Montesquieu

We had seen so far the nation sho­wing signs of impa­tience and fligh­ti­ness about the choice or the conduct of its mas­ters ; we had seen it set­tle the dis­pu­tes of its mas­ters amongst them­sel­ves, and impose on them the neces­sity of peace. But what we had not yet seen, the nation now did : it cast its eyes on its pre­sent situa­tion, exa­mi­ned its laws dis­pas­sio­na­tely, addres­sed their insuf­fi­ciency, hal­ted the vio­lence, and regu­la­ted power.

The firm, bold, and inso­lent regen­cies of Fredegund and Brunehilde had not so much sur­pri­sed this nation as aler­ted it. Fredegund had defen­ded her cruel­ties with her cruel­ties them­sel­ves : she had jus­ti­fied poi­son and assas­si­na­tions with poi­son and assas­si­na­tions ; she had so conduc­ted her­self that her attacks were even more pri­vate than public. Fredegund did more evil, Brunehilde cau­sed more to be fea­red. In this cri­sis, the nation was not content to impose order on the feu­dal govern­ment ; it also wished to assure its civil govern­ment, for it was even more cor­rupt than the other ; and that cor­rup­tion was all the more dan­ge­rous that it was older, and had more to do, in a way, with abuse of the ethos than with abuse of the laws.

The his­tory of Gregory of Tours and other docu­ments show us, on the one hand, a fierce and bar­ba­rous nation, and on the other kings who were not less so. Those prin­ces were mur­de­rous, unjust, and cruel, because that is what the whole nation was. If Christianity see­med some­ti­mes to mode­rate them, it was only through the ter­rors that Christianity gives to the guilty : the chur­ches defen­ded them­sel­ves against them thanks to the mira­cles and won­ders of their saints. The kings were not sacri­le­gious, because they drea­ded punish­ments for sacri­lege ; but aside from that, they com­mit­ted, whe­ther out of anger or in cold blood, all sorts of cri­mes and injus­ti­ces, because those cri­mes and injus­ti­ces did not show them the hand of the deity so pre­sent. The Franks, as I have said, put up with mur­de­rous kings because they were mur­de­rers them­sel­ves ; they were not sho­cked by the injus­ti­ces and pilla­ges of their kings, because they were pilla­gers and unjust like them. There were many laws ins­ti­tu­ted, but the kings would nul­lify them with cer­tain let­ters cal­led pre­cepts that over­tur­ned those very laws1 ; they were more or less like the res­cripts of the Roman empe­rors, whe­ther because the kings had taken this prac­tice from them, or because they had found it in their own basic nature. We see in Gregory of Tours that they com­mit­ted mur­ders in cold blood, and had the accu­sed put to death without even being heard ; they issued pre­cepts for making illi­cit mar­ria­ges, and others for trans­fer­ring suc­ces­sions2 ; they issued them to sup­press the right of rela­ti­ves ; they issued them for mar­rying nuns. They did not in truth make laws enti­rely on their own, but they sus­pen­ded the prac­tice of those already made.

The cons­ti­tu­tion of Clotaire redres­sed all the grie­van­ces ; no one could any lon­ger be condem­ned without being heard3 ; rela­ti­ves were always to inhe­rit accor­ding to the order esta­bli­shed by the law4 ; all pre­cepts for mar­rying girls, widows, or nuns were voi­ded, and those who obtai­ned and made use of them were seve­rety puni­shed.5 We might know more exactly what he orde­red about these pre­cepts if arti­cle 13 of this decree and the two fol­lo­wing ones had not peri­shed over time ; we have only the first words of that arti­cle 13, which com­mand that pre­cepts be obser­ved, which can­not be unders­tood for those he had just abo­li­shed by the same law. We have ano­ther cons­ti­tu­tion of the same prince which rela­tes to his decree and like­wise cor­rects point by point all the abu­ses of the pre­cepts.6

It is true that Mr. Baluze, fin­ding this cons­ti­tu­tion unda­ted and mis­sing the name of the place where it was issued, has attri­bu­ted it to Clotaire I. It is by Clotaire II. I shall give three rea­sons. 1st. It is said the­rein that the king will main­tain the immu­ni­ties gran­ted to the chur­ches by his father and grand­fa­ther.7 What immu­ni­ties could Childeric, grand­fa­ther of Clotaire I, have gran­ted to the chur­ches, he who was not a Christian, and who lived before the monar­chy had been foun­ded ? But if we attri­bute this decree to Clotaire II, we will find his grand­fa­ther was Clotaire I him­self, who made huge dona­tions to the chur­ches to expiate the death of his son Cramne, whom he had orde­red bur­ned with his wife and chil­dren.

2nd. The abu­ses which this cons­ti­tu­tion cor­rects sub­sis­ted after the death of Clotaire I, and were even taken to their peak during the weak­ness of Gotram’s reign, the cruelty of Chilperic’s, and the odious regen­cies of Fredegund and Brunehilde. Now how could the nation have allo­wed such solemnly pros­cri­bed grie­van­ces without ever having pro­tes­ted at the cons­tant return of those grie­van­ces ? How would it not have done then what it did when, Childeric II8 having resu­med the ear­lier forms of vio­lence, it pres­sed him to order that, in judg­ments, the law and cus­toms should be fol­lo­wed, as they once had been ?9

Finally, this cons­ti­tu­tion made to redress the grie­van­ces can­not concern Clotaire I, because under his reign there were no com­plaints in the realm in this regard, and his autho­rity was well affir­med, espe­cially at the time where we place this cons­ti­tu­tion, whe­reas it conforms very well to the events that took place under the reign of Clotaire II, which cau­sed a revo­lu­tion in the poli­ti­cal state of the realm. History must be illu­mi­na­ted by the laws, and the laws by his­tory.

They were orders which the king sent to judges, to do or allow certain things that were against the law.

See Gregory of Tours, book IV, p. 227 [i.e., book V]. History and the charters are full of this ; and the extent of these abuses appears especially in the constitution of Clotaire, inserted in the Baluze edition of the capitularies, p. 7, given in order to reform them.

Art. 22.

Ibid., art. 6.

Ibid., art. 18.

In the Baluze edition of the capitularies, vol. I, p. 7.

I have spoken in the preceding book of these immunities, which were concessions of rights of justice, and contained an order to royal judges not to exercise any function in the territory, and were equivalent to the elevation or concession of a fief.

He began to reign about 670.

See Life of Saint Leger.