Montesquieu

The abbé Dubos main­tains that in the early days of our monar­chy there was but one order of citi­zens among the Franks. This pre­ten­sion, insul­ting to the blood of our first fami­lies, would be not less so to the three great hou­ses which have suc­ces­si­vely rei­gned over us. The ori­gin of their great­ness would not the­re­fore disap­pear into obli­vion, the night, and time. History would illu­mi­nate cen­tu­ries where they were com­mon fami­lies ; and in order for Childeric, Pépin, and Hugues Capet to be gent­le­men, we would have to go look for their ori­gin among the Romans or the Saxons, in other words among the sub­ju­ga­ted nations.

The abbé Dubos bases his opi­nion on the Salic law.1 It is clear, he says, from that law that there were not two orders of citi­zens among the Franks ; it allo­ca­ted two hun­dred sous in com­po­si­tion for the death of any Frank at all,2 but dis­tin­gui­shed, among the Romans, the king’s guest, for whose death it allo­ca­ted three hun­dred sous in com­po­si­tion, from the Roman pro­prie­tor to whom it allo­ca­ted one hun­dred, and the Roman tri­bu­tary to whom it allo­ca­ted but forty-five. And as the dif­fe­rence of com­po­si­tions cons­ti­tu­ted the prin­ci­pal dis­tinc­tion, he conclu­des that, among the Franks, there was but one order of citi­zens, and that there were three among the Romans.

It is sur­pri­sing that his error did not itself make him dis­co­ver his error. Indeed, it would have been quite extra­or­di­nary for the Roman nobles who were living under the domi­na­tion of the Franks to have had a higher com­po­si­tion, and been more impor­tant per­so­na­ges, than the most illus­trious of the Franks and their grea­test cap­tains. How plau­si­ble is it that the conque­ring peo­ple should have had so lit­tle res­pect for itself, and so much for the van­qui­shed peo­ple ? Besides, the abbé Dubos cites the laws of the other bar­ba­rian nations, which prove that among them there were various orders of citi­zens. It would be quite extra­or­di­nary had this gene­ral rule been wan­ting pre­ci­sely among the Franks. That ought to have made one think that he was misun­ders­tan­ding, or misap­plying, the texts of the Salic law, which is indeed what hap­pe­ned.

We find when we open that law that the com­po­si­tion for the death of an antrus­tion,3 in other words a fidèle or vas­sal of the king, was six hun­dred sous, and the com­po­si­tion for the death of a Roman guest of the king4 was but three hun­dred. We find there5 that the com­po­si­tion for the death of a sim­ple Frank6 was two hun­dred sous, and for the death of a Roman7 of ordi­nary sta­tion but one hun­dred. They fur­ther paid for the death of a tri­bu­tary Roman, a sort of serf or freed man, a com­po­si­tion of forty-five sous8 ; but I shall not speak of this, nor of the com­po­si­tion for the death of the Frankish serf or freed man : there can be no ques­tion here of this third order of per­sons.

What does the abbé Dubos do ? He pas­ses in silence over the first order of per­sons among the Franks, that is, over the item concer­ning the antrus­tions, and then, com­pa­ring the ordi­nary Frank, for whose death they would pay two hun­dred sous in com­po­si­tion, with those of what he calls the three orders among the Romans, and for whose death dif­fe­rent com­po­si­tions were paid, he finds that there was but one order of citi­zens among the Franks, and that there were three among the Romans.

Since accor­ding to him there was but one order of per­sons among the Franks, it would have been help­ful had there been but one also among the Burgundians, because their king­dom for­med one of the prin­ci­pal pie­ces of our monar­chy. But in their codes there are three kinds of com­po­si­tions, one for the Burgundian or Roman noble, ano­ther for the Burgundian or Roman of midd­ling sta­tion, the third for those who were of infe­rior sta­tion in the two nations.9 The abbé Dubos has not cited this law.

It is sin­gu­lar to see how he eva­des10 the pas­sa­ges that press him on all sides. If you men­tion gran­dees, lords, and nobles : these are, he says, sim­ple dis­tinc­tions, and not dis­tinc­tions of order ; they are mat­ters of cour­tesy and not pre­ro­ga­ti­ves of law ; or else, he says, the men in ques­tion were in the king’s coun­cil, they could even be Romans, but there was still only one order of citi­zens among the Franks. On the other hand, if men­tion is made of some Frank of infe­rior rank,11 these are serfs ; and this is the man­ner in which he inter­prets the decree of Childebert. I must pause on this decree. The abbé Dubos has made it famous, because he has used it to prove two things : first, that all com­po­si­tions which we find in the laws of the bar­ba­rians were just civil inte­rest added to cor­po­ral punish­ments,12 which over­turns from top to bot­tom all the ancient docu­ments ; the other, that all free men were jud­ged directly and imme­dia­tely by the king,13 which is contra­dic­ted by count­less pas­sa­ges and autho­ri­ties which inform us on the judi­cial order of those times.14

It is said in this decree, issued in an assem­bly of the nation, that if the judge finds a noto­rious thief, he shall have him bound to be sent before the king if he is a Frank (Francus) ; but if he is a wea­ker per­son (debi­lior per­sona) he shall be han­ged on the spot.15 According to the abbé Dubos, fran­cus is a free man and debi­lior per­sona is a serf. I shall ignore for a moment what the word fran­cus can mean here, and shall first exa­mine what one can unders­tand by the words a wea­ker per­son. I say that, in wha­te­ver lan­guage, any com­pa­ra­tive neces­sa­rily sup­po­ses three terms : the big­gest, the less big, and the smal­lest. If this were only about free men and serfs, they would have said a serf and not a man of less autho­rity. Thus debi­lior per­sona does not mean a serf there, but a per­son beneath whom the serf must be. That assu­med, fran­cus will not mean a free man but a power­ful man, and fran­cus is taken here in that sense : because among the Franks there always were those who had a grea­ter autho­rity in the state, and whom it was more dif­fi­cult for the judge or the count to admo­nish ; this expla­na­tion concurs with a large num­ber of capi­tu­la­ries that list cases in which the cri­mi­nals could be reman­ded before the king, and those where they could not.16

We find in the life of Louis the Debonaire writ­ten by Tegan that the bishops were those prin­ci­pally res­pon­si­ble for that empe­ror’s humi­lia­tion, espe­cially those who had been serfs and those who were born among the bar­ba­rians.17 Tegan apos­tro­phi­zes in this way Hebo, whom the prince had lif­ted from ser­vi­tude and made arch­bi­shop of Reims : “What recom­pense has the empe­ror recei­ved for so many bene­fits ? He has made thee free, and not noble ; he could not make thee noble after giving thee thy free­dom.”18

This dis­course, which so for­mally pro­ves two orders of citi­zens, does not dis­concert the abbé Dubos. Here is his reply : “This pas­sage does not mean that Louis the Debonaire could not have ope­ned the order of nobles to Hebo. As arch­bi­shop of Reims, Hebo would have been of the first order, above that of the nobi­lity.”19 I leave the rea­der to decide whe­ther this pas­sage does not mean what it says ; I leave him to decide whe­ther the issue here is a pre­ce­dence of the clergy over the nobi­lity. “This pas­sage pro­ves only,” conti­nues the abbé Dubos, “that citi­zens born free were qua­li­fied as noble-men : in worldly usage, noble-man and man born free long had the same mea­ning.”20 What ? Because in our modern times some bour­geois have assu­med the qua­lity of noble-men, a pas­sage from the life of Louis the Debonaire will apply to those sorts of per­sons ? “Perhaps also,” he fur­ther adds, Hebo had not been a slave in the nation of the Franks, but in the Saxon nation, or in ano­ther Germanic nation, where the citi­zens were divi­ded into seve­ral orders.”21 Therefore, because of the abbé Dubos’s per­haps, there was no nobi­lity in the Frankish nation. But he never made worse use of a per­haps. We have just seen that Tegan dis­tin­gui­shes the bishops who had been oppo­sed to Louis the Debonaire, some of whom had been serfs, and the others were from a bar­ba­rian nation.22 Hebo was one of the for­mer and not one of the lat­ter. Besides, I do not know how one can say that a serf like Hebo would have been a Saxon or a German : a serf has no family, nor, conse­quently, any nation. Louis the Debonaire freed Hebo ; and as freed serfs assu­med the law of their mas­ter, Hebo became a Frank and not a Saxon or German.

I have just atta­cked ; I must now defend myself. I will be told that the corps of antrus­tions indeed cons­ti­tu­ted an order in the state dis­tinct from that of free men ; but that, as the fiefs were at first revo­ca­ble, and later were for life, that could not cons­ti­tute a nobi­lity by des­cent, since the pre­ro­ga­ti­ves were not atta­ched to an here­di­tary fief. This is the objec­tion which has doubt­less cau­sed M. de Valois to think that there was but a sin­gle order of citi­zens among the Franks, an opi­nion which the abbé Dubos has bor­ro­wed from him, and abso­lu­tely spoi­led by dint of bad evi­dence. However that may be, it is not the abbé Dubos who could have made that objec­tion. For having given three orders of Roman nobi­lity, and the qua­lity of king’s guest as the first, he could not have said that this title indi­ca­ted a nobi­lity by des­cent more than that of antrus­tion. But a direct reply is cal­led for. Men were not antrus­tions or fidè­les because they had a fief ; they were given a fief because they were antrus­tions or fidè­les. The rea­der will recall what I have said in the first chap­ters of this book : they did not then have, as they sub­se­quently did, the same fief ; but if they did not have that one, they had ano­ther one, both because fiefs were gran­ted at birth, and because they were fre­quently gran­ted in the assem­blies of the nation ; and finally because, as it was in the nobles’ inte­rest to have one, it was also in the king’s inte­rest to give them one. These fami­lies were dis­tin­gui­shed by their dignity as fidè­les and by the pre­ro­ga­tive of being able to peti­tion for a fief. I shall show in the next book23 how, by the cir­cum­stan­ces of the times, there were free men who were allo­wed to enjoy that great pre­ro­ga­tive, and conse­quently to enter into the order of the nobi­lity. It was not so in the time of Gontram and his nephew Childebert, and it was so in the time of Charlemagne. But although begin­ning in the time of that prince free men were not ine­li­gi­ble to pos­sess fiefs, it appears from the pas­sage in Tegan cited above that freed serfs were abso­lu­tely exclu­ded. Will the abbé Dubos,24 who goes to Turkey to give us an idea of what the ancient French nobi­lity was like, tell us that anyone ever com­plai­ned in Turkey that men of low birth were being rai­sed to honors and digni­ties, as they did in the rei­gns of Louis the Debonaire and Charles the Bald ? Such com­plaints were not heard in the time of Charlemagne, because that prince always dis­tin­gui­shed the ancient fami­lies from the new ones, which Louis the Debonaire and Charles the Bald did not.

The public must not for­get that we owe seve­ral excel­lent com­po­si­tions to the abbé Dubos. It is on these fine works that he should be jud­ged, and not on this one. Here the abbé Dubos has fal­len into grave errors, because he had his eyes fixed more on the Count of Boulainvilliers25 than on his sub­ject. I shall draw from all my cri­ti­cisms only this obser­va­tion : if a great man has erred, what must I not fear ?

See Établissement de la monarchie française, vol. III, book VI, ch. iv, p. 304.

He cites tit. 44 of this law, and Lex Ribuaria, tit. 7 and 36.

Qui in truste dominica est, tit. 44, §4, and that relates to formula 13 of Marculfus, De regis antrustione ; see also tit. 66 of the Salic law, §3–4, and tit. 74, and the law of the Ripuarians, tit. 11, and capitulary of Charles the Bald, apud Carisiacum, of the year 877, ch. xx.

Lex Salica, tit. 44, §6.

Ibid. §4.

Ibid. §1.

Lex Salica, tit. 44, §15.

Ibid., §7.

Si quis quolibet casu dentem optimati Burgundioni vel Romano nobili excusserit, solidos viginti quinque cogatur exsolvere ; de mediocribus personis Ingenuis tam Burgundionibus quam Romanis si dens excussus fuerit, decem solidis componatur ; de inferioribus personis, quinque solidos (art. 1, 2, and 3 of tit. 26 of the Law of the Burgundians).

Établissement de la monarchie française, vol. III, book VI, ch. iv–v.

Établissement de la monarchie française, vol. III, ch. v, p. 319–320.

Ibid., book VI, ch. iv, p. 307–308.

Ibid., p. 309, and in the following chapter, p. 319–320.

See book XXVIII of this work, chapter xxviii, and book XXXI, ch. viii.

Itaque colonia convenit and ita bannivimus, ut unusquisque judex criminosum latronem ut audierit, ad casam suam ambulet, and ipsum ligare faciat ; ita ut si Francus fuerit, ad nostram præsentiam dirigatur ; and si debilior persona fuerit, in loco pendatur (capitulary, Baluze ed., vol. I, p. 19).

See book XXVIII of this work, ch. xxviii, and book XXXI, ch. viii.

Ch. xliii and xliv.

O qualem remunerationem reddidisti ei ! fecit te liberum, non nobilem, quod impossibile est post libertatem (ibid.).

Établissement de la monarchie française, vol. III, book VI, ch. iv, p. 316.

Établissement de la monarchie française, vol. III, book VI, ch. iv, p. 316.

Ibid.

Omnes episcopi molesti fuerunt Ludovico, and maxime ii quos e servili conditione honoratos habebat, cum his qui ex barbaris nationibus ad hoc fastigium perducti sunt (De gestis Ludovici Pii, ch. xliii and xliv).

Ch. xxiii.

Histoire de l’établissement de la monarchie française, vol. III, book VI, ch. iv, p. 302.

[Henri de Boulainvilliers (1658–1722) was a prolific historian of early France, author notably of Histoire de l’ancien gouvernement de la France in 3 vols., 1727.]