The Spirit Of Laws Part 34

The codes of the barbarian laws have given us the cases in which the freda might be demanded. When the relatives could not prosecute, they allowed of no fredum; and, indeed, when there was no prosecution there could be no composition for a protection against it. Thus, in the law of the Lombards,158 if a person happened to kill a freeman by accident, he paid the value of the man killed, without the fredum; because, as he had killed him involuntarily, it was not the case in which the relatives were allowed the right of prosecution. Thus in the law of the Ripuarians,159 when a person was killed with a piece of wood, or with any instrument made by man, the instrument or the wood were deemed culpable, and the relatives seized upon them for their own use, but were not allowed to demand the fredum.

In like manner, when a beast happened to kill a man, the same law established a composition without the fredum, because the relatives of the deceased were not offended.160 In fine, it was ordained by the Salic law,161 that a child who had committed a fault before the age of twelve should pay the composition without the fredum: as he was not yet able to bear arms he could not be in the case in which the party injured, or his relatives, had a right to demand satisfaction.

It was the criminal that paid the fredum for the peace and security of which he had been deprived by his crime, and which he might recover by protection. But a child did not lose this security, he was not a man; and consequently could not be expelled from human society.

This fredum was a local right in favor of the person who was judge of the district.162 Yet the law of the Ripuarians163 forbade him to demand it himself: it ordained that the party who had gained the cause should receive it and carry it to the exchequer, to the end that there might be a lasting peace, says the law among the Ripuarians.

The greatness of the fredum was proportioned to the degree of protection: thus the fredum for the king's protection was greater than what was granted for the protection of the count, or of the other judges.164 Here I see the origin of the jurisdiction of the lords. The fiefs comprised very large territories, as appears from a vast number of records. I have already proved that the kings raised no taxes on the lands belonging to the division of the Franks; much less could they reserve to themselves any duties on the fiefs. Those who obtained them had in this respect a full and perfect enjoyment, reaping every possible emolument from them. And as one of the most considerable emoluments was the justiciary profits (freda),165 which were received according to the usage of the Franks, it followed thence that the person seized of the fief was also seized of the jurisdiction, the exercise of which consisted of the compositions made to the relatives, and of the profits accruing to the lord; it was nothing more than ordering the payment of the compositions of the law, and demanding the legal fines. We find by the formularies containing confirmation of the perpetuity of a fief in favor of a feudal lord,166 or of the privileges of fiefs in favor of churches,167 that the fiefs were possessed of this right. This appears also from an infinite number of charters168 mentioning a prohibition to the king's judges or officers of entering upon the territory in order to exercise any act of judicature whatsoever, or to demand any judiciary emolument. When the king's judges could no longer make any demand in a district they never entered it; and those to whom this district was left performed the same functions as had been exercised before by the judges.

The king's judges are forbidden also to oblige the parties to give security for their appearing before them; it belonged, therefore, to the person who had received the territory in fief to demand this security. They mention also that the king's commissaries shall not insist upon being accommodated with a lodging; in effect, they no longer exercised any function in those districts.

The administration, therefore, of justice, both in the old and new fiefs, was a right inherent in the very fief itself, a lucrative right which const.i.tuted a part of it. For this reason it had been considered at all times in this light; whence this maxim arose, that jurisdictions are patrimonial in France.

Some have thought that the jurisdictions derived their origin from the manumissions made by the kings and lords, in favor of their bondmen. But the German nations, and those descended from them, are not the only people who manumitted their bondmen, and yet they are the only people that established patrimonial jurisdictions. Besides, we find by the formularies of Marculfus169 that there were freemen dependent on these jurisdictions in the earliest times: the bondmen were, therefore, subject to the jurisdiction, because they were upon the territory; and they did not give rise to the fiefs for having been annexed to the fief.

Others have taken a shorter cut; the lords, say they, and this is all they say, usurped the jurisdictions. But are the nations descended from Germany the only people in the world that usurped the rights of princes? We are sufficiently informed by history that several other nations have encroached upon their sovereigns, and yet we find no other instance of what we call the jurisdiction of the lords. The origin of it is, therefore, to be traced in the usages and customs of the Germans.

Whoever has the curiosity to look into Loyseau170 will be surprised at the manner in which this author supposes the lords to have proceeded, in order to form and usurp their different jurisdictions. They must have been the most artful people in the world; they must have robbed and plundered, not after the manner of a military nation, but as the country justices and the attorneys rob one another. Those brave warriors must be said to have formed a general system of politics throughout all the provinces of the kingdom, and in so many other countries in Europe; Loyseau makes them reason as he himself reasoned in his closet.

Once more; if the jurisdiction was not a dependence of the fief, how come we everywhere to find, that the service of the fief was to attend the king or the lord, both in their courts and in the army?171 21.-Of the Territorial Jurisdiction of the Churches The churches acquired very considerable property. We find that our kings gave them great seigniories, that is, great fiefs; and we find jurisdictions established at the same time in the demesnes of those churches. Whence could so extraordinary a privilege derive its origin? It must certainly have been in the nature of the grant. The church land had this privilege because it had not been taken from it. A seigniory was given to the Church; and it was allowed to enjoy the same privileges as if it had been granted to a va.s.sal. It was also subjected to the same service as it would have paid to the state if it had been given to a layman, according to what we have already observed.

The churches had, therefore, the right of demanding the payment of compositions in their territory, and of insisting upon the fredum; and as those rights necessarily implied that of hindering the king's officers from entering upon the territory to demand these freda and to exercise acts of judicature, the right which ecclesiastics had of administering justice in their own territory was called immunity, in the style of the formularies, of the charters, and of the Capitularies.172 The law of the Ripuarians173 forbids the freedom of the churches174 to hold the a.s.sembly for administering justice in any other place than in the church where they were manumitted.175 The churches had, therefore, jurisdictions even over freemen, and held their placita in the earliest times of the monarchy.

I find in the "Lives of the Saints,"176 that Clovis gave to a certain holy person power over a district of six leagues, and exempted it from all manner of jurisdiction. This, I believe, is a falsity, but it is a falsity for a very ancient date; both the truth and the fiction contained in that life are in relation to the customs and laws of those times, and it is these customs and laws we are investigating.177 Clotharius II orders the bishops or the n.o.bility who are possessed of estates in distant parts, to choose upon the very spot those who are to administer justice, or to receive the judiciary emoluments.178 The same prince regulates the judiciary power between the ecclesiastic courts and his officers.179 The Capitulary of Charlemagne in the year 802 prescribes to the bishops and abbots the qualifications necessary for their officers of justice. Another Capitulary of the same prince inhibits the royal officers180 to exercise any jurisdiction over those who are employed in cultivating church lands, except they entered into that state by fraud, and to exempt themselves from contributing to the public charges.181 The bishops a.s.sembled at Rheims made a declaration that the va.s.sals belonging to the respective churches are within their immunity.182 The Capitulary of Charlemagne in the year 806 ordains that the churches should have both criminal and civil jurisdiction over those who live upon their lands.183 In fine, as the Capitulary of Charles the Bald184 distinguishes between the king's jurisdiction, that of the lords, and that of the church, I shall say nothing further upon this subject.185 22.-That the Jurisdictions were established before the End of the Second Race It has been pretended that the va.s.sals usurped the jurisdiction in their seigniories, during the confusion of the second race. Those who choose rather to form a general proposition than to examine it found it easier to say that the va.s.sals did not possess than to discover how they came to possess. But the jurisdictions do not owe their origin to usurpations; they are derived from the primitive establishment, and not from its corruption.

"He who kills a freeman," says the law of the Bavarians, "shall pay a composition to his relatives if he has any; if not, he shall pay it to the duke, or to the person under whose protection he had put himself in his lifetime."186 It is well known what it was to put one's self under the protection of another for a benefice.

"He who had been robbed of his bondman," says the law of the Alemans, "shall have recourse to the prince to whom the robber is subject; to the end that he may obtain a composition."187 "If a centenarius," says the decree of Childebert, "finds a robber in another hundred than his own, or in the limits of our faithful va.s.sals, and does not drive him out, he shall be answerable for the robber, or purge himself by oath."188 There was, therefore, a difference between the district of the centenarii and that of the va.s.sals.

This decree of Childebert189 explains the const.i.tution of Clotharius of the same year, which being given for the same occasion and on the same matter differs only in the terms; the const.i.tution calling in truste what by the decree is styled in terminis fidelium nostrorum. Messieurs Bignon and Ducange, who pretend that in truste signified another king's desmesne, are mistaken in their conjecture.190 Pepin, King of Italy, in a const.i.tution that had been made as well for the Franks as for the Lombards,191 after imposing penalties on the counts and other royal officers for prevarications or delays in the administration of justice, ordains that if it happens that a Frank or a Lombard, possessed of a fief, is unwilling to administer justice, the judge to whose district he belongs shall suspend the exercise of his fief, and in the meantime, either the judge or his commissary shall administer justice.192 It appears by a Capitulary of Charlemagne,193 that the kings did not levy the freda in all places. Another Capitulary of the same prince shows the feudal laws194 and feudal court to have been already established. Another of Louis the Debonnaire, ordains, that when a person possessed of a fief does not administer justice,195 or hinders it from being administered, the king's commissaries shall live in his house at discretion, till justice be administered. I shall likewise quote two Capitularies of Charles the Bald, one of the year 861;196 where we find the particular jurisdictions established, with judges and subordinate officers: and the other of the year 864,197 where he makes a distinction between his own seigniories and those of private persons.

We have not the original grants of the fiefs, because they were established by the part.i.tion which is known to have been made among the conquerors. It cannot, therefore, be proved by original contracts, that the jurisdictions were at first annexed to the fiefs: but if in the formularies of the confirmations, or of the translations of those fiefs in perpetuity, we find, as already has been observed, that the jurisdiction was there established; this judiciary right must certainly have been inherent in the fief and one of its chief privileges.

We have a far greater number of records that establish the patrimonial jurisdiction of the clergy in their districts, than there are to prove that of the benefices or fiefs of the feudal lords; for which two reasons may be a.s.signed. The first, that most of the records now extant were preserved or collected by the monks, for the use of their monasteries. The second, that the patrimony of the several churches having been formed by particular grants, and by a kind of derogation from the order established, they were obliged to have charters granted to them; whereas the concessions made to the feudal lords being consequences of the political order, they had no occasion to demand, and much less to preserve, a particular charter. Nay the kings were oftentimes satisfied with making a simple delivery with the sceptre, as appears from the "Life of St. Maur."

But the third formulary of Marculfus sufficiently proves that the privileges of immunity, and consequently that of jurisdiction, were common to the clergy and the laity, since it is made for both.198 The same may be said of the const.i.tution of Clotharius II.199 23.-General Idea of the Abbe du Bos's Book on the Establishment of the French Monarchy in Gaul Before I finish this book, it will not be improper to write a few strictures on the Abbe du Bos's performance, because my notions are perpetually contrary to his; and if he has. .h.i.t on the truth I must have missed it.

This performance has imposed upon a great many because it is penned with art; because the point in question is constantly supposed; because the more it is deficient in proofs the more it abounds in probabilities; and, in fine, because an infinite number of conjectures are laid down as principles, and thence other conjectures are inferred as consequences. The reader forgets he has been doubting in order to begin to believe. And as a prodigious fund of erudition is interspersed, not in the system but around it, the mind is taken up with the appendages, and neglects the princ.i.p.al. Besides, such a vast mult.i.tude of researches hardly permit one to imagine that nothing has been found; the length of the way makes us think that we have arrived at our journey's end.

But when we examine the matter thoroughly we find an immense colossus with earthen feet; and it is the earthen feet that render the colossus immense. If the Abbe du Bos's system 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. According to his system our kings were invited by the people, and only subst.i.tuted 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 must have been called; the Abbe du Bos must prove that the people chose rather to live under Clovis than under the domination of the Romans or under their own laws. Now the Romans 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, notwithstanding, 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 republic remains invisible in ancient authors. For there is a wide difference between proving by a pa.s.sage of Zosimus200 that under the Emperor Honorius, the country of Armorica201 and the other provinces of Gaul revolted and formed a kind of republic, and showing us that notwithstanding the different pacifications of Gaul, the Armoricans formed always a particular republic, which continued till the conquest of Clovis; and yet this is what he should have demonstrated by strong and substantial 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 believe that the affair ended as it began.

When we find he has mistaken this point, it is easy to perceive 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 which Clovis was invested: he insists that Clovis succeeded to Childeric his father in the office of magister militi. 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 congratulation upon his accession to the crown.202 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 Anastasius made Clovis Proconsul. And, I say, it is very probable he did not. With regard to a fact for which there is no foundation 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 concerning 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 renunciation made by the Emperor Justinian, in favor of the children and grandchildren of Clovis, of all the rights of the empire over Gaul. I could say a great deal concerning this renunciation. 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 destroyed 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 different nations who lived in the monarchy were admitted, the laws of each nation were given and even reduced to writing.

What, therefore, could that foreign renunciation avail to a government 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 conqueror? 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 a.s.sa.s.sinations committed by Clovis, says, that G.o.d laid his enemies every day at his feet, because he walked in his ways? Who doubts but the clergy were glad of Clovis's conversion, 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 concluded with the Persians; I should mention the Greeks who were in Persian pay, as the Franks were in the pay of the Romans. And if Alexander entered the Persian territories, besieged, took, and destroyed the city of Tyre, it was only a particular 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 consular robe. Does not Darius offer him one-half of his kingdom? Is not Darius a.s.sa.s.sinated 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 contemporaries? Has not the invention of printing afforded us great light which those authors wanted?203 Such is the history of the "Establishment of the French Monarchy in Gaul."

25.-Of the French n.o.bility The Abbe du Bos maintains, that at the commencement of our monarchy there was only one order of citizens among the Franks. This a.s.sertion, so injurious to the n.o.ble blood of our princ.i.p.al 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.204 By that law, he says, it plainly appears that there were not two different orders of citizens among the Franks: it allowed a composition of two hundred sous for the murder of any Frank whatsoever;205 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 compositions formed the princ.i.p.al distinction, he concludes that there was but one order of citizens among the Franks, and three among the Romans.

It is astonis.h.i.+ng that his very mistake did not set him right. And, indeed, it would have been very extraordinary that the Roman n.o.bility who lived under the domination of the Franks should have had a larger composition, and been persons of much greater importance than the most ill.u.s.trious 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 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 pa.s.sages of the Salic law, which is actually the case.

Upon opening this law, we find that the composition for the death of an antrustio,206 that is, of the king's va.s.sal, was six hundred sous; and that for the death of a Roman, who was the king's guest, was only three hundred.207 We find there likewise that the composition208 for the death of an ordinary Frank was two hundred sous;209 and for the death of an ordinary Roman, was only one hundred.210 For the death of a Roman tributary,211 who was a kind of bondman or freed-man, they paid a composition of forty-five sous: but I shall take no notice of this, any more than of the composition for the murder of a Frank bondman or of a Frank freed-man, because this third order of persons 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 article relating to the antrustios; and afterwards upon comparing the ordinary Frank, for whose death they paid a composition 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 Burgundians, because their kingdom const.i.tuted one of the princ.i.p.al branches of our monarchy. But in their codes we find three sorts of compositions, one for the Burgundians or Roman n.o.bility, the other for the Burgundians or Romans of a middling condition, and the third for those of a lower rank in both nations.212 He has not quoted this law.

It is very extraordinary to see in what manner he evades those pa.s.sages which press him hard on all sides.213 If you speak to him of the grandees, lords, and the n.o.bility, 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,214 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;215 the other, that all freemen were judged directly and immediately by the king,216 which is contradicted by an infinite number of pa.s.sages and authorities informing us of the judiciary order of those times.217 This decree, which was made in an a.s.sembly of the nation,218 says, that if the judge finds a notorious robber, he must command 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 understood 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, 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 Capitularies219 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,"220 written by Tegan, that the bishops were the princ.i.p.al 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 enn.o.ble you, because he could not give you n.o.bility after having given you your liberty."221 This pa.s.sage which proves so strongly the two orders of citizens does not at all confound the Abbe du Bos. He answers thus:222 "The meaning of this pa.s.sage is not that Louis the Debonnaire, was incapable of introducing Hebo into the order of the n.o.bility. Hebo, as Archbishop of Rheims, must have been of the first order, superior to that of the n.o.bility." I leave the reader to judge whether this be not the meaning of that pa.s.sage; I leave him to judge whether there be any question here concerning a precedence of the clergy over the n.o.bility. "This pa.s.sage proves only," continues the same writer,223 "that the free-born subjects were qualified as n.o.blemen; in the common acceptation, n.o.blemen and men who are free-born have for this long time signified the same thing." What! because some of our burghers have lately a.s.sumed the quality of n.o.blemen, shall a pa.s.sage of the "Life of Louis the Debonnaire" be applied to this sort of people? "And, perhaps," continues he still,224 "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 n.o.bility among the nation of the Franks. But he never applied a "perhaps" so badly. We have seen that Tegan distinguishes the bishops,225 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 defend 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 n.o.bleness of descent, 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 n.o.bility, and the quality of the king's guest for the first, he could not pretend to say that this t.i.tle was a greater mark of a n.o.ble 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 beginning of this book. They had not at that time, as they had afterwards, the same fief: but if they had not that they had another, because the fiefs were given at their birth, and because they were often granted in the a.s.semblies of the nation, and, in fine, because as it was the interest of the n.o.bility to receive them it was likewise the king's interest to grant them. These families were distinguished by their dignity of trusty men, and by the privilege of being qualified to swear allegiance for a fief. In the following book226 I shall demonstrate how from the circ.u.mstances of the time there were freemen who were permitted to enjoy this great privilege, and consequently to enter into the order of n.o.bility. This was not the case at the time of Gontram, 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 pa.s.sage of Tegan, that the emanc.i.p.ated serfs were absolutely excluded. Will the Abbe du Bos, who carries us to Turkey to give us an idea of the ancient French n.o.bility;227 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 Debonnaire 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 public 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 committed 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?

1 "Quantum vertice ad oras aethereas, tantum radice ad Tartara tendit."-Vergil.

2 Book VI.

3 For instance, his retreat from Germany.-Ibid.

4 M. Chabrit expresses his astonishment that Montesquieu dwells upon Caesar's knowledge of the Germans, and quite ignores the Gauls, with their fund of information upon this subject.-Ed.

5 Book VI. "of the Gallic Wars." Tacitus adds, "Nulli domus aut ager, aut aliqua cura; prout ad quem venere aluntur."-"De Moribus Germanorum."

6 "De Moribus Germanorum."

7 "Comites."

8 "De Bello Gallico," lib. VI.

9 See the "Life of Dagobert."

10 See Gregory of Tours, book VI., on the marriage of the daughter of Chilperic. Childebert sends amba.s.sadors to tell him that he should not give the cities of his father's kingdom to his daughter, nor his treasures, nor his bondmen, nor horses, nor hors.e.m.e.n, nor teams of oxen, etc.

11 Nothing definite is known concerning this Roricon; and his works are rather reveries and fables than anything else. See the article in "Mercure" for October, 1471.-Ed.

12 The Romans obliged themselves to this by treaties. See Zosimus V upon the distribution of corn demanded by Alaric.-Ed.

13 "Burgundiones partem Galliae occuparunt, terrasque c.u.m Gallicis senatoribus diviserunt."-Marius's "Chronicle" in the year 456.

14 Book X. t.i.t. 1, secs. 8, 9, and 16.

15 Chap. liv. secs. 1 and 2. This division was still subsisting in the time of Louis the Debonnaire, as appears by his capitulary of the year 829, which has been inserted in the law of the Burgundians, t.i.t. 79, sec. 1.

16 See Procopius, "War of the Goths."

17 Ibid., "War of the Vandals."

18 "Licet eo tempore quo populus noster mancipiorum tertiam et duas terrarum partes accepit" etc.-Law of the Burgundians, t.i.t. 54, sec. 1.

19 "Ut non amplius a Burgundionibus qui infra venerunt requiratur quam ad praesens necessitas fuerit, medietas terrae."-Art. II.

20 "De Moribus Germanorum."

21 And in that of the Visigoths.

22 t.i.t. 54.

23 This is confirmed by the whole t.i.tle of the code "de Agricolis et Censitis et Colonis."

24 "Si dentem optimati Burgundioni vel Romano n.o.bili excusserit." t.i.t. 26, sec. 1, "et si mediocribus personis ingenuis tam Burgundionibus quam Romanis."-Ibid. sec. 2.

25 t.i.t. 57.

26 See "Mercure," March, 1784.-Ed.

27 See M. Thierry in the Introduction to the "Recits Merovingiens."-Ed.

28 "Nec preme, nec summum molire per aethera currum; Altius gressus, clestia tecta cremabis; Inferius, terras: medio tutissimus ibis. Neu te dexterior tortum declinet ad Anguem; Neve sinisterior pressam rota ducat ad Aram; Inter utrumque tene."-Ovid, "Metam." lib. II.

29 While Gaul was under the dominion of the Romans they formed particular bodies; these were generally freed-men, or the descendants of freed-men.

30 See Gregory of Tours, book II. chap. xxvii. Aimoin, book I. chap. xii.

31 See the "Lives of the Saints."

32 See Gregory of Tours, book III., for Montesquieu's deviation from the actual sense of the writer.-Ed.

33 See Gregory of Tours, book VI. chap. 31.

34 Letter 43, lib. iii. "in Ca.s.siod."

35 In the year 763. "Innumerabilibus spoliis et captivis totus ille exercitus ditatus, in Franciam reversus est."

36 See the "Annals" of Fuld, in the year 739; Paulus Diaconus, "de Gestis Longobardorum," lib. III. cap. x.x.x., and lib. IV. cap. i., and the "Lives of the Saints" in the next quotation.

37 See the lives of St. Epiphanius, St. Eptadius, St. Caesarius, St. Fidolus, St. Porcian, St. Treverius, St. Eusichius; and of St. Leger, the miracles of St. Julian, etc.

38 "Deerant quoque littora ponto."-Ovid, lib. I.

39 Even the husbandmen themselves were not all slaves: see the 18th and 23d law in the code "de Agricolis et Censitis et Colonis," and the 20th of the same t.i.tle.

40 See Gregory of Tours, book II.

41 Ibid. book V.

42 See Gregory of Tours, book VIII.

43 "Quae conditio universis urbibus per Galliam const.i.tutis summopere est adhibita."-"Life of St. Aridius."

44 Book VII.

45 "Establishment of the French Monarchy," tom. iii. chap. xiv. p. 515.

46 See Baluzius, ii. p. 187.

47 Book III. chap. cx.x.xvi.

48 Tom. iii. p. 514.

49 "Judices atque praepositi terras Romanorum, ab illis qui occupatas tenent, auferant, et Romanis sua exactione sine aliqua dilatione rest.i.tuant, ut nihil fisco debeat deperire."-Lib. X. t.i.t. 1, cap. xiv.

50 The Vandals paid none in Africa.-Procopius, "War of the Vandals," lib. I. and II. "Historia Miscella." lib. XVI. p. 106. Observe that the conquerors of Africa were a mixture of Vandals, Alans, and Franks. "Historia Miscella." lib. XIV. p. 94.

51 "Establishment of the Franks in Gaul," tom. iii. chap. xiv. p. 510.

52 He lays a stress upon another law of the Visigoths, book X. t.i.t. 1, art. II, which proves nothing at all; it says only that he who has received of a lord a piece of land on condition of a rent or service ought to pay it.

53 Book III. p. 511.

54 Leg. iii. t.i.t. 74, lib. XI.

55 "Establishment of the French Monarchy," tom. iii. chap. xiv. p. 513, where he quotes the 28th article of the Edict of Pistes. See farther on.

56 Ibid. tom. iii. chap. iv. p. 298.

57 In the year 815, chap. i., which is agreeable to the Capitulary of Charles the Bald, in the year 844, arts. 1 and 2.

58 "Pro Hispanis in partibus Aquitaniae, Septimaniae, et Provinciae consistentibus."-Ibid.

59 "Excubias et explorationes quas Wactas dic.u.n.t."-Ibid.