head, came to be so poor; To which Louis made answer, that he was only a nom- / " Quatuor mansos." I fancy that those who drove the bondmen from what they called " mansus " was a par- their mansus.
ticular portion of land belonging to a m See below, chap. 20 of this book, farm where there were bondmen; wit- n In Duchesne, torn. ii. p. 287.
ness the Capitulary of the year 853, 0 Ibid., p. 89.
" apud Sylvacum," tit. xiv., against i86 MONTESQUIEU inal king, and that the great lords were possessed of almost all his demesnes; that Charlemagne being apprehensive lest this young prince should forfeit their affection, if he attempted hirnself to resume what he had inconsiderately granted, ap- pointed commissaries to restore things to their former situa- tion.
The bishops, writing P to Louis, brother of Charles the Bald, used these words: " Take care of your lands, that you may not be obliged to travel continually by the houses of the clergy, and to tire their bondmen with carriages. Manage your af- fairs," continue they, " in such a manner, that you may have enough to live upon, and to receive embassies." It is evident that the king's revenues in those days consisted of their de- mesnes.3 14. — Of what they called Census After the barbarians had quitted their own country, they were desirous of reducing their usages into writing; but as they found difficulty in writing German words with Roman letters, they published these laws in Latin.
In the confusion and rapidity of the conquest, most things changed their nature; in order, however, to express them, they were obliged to make use of such old Latin words as were most analogous to the new usages. Thus, whatever was likely to revive the idea of the ancient census of the Romans they called by the name of census trihutum; r and when things had no relation at all to the Roman census, they expressed, as well as they could, the German words by Roman letters; thus they formed the word fredum, on which I shall have occasion to descant in the following chapters.
The words census and trihutum having been employed in an arbitrary manner this has thrown some obscurity on the sig- nification in which these words were used under our princes of the first and second race. And modern authors •? who have p See the Capitulary of the year 858, lary, in the year 803, edition of Baluzius, art. 14. p. 395, art. i; and the 5th in the year