d Clotharius II, son of Chilperic, and xxvii., in the year 605.
the father of Dagobert. h Ibid. cap. xxviii., in the year 607.
e Fredegarius's " Chronicle," chap. 1 Ibid. cap. xli., in the year 613 xlii. " Burgundiae Farones, tain episcopi / See Gregory of Tours, book VIII. quam caeteri Leudes, timentes Brunechap. xxxi. childem et odium in earn habentes, g Saeva illi fuit contra personas consilium inientes," etc.
iniquitas, fisco nimium tribuens, de i Ibid. cap. xli., in the year 613, rebus personarum ingeniose fiscum vel- " Sacramento ' a Clothario accepto ne lens implere...ut nullus reperire- unquam vitze suae temporibus degraderetur."
2 20 MONTESQUIEU be in the same case as the French lords before that period; and this authority began to render itself independent of the regal dignity.
It was Brunehaut's unhappy regency which had exasper- ated the nation. So long as the laws subsisted in their full force, no one could grumble at having been deprived of a fief, since the law did not bestow it upon him in perpetuity. But when fiefs came to be acquired by avarice, by bad practices and corruption, they complained of being divested, by irregular means, of things that had been irregularly acquired. Perhaps if the public good had been the motive of the revocation of those grants, nothing would have been said; but they pre- tended a regard for order while they were openly abetting the principles of corruption; the fiscal rights were claimed in order to lavish the public treasure; and grants were no longer the reward or the encouragement of services. Brunehaut, from a corrupt spirit, wanted to reform the abuses of the ancient corruption. Her caprices were not owing to weakness, the vassals and the great officers, thinking themselves in danger, prevented their own by her ruin.
We are far from having all the records of the transactions of those days; and the writers of chronicles, who understood very nearly as much of the history of their time as our peasants know of ours, are extremely barren. Yet we have a constitu- tion of Clotharius, given in the Council of Paris,^ for the refor- mation of abuses,^ which shows that this prince put a stop to the complaints that had occasioned the revolution. On the one hand, he confirms all the grants that had been made or con- firmed by the kings his predecessors; w and on the other, he ordains that whatever had been taken from his vassals should be restored to them.»
This was not the only concession the king made in that council; he enjoined that whatever had been innovated, in op- position to the privileges of the clergy, should be redressed; o and he moderated the influence of the court in the election of k Some time after Brunehaut's execu- edicti nostri tenorem generaliter emention, in the year 615. See Baluzius's dare." — Ibid. art. 16.
edition of the Capitularies, p. 21. m Ibid. art. 16.
/ Qua contra rationis ordinem acta n Ibid. art. 17.
vel ordinata sunt, ne in antea, quod 0 "_Et quod per tempora ex hoc prseavertat divinitas, contingant, disposue- termissum est vel dehinc perpetualiter rimus, Christo prxsule, per hujus observetur."
THE SPIRIT OF LAWS 221 bishops./' He even reformed the fiscal affairs, ordaining that all the new censuses should be abolished,? and that they should not levy any toll established since the deaths of Gontram, Sigebert, and Chilperic; r that is, he abolished whatever had been done during the regencies of Fredegonda and Brune- haut. He forbade the driving of his cattle to graze in private people's grounds; s and we shall presently see that the reforma- tion was still more general, so as to extend even to civil affairs.
2. — How the Civil Government was reformed Hitherto the nation had given marks of impatience and levity with regard to the choice or conduct of her masters; she had regulated their differences and obliged them to come to an agreement among themselves. But now she did what before was quite unexampled; she cast her eyes on her actual situa- tion, examined the laws coolly, provided against their insuffi- ciency, repressed violence, and moderated the regal power.
The bold and insolent regencies of Fredegonda and Brune- haut had less surprised than roused the nation. Fredegonda had defended her horrid cruelties, her poisonings and assas- sinations by a repetition of the same crimes; and had behaved in such a manner that her outrages were rather of a private than public nature. Fredegonda did more mischief: Brune- haut threatened more. In this crisis the nation was not sat- isfied with rectifying the feudal system; she was also deter- mined to secure her civil government. For the latter was rather more corrupt than the former; a corruption the more dangerous as it was more inveterate, and connected rather with the abuse of manners than with that of laws.
The history of Gregory of Tours exhibits, on the one hand, a fierce and barbarous nation; and on the other, kings remark- able for the same ferocity of temper. Those princes were bloody, iniquitous, and cruel, because such was the character of the whole nation. If Christianity appeared sometimes to soften their manners, it was only by the circumstances of ter- ror with which this religion alarms the sinner; the Church supp" Ita ut, episcopo decedente, in loco per meritum personse et doctrinse ipsius qui a metropolitano ordinari ordinetur." — Ibid. art. i.
aebet cum provincialibus, a clero et q " Et ubicumque census novus impie populo eligatur; et, si persona condigna additus est, emendetur." — Art. 8.
fuerit, per ordinationem principis ordi- r Ibid. art. g.
netur; vel certe si de palatio eligitur, i Ibid. art. 21.
222 MONTESQUIEU ported herself against them by the miraculous operations of her saints. The kings would not commit sacrilege, because they dreaded the punishments inflicted on that species of guilt: but, this excepted, either in the riot of passion or in the cool- ness of deliberation, they perpetrated the most horrid crimes and barbarities where divine vengeance did not appear so im- mediately to overtake the criminal. The Franks, as I have al- ready observed, bore with cruel kings, because they were of the same disposition themselves; they were not shocked at the iniquity and extortions of their princes, because this was the national characteristic. There had been many laws estab- lished, but it was usual for the king to defeat them all, by a kind of letter called precepts,^ which rendered them of no efifect; they were somewhat similar to the rescripts of the Roman em- perors; whether it be that our kings borrowed this usage from those princes, or whether it was owing to their own natural temper. We see in Gregory of Tours, that they perpetrated murder in cool blood, and put the accused to death unheard; how they gave precepts for illicit marriages; m for transferring successions; for depriving relatives of their right: and, in fine, marrying consecrated virgins. They did not, indeed, assume the whole legislative power, but they dispensed with the execution of the laws.
Clotharius's constitution redressed all these grievances: no one could any longer be condemned without being heard: v relatives were made to succeed, according to the order estab- lished by law; w all precepts for marrying religious women were declared null; x and those who had obtained and made use of them were severely punished. We might know perhaps more exactly his determinations with regard to these precepts, if the thirteenth and the next two articles of this decree had not been lost through the injury of time. We have only the first words of this thirteenth article, ordaining that the precepts shall be observed, which cannot be understood of those he had just abolished by the same law. We have another constitution t They were orders which the king rius's constitution, inserted in the edisent to the judges to do or to tolerate tion of the Capitularies made to reform things contrary to law. them. Baluzius's edition, p. 7.
M See Gregory of Tours, book IV. p. v Art. 22.
227. Both our history and the charters w Ibid. art. 6.
are full of this; and the extent of these 4r Ibid, abuses appears especially in Clotha- THE SPIRIT OF LAWS by the same prince,y which is in relation to his decree, and corrects in the same manner every article of the abuses of the precepts.
True it is, that Baluzius finding this constitution without date, and without the name of the place where it was given, attributes it to Clotharius I. But I say it belongs to Clotharius II, for three reasons: i. It says, that the king will preserve the immunities granted to the churches by his father and grand- father.-s What immunities could the churches receive from Childeric, grandfather of Clotharius I, who was not a Chris- tian, and who lived even before the foundation of the mon- archy? But if we attribute this decree to Clotharius II we shall find his grandfather to have been this very Clotharius I who made immense donations to the Church, with a view of expiat- ing the murder of his son Cramne, whom he had ordered to be burned, together with his wife and children.
2. The abuses redressed by this constitution were still sub- sisting after the death of Clotharius I and were even carried to their highest extravagance during the weak reign of Gontram, the cruel administration of Chilperic, and the execrable regen- cies of Fredegonda and Brunehaut. Now, can we imagine that the nation would have borne with grievances so solemnly proscribed, without complaining of their continual repetition? Can we imagine she would not have taken the same step as she did afterwards under Childeric II,o when, upon a repetition of the old grievances, she pressed him to ordain that law and cus- toms in regard to judicial proceedings should be complied with as formerly? b In fine, as this constitution was made to redress grievances, it cannot relate to Clotharius I, since there were no complaints of that kind in his reign, and his authority was perfectly estab- lished throughout the kingdom, especially at the time in which they place this constitution; whereas it agrees extremely well with the events that happened during the reign of Clotharius II, which produced a revolution in the political state of the kingdom. History must be illustrated by the laws, and the laws by history.
y In Baluzius's edition of the Capitu- to perform any function in the terrilaries, torn. i. p. 7. tory, and were equivalent to the erecs In the preceding book I have made tion or grant of a fief, mention ot these immunities, which a He began to reign towards the year were grants of judicial rights, and con- 670.
tained prohibitions to the regal judges b See the " Life of St. Leger."
2 24 MONTESQUIEU 3. — Authority of the Mayors of the Palace I noticed that Clotharius II had promised not to deprive Warnacharius of his mayor's place during life; a revolution productive of another effect. Before that time the mayor was the King's officer, but now he became the officer of the people; he was chosen before by the King, and now by the nation. Be- fore the revolution Protarius had been made mayor by Theo- doric, and Landeric by Fredegonda; c but after that the mayors d were chosen by the nation.^ We must not, therefore, confound, as some authors have done, these mayors of the palace with such as were possessed of this dignity before the death of Brunehaut; the King's mayors with those of the kingdom. We see by the law of the Burgun- dians that among them the office of mayor was not one of the most respectable in the state; f nor was it one of the most emi- nent under the first kings of the Franks.^ Clotharius removed the apprehensions of those who were possessed of employments and fiefs; and when, after the death of Warnacharius,^ he asked the lords assembled at Troyes, who is it they would put in his place, they cried out they would choose no one, but suing for his favor committed themselves entirely into his hands.
Dagobert reunited the whole monarchy in the same manner as his father; the nation had a thorough confidence in him, and appointed no mayor. This prince, finding himself at lib- erty and elated by his victories, resumed Brunehaut's plan. But he succeeded so ill, that the vassals of Austrasia let them- selves be beaten by the Sclavonians, and returned home; so that the marches of Austrasia were left a prey to the barbar- ians.* c " Instigante Brunihault, Theodorico h " Eo anno, Clotarius cum proceribus jubente," etc. — Fredegarius, chap. et leudibus Burgundiae Trecassinis conxxvii., in the year 605. jungitur, cum eorum esset sollicitus si d " Gesta regum Francorum," chap. yellent jam, Warnachario discesso, alium xxxvi. in ejus honoris gradum sublimare: sed e See Fredegarius's " Chronicle," omnes unanimiter denegantes se ne- chap. liv., in the year 626, and his quaquam velle majorem domiis eligere, " Anonymous Continuator," chap, ci., regis gratiam obnixe petentes, cum rege in the year 695, and chap, cv., in the transegere." — Fredegarius, " Chron- year 715. Aimoin, book IV. chap, xv., icle," chap, liv., in the year 626. Eginhard, " Life of Charlemagne," t " Istam victoriam quam Vinidi con- chap, xlviii. " Gesta regum Franco- tra Francos meruerunt, non tantum rum," chap. xlv. _ Sclavinorum fortitude obtinuit, quantum f See the law of the Burgundians in dementatio Austrasiorum, dum se cerpra;fat. and the second supplement to nebant cum Dacroberto odium incurthis law, tit. 13. risse, et assidue expoliarentur." — g See Gregory of Tours, book IX. Fredegarius's " Chronicle, chap. Ixviii., chap, xxxvi. in the year 630.
THE SPIRIT OF LAWS 225 He determined then to make an offer to the Austrasians of resigning that country, together with a provincial treasure, to his son Sigebert, and to put the government of the kingdom and of the palace into the hands of Cunibert, Bishop of Co- logne, and of the Duke Adalgisus. Fredegarius does not enter into the particulars of the conventions then made; but the King confirmed them all by charters, and Austrasia was immediately secured from danger.; Dagobert, finding himself near his end, recommended his wife Nentechildis and his son Clovis to the care of Mga. The vassals of Neustria and Burgundy chose this young prince for their king.^ -^ga and Nentechildis had the government of the palace; I they restored whatever Dagobert had taken; fn and complaints ceased in Neustria and Burgundy, as they had ceased in Austrasia.
After the death of -^ga. Queen Nentechildis engaged the lords of Burgundy to choose Floachatus for their mayor." The latter despatched letters to the bishops and chief lords of the Kingdom of Burgundy, by which he promised to preserve their honors and dignities forever, that is, during life.o He confirmed his word by oath. This is the period at which the author of the Treatise on the Mayors of the Palace fixes the administration of the kingdom by those officers./' Fredegarius, being a Burgundian, has entered into a more minute detail as to what concerns the mayors of Burgundy at the time of the revolution of which we are speaking than with regard to the mayors of Austrasia and Neustria. But the con- ventions made in Burgundy were, for the very same reasons, agreed to in Neustria and Austrasia.
The nation thought it safer to lodge the power in the hands of a mayor whom she chose herself, and to whom she might prescribe conditions, than in those of a king whose power was hereditary.
_ j " Deinceps Austrasii eorum studio cunctis ducibus a regno Burgundiae, seu limitem et regnum Francorum contra et pontificibus, per epistolas etiam et Vinidos utiliter defensasse noscuntur." sacramentis firmavit unicuique gradum — Fredegarius's " Chronicle," chap. honoris et dignitatem, seu et amicitiam, Ixxx., in the year 632. perpetuo conservare."
k Fredegarius's Chronicle," chap. p " Deinceps a temporibus Clodovei.
Ixxix., in the year 638. qui fuit filius Dagoberti inclyti regis, / Ibid. pater vera Theodorici, regnum Francom Ibid. chap. Ixxx., in the year 639. rum decidens per majorem domus, n Ibid. chap. Ixxxix., in the year 641. coepit ordinari." — " De Majoribus Doo Ibid. cap. Ixxxix. " Floachatus mus Regiae."
2 26 MONTESQUIEU 4. — Of the Genius of the Nation in regard to the Mayors A government in which a nation that had an hereditary king chose a person to exercise the regal authority seems very ex- traordinary; but, independently of the circumstances of the times, I apprehend that the notions of the Franks in this respect were derived from a remote source.
The Franks were descended from the Germans, of whom Tacitus says g that in the choice of their King they were deter- mined by his noble extraction, and in that of their leader, by his valor. This gives us an idea of the kings of the first race, and of the mayors of the palace; the former were hereditary, the latter elective.
No doubt but those princes who stood up in the national assembly and offered themselves as the conductors of a public enterprise to such as were willing to follow them, united gen- erally in their own person both the power of the mayor and the king's authority. By the splendor of their descent they had attained the regal dignity; and their military abilities having recommended them to the command of armies, they rose to the power of mayor. By the regal dignity our first kings presided in the courts and assemblies, and enacted laws with the na- tional consent; by the dignity of duke or leader, they under- took expeditions and commanded the armies.
In order to be acquainted with the genius of the primitive Franks in this respect, we have only to cast an eye on the con- duct of Argobastes,*" a Frank by nation, on whom Valentinian had conferred the command of the army. He confined the Emperor to his own palace; where he would suffer nobody to speak to him, concerning either civil or military affairs. Argo- bastes did at that time what was afterwards practised by the Pepins.
5. — In what Manner the Mayors obtained the Command of the Armies So long as the kings commanded their armies in person the nation never thought of choosing a leader. Clovis and his four sons were at the head of the Franks, and led them on through q " Reges ex nobilitate, duces ex r See Sulpicius Alexander, in Gregory virtute sumunt."— " De Moribus Gcr- of Tours, book II. manorum."
THE SPIRIT OF LAWS 227 a series of victories. Theobald, son of Theodobert, a young, weak, and sickly prince, was the first of our kings who con- fined himself to his palace.-? He refused to undertake an ex- pedition into Italy against Narses, and had the mortification of seeing the Franks choose for themselves two chiefs, who led them against the enemy.* Of the four sons of Clotharius I, Gontram was the least fond of commanding his armies;" the other kings followed this example; and, in order to intrust the command without danger into other hands, they conferred it upon several chiefs or dukes.^ Innumerable were the inconveniences which thence arose; all discipline was lost, no one would any longer obey. The armies were dreadful only to their own country; they were laden with spoils before they had reached the enemy. Of these miseries we have a very lively picture in Gregory of Tours.w " How shall we be able to obtain a victory," said Gontram,-*^ " we who do not so much as keep what our ancestors acquired? Our nation is no longer the same..." Strange that it should be on the decline so early as the reign of Clovis's grand- children!
It was, therefore, natural they should determine at last upon an only duke, a duke invested with an authority over this prodigious multitude of feudal lords and vassals, who had now become strangers to their own engagements; a duke who was to establish the military discipline, and to put himself at the head of a nation unhappily practised in making war against itself. This power was conferred on the mayors of the palace.
The original function of the mayors of the palace was the management of the king's household. They had afterwards, in conjunction with other officers, the political government of fiefs; and at length they obtained the sole disposal of them.y They had also the administration of military affairs, and the s In the year 552. _ had no mayor in Burgundy, observed < " Leutheres vero et Butilinus, ta- the same policy, and sent against the metsi id regi ipsorum minime placebat Gascons ten dukes and several counts belli cum eis societatem inierunt." — who had no dukes over them. — Frede- Agathias, book I. Gregory of Tours, garius's " Chronicle," chap. Ixxviii., in book IV. chap. ix. the year 636.
u Gontram did not even march against w Gregory of Tours, book VIII. chap.
Gondovald, who styled himself son of xxx., and book X. chap. iii. Ibid, book Clotharius, and claimed his share of Vllt. chap. xxx.
the kingdom. x Ibid.
V Sometimes to the number of twenty. y See the second supplement to the See Gregory of Tours, book V. chap. law of the Burgundians, tit. 13, and xxvii., book VIII. chap, xviii. and Gregory of Tours, book IX. chap.
xxx., book X. chap. iii. Dagobert, who xxxvi.
2 28 MONTESQUIEU command of the armies; employments necessarily connected with the other two. In those days it was much more difficult to raise than to command the armies; and who but the dis- penser of favors could have this authority? In this martial and independent nation, it was prudent to invite rather than to compel; prudent to give away or to promise the fiefs that should happen to be vacant by the death of the possessor; pru- dent in fine to reward continually, and to raise a jealousy with regard to preferences. It was, therefore, right that the person who had the superintendence of the palace should also be gen- eral of the army.
6. — Second Epoch of the Humiliation of our Kings of the first Race After the execution of Brunehaut the mayors were admin- istrators of the kingdom under the sovereigns; and though they had the conduct of the war, the kings were always at the head of the armies, while the mayor and the nation fought under their command. But the victory of Duke Pepin over Theodoric and his mayors completed the degradation of our princes; a and that which Charles Martel obtained over Chil- peric and his Mayor Rainfroy confirmed li.h Austrasia tri- umphed twice over Neustria and Burgundy; and the mayor- alty of Austrasia being annexed as it were to the family of the Pepins, this mayoralty and family became greatly superior to all the rest. The conquerors were then afraid lest some person of credit should seize the king's person, in order to excite dis- turbances. For this reason they kept them in the royal palace as in a kind of prison, and once a year showed them to the people.c There they made ordinances, but these were such as were dictated by the mayor; d they answered ambassadors, but the mayor made the answers. This is the time mentioned by historians of the government of the mayors over the kings whom they held in subjection.^ s See the " Annals of Metz, years " ut responsa quae erat edoctus vel 687 and 688. potius jussus, ex sua velut potestate a " Illis quidem nomina regum im- redderet."
ponens, ipse totius regni habens privi- e " Annals of Metz," anno 691. " Anlegium," etc. — " Annals of Metz," year no principatus Pippini super Theodori- 69s- cum...' Annals ' of Fuld, or of b " Annals of Metz," year 719. Laurishan, Pippinus dux Francorum _c_" Sedemque illi regalem sub sua obtinuit regnum Francorum per annos ditione concessit." — Ibid, anno 719. 27, cum regibus sibi subjectis."
d " Ex chronico Centulensi," lib. 2, THE SPIRIT OF LAWS 229 The extravagant passion of the nation for Pepin's family went so far that they chose one of his grandsons, who was yet an infant, for mayor; f and put him over one Dagobert, that is one phantom over another.
7. — Of the great Ofdces and Fiefs under the Mayors of the Palace The mayors of the palace were little disposed to establish the uncertain tenure of places and offices; for, indeed, they ruled only by the protection which in this respect they granted to the nobility. Hence the great offices continued to be given for life, and this usage was every day more firmly established.
But I have some particular reflections to make here in re- spect of iiefs: I do not question but most of them became hereditary from this time.
In the treaty of AndeH,g Gontram and his nephew Childe- bert engage to maintain the donations made to the vassals and churches by the kings their predecessors; and leave is given to the wives, daughters, and widows of kings to dispose by will, and in perpetuity, of whatever they hold of the ex- chequer./» Marculfus wrote his formularies at the time of the mayors.* We find several in which the kings make donations both to the person and to his heirs:;" and as the formularies represent the common actions of life, they prove that part of the fiefs had become hereditary towards the end of the first race. They were far from having in those days the idea of an unalienable de- mesne; this is a modern thing, which they knew neither in theory nor practice.
In proof hereof we shall presently produce positive facts; and if we can point out a time in which there were no longer any benefices for the army, nor any funds for its support, we must certainly conclude that the ancient benefices had been / " Posthaec Theudoaldus filius ejus ferre voluerint, fixa stabilitate perpetuo (Grimoaldi) parvulus, in loco ipsius, conservetur."
cum praedicto rege Dagoberto, major- i See the 24th and the 34th of the first domus palatii effectus est." The book.
" Anonymous Continuator " of Frede-; See the i4_th formula of the first garius in the year 714, chap. civ. book, which is equally applicable to e Cited by Gregory of Tours, book the fiscal estates given direct in per- IX. See also the Edict of Clotharius petuity, or given at first as a benefice, II, in the year 615, art. 16. and afterwards in perpetuity: " Sicut h " Ut si quid de agfris fiscalibus vel ab illo aut a fisco nostro fuit possessa."
speciebus atque praesidio pro arbitrii See also the 17th formula, ibid, ^ui voluntate facere aut cuiquam con- 230 MONTESQUIEU alienated. The time I mean is that of Charles Martel, who founded some new fiefs, which we should carefully distinguish from those of the earliest date.
When the kings began to make grants in perpetuity, either through the corruption which crept into the government or by reason of the constitution itself, which continually obliged those princes to confer rewards, it was natural they should begin with giving the perpetuity of the fiefs, rather than of the counties. For to deprive themselves of some acres of land was no great matter; but to renounce the right of disposing of the great offices was divesting themselves of their very power.
8. — In what Manner the Allodial Estates were changed into Fiefs The manner of changing an allodial estate into a fief may be seen in a formulary of Marculfus.^ The owner of the land gave it to the king, who restored it to the donor by way of usufruct, or -benefice, and then the donor nominated his heirs to the king.
In order to find out the reasons which induced them thus to change the nature of the allodia, I must trace the source of the ancient privileges of our nobility, a nobility which for these eleven centuries has been enveloped with dust, with blood, and with the marks of toil.
They who were seized of fiefs enjoyed very great advantages. The composition for the injuries done them was greater than that of freemen. It appears by the formularies of Marculfus that it was a privilege belonging to a king's vassal, that who- ever killed him should pay a composition of six hundred sous. This privilege was established by the Salic law,' and by that of the Ripuarians; »w and while these two laws ordained a com- position of six hundred sous for the murder of a king's vassal, they gave but two hundred sous for the murder of a person freeborn, if he was a Frank or barbarian, or a man living under the Salic law; » and only a hundred for a Roman.
This was not the only privilege belonging to the king's vask Book I. formulary 13. n See also the law of the Ripuarians, /Tit. 44. See also tit. 66, sees. 3 and tit. 7; and the Salic law, tit. 44, arts.
wTit. II.
THE SPIRIT OF LAWS 231