But when we examine the matter thoroughly we find an im- mense colossus with earthen feet; and it is the earthen feet that render the colossus immense. If the Abbe du Bos's sys- tem had been well grounded, he would not have been obliged to write three tedious volumes to prove it; he would have found everything within his subject, and without wandering on every side in quest of what was extremely foreign to it; even reason itself would have undertaken to range this in the same chain with the other truths. Our history and laws would have told him. Do not take so much trouble, we shall be your vouchers.
24. — The same Subject continued. Reflection on the main Part of the System The Abbe du Bos endeavors by all means to explode the opinion that the Franks made the conquest of Gaul. Accord- ing to his system our kings were invited by the people, and only substituted themselves in the place and succeeded to the rights of the Roman emperors.
This pretension cannot be applied to the time when Clovis, upon his entering Gaul, took and plundered the towns; neither is it applicable to the period when he defeated Syagrius, the Roman commander, and conquered the country which he held; it can, therefore, be referred only to the period when Clovis, already master of a great part of Gaul by open force, was called by the choice and affection of the people to the sovereignty over the rest. And it is not enough that Clovis was received, he THE SPIRIT OF LAWS 209 must have been caHed; the Abbe du Bos must prove that the people chose rather to Hve under Clovis than under the domina- tion of the Romans or under their own laws. Now the Ro- mans belonging to that part of Gaul not yet invaded by the barbarians were, according to this author, of two sorts: the first were of the Armorican confederacy, who had driven away the Emperor's officers in order to defend themselves against the barbarians, and to be governed by their own laws; the second were subject to the Roman officers. Now, does the abbe produce any convincing proofs that the Romans, who were still subject to the empire, called in Clovis? Not one. Does he prove that the republic of the Armoricans invited Clovis; or even concluded any treaty with him? Not at all. So far from being able to tell us the fate of this republic he cannot even so much as prove its existence; and, notwith- standing, he pretends to trace it from the time of Honorius to the conquest of Clovis, notwithstanding he relates with most admirable exactness all the events of those times; still this re- public remains invisible in ancient authors. For there is a wide difference between proving by a passage of Zosimus J that un- der the Emperor Honorius, the country of Armorica t and the other provinces of Gaul revolted and formed a kind of republic, and showing us that notwithstanding the different pacifica- tions of Gaul, the Armoricans formed always a particular re- public, which continued till the conquest of Clovis; and yet this is what he should have demonstrated by strong and sub- stantial proofs, in order to establish his system. For when we behold a conqueror entering a country, and subduing a great part of it by force and open violence, and soon after find the whole country subdued, without any mention in history of the manner of its being effected, we have sufficient reason to be- lieve that the affair ended as it began.
When we find he has mistaken this point, it is easy to per- ceive that his whole system falls to the ground; and as often as he infers a consequence from these principles that Gaul was not conquered by the Franks, but that the Franks were invited by the Romans, we may safely deny it.
This author proves his principle by the Roman dignities with s Hist. lib. vi. t " Totusque tractus Armoricus aliaeque Galliarum provincial"— Ibid.
2IO MONTESQUIEU which Clovis was invested: he insists that Clovis succeeded to Childeric his father in the office of magister militice. But these two offices are merely of his own creation. St. Remigius's letter to Clovis, on which he grounds his opinion, is only a congratu- lation upon his accession to the crown." When the intent of a writing is so well known why should we give it another turn?
Clovis, towards the end of the reign, was made Consul by the Emperor Anastasius: but what right could he receive from an authority that lasted only one year? It is very probable, says our author, that in the same diploma the Emperor Anas- tasius made Clovis Proconsul. And, I say, it is very probable he did not. With regard to a fact for which there is no founda- tion the authority of him who denies is equal to that of him who affirms. But I have also a reason for denying it. Gregory of Tours, who mentions the consulate, says never a word con- cerning the proconsulate. And even this proconsulate could have lasted only about six months. Clovis died a year and a half after he was created Consul; and we cannot pretend to make the proconsulate an hereditary office. In fine, when the consulate, and, if you will, the proconsulate, were conferred upon him, he was already master of the monarchy, and all his rights were established.
The second proof alleged by the Abbe du Bos is the renun- ciation made by the Emperor Justinian, in favor of the chil- dren and grandchildren of Clovis, of all the rights of the em- pire over Gaul. I could say a great deal concerning this renun- ciation. We may judge of the regard shown to it by the kings of the Franks, from the manner in which they performed the conditions of it. Besides, the kings of the Franks were masters and peaceable sovereigns of Gaul; Justinian had not one foot of ground in that country; the Western Empire had been de- stroyed a long time before, and the Eastern Empire had no right to Gaul, but as representing the Emperor of the West. These were rights upon rights; the monarchy of the Franks was already founded; the regulation of their establishment was made; the reciprocal rights of the persons and of the dif- ferent nations who lived in the monarchy were admitted, the laws of each nation were given and even reduced to writing.
u Tom. ii. book III. chap, xviii. p. 270.
THE SPIRIT OF LAWS 211 What, therefore, could that foreign renunciation avail to a gov- ernment already established?
What can the abbe mean by making such a parade of the declamations of all those bishops, who, amidst the confusion and total subversion of the state, endeavor to flatter the con- queror? What else is implied by flattering but the weakness of him who is obliged to flatter? What do rhetoric and poetry prove but the use of those very arts? Is it possible to help being surprised at Gregory of Tours, who, after mentioning the assassinations committed by Clovis, says, that God laid his enemies every day at his feet, because he walked in his ways? Who doubts but the clergy were glad of Clovis's con- version, and that they even reaped great advantages from it? But who doubts at the same time that the people experienced all the miseries of conquest and that the Roman Government submitted to that of the Franks? The Franks were neither willing nor able to make a total change; and few conquerors were ever seized with so great a degree of madness. But to render all the Abbe du Bos's consequences true, they must not only have made no change among the Romans, but they must even have changed themselves.
I could undertake to prove, by following this author's method, that the Greeks never conquered Persia. I should set out with mentioning the treaties which some of their cities con- cluded with the Persians; I should mention the Greeks who were in Persian pay, as the Franks were in the pay of the Ro- mans. And if Alexander entered the Persian territories, be- sieged, took, and destroyed the city of Tyre, it was only a par- ticular affair like that of Syagrius. But, behold the Jewish pontiff goes forth to meet him. Listen to the oracle of Jupiter Ammon. Recollect how he had been predicted at Gordium, See what a number of towns crowd, as it were, to submit to him; and how all the satraps and grandees come to pay him obeisance. He put on the Persian dress; this is Clovis's con- sular robe. Does not Darius ofifer him one-half of his king- dom? Is not Darius assassinated like a tyrant? Do not the mother and wife of Darius weep at the death of Alexander? Were Quintius Curtius, Arrian, or Plutarch, Alexander's con- temporaries? Has not the invention of printing afforded us 212 MONTESQUIEU great light which those authors wanted? v Such is the history of the " Establishment of the French Monarchy in Gaul."
25. — Of the French Nobility The Abbe du Bos maintains, that at the commencement of our monarchy there was only one order of citizens among the Franks. This assertion, so injurious to the noble blood of our principal families, is equally affronting to the three great houses which successively governed this realm. The origin of their grandeur would not, therefore, have been lost in the obscurity of time. History might point out the ages when they were plebeian families; and to make Childeric, Pepin, and Hugh Capet gentlemen, we should be obliged to trace their pedigree among the Romans or Saxons, that is, among the conquered nations.
This author grounds his opinion on the Salic law.w By that law, he says, it plainly appears that there were not two dif- ferent orders of citizens among the Franks: it allowed a com- position of two hundred sous for the murder of any Frank whatsoever;-!^ but among the Romans it distinguished the king's guest, for whose death it gave a composition of three hundred sous, from the Roman proprietor to whom it granted a hundred, and from the Roman tributary to whom it gave only a composition of forty-five. And as the difference of the com- positions formed the principal distinction, he concludes that there was but one order of citizens among the Franks, and three among the Romans.
It is astonishing that his very mistake did not set him right. And, indeed, it would have been very extraordinary that the Roman nobility who lived under the domination of the Franks should have had a larger composition, and been persons of much greater importance than the most illustrious among the Franks, and their greatest generals. What probability is there, that the conquering nation should have so little respect for themselves, and so great a regard for the conquered people? Besides, our author quotes the laws of other barbarous nations which prove that they had different orders of citizens. Now it V See the preliminary discourse of the x He cites the 44th title of this law.
Abbe du Bos. and the law of the Ripuarians, tits. 7 w See the " Establishment of the and 36. French Monarchy," vol. iii. book VI.
THE SPIRIT OF LAWS 213 would be a matter of astonishment that this general rule should have failed only among the Franks. Hence he ought to have concluded either that he did not rightly understand or that he misapplied the passages of the Salic law, which is actually the case.
Upon opening this law, we find that the composition for the death of an antrustio,y that is, of the king's vassal, was six hundred sous; and that for the death of a Roman, who was the king's guest, was only three hundred.^ We find there likewise that the composition a for the death of an ordinary Frank was two hundred sous; b and for the death of an ordinary Roman, was only one hundred.^ For the death of a Roman tributary,d who was a kind of bondman or freed-man, they paid a composi- tion of forty-five sous: but I shall take no notice of this, any more than of the composition for the murder of a Frank bond- man or of a Frank freed-man, because this third order of per- sons is out of the question.
What does our author do? He is quite silent with respect to the first order of persons among the Franks, that is the ar- ticle relating to the antrustios; and afterwards upon compar- ing the ordinary Frank, for whose death they paid a composi- tion of two hundred sous, with those whom he distinguishes under three orders among the Romans, and for whose death they paid different compositions, he finds that there was only one order of citizens among the Franks, and that there were three among the Romans.
As the abbe is of opinion that there was only one order of citizens among the Franks, it would have been lucky for him that there had been only one order also among the Burgun- dians, because their kingdom constituted one of the principal branches of our monarchy. But in their codes we find three sorts of compositions, one for the Burgundians or Roman nobility, the other for the Burgundians or Romans of a mid- dling condition, and the third for those of a lower rank in both nations.^ He has not quoted this law.
y " Qui in truste dominica est," tit. s Salic law, tit. 44, sec. 6.
44, sec. 4, and this relates to the 13th a Ibid., sec. 4.
formulary of Marculfus, " de regis b Ibid., sees. 1-7.
Antrustione." See also the title 66, of c Ibid., sec. 15, the Salic law, sees. 3 and 4,. and_ the d Ibid., sec. 7.
title 74; and the law of the Ripuarians, e " Si quis, quolibet casu, dentem tit. II, and the Capitulary of Charles optimati Burgundioni vel Romano the Bald, " apud Carisiacum," in the nobili excusserit, solidos viginti quin- year 877, chap. xx.
214 MONTESQUIEU It is very extraordinary to see in what manner he evades those passages which press him hard on all sides/ If you speak to him of the grandees, lords, and the nobility, these, he says, are mere distinctions of respect, and not of order; they are things of courtesy, and not legal privileges; or else, he says, those people belonged to the king's council; nay, they possibly might be Romans: but still there was only one order of citizens among the Franks. On the other hand, if you speak to him of some Franks of an inferior rank,g he says they are bondmen; and thus he interprets the decree of Childebert. But I must stop here a little, to inquire further into this decree. Our author has rendered it famous by availing himself of it in order to prove two things: the one that all the compositions we meet with in the laws of the barbarians were only civil fines added to corporal punishments, which entirely subverts all the ancient records; h the other, that all freemen were judged di- rectly and immediately by the king,* which is contradicted by an infinite number of passages and authorities informing us of the judiciary order of those times.;' This decree, which was made in an assembly of the nation,^ says, that if the judge finds a notorious robber, he must com- mand him to be tied, in order to be carried before the king, si Francus fuerit; but if he is a weaker person (debilior persona), he shall be hanged on the spot. According to the Abbe du Bos, Francus is a freeman, debilior persona is a bondman. I shall defer entering for a moment into the signification of the word Francus, and begin with examining what can be under- stood by these words, " a weaker person." In all languages whatsoever, every comparison necessarily supposes three terms, the greatest, the less degree, and the least. If none were here meant but freemen and bondmen, they would have said " a bondman," and not " a man of less power." Therefore, que cogatur exsolvere; de mediocribus t Ibid. p. 309, and in the following personis ingenuis, tarn Burgundionibus chapter, pp. 319 and 320.
Quam Romanis, si dens excussus fuerit,; See the 28th book of this work, aecem solidis componatur; de inferior!- chap. 28; and the gist book. chap. 8.
bus personis, quinque solidis," arts, i, k " Itaque colonia convenit et ita 2. and 3, of tit. 26, of the law of the bannivimus, ut unusquisque_ judex, Burgunaians. criminosum latronem ut audierit, ad / ' Establishment of the French Mon- casam suam ambulet et ipsum ligare archy," vol. 3, book VI. chaps, iv. faciat; ita ut si Francus fuerit, ad and V. nostram praesentiam dirigatur; et si g Ibid. vol. 3, chap. v. pp. 319 and 320. debilior persona fuerit, in loco penda- « Ibid. vol. 3, book VI. chap. iv. pp. tur."— Capitulary, of Baluzius's edition, THE SPIRIT OF LAWS 215 debilior persona does not signify a bondman, but a person of a superior condition to a bondman. Upon this supposition, Francus cannot mean a freeman, but a powerful man; and this word is taken here in that acceptation, because among the Franks there were always men who had greater power than others in the state, and it was more difficult for the judge or count to chastise them. This construction agrees very well with many Capitularies / where we find the cases in which the criminals were to be carried before the king, and those in which it was otherwise.
It is mentioned in the " Life of Louis the Debonnaire," nt written by Tegan, that the bishops were the principal cause of the humiliation of that Emperor, especially those who had been bondmen and such as were born among the barbarians. Tegan thus addresses Hebo, whom this prince had drawn from the state of servitude, and made Archbishop of Rheims: " What recompense did the Emperor receive from you for so many benefits? He made you a freeman, but did not ennoble you, because he could not give you nobility after having given you your liberty." w - This passage which proves so strongly the two orders of citizens does not at all confound the Abbe du Bos. He answers thus: 0 " The meaning of this passage is not that Louis the Debonnaire, was incapable of introducing Hebo into the order of the nobility. Hebo, as Archbishop of Rheims, must have been of the first order, superior to that of the nobility." I leave the reader to judge whether this be not the meaning of that passage; I leave him to judge whether there be any question here concerning a precedence of the clergy over the nobility. " This passage proves only," continues the same writer,/* " that the free-born subjects were qualified as noblemen; in the com- mon acceptation, noblemen and men who are free-born have for this long time signified the same thing." What! because some of our burghers have lately assumed the quality of noble- men, shall a passage of the " Life of Louis the Debonnaire " be applied to this sort of people? " And, perhaps," continues he / See the 28th book of this work, quod impossibile est post libertatem."
chap. 28; and the 31st book, chap. 8. — Ibid.
m Chaps, xliii. and xliv. o " Establishment of the French Monn" O qualem remunerationem reddi- archy," vol. 3, book VI. chap. iv. p.
disti ei! fecit te liberum, non nobilem, 316.
2i6 MONTESQUIEU still,g " Hebo had not been a bondman among the Franks, but among the Saxons, or some other German nation, where the people were divided into several orders." Then, because of the Abbe du Bos's " perhaps," there must have been no nobility among the nation of the Franks. But he never applied a " per- haps " so badly. We have seen that Tegan distinguishes the bishops,** who had opposed Louis the Debonnaire, some of whom had been bondmen, and others of a barbarous nation. Hebo belonged to the former and not to the latter. Besides, I do not see how a bondman, such as Hebo, can be said to have been a Saxon or a German; a bondman has no family, and consequently no nation. Louis the Debonnaire manumitted Hebo; and as bondmen after their manumission embraced the law of their master, Hebo had become a Frank, and not a Saxon or German.
I have been hitherto acting offensively; it is now time to de- fend myself. It will be objected to me, that, indeed, the body of the antrustios formed a distinct order in the state from that of the freemen; but as the fiefs were at first precarious, and afterwards for life, this could not form a nobleness of de- scent, since the privileges were not annexed to an hereditary fief. This is the objection which induced M. de Valois to think that there was only one order of citizens among the Franks; an opinion which the Abbe du Bos has borrowed of him, and which he has absolutely spoiled with so many bad arguments. Be that as it may, it is not the Abbe du Bos that could make this objection. For after having given three orders of Roman nobility, and the quaHty of the king's guest for the first, he could not pretend to say that this title was a greater mark of a noble descent than that of antrustio. But I must give a direct answer. The antrustios or trusty men were not such because they were possessed of a fief, but that they had a fief given them because they were antrustios or trusty men. The reader may please to recollect what has been said in the begin- ning of this book. They had not at that time, as they had afterwards, the same fief: but if they had not that they had an- other, because the fiefs were given at their birth, and because q " Establishment of the French Mon- conditione honoratos habebat, cum his archy," vol. 3, book VI. chap. IV. p. 316. qui ex barbans nationibus ad hoc fasr " Omnes episcopi molesti fuerunt tigium perducti sunt; — De gestis Ludovico, et maxime ii quos e servili Ludovici Pn, cap. xlm. and xhv.
THE SPIRIT OF LAWS 217 they were often granted in the assembHes of the nation, and, in fine, because as it was the interest of the nobihty to receive them it was Hkewise the king's interest to grant them. These famiUes were distinguished by their dignity of trusty men, and by the privilege of being qualified to swear allegiance for a fief. In the following book s I shall demonstrate how from the cir- cumstances of the time there were freemen who were permitted to enjoy this great privilege, and consequently to enter into the order of nobihty. This was not the case at the time of Gon- tram, and his nephew Childebert; but so it was at the time of Charlemagne. But though in that prince's reign the freemen were not incapable of possessing fiefs, yet it appears, by the above-cited passage of Tegan, that the emancipated serfs were absolutely excluded. Will the Abbe du Bos, who carries us to Turkey to give us an idea of the ancient French nobility;* will he, I say, pretend that they ever complained among the Turks of the elevation of people of low birth to the honors and dignities of the state, as they complained under Louis the De- bonnaire and Charles the Bald? There was no complaint of that kind under Charlemagne, because this prince always distinguished the ancient from the new families; which Louis the Debonnaire and Charles the Bald did not.
The pubhc should not forget the obligation it owes to the Abbe du Bos for several excellent performances. It is by these works, and not by his history of the establishment of the French monarchy, we ought to judge of his merit. He com- mitted very great mistakes, because he had more in view the Count of Boulainvilliers's work than his own subject.
From all these strictures I shall draw only one reflection: if so great a man was mistaken how cautiously ought I to tread?
s Chap. 23. archy," vol. 3, book VI. chap. iv. p.
i " Establishment of the French Mon- 302.
BOOK XXXI THEORY OF THE FEUDAL LAWS AMONG THE FRANKS, IN THE RELATION THEY BEAR TO THE REVOLUTIONS OF THEIR MONARCHY I. — Changes in the Offices and in the Fiefs THE counts at first were sent into their districts only for a year; but they soon purchased the continuation of their offices. Of this we have an example in the reign of Clovis's grandchildren. A person named Peonius was count in the city of Auxerre; a he sent his son Mummolus with money to Gontram, to prevail upon him to continue him in his em- ployment; the son gave the money for himself, and obtained the father's place. The kings had already begun to spoil their own favors.
Though by the laws of the kingdom the fiefs were precarious, yet they were neither given nor taken away in a capricious and arbitrary manner; nay, they were generally one of the prin- cipal subjects debated in the national assemblies. It is natural, however, to imagine that corruption crept into this as well as the other case; and that the possession of the fiefs, like that of the counties, was continued for money.
I shall show in the course of this book,& that, independently of the grants which the princes made for a certain time, there were others in perpetuity. The court wanted to revoke the former grants; this occasioned a general discontent in the nation, and was soon followed by that famous revolution in French history, whose first epoch was the amazing spectacle of the execution of Brunehaut.
That this queen, who was daughter, sister, and mother of so many kings, a queen to this very day celebrated for public monuments worthy of a Roman sedile or proconsul, born with o Gregory of Tours, book IV. chap. xlii. b Chap. 7» THE SPIRIT OF LAWS 219 an admirable genius for affairs, and endowed with qualities so long respected, should see herself of a sudden exposed to so slow, so ignominious and cruel a torture,^ by a king whose authority was but indifferently established in the nation,(i would appear very extraordinary, had she not incurred that nation's displeasure for some particular cause. Clotharius re- proached her with the murder of ten kings; but two of them he had put to death himself; the death of some of the others was owing to chance, or to the villainy of another queen;^ and a nation that had permitted Fredegnda to die in her bed,/^ that had even opposed the punishment of her flagitious crimes, ought to have been very different with respect to those of Brunehaut.
She was put upon a camel, and led ignominiously through the army; a certain sign that she had given great offence to those troops. Fredegarius relates, that Protarius,g Brune- haut's favorite, stripped the lords of their property, and filled the exchequer with the plunder; that he humbled the nobil- ity, and that no person could be sure of continuing in any office or employment. The army conspired against him, and he was stabbed in his tent; but Brunehaut either by revenging his death, or by pursuing the same plan/» became every day more odious to the nation.* Clotharius, ambitious of reigning alone, inflamed moreover with the most furious revenge, and sure of perishing if Brune- haut's children got the upper hand, entered into a conspiracy against himself; and whether it was owing to ignorance, or to the necessity of his circumstances, he became Brunehaut's accuser, and made a terrible example of that princess.
Warnacharius had been the very soul of the conspiracy formed against Brunehaut. Being at that time Mayor of Bur- gundy, he made Clotharius consent that he should not be dis- placed while he lived.; By this step the mayor could no longer c Fredegarius's " Chronicle," chap. tur qui gradum quern arripuerat potuis xlii. set adsumere." — Fredeg. Chron." cap,