THE SPECTER OF ROME IN MONTESQUIEU’S THE SPIRIT OF THE LAWS ZACHARY SHUFRO – SENIOR HONORS THESIS

ACKNOWLEDGEMENTS

I would like to thank my advisor, Professor Vickie Sullivan, for her guidance and infinite knowledge of Montesquieu, without which I would never have been able to write this work; Professor Dennis Rasmussen, for his encouragement, advice, and candor in his revisions; my grandmother, Lydie Shufro, for fielding my questions on French history, grammar, and anything else that crossed my mind; and my friends, for tolerating my astronomical levels of stress as deadlines approached. I could not have completed this work without your aid and constant support.

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TABLE OF CONTENTS

INTRODUCTION...... 3

PART I: FRANCE ...... 6

CHAPTER I: MONTESQUIEU’S ANALYSIS OF FRENCH LAW ...... 9

CHAPTER II: THE INFLUENCE OF ROMAN LAW IN FRANCE...... 22

CHAPTER III: THE ORIGINS OF THE FRENCH – THE GRAND DEBATE ...... 32

CHAPTER IV: THE REVOLUTION OF THE LAWS ...... 47

CONCLUSION TO PART I ...... 60

PART II: ENGLAND ...... 62

CHAPTER V: MONTESQUIEU’S ANALYSIS OF ENGLAND ...... 65

CHAPTER VI: THE INFLUENCE OF ROMAN LAW IN ENGLAND ...... 89

CHAPTER VII: THE ORIGINS OF ENGLISH LAW ...... 98

CHAPTER VIII: THE BARRIERS OF THE COMMON LAW ...... 111

CONCLUSION TO PART II ...... 122

PART III – SYNTHESIS...... 124

CHAPTER IX: THE COMMON ROOTS OF THE LAW ...... 127

CHAPTER X: THE DIVERGENCE OF THE LAW ...... 135

CHAPTER XI: DEVIATING POLITICS ...... 144

CHAPTER XII: CONSEQUENCES ...... 155

CONCLUSION TO PART III ...... 162

CONCLUSION ...... 164

WORKS CITED...... 169

REFERENCES ...... 177

2 INTRODUCTION

Few in modern history have had as profound an impact on the world as Charles-Louis de

Secondat, Baron de la Brède et de Montesquieu. In his magnum opus, The Spirit of the Laws,

Montesquieu undertook to examine the very roots of human existence, and to uncover the spirit of liberty through an examination of the world as it is and the laws as he saw them. He explains: “I began by examining men, and I believe that, amidst the infinite diversity of laws and mores, they were not led by their fancies alone” (Preface, xliii). Being thus resolved, Montesquieu laid down the principles of all governments and laws as he saw fit, explaining their histories and mores through a keen analysis of their laws. Over the course of this examination, Montesquieu observed in England a principle which has shaped every democratic constitution of the modern era: the theory of the separation of powers. But beyond this important principle, Montesquieu had much more to impart to the reader.

Throughout his discussion of the laws of various nations, Montesquieu devotes considerable attention to the laws of France and of England; he furthermore implies that the spirit of Roman laws casts a shadow over these nations’ legal codes. This thesis seeks to examine the specter of Rome in these two nations, in order to understand Montesquieu’s analysis of the following three questions:

First, how did the adoption of Roman law affect the development of a strong and central illiberal government in France? To fully elucidate the implications of Montesquieu’s analysis, it will be necessary not only to examine his analysis, but to cast an eye to the history of the nation as a whole. We will determine the extent to which there existed prior legal codes in France, and their exact nature; once their spirit has been ascertained, we will examine exactly how they have

3 changed over time, and seek to understand why. The political implications of these changes will then allow a fuller understanding of the nature of politics in France.

Second, why did England not adopt Roman law? The English legal and political system must be examined, both in Montesquieu’s analysis and from a historical perspective. It is necessary to establish exactly what the legal code is in England, as well as its origins. From that point of departure, it can be established whether or not Roman law ever influenced its development.

Ultimately, a full understanding of why the English legal code developed in the way it did, when, and why, will allow us to understand how England above all other states “has political liberty for its direct purpose” (XI.5, 156).

Once the answers to the two above questions have been fully determined, we can approach the third: what role did the divergence of the legal codes of France and England play in

Montesquieu’s analysis of absolutism and political liberty?

* * * * *

Montesquieu published The Spirit of the Laws in 1748; in the Preface, he refers to this, his lasting contribution to modern politics, as “the work of twenty years” (Preface, xliii). The examination of his analysis must be couched in an understanding of the era in which he wrote.

Louis XIV, the roi soleil and the great consolidator of the absolute French monarchy, died in 1715; under his great-grandson, Louis XV, France slowly started to revert to a state run by nobility in their domains and of the king at Versailles, albeit with only a margin of their former power in each case. Scandals rocked the era: the French were resoundingly defeated in the War of the Spanish

Succession at the 1704 Battle of Blenheim, and the king kept company with a known prostitute, whom he had ennobled through marriage to the title of Madame du Barry, and the age of the

4 Enlightenment marked a reversal of all known modes and orders of the previous centuries; change happened in Europe at a scale unknown since the Reformation. The French Catholic Church, for almost a century a formidable political influence under the regencies of the Cardinals Mazarin and de Richelieu, was slowly losing its monopoly on power, as deistic understandings of the world, prompted by scientific advancement, began to take the world by storm. Natural right theory, promoting the individual rather than the state, was rearing its head, and belief in a scientific analysis of the natural world flourished. In England, a young German couple ruled as king and queen; first Sir Robert Walpole, then the Earl of Wilmington, guided policy by creating the de facto position of Prime Minister. Change was in the air, on both political and societal fronts;

Montesquieu’s work is considered by some to have contributed to, or even to have sparked, some of this change. By presenting a full analysis of the English and French governments in that era, as well as historically, Montesquieu exposes the most fundamental traits of these regimes, for better or for worse; his keen observations will provide a further understanding of the political and social values, norms, and mores of this turbulent era.

Ultimately, this thesis seeks to examine the roots of absolutism in early modern politics, guided by Montesquieu’s implicit theories on the influence of Roman law. A careful examination of his analysis of France and of England will provide a lens through which to scrutinize

Montesquieu’s understanding of political liberty. Through a careful consideration of

Montesquieu’s opus, the legal codes upon which the British common law system was established, one can shed light on the development and state of French jurisprudence in his era and the legal history of Western civilization, as well as on Montesquieu’s implications regarding what we understand to be political liberty, and why we consider that the paramount goal of modern government. With that in mind, we now turn to Part I – Montesquieu’s analysis of France.

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PART I: FRANCE

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PART I: FRANCE

It should hardly be surprising that a French author would look to his country when writing a treatise on government. Even less surprising would be that such an author, especially a baron and judge of the Enlightenment era, would seek to understand the origins of his own nation’s form of government. Montesquieu makes reference to France and to the French throughout his work, both obliquely through discussion of ‘our laws’ or through the use of a national ‘we’ [fr: nous] when discussing moral, legal, and social customs, and with his extensive analysis of the origins of the French state in the final four books of The Spirit of the Laws. Vickie Sullivan and other commentators even purport that in his analysis of China and Japan, Montesquieu is in fact criticizing France and the papacy. Montesquieu lived in a time of vigorous censorship by both the

French state and by ecclesiastical authorities, and thus was well aware of the seriousness of such an act.

The last four books of The Spirit of the Laws have the reputation for being incredibly dense and dry. Paul Carrese notes to this end that Montesquieu himself speaks of “the ‘deadly boredom’ that his antiquarian researches in law ‘must produce’.”1 Nevertheless, in a broad scope these books contain the core of Montesquieu’s understanding of French legal history. He begins by discussing the Frankish tribes, at the time of their arrival into French territory, and traces the legal and political developments undertaken by them through the era of Louis IX, Saint Louis. Thereupon, he makes a simple, yet highly influential, observation: The Institutions of Saint Louis, written in the

1 Carrese, Paul O. The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism. 1 edition. Chicago: University of Chicago Press, 2003. p.83.

7 thirteenth century, are an “obscure, confused, and ambiguous code, where one constantly mixes

French jurisprudence with Roman law; in which one speaks as a legislator and reveals a jurist; where one finds a whole body of jurisprudence covering all situations, all the points of civil right…[for] Saint Louis saw the abuses of the jurisprudence of his time, [and] he sought to make the peoples disgusted with it; he made several regulations for the tribunals of his domains and for those of his barons…[so that it] was practiced in a great number of the lords’ courts” (XXVIII.38,

590-1). Montesquieu thus directly identifies a terminus post quem for the definitive, measurable influence of Roman law in French jurisprudence; there is evidence elsewhere in his work that implies this influence crept in earlier than the reign of Louis IX.

To explain the manner in which the French state developed from a loose association of ducal and baronial seisin bound to their liege king to a centralized monarchy under the Valois and

Bourbon rule from François I to Louis XIV, it is necessary first to examine the manner in which

Montesquieu distinguishes Frankish – that is to say, Germanic – customs and legal practices from those of the Gauls and the Romans. Montesquieu himself became embroiled in a contemporary debate on this topic, and while the debate itself is not important for the final conclusions

Montesquieu draws, his opposition to the Abbé Dubos and the Comte de Boulainvilliers does reveal his manner of thinking on several issues. These distinctions made, I analyzed Roman influence in France, and I reached a conclusion on the role of that influence in the development of the French state of Montesquieu’s era.

8 CHAPTER I: MONTESQUIEU’S ANALYSIS OF FRENCH LAW

For the major part of The Spirit of the Laws, Montesquieu avoids direct analysis of his own country’s legal and political system. He makes brief references to individual Frenchmen, or to specific procedures of the French legal system, but no sweeping analysis is dedicated to his country. Rare yet revealing observations are offered through the early parts of the work; however, it is only in Books XXVIII, XXX, and XXXI that a full analysis of the origins and structures of the French legal and political system are fully expounded. Much of this analysis is focused on the origins and structures of fiefs, which Montesquieu appears to associate strongly with the development of a spirit of honor and pride that is fundamentally incompatible with the virtue of republicanism.2 As he notes early in The Spirit of the Laws, in one of his first direct references to the French government, “in our governments the fiefs became hereditary…so that the owner of a fief would be in a position to serve the prince” (VI.1, 73). Feudalism – the predominant form of land tenure in France for centuries, traces of which were still easily seen in Montesquieu’s era – is thus inextricably linked to the monarchical government of the type promoted by kings such as

Louis XIII and Louis XIV.

Immediately following his famous discussion of the Constitution of England, Montesquieu notes – somewhat indirectly – that the government of England is an exception in his era, and that continental monarchies such as France do not conform to its model. He explains:

The monarchies we know do not have liberty for their direct purpose as does the one we have just mentioned [England]; they aim only for the glory of the citizens, the state, and the prince…the three powers are not distributed and cast on the model of the constitution which we have mentioned; each instance shows a particular distribution of them and each approximates political liberty accordingly; and, if it did not approximate it, the monarchy

2 This analysis will be fully expounded in this chapter, and an investigation into its basis will be the focus of Chapter III, “The Origins of French Law – The Grand Debate.”

9 would degenerate into despotism (XI.7, 166-7).

The French government, he thus recognizes, does not ensure the political liberty of its people, but merely “approximates it” (XI.7, 166). However, the nature of the French people does not naturally contribute to this lack of political liberty, as far as Montesquieu can show; indeed, he describes

French people as being “a sociable humor, an openness of heart; a joy in life, a taste, an ease in communicating its thoughts…lively, pleasant, playful, sometimes imprudent, often indiscrete; and which had, with all that, courage, generosity, frankness, and a certain point of honor” (XIX.5, 310).

He nevertheless notes that the French are naturally vain – to which end he notes that “the vanity of a Frenchman will incline him to try to work better than the others” (XIX.9, 312). The people of

France, whose nature and customs color the formation of the nation’s laws, are thus not to blame for the government’s inability to fully ensure political liberty of its citizens. The legal system in

France is not of itself to blame, in that its lawyers and judges do not actively seek to limit the political liberty of its people; he observes that “French legal experts say: In France, all actions are in good faith” (VI.4, 77). Therefore, the most obvious reason why the government of France fails to do more than merely border upon ensuring political liberty to its citizens is that this failure is rooted in the legal and political system upon which the French government is founded. In order to understand this foundation, Montesquieu returns to the very beginnings of French law: the Salic

Law, and the legal codes of the Frankish peoples who first codified them.

Montesquieu concentrates his on in The Spirit of the Laws on the role of the Salic Law in the French government, thereby placing himself squarely within a historical debate dating back to

Jean de Montreuil’s 1409 treatise, To All the Knighthood, which “introduced, for the first time, textual renditions of a Salic Law: one version forged with an interpolated phrase (1409), the other textually correct but manipulated by Montreuil…[intended to justify] exclusion of women from

10 rule.”3 As Montesquieu himself phrases it, “when a man leaves children, the Salic Law wants the males to inherit the Salic land in preference to the daughters” (XVIII.22, 296). Montesquieu offers this law as a topic of discussion in Book XVIII, On the laws in their relation with the nature of the terrain; he explains that this law “was a purely economic law which gave the house and the land around it to the males who were to live in it and for whom consequently it was best suited”

(XVIII.22, 298). Montesquieu adds that the Salic Law “concerns the institutions of a people who did not cultivate the land, or at least cultivated it but little…Mr. Eckhard has nicely proven that the word Salic comes from the word sala, which means house…[and Tacitus recounts that the

Germanic peoples] had no patrimony other than the house and a bit of land within the enclosure around the house…[and] this particular patrimony belonged to the males…[for the daughters] entered other houses” (XVIII.22, 296-7).

That Montesquieu assigns the Salic Law’s origins to a people who did not engage in agriculture is significant, since he observes that for people who “do not live on a limited and circumscribed terrain” as cultivation requires, “they will have so many things to regulate by the right of nations that they will have few to decide by civil rights” (XVIII.12, 291). Such a people, he continues, “enjoy a great liberty; for, as they do not cultivate the land, they are not attached to it…[and] among these peoples, the liberty of the man is so great that it necessarily brings with it the liberty of the citizen” (XVIII.14, 292). The Salic Law is part of a larger ensemble of ordinances collectively known as the Salic laws, which Montesquieu explains arose “when the Franks left their country [Germany], [when] they had the Salic laws drawn up by the sages of their nation”

(XXVIII.1, 532). This code, so named as it was the code of the Salian Franks, was considered in

3 Hanley, Sarah. “Mapping Rulership in the French Body Politic: Political Identity, Public Law and the ‘King’s One Body.’” Historical Reflections / Réflexions Historiques 23.2 (1997): p.131-2.

11 Montesquieu’s time to be the oldest extant legal code of the Frankish people who eventually created the French nation.

He proceeds saying that “it has been mentioned earlier that peoples who do not cultivate the land enjoy a great liberty…[and] this was the case of the Germans…[and moreover],in

Germany the Franks had no king, as Gregory of Tours proves nicely” (XVIII.30, 306). By establishing the liberty of the Salic people – who innately possess this liberty due to their ignorance of agriculture – Montesquieu establishes that at their outset, the French were a people who enjoyed liberty of the citizen. This kingless society that did not cultivate the land arrived in France, upon which it established a legal code reliant upon the existence of land ownership; the traditional Salic

Law as known in Montesquieu’s era, however, does not stand up to the historical cases he cites.

He points to the fact, for example, that closer female relatives of those without progeny succeeded more distant male relatives, “and this is seen in the law of the Ripuarian Franks, a faithful interpreter of the Salic Law in the article concerning allodial lands” (XVIII.22, 299). He similarly notes that “the law of the Visigoths…permitted daughters to inherit land with their brothers; women were qualified to inherit the crown” (XVIII.22, 301). The Salic Law, as Montesquieu demonstrates, thus relates not to feudal inheritance, but merely to allodial inheritance. He notes:

It has been mistakenly said that the Salic lands were fiefs [for] 1. This [capitulary] is entitled, On Allodial Lands. 2. In the beginning fiefs were not hereditary. 3. If the Salic Lands had been fiefs, how could Marculf4 have treated as impious that custom which excluded women from inheriting them, for even males themselves did not inherit fiefs?…5. Fiefs were established only after the conquest, and Salic usages existed before the Franks left Germany (XVIII.22, 300).

4 Montesquieu explains that “a formula of Marculfus treats that custom as impious which deprives daughters of the right of succeeding to the estate of their fathers” (XXVI.6, N503).

12 Montesquieu makes the important distinction between feudal and allodial lands, which is the difference between lands inherited through a feudal system and lands directly dependent upon ownership by occupancy. While this distinction appears trivial, the implication of feudal inheritance is that vast tracts of land not dependent upon a residence compose a part of the inheritance that is entailed to the male line. Montesquieu notes that this restriction was not always strictly followed: for, “once the perpetuity of fiefs caused the right of redemption5 to be established daughters could inherit fief in the absence of males” (XXXI.33, 719). Nevertheless, he concludes that “women inherited neither the crown of France nor the Empire because, when these two monarchies were established, women could not inherit fiefs, but women inherited in kingdoms whose establishment was later than that of the perpetuity of fiefs, such as those founded by the

Norman conquests” (XXXI.33, 719).

Montesquieu follows his discussion of the Salic Law with three books devoted to the development of French jurisprudence from that law to the civil code of his era: Books XXVIII,

XXX, and XXXI. He explains that the original legal codes of the Frankish kingdoms “show an original roughness and a spirit that was not at all weakened by a different spirit,” despite the migration of the Franks from Germany to France (XXVIII.1, 532). These Germanic tribes, he expounds, had individual legal codes which “were not attached to a certain territory; the Frank was judged by the law of the Franks,” and so forth, and in this manner the independence of each tribe

5 Philippe de Beaumanoir’s 1283 treatise The Coutumes of the Beauvaisis defines the right of redemption as the ability to charge in the assize of novel disseisin that a property was improperly procured; he states that “if you want to redeem property, you must do so within a year and a day from when the buyer is given seisin by the lord” (Beaumanoir, Philippe de Remi, and F.R.P. Akehurst. The Coutumes de Beauvaisis of Philippe de Beaumanoir. Philadelphia: University of Pennsylvania Press, 1992. XLIV§1367, p.488). The requirements to gain right of redemption are to be related to the seventh degree or less to the proprietor who sold the land, and to have a real claim to succession (Ibid, XLIV§1384-6, p.492).

13 endured to a large degree when they inhabited the same regions. Nevertheless, while “the law of the Burgundians and those of the Visigoths were impartial” in their penalties, “but the Salic law was not; it established the most distressing distinctions between the Franks and the Romans”

(XXVIII.2, 536). This is to say, while “the country today called France was governed, under the

Merovingians [Nugent: under the first race6], by Roman law, that is, the Theodosian code, and by the various laws of the barbarians who lived in it,” the penalties imposed for violating these laws greatly favored the Franks (XXVIII.4, 537). Consequently, Montesquieu continues, “the Salic laws acquire[d] a nearly general authority in the countries of the Franks…[and] Roman right [was] gradually lost there…[until] only the ecclesiastics kept it” (XXVIII.4, 538).

Nevertheless, “the edict of Charles the Bald, given at Pistes in 864…proves two things: first, that there were countries in which one judged according to Roman law and…that those countries in which one judged by Roman law were precisely those in which it is still followed today” in French provinces (XXVIII.4, 539-40). Ultimately, Montesquieu notes, the legal development of the different principalities of greater France ended their legal development of the first millennium in the same manner:

The Salic, the Ripurian, Burgundian, and Visigoth laws ceased little by little to be used among the French; this is how it happened. As fiefs had become hereditary and under-fiefs7 were extended, many usages were introduced to which these laws no longer applied…[and as such they] were seriously neglected at the end of the reign of the Carolingians, and at

6 The “first race” was the Merovingian dynasty, started in 449 AD by Mérovée; the “second race” started in 750 AD with Charles Martel; the “third race” started in 987 AD with the election of Hughes Capet as the first French king (Du Tillet, Jean, seigneur de la Bussière. La Chronique des Roys de France, Puis Pharamond jusques au roy Henry. Permière Édition. Paris, la court du Palais, pres la Chambre du Thresor: Jean d’Ongoys, Imprimeur, 1570. pp. 2r,35v,55v). 7 Beaumanoir defines an under-fier, or more correctly an arrière-fief, as land held in a situation such that “the lord must permit what is held from him in fief to be held partly as a sub-fief [arrièrefief]” – that is to say, the vassal lord of one lord can hold another lord vassal on an arrière-fief comprising a portion of the fief held from the most senior seisin lord (Beaumanoir, Coutumes de Beauvaisis, XLVII§1477, p.530).

14 the beginning of the Capetians, they were almost never mentioned (XXVIII.9, 543-4).

While this assertion, buried deep within a discussion of the disuse of Germanic laws in medieval

France, appears unremarkable at first, Montesquieu’s implication is serious. These codes were those, he explains, of a people who enjoyed a remarkable degree of liberty; the old laws of the various tribes had as a purpose “to regulate most business by fine” (XXVIII.9, 543). Upon the disuse of their own codes, these peoples had entered into a feudal society based upon the pledge of service and servitude to one’s seisin lord, in which the laws “established the usage of judicial combat and whose institutions clung to the customs and usages of chivalry” (XXVIII.6, 541).

However, this system of feudal land tenure was not originally Germanic; Montesquieu declares that “among the Germans, there were vassals but no fiefs” (XXX.3, 621). Ultimately, Montesquieu observes that in the Frankish kingdom, “personal laws declined…[and] just as in the establishment of the monarchy German usages passed into written laws, some centuries later written laws returned to unwritten usages” to their own detriment (XXVIII.11, 546).

Montesquieu pointedly insists that “it is not true that the Franks, on entering Gaul, occupied all the lands of the country in order to make fiefs for them,” as such forms of land tenure were unknown to the Germans (XXX.5, 622). Rather, with the assimilation of Roman and Frankish customs, the custom by which “taxes were changed into a military service” developed into feudal tenure as the reliance on Gothic and Roman laws decreased (XXX.13, 633). He observes that counts and other officers of the king at first “were sent to their districts only for a year; [but] they soon bought the continuation of their offices” (XXXI.1, 669). In allowing such purchase of office,

“the kings had already begun to corrupt their own favors…[and] one continued one’s possession of fiefs in exchange for silver just as one continued one’s possession of counties” (XXXI.1, 669).

Montesquieu analyzes the death of Brunhilda, the grandmother of Mérovée, in connection to this

15 corruption. Brunhilda was the regent, daughter, wife, and sister of Frankish kings; her father was a Visigoth king; and, according to Montesquieu, the resentment that the feudal corruption of the early Franks created boiled over in “that revolution famous in the history of France, whose first period included the astonishing spectacle of the punishment of Brunhilda” (XXXI.1, 669).

“Brunhilda, her spirit corrupt, wanted to correct the abuses of the old corruption,” he explains; for

“when fiefs were given by avarice, bad practices, and corruption, [the nobility] complained of being deprived wrongly of that which had often been acquired in the same way,” and she was overthrown (XXXI.1, 671). He observes that in this manner, “the German peoples came out of that state of nature in which it seems they still were at the time of Tacitus” and soon began wholeheartedly adopting feudal customary law codes (XXX.19, 647-8).

Montesquieu observes that as late as 878 AD, “Roman law had become the general personal law; and Gothic law, the particular personal law; [and] consequently the Roman law was the territorial law” (XXVIII.12, 547). What he means by this is complicated: by general personal law, he means that the Roman law applied to those who were not Franks but who violated the law while in Frankish territory; by particular personal law, he means the law of a Frank in Frankish territory. Hidden in his discussion of general and particular personal laws is another important assertion: it is an indisputable fact that the Gothic codes won out over Roman law in this era, for

“if not, we would still have the Theodosian code in the provinces where the Roman law was territorial, whereas we find the law of Justinian in them” as a legal basis in his own era (XXVIII.12,

547-8). This is to say, while the Roman law died out under feudalism, it served as the basis of the

French legal system in Montesquieu’s own time. Montesquieu thereupon concludes his discussion of the laws as “written reasoning in the former domain of the Franks” and shifts focus to the forms of trial and proof accepted in these codes (XXVIII.12, 548). In this treatment he includes canon

16 law alongside the codes of the Salic Franks and others, because “Charlemagne’s capitulary of 806 wants the churches to have both criminal and civil justice over all those who live in their territory;” as such, he treats the church as one cohesive fiefdom, in which the ruler – the pope – administers justice through canonical code (XXX.21, 655).

Montesquieu begins his investigation into the forms of trial ordained by different legal codes. “The Salic law,” he observes, “did not admit the use of negative proofs” in their trials, whereas the Ripuarian Franks did (XXVIII.13, 548). This is the reason why, he explains, the Salic laws do not require trial by combat: “it appears to me that the law of combat was a natural consequence of, and a remedy for, the law that established negative proofs” (XXVIII.14, 549).

However, Salic laws did allow for trial by “proof by boiling water, and as this ordeal was quite cruel, the law was tempered in order to soften its strictness…[and, therefore] the practice of combat could not be a consequence of this particular provision of the Salic law” (XXVIII.16, 551). Trial by combat prevailed under the Germanic people aside from the Salic Franks, Montesquieu explains, because “in their individual business the German peoples took the outcome of combat as a mandate of providence” (XXVIII.17, 552). The nature of these trials was dictated by the nature of the Germanic people: “in a nation concerned uniquely with war, cowardice presumes other vices,” and so these trials existed to prove the masculinity and strength of the accused; for this reason, women could not represent themselves against accusations, except through a champion

(XXVIII.17, 552).

Montesquieu draws the conclusion that “but in spite of the clamor of the clergy, the use of judicial combat spread daily in France, and I shall shortly prove that they themselves largely gave rise to it” (XXVIII.18, 554). Montesquieu supposes “that the nobility asked for proof by combat because of the drawback of the proof introduced by the churches…[and as such] the use of judicial

17 combat should be regarded as a privilege of the nobility” (XXVIII.18, 555). The people thus were required to swear in the presence of the clergy, whereas the nobles maintained their duels; and “on the one hand, the ecclesiastics took pleasure in seeing that in all secular business one had recourse to the churches and altars, and, on the other, a proud nobility liked to maintain its rights by the sword” (XXVIII.18, 556). Montesquieu thus establishes that the right of trial by combat, first established by the military nature of the Germanic tribes, gained preeminence in France through its service to the personal desires of a power-hungry clergy. It is this legal development that,

Montesquieu claims, led to the fall of the Frankish codes in favor of feudal law: “such a nation” that uses judicial combat exclusively “had no need of written laws, and its written laws were quite easily eclipsed” (XXVIII.19, 558). These judicial combats in turn contributed to a society structured such that “at the time of our combats, the spirit of gallantry must have been in force,” and “from this was born the marvelous system of chivalry” which tempered the military nature of the people of France (XXVIII.22, 561-2).

From this tempering of the military nature of the people, Montesquieu expounds, the

Roman concept of a legal appeal was reintroduced in France. Prior to this era, he explains, “appeal as established by Roman laws and canonical laws, that is, appeal to a higher tribunal to rectify the judgment of the other, was unknown in France” under the Franks, for “a warrior nation that was governed solely by the point of honor did not know this form of procedure” (XXVIII.27, 568-9).

Montesquieu observes that “Saint Louis said in his Establishments that appeal is felonious and iniquitous…[for] if a man wanted to complain of some offense committed against him by his lord, he had to denounce the lord and leave his fief; after which he challenged him before his overlord

[lord paramount] and offered battle gages” (XXVIII.27, 569). For, as Montesquieu continues, in cases of appealing a judgment, the appeal was often made to the monarch:

18 For as an infinity of men with fiefs had no men under them, they were not in a position to hold their own court; all the business was carried to the court of their overlord; they lost the right of justice because they had neither the power nor the will to claim it (XXVIII.27, 571).

Indirectly, it appears, the advent of appeals in French jurisprudence – which was derived not from

Germanic practices, but from Roman and Canon law – led to the centralized concentration of judicial authority in the lord paramount, that is to say, the sovereign.

Montesquieu observes, in regard to development of a legal system in this era, that “one must read attentively the regulations of Saint Louis, who made such great changes in the judicial order” (XXVIII.23, 563). Saint Louis is credited by Montesquieu as having left a fundamental and indelible mark on the French legal system. His Establishments, or Institutions were a codified law of the style of Justinian’s Corpus iuris civilis, and he cemented French legal procedure in his era.

He further “abolished judicial combats in the tribunals of his domains” – thereby requiring an appeal process that centralized royal authority – and he “introduced the usage of declaring judgments false without combat, a change that was a kind of revolution” (XXVIII.29, 578). In these cases, Saint Louis ordained in his Institutions that he “wanted business to be carried to the tribunal of the king or the overlord, to be decided not by combat, but by witnesses, following a form of procedure for which he gave rule” (XXVIII.29, 579). Ultimately, Montesquieu ascribes the drastic changes of the Institutions of Saint Louis to its source:

What, therefore, is this compilation that we have under the name of the Establishments of Saint Louis? What is this obscure, confused, and ambiguous code where one constantly mixes French jurisprudence with Roman law…[which] formed an amphibious code, in which were mixed French jurisprudence and Roman law; things were brought together that had never been related and that were often contradictory (XXVIII.38, 590-2).

While he acknowledges that “the judicial forms introduced by Saint Louis ceased to be used,”

Montesquieu insists that “the laws of St. Louis did not so much change the French jurisprudence

19 as they gave new means for changing it; they opened new tribunals, or rather ways to get to them”

(XXVIII.39, 592). Montesquieu then explains that

When the Digest of Justinian was discovered around the year 1137, Roman right appeared to be reborn…Italian scholars brought the right of Justinian into France, only the Code of

Theodosius had been known, because the laws of Justinian were not made until after the

establishment of the barbarians in Gaul…[and] St Louis sought to give it a standing by having translations made of the works of Justinian, which we still have in manuscripts in our libraries, and I have already said that much use was made of them in the Establishments. Philip the Fair had the laws of Justinian taught solely as written reasoning in the countries of France governed by custom, and they were adopted as law in the countries where Roman right was the law (XXVIII.42, 596).

Ultimately Montesquieu credits the Justinian Digest and Saint Louis’ Institutions (which were, he claims, inspired by the Digest) with the great “revolution” of French law that Saint Louis brought to pass.

In his earlier Persian Letters, Montesquieu made a similar claim: in a letter from Rica, who here serves as a porte-parole of Montesquieu himself, he observes the enduring influence of

Roman law in France. “Who would think that the oldest and most powerful kingdom in Europe would be goverened,” Rica inquires, “for more than ten centuries, by laws not designed for it?”8

He justifies the necessity of his question thus: “if the French had been conquered, it would not be difficult to comprehend” the endurance of foreign law within the state, “but they are the conquerors,” and so the persistence of Roman law demands an explanation.9 Montesquieu continues that

They have abandoned the old laws made by their first kings in general assemblies of the nation, and strange as it seems, the have substituted Roman laws, which were in part made and in part codified by emperors contemporary with their own lawmakers. And so that the

8 Montesquieu, Charles-Louis De Secondat, Baron de. Healy, George R., trans. The Persian Letters. Indianapolis: Hackett Publishing Company, Inc, 1999. Letter 100, p.167. 9 Ibid, Letter 100, p.167.

20 acquisition would be complete and all wisdom might come from the outside, they have adopted all papal constitutions and have made them a new part of their law, that is, a new form of servitude… The abundance of these adopted and, so to speak, naturalized laws is so great that it overwhelms both justice and the judges. But those volumes of law are nothing by comparison with the appalling army of glossarists, commentators, and compilers, people as feeble in wisdom and justice as they are strong in numbers. [But] that is not all. These foreign laws have introduced formalities which, in excess, are the shame of human reason. 10

In the same spirit, Montesquieu declares in the Spirit of the Laws that while “the formalities of justice are necessary to liberty,” their excess “could be so great that it would run counter to the end of the very law establishing them…[and] citizens would lose their liberty and their security; accusers would no longer have the mean to convict nor the accused, a means to vindicate themselves” (XXIX.1, 602). Montesquieu concludes his discussion on the development of French law on a similar note, exclaiming that he “could have elaborated further at the end of this book and, by going into greater detail, could have followed all the imperceptible changes that have formed the great body of our French jurisprudence since the introduction of appeals[;] but I would have put a great work into another great work” (XXVIII.45, 601). He implies in these closing lines that the fall of the trial by combat in the thirteenth century, and the simultaneous adoption of the

Roman right of appeal, led to the formation of the French legal system of his era. That development now remains to be examined in finer detail.

10 Montesquieu, The Persian Letters, Letter 100, p.167.

21 CHAPTER II: THE INFLUENCE OF ROMAN LAW IN FRANCE

The origins of French jurisprudence, historically speaking, are muddled; for centuries, jurists and scholars have debated them, to varying conclusions. In his treatment of the subject in

The Spirit of the Laws Montesquieu carefully inserts himself into the debate, acknowledging at once the valid points each side offers and disabusing them of their flaws; he has no strong stake in the argument, though he has a genuine interest in teasing out the truth as best possible. In order to develop a full understanding of the origins of Roman influence in French jurisprudence,

Montesquieu read the definitive treatises on the subject available to him in his era: he thus read sources as diverse as Jean Du Tillet’s Chronicles, Philippe de Remi de Beaumanoir’s Coutumes of the Beauvaisis, and both Henri de Boulainvilliers’s and the Abbé Dubos’s works on the subject.11

Ultimately, Montesquieu builds a chronological hypothesis on the development of French jurisprudence over the course of Books XXVIII, XXX, and XXXI. These massive books – Book

XXVIII alone is 45 Chapters – explore the pertinent information in thematic concentration, but with the strongest emphasis on the development of feudalism and the emergence of the modern country of France following the feudal period.

A Renaissance fascination with Roman Antiquity, along with muddled early records and medieval myths, makes ascertaining the origins of French law quite a challenging task;

Montesquieu was undoubtedly aware of these difficulties in his prodigious undertaking. As Sarah

Hanley notes, by Montesquieu’s era “French jurists managed to align a complex system of French law that recognized older elements of Roman law, canon law, feudal law, and customary law into a system repeatedly classified as ‘our French law’ and operating in consort with the times…in this

11 These last two sources – and the debate they address – are the subject of Chapter III.

22 alignment, Roman law (an influential written corpus) remained a healthy part, not a sore, on the body politic.”12 However, despite its salutary nature, the ‘French law’ that Montesquieu knew was a complex amalgamation of conflicting codes. Hanley explains that in France, “Salic and Roman laws had meshed by around 1000 in northern France, and a fusion of laws (Salic, Roman, Feudal) produced regional Customary Laws (1100s-1300s), written laws collected by jurists, treated as

‘French common laws,’ and slated for official compilation by the 1450s.”13 This fusion had several key elements that Montesquieu addresses: the conflict between Roman codes and Salic laws, the eventual dominance of feudal laws, and the pattern of written code ceding to a customary tradition, which itself is then recorded and eventually cedes to the new system to follow. The emphasis on adaptation of the legal system of a country was expounded at length during the Renaissance; it was in this era that the practice of studying written codes became so prevalent. During this period, and continuing through Montesquieu’s own time, “judges and lawyers in France studied Roman law at the universities,” with the hopes of instilling a sense of Antique virtue and exactness in their legal practice.14 Montesquieu, being a judge, was thus exposed to the notions of Roman law as a paragon of excellence from an early age.

In the French legal education of this era, consistency and the reconciliation of these various codes were paramount. Marie Kim explains that starting in the sixteenth century, “legal humanists attempted to construct a system of customary law susceptible to serve as the basis of legal interpretations, in which Roman law principles could be utilized without deforming French

12 Hanley, Sarah. “What Is in a Name?: ‘Our French Law.’” Law and History Review 28.3 (2010): 827– 836. Print. p.829. 13 Hanley, Mapping Rulership, p.138-9. 14 Kim, Marie Seong-Hak. “Civil Law and Civil War: Michel de L’Hôpital and the Ideals of Legal Unification in Sixteenth-Century France.” Law and History Review 28.3 (2010): 791–826. Print. p.791.

23 custom. Antoine Loisel tried in his Institutes coustumières to extract essential elements in different customs and discern common principles among them.”15 Accordingly, the most important task that

Renaissance jurists undertook was that of aligning the French legal system with the principles of ancient Rome, rather than determining which laws were of what origins. Yet not all jurists of this era were such enthusiastic Romanists; Michel de L’Hôpital, who was chancellor of France in the mid-sixteenth century, avidly opposed reliance on, and a desire to align French legal codes with,

Roman law. To this end he “lamented: ‘Since we received the [Roman] laws about three hundred years ago – and we thought we found a great treasure, because it was in wide use – [legal scholarship] has turned to a shame and a ruin and has become poison…young people sent to study

[Roman] law at the universities return home full of paragraphs with glosses, without knowing how to use them.’”16 Montesquieu observes that the re-introduction of Roman law in France in the last part of the twelfth century coincided with a drastic change in the government; commentators have observed this phenomenon as well. Kim explains that “the expectation that royal legislation would accommodate both French custom and general principles from Roman law to create a genuine

French law steadily grew in the sixteenth century…a development that coincided with a rise of the administrative monarchy in France.”17

This expectation reached its zenith roughly two hundred years before Montesquieu’s publication of The Spirit of the Laws, as the French Renaissance approached its zenith. French jurists “such as François de Connan, Hughes Doneau, and Louis Le Caron undertook the project of rearranging the texts of the Digest and the Codex according to classical ideals…L’Hôpital too,

15 Kim, p.793. 16 Ibid, p.798. 17 Ibid, p.794-5.

24 while he was a judge at the Parlement18 of Paris, attended to a synthesis of Roman law…[and] in his testament, L’Hôpital referred to the books of civil law that he had started but left unfinished.”19

While these jurists limited themselves to analyzing the Roman laws as they were, others argued hotly in favor of re-writing the ancient French codes in their image:

The humanist quest for the purity of Roman law shifted to a search for the utility of civil law, that is, what French law could draw from the Roman model…Some jurists, such as Barthélemy Chasseneuz, André Tiraqueau, and Pierre Lizet, held on to the superiority of Roman law…[ and Coquille reported that Lizet] “held Roman civil law as our common law, and attempted to accommodate our French law to Roman law as much as possible and restrict what it contrary to it.”20

This desire to re-create an antique system in Renaissance France is best described in the 1567 work, Antitribonian, where the jurist “Hotman praised the contents of the Corpus iuris civilis as the central source from which a French code of law should be drafted.”21 While these projects never did amount to significant changes in French jurisprudence, they certainly changed the conception of law in France itself; no longer a patchwork of amorphous decrees and customs, by the end of the sixteenth century French law began to consolidate in shape and become unified in content, under the rising form of a central monarchy with actual power. Prior to this restructuring on a Roman model, the French legal system was virtually unrecognizable not only from its modern form, but even from duchy to duchy, region to region, and city to city. Kim explains:

Before the sixteenth century, jurisprudence was regional, if not strictly local. From at least the early fifteenth century, the parlements in the South adopted Roman law principles at the expense of customary rules, and tried to limit legal diversity. The Parlement of Toulouse, in particular, was active in implementing Roman law rules of succession disregarding divergent customary dispositions. In the North, as a parlement heard local

18 Throughout this work, I will refer to the French assembly as parlement and the English one as Parliament, to reflect their different appelations and natures. 19 Kim, p.799. 20 Ibid, p.800-1. 21 Ibid, p.803.

25 customs within its jurisdiction, it tended to assimilate usages, and the accumulation of res judicatae led to the redefinition of custom…by the end of the sixteenth century, jurisprudence, containing both customary and Roman elements, had emerged as a veritable source of law.22

In this disorganized state, law was difficult to discuss on a national level, let alone analyze in order to discover its origins. Montesquieu thus returns to the origins of France, and traces its development through to the era of the Romanists and codifiers such as Michel de L’Hôpital.

Up through Montesquieu’s era, the commonly accepted – and essentially true – French national creation myth of sorts was that of the Frankish conquests of the remnants of the Western

Roman Empire. Matthias Becher explains that “the kingdom of the Franks had been the foremost power in the territory of the erstwhile Imperium Romanum since the second half of the sixth century…[and] in addition, the early Merovingians, like other Germanic kings, acted as the representatives of Roman imperial authority and thereby legitimized their rule in the eyes of the

Gallo-Roman population.”23 However, it is erroneous to consider these Franks to have been a unified force; they were small tribes and war lords who engaged in raids on the fringes of the

Roman Empire, and who were allowed to peaceably settle the lands of Gaul in exchange for a cessation of raiding. Following this settlement, “the various Frankish peoples under their separate dukes or kings began slowly to coalesce into two major groupings, the Salian Franks, the more westerly, and the Ripuarians, somewhat to the east and up the Rhine…by 509 Clovis had eliminated his rival kings and had united all of the Franks, both Ripuarian and Salian, under his rule.”24 By Montesquieu’s time, these Salian Franks were considered to be the origins of the future

22 Kim, p.794. 23 Becher, Matthias, and David S. Bachrach. Charlemagne. Yale University Press, 2003. JSTOR. p.19-20. 24 Drew, Katherine Fischer. “The Roman World and the Germanic Franks.” The Laws of the Salian Franks. University of Pennsylvania Press, 1991. 3–11. JSTOR. p.5.

26 French nation, and the capital city of this Frankish kingdom soon moved to the site of Paris.

In the later years of his rule, “Clovis…copied the Roman emperor by presenting himself as a lawgiver, and at the end of his reign issued the laws of his people, the Lex Salica…[and subsequently] several of Clovis’s successors presented themselves as lawgivers and expanded Lex

Salica through the addition of numerous titles.”25 It is to a single clause of the sixth chapter of this code, De Allodio, to which Montesquieu makes reference when he discusses the infamous Salic

Law. In the first century after Clovis, the codes were re-compiled and edited, and “important changes emerge between the earliest collection of Frankish customary law, the Salic law (circa

510), and the second major compilation, the Lex Ribuaria (after 600)…famously, the former prohibits any female inheritance of ancestral land, while the later relaxes such restrictions.”26

Montesquieu fixates on this law, and its revisions, as a means of explaining the system of land tenure utilized by the Franks, and draws inferences about their political structure from these observations. He claims that the Germanic Franks held little land besides the households themselves because they engaged in very little agriculture, and that these non-agricultural people had no king; they therefore can be branded as a more ‘simple’ society, and were governed by harsh laws. Commentators state that the Lex Salica and Lex Ripuaria “are amongst the most ‘barbarian’ of laws, in that they largely consist of compensation tariffs, and crime is conceived as an injury against a person which requires compensation rather than as a delict against the law or the public

25 Becher and Bachrach, p.23-4. 26 Siedentop, Larry. Inventing the Individual: The Origins of Western Liberalism. Harvard University Press, 2014. JSTOR. p.142.

27 authority which requires punishment.”27

At the same time as the redaction of these legal codes was originally being compiled,

“Clovis married a Catholic Burgundian princess…[and] this marriage inevitably involved Clovis in Burgundian affairs and brought him into contact with an area more highly Romanized than his own.”28 Thus, the first sustained pacific dialogue between the Franks and a Romanized society can be considered to have started in this era; indeed, historians agree “that the Merovingian state…was a pseudo-Roman sham that utterly collapsed under the degenerate successors of Clovis.”29 The

Catholic Church, with its Romanized canon law, soon followed; Clovis converted to Catholic

Christianity in 499 AD, and his sister became an Arian Christian the following year.30 Over time, as the Salic law applied to a larger and larger territory, it came into conflict with other legal codes; eventually, “both Franks and Gallo-Romans came under the provisions of the Salic law in areas covered by that law, superseding Roman law in these matters…where the Salic law offered no guidance, however, the conclusion seems inescapable that the vulgar Roman law was still followed by the Gallo-Romans and members of the clergy.”31

The influence of Roman law in the Frankish kingdoms was most heavily felt through the clergy’s influence in this era, and through canon law: “the first recorded use of [the Dionysio-

27 Fouracre, Paul. “Francia and the History of Medieval Europe.” The Haskins Society Journal 23: 2011. Studies in Medieval History. Ed. William North. New edition. Boydell and Brewer, 2014. 1–21. JSTOR. p.15. 28 Drew, p.6. 29 Stephenson, Carl. “The Origin and Significance of Feudalism.” The American Historical Review 46.4 (1941): 788–812. JSTOR. p.806. 30 Du Tillet, p.6v. “Au retour de la guerre la royne Clotilde, pour luy gratifier, à cause de la victoire, alla au devant de luy iusques à Reims: où il fut baptisé par S. Remy, Archevesque dudict lieu, & receut la loy de Iesus-Christ.” 31 Drew, p.8.

28 Hadriana canon law code] in the Frankish kingdoms was in 789, when a summary of pertinent clauses from it formed the opening section of Charlemagne’s Admonitio Generalis…it did not become more widely used, however, until the first few years of the following century, and its impact on Frankish canon law as a whole has yet to be fully assessed.”32 In the same era, “the clergy-dominated Council of Toledo, drawing on Roman law, tried to replace verdicts based on physical combat or oaths sworn by kinsmen with a careful search for evidence…[and] law codes began to change accordingly” throughout Western Europe.33 The Catholic Church, inspired by ancient Roman procedure, thereby precipitated the abandonment of the traditional Gothic judicial system in France. Thus, the clergy and Roman canon law are at the root of the procedural change

Montesquieu directly ascribes to the rise of a central royal authority and the fall of feudal society.

While the clergy were influencing legal development, their orders were also serving as a model for a new system of ownership: precatory land tenure, known more commonly as feudalism.

Though such a system existed in part under the Merovingians, it was Charles Martel who

“despoiled the church in order to obtain land for a second distribution of fiefs…[whereby] the

Carolingian monarchy was committed to a ruinous policy that reached its culmination under the sons of Louis the Pious.”34 In stripping the church of its land, the monarchy was able to accumulate power through securing the support of important vassal lords. It is thus fair to say that “it was the secularization of ecclesiastical estates…that ‘provided the means for transforming the kingdom of the Franks into a feudal state’…[for] these lands could be granted to the actual owners only as precariae verbo regis, as benefices to be enjoyed on condition that the specified service was to be

32 McKitterick, Rosamond. “Knowledge of Canon Law in the Frankish Kingdoms Before 789: The Manuscript Evidence.” The Journal of Theological Studies 36.1 (1985): 97–117. Print. p.98. 33 Siedentop, p.147. 34 Stephenson, p.790.

29 regularly performed.”35 This newly empowered monarch ruled from a fixed location, and “the center of government of the kingdom was the royal court which also was organized on a Roman pattern.”36 Therefore, by the dawn of the new millennium the Frankish clans had evolved into the centralized, feudal Carolingian dynasty.

This sophistication and development continued apace for the following three hundred years; Montesquieu mentions the discovery of a complete copy of the Digest in the thirteenth century, in Amalfi, that influenced the French by way of Italy, where this Roman law was taught at Bologna. Thus it is fair to say that “French law had reached a certain degree of sophistication by the early fourteenth century…judicial duels were suppressed by the king, after convictions some appeals were possible, and proof was established by enquête…[nevertheless] law was an amalgamation of revived Roman law, influences of canon law, and a great deal of customary laws.”37 Nevertheless, the conflicts between the Roman laws and the Salic code had yet to be resolved. Edelgard DuBruck explains that by this time,

The highest judiciary authority in France was the Paris parliament [sic], which handled appeals for civil and criminal matters…there were problems of inheritance (where customary and Roman laws were in conflict), and generally, competing jurisdictions of principalities, feudal obligations, and clerical prerogatives had created a special need for good lawyers.38

During that time, law schools had fully emerged, signaling with them the centralization and unification of the disparate legal codes into one at least somewhat codified legal system; under the

35 Stephenson, p.793. 36 Becher and Bachrach, p.24. 37 DuBruck, Edelgard E. “Violence and Late-Medieval Justice.” Fifteenth-Century Studies Vol. 27: A Special Issue on Violence in Fifteenth-Century Text and Image. Ed. Edelgard E. DuBruck and Yael Even. New edition. Boydell and Brewer, 2002. 56–62. JSTOR. p.56. 38 Ibid, p.60.

30 likes of Michel de L’Hôpital in the Sixteenth century, this unification would truly come to pass.

The one problem for which Montesquieu offers no complete explanation is that of the roots of feudalism; he notes that the Germanic Franks had no feudal system involving land tenure in

Germany, and he does not identify a similar system among the Romans either. The general belief in his era was that this system was a representation of the domination of the Franks over the conquered Gauls; however, Montesquieu does not directly endorse this theory. In modern times, a new theory has emerged, that recognizes the various sources of the system known as feudalism.

Carl Stephenson explains:

In his brilliant Essai of I902 Paul Guilhiermoz reexamines the writings of the late Roman Empire and there discovers what he takes to be convincing evidence for the origin of medieval vassalage[:] During the fourth, fifth, and sixth centuries, [notables]…were accustomed to surround themselves with bands of household guards usually called scholares or buccellarii… [and] the Gothic leaders, evidently, continued a Roman practice that had already been adopted by such barbarian generals as Stilicho and Ricimer… and the Merovingian antrustiones were nothing else than scholares or buccellarii under a Frankish name. Guilhiermoz then proceeds to show how the antrustiones formed the nucleus from which sprang the Carolingian vassi and so, ultimately, the French nobility.39

Ultimately, this theory combines the various ones that were supported in Montesquieu’s own era; yet, its final proportion supports none of them. These theories were clearly important to

Montesquieu, otherwise he would not have included such a lengthy condemnation of the Abbé

Dubos’ book in Book XXX of The Spirit of the Laws. It is to this topic that we now must turn.

39 Stephenson, p.796.

31 CHAPTER III: THE ORIGINS OF THE FRENCH – THE GRAND DEBATE

Montesquieu commits almost 3,000 words to his disapproval of the Histoire critique de l'établissement de la monarchie française dans les Gaules by the Abbé Dubos .40 In doing so, he artfully crafted what he believed to be an important contribution to the ‘Grand Debate’ of his era, that of the thèse royale and the thèse nobiliaire.41 This debate, as hotly contentious in noble and royal circles of the era as the later querelle des bouffons would become, centered on a question of fundamental importance in the political basis of the French kingdom: with whom was power most justly aligned? The noble thesis argued that originally, France was a state composed of Frankish nobles who – according to some – elected a king from among themselves, following their invasion of Gaul and the subjugation of the Gauls as the third estate. Conversely, the royal thesis argued that the Frankish kings merely usurped power from the Roman emperor, peaceably or through force, and that the Frankish kingdom of the early middle ages was always a hereditary monarchy in the first and second races, as it incontestably was in the third race.42 What was at stake in this debate, in an era of increased royal centralization and absolutism, was the very nature of the French government; for, according to the noble thesis, the true legislative power of the state originated not from the king, but from the assemblies of the nobles that eventually evolved to become the parlements of the regions, with the Parlement de Paris as the final authority. Thus, supporters of this theory could be considered as being opposed to royal absolutism, and those in favor of the royal thesis could be considered to a degree as apologists of the absolutist tendencies of Louis XIII and Louis XIV. But this distinction is too simple, and a more complete analysis is necessary in

40 The exact word count, excluding footnotes, hovers around 2,900 words. 41 I will be referring to these theories in the general as the noble thesis and the royal thesis; broadly speaking, the noble thesis would more properly be called the parlementary thesis, but I will constrain my discussion of it to the terms used at the time. 42 For the use of the term ‘race’ see Chapter I, footnote 6.

32 order to understand the basis of Montesquieu’s disagreements with Dubos.

The clearest written roots of the debate date to 1574, when François Hotman published his

Franco Gallia; undoubtedly, this debate existed prior to this period, but the polemic picked up with a ferocity from that date.43 Examining the state of France in the era surrounding the fall of

Rome to Odoacer, Hotman found a “chose publique établie et fondée sur la liberté” – a “public thing established and founded upon the idea of liberty” – as the basis for the French state, with a

“people provided with free institutions, governing themselves in assemblies, with a king who was merely the delegate of the people.”44 Thus, this king has no true power; it resides instead in the hands of those who make up the assemblies. Moreover, this power was never transferred to the king from these assemblies upon their dissolution, but – Hotman explains – is incarnated in the parlements of France, and in the nobility whose ancestors were members of these assemblies.45

Thus began the noble thesis. Claude Joly made similar contentions in his anti-absolutist Maximes, published in 1652,46 as did Charles Dufresne Du Cange in 1668.47 The focus on these assemblies of notables, which some supporters of the noble thesis claimed evolved into the parlements, and which other supporters claimed were composed of the ancestors of the oldest noble families of

France, directly challenged the idea of the king as the sole source of power in France. These

43 Lombard, A. “L’abbé Dubos et L’origine de L’école Romaniste.” Revue d’Histoire littéraire de la France 16.4 (1909): p.678. 44 Ibid, p.678, my translation. Original reads : c’est “en 1574, au lendemain de la Saint-Barthélemy, que Hotman a écrit son Franco Gallia…[où] il découvrait, à l’origine de l’histoire de France, une ‘chose publique établie et fondée sur la liberté,’ un peuple pourvu d’institutions libres, se gouvernant lui-même dans des assemblées, avec un roi qui n’était que le délégué de la nation.” 45 Carcassonne, Elie. Montesquieu et le Problème de la Constitution Française au XVIIIe siècle. Geneva: Slatkine Reprints, 1927. p.6-7. 46 Ibid, p.7. 47 Ibid, p.7. “Du Cange avait retracé dans une de ses « dissertations » le pouvoir des assemblées sous l’ancienne monarchie.”

33 publications undoubtedly caused a scandal at the time of their publication for the implications of this statement alone, however cleverly cloaked it was in historical supposition.

Soon after the 1668 publication of Du Cange’s Fourth Dissertation,48 those who supported a central royal authority began to pen reactionary responses to the claims Du Cange made on the powers of assemblies in early France. Seven years later, “in 1675 Adrien de Valois49 insisted that the ancient Franks’ Salic Law…made no mention of a noble order [and so] Valois concluded that the ancient Franks had no noble order…[though nevertheless] he admitted that the Franks must have distinguished ‘noble and honored men’ [among themselves].”50 Valois thus did not make any remarkable claims, but merely relied upon a standard reading of Tacitus’s Germania; Montesquieu does the same to further specify that the Franks must have not had a king prior to their arrival in

Gaul.51 However, the following year Pierre Audigier published a treatise in which he made a more bold assertion than Valois had dared to make: he claimed that “the French empire was merely a division of the Roman Empire, to whose power it had succeeded.”52 While this claim was countered by Géraud de Cordemoy’s 1687 Histoire de la France, in which he speaks of the importance of early Frankish laws and assemblies,53 the idea of France as the rightful successor of

Rome was a powerful one in the eyes of those supporting an absolutist centralization of power,

48 Full title: “Quatième Dissertation, Des assemblées solennelles des rois de France.” Carcassonne, p.7. 49 While he was the official historian of Louis XIV, Adrien de Valois (or de Vallois) is not related to the earlier Valois branch of the royal family, which had by this time been extinguished, with the cadet Bourbon branch ruling. (Perrault, Charles. Des hommes illustres qui ont paru en France pendant ce siècle, avec leurs portraits au naturel. Vol. 2. Paris: A. Dezallier, c.1696-1700. p.69-70.) 50 Ellis, Harold A. “Genealogy, History, and Aristocratic Reaction in Early Eighteenth-Century France: The Case of Henri de Boulainvilliers.” The Journal of Modern History 58.2 (1986): p.440. 51 See Chapter I. 52 Lombard, p.686, my translation. Original reads : En 1676, “Audigier avait cherché à démontrer que l’empire français n’était qu’une division de l’empire romain, auquel il avait succédé dans ses droits.” 53 Carcassonne, p.7.

34 because of the early medieval myths of the origins of the French that it echoed. No longer were the fantastical ideas of the French kingdom being founded by a fugitive Trojan prince following the fall of his city to the Greeks entertained in court; these new ideas carried the same sense of antique authority, but were more historically sound, and thus more suitable for the dawning Age of Reason.

Three years after Cordemoy published his Histoire, Louis-Sébastien Le Nain de Tillemont published his own history of the French, building on Audigier’s claims of Roman succession. He spoke at length about the “cantonment” of barbarian tribes within the Roman Empire – the establishment of Frankish zones of authority within the greater Empire which, following the fall of Rome, aggregated into the Frankish kingdom and assumed the role of government abandoned by Rome itself.54 In his 1714 work Nicolas Fréret similarly discussed how the Franks had not conquered the Gallo-Romans, but rather usurped the authority of the Emperor to gain control in

Gaul under Clovis.55 However, the same year Jean-Aimar Piganiol de la Force published a new edition of his Nouvelle Description de la France in which he provided readers with a concise and complete history of the importance of assemblies in the early French monarchy and those held since.56 By that time, the back-and-forth of academic debate on this topic was well established in

France; however, when the Austrian Johann Georg von Eckardt, “the editor of the Salic and

Ripuarian laws,” published his history of the Hapsburg Empire, the discussion transcended national borders.57 In this work, he laid out the “idea for the future system of [Dubos’s] Histoire

54 Lombard, p.686. “Le Nain de Tillemont avait parlé du ‘cantonnement’ des troupes barbares dans les provinces romaines.” 55 Ibid, p.686. “En 1714…Fréret avait combattu le system du P. Daniel et soutenu que les rois Francs avaient traité avec les empereurs: leur conquête n’était donc pas entièrement une usurpation.” 56 Carcassonne, p.7. 57 Lombard, p.686.

35 critique: the first barbarian kings as officers of the Emperors, governing in their name and with their consent.”58 The royal thesis served not only the French monarchy, but other monarchs in

Europe who longed for a tangible link to Imperial Roman authority. The license such a genealogy entailed was too attractive a prize for Western European monarchs to entertain any pretension of supporting the noble thesis.

Against such a background, Henri, Comte de Boulainvilliers, decided in 1727 to publish his work on the origins of the French nobility. In contrast to the monarchy of his period, “he admired instead the feudal and Frankish pasts when ‘confusion’ and ‘despotism’ had not yet destroyed the old nobility’s preeminence and power…and he traced that preeminence and power back to then putative Frankish Conquest of Gaul when the Germanic Franks – whom he placed among the old nobility’s ancestors – conquered and enserfed the Gallo-Romans dwelling in Gaul and set up an aristocratic state.”59 A country noble of modest background whose pride and honor were dependent on his status, Boulainvilliers “really admired medieval France’s ‘mixed government,’ as he understood it: a regime in which crown and ‘nation,’ embodied in baronial

‘parlamenta,’ or in estates general, actually shared sovereignty.”60 While Montesquieu essentially agrees with the theory that Boulainvilliers proposes – that the parlements and the nobility ought to have a larger share of the power than they were accorded under Louis XIII and onward – he tempers his agreement through careful deference, first to the anti-absolutist interpretation that such a theory risks engendering, and then cuts back his criticism in deference to Boulainvilliers’s noble

58 Lombard, p.686, my translation. Original reads: “Dans un ouvrage paru précisément en 1721…Eckardt, l’éditeur des lois salique et ripuaire, avait énoncé l’idée du futur système de l’Histoire critique : les premiers rois barbares officiers des empereurs, gouvernant en leur nom et avec leur consentement.” 59 Ellis, p.417-8. 60 Ibid, p.416.

36 birth:

The Count of Boulainvilliers has fallen short in the chief point of his system: he has not proven that the Franks made a general regulation that put the Romans into a kind of servitude...[but his] knowledge was not despicable because he knew well the great things about our history and our laws (XXX.10, 627).

In deflecting his open approval or disapproval from Boulainvilliers directly, Montesquieu implicitly communicates his agreement with the basics of the work, which explains the origins of a ‘true and old nobility’ in France. Ultimately placing himself as a member of this original nobility in writing his Dissertation, “Boulainvilliers’s ‘true and old nobility’ recalls…nobility so old that its origins were lost in the night of time, nobility boasting feudal ancestry, nobility that might have even descended from the ancient Frankish conquerors of Gaul…[for] this immemorial nobility was Boulainvilliers’s subject in his ‘Dissertation,’ the history of a French nobility whose past included medieval feudatories and Frankish Conquerors and extended back to and beyond the beginnings of French history.”61 In explaining the power of the nobility through feudal terms,

Boulainvilliers “retains the conventional (and correct) view that fiefs were precarious tenures impropriated by their holders but presents those incipient feudatories not as usurpers but as local leaders chosen from among the ‘old nobility’ by local populations bereft of noble protection and needing defense against the Viking invasions and civil wars that afflicted late Carolingian

France.”62 Thus, Boulainvilliers lends credence to the French aphorism which Montesquieu himself affirms, “fief et juridiction font qu’un”63 – fief and jurisdiction are but one. However,

Montesquieu, unlike Boulainvilliers, recognizes the problem that such a system poses for the

61 Ellis, p.416. 62 Ibid, p.443. 63 Mathiez, Albert. “La Place de Montesquieu Dans l’Histoire Des Doctrines Politiques Du XVIII E Siècle.” Annales historiques de la Révolution française 7.38 (1930): p.106. “Pour [Montesquieu] donc la vieille maxime féodale ‘fief et juridiction font qu’un’ est une vérité démontrée.”

37 people, an observation that helps explain his reluctance to openly agree with Boulainvilliers’s work as a whole. Yet this lack of full agreement with Boulainvilliers does not mean that Montesquieu agrees with Boulainvilliers’s main detractor, the Abbé Dubos, on this matter, and he observes that

“the Count of Boulainvilliers and the Abbé Dubos have each made a system, the one seeming to be a conspiracy against the third estate, and the other a conspiracy against the nobility” (XXX.10,

627).

Despite his ardent support of the royal thesis, the Abbé Jean-Baptiste Dubos viewed many of the key structural claims of the noble thesis as factual; he recognized the theory of a Frankish ruling class and a Gallo-Roman serf class, that this situation was imposed upon the Gallo-Romans, and that “the Franks, vanquishers of Gaul, had national assemblies.”64 Nevertheless, he passionately believed that these assemblies had long passed their usefulness in France; he insists that circumstances in France changed drastically between the first two and the third race of monarchy, and that while the nobility originally helped rule and received privileges in exchange for their service to the king, the nobility of his era had merely become ornaments of the court, to whom their original obligations to the monarch had become loathsome.65 Because the supporters of the noble thesis relied so heavily upon the idea of a Frankish conquest through which the Gallo-

Romans had been subjugated and enslaved to become the enserfed third estate, Dubos set out to disprove that this conquest had led to such a mass enslavement. In his writings in the early 1710s, he “explained at length that the erroneous idea of the Frankish conquest and the enserfment of the

64 Lombard, p.682, my translation. Original reads: Dubos “admet que les Francs, vainqueurs de la Gaule, ont eu des assemblées nationales.” 65 Ibid, p.682. “il expliqua qu’un ‘rang dont les prérogatives ne mortifiaient personne lorsqu’on n’y parvient qu’avec des services importants et que la naissance s’accorde enfin à des favoris qui n’ont d’autre mérite que les vices qui plaisent à leurs maitres…les prérogatives de ce rang deviennent donc odieuses.’”

38 vanquished had for a long time obscured the whole study of public law” in France.66

Seeking to shed light on this matter, the Abbé studied early histories of the Franks by

Frédégaire and Gregory of Tours, and in 1719 he found the key to the explanation of the Gordian

Knot that was early Frankish history: Lombard explains that it was then

That he realized the possibility to destroy in one fell swoop, along with the whole Frankish conquest itself, all the pretensions, all the privileges, all the inequalities that it appeared to justify…[when] he remarked in Fredegairius that which seemed to him to be a cardinal error: fooled by a vicious turn of phrase – an ablative taking the function of a nominative – Fredegairius translated a sentence from Gregory [of Tours] as if Chilperic was the enemy of the Romans, whereas according to the text itself he was their ally.67

By claiming that a simple grammatical error had condemned the Franks to be considered a conquering force in Gaul, when they in fact had been invited to control the region under Chilpéric, as an ally of the Romans, Dubos dismisses supporters of the noble thesis not as being incorrect, but merely misinformed by an unfortunate historical misunderstanding. Dubos thus proved that the royal thesis was fundamentally correct: the Franks, under a sole ruler, were the proper allies and successors to the Roman Emperors, ruling with their explicit consent, in the same style as the

Emperors themselves ruled, and as a monarchy fully vested with imperial authority.68 Dubos did not feel the need to investigate further; in ‘proving’ this contention, he succeeded in directly

66 Lombard, p.684, my translation. Original reads: “Dubos expliquera longuement que l’idée erronée de la conquête franque et de l’asservissement des vaincus a faussé longtemps toute l’étude du droit publique.” 67 Lombard, p.686, my translation. Original reads: “Qu’il aperçut la possibilité d’anéantir d’un seul coup, avec la conquête franque elle-même, toutes les prétentions, tous les privilèges, toutes les inégalités qu’elle paraissait justifier…[quand] il aperçut dans Frédégaire ce qui lui parut être une erreur capitale: trompé par une tournure vicieuse – un ablatif faisant fonction d’un nominatif – Frédégaire avait traduit une phrase de Grégoire [de Tours] comme si Chilpéric était l’ennemi des Romains, alors que d’après le texte lui-même il était leur allié. ” 68 Mathiez, p.98. “Dubos faisait voir que les rois francs n’avaient pas pénétré dans l’Empire romain comme des conquérants mais au contraire comme des alliés et comme des auxiliaires des armées romaines…il montrait ensuite que les rois francs avaient gouverné à la manière romaine, comme des délégués de l’Empereur, dont ils tiraient leur pouvoir.”

39 refuting Henri de Boulainvilliers’s work on the subject, and at once had also achieved his ultimate goal of irrefutably supporting the royal thesis.69 The implications of this claim are far-reaching: the “fundamental law of the monarchy” was thus proven to be absolute rule, “a law founded on the transmission of power from the Emperors to the kings of France…[and thus] it was the lords who had usurped [the legitimate power of the kings].”70 Absolutism was the legitimate form of monarchy in France, he argued, and the kings of the third race had finally returned to their proper power. It is clear why Montesquieu, who opposed extremes in general, was so eager to dispute these contentions.71

Montesquieu was not the first author to pen a strong response to Dubos. The year after the publication of Dubos’s Histoire critique de l’etablissement de la monarchie françoise dans les

Gauls (1734), Gilbert-Charles Legendre, Marquis de Saint-Aubin used his works as a basis for his contention that monarchy is superior to all other regimes, and that it inherently is absolute, but never arbitrary.72 Similarly in 1740 , Gabriel Bonnot de Mably relied on Dubos’s work in his

Parallèle des Romains et des François, wherein he argues that an absolute monarchy is the most legitimate and salutary form of government for the French, as democracy dilutes power and aristocracy oppresses the people.73 Mably, Legendre de Saint-Aubin, and Dubos were opposed in

1740 by the collaboration of Louis de Rouvroy, Duc de Saint-Simon, and l’Abbé Claude Le

69 Lombard, p.687-8. 70 Ibid, p.678-8. “Dubos s’arrêtait là : il avait donné à la monarchie française la plus glorieuse des origines, et fondé l’autorité absolue de ses rois sur le plus incontestable des droits…le despotisme se trouvait être la loi fondamentale de la monarchie, loi fondée sur la transmission du pouvoir des empereurs aux rois de France…[et ainsi] ce sont les seigneurs qui ont usurpé [le pouvoir légitime des rois] en transformant leurs bénéfices en fiefs héréditaires ; et les Valois, en faisant triompher l’absolutisme, n’ont fait que rentrer dans le droit et rétablir la véritable forme de la monarchie.” 71 Lombard, p.687-8. 72 Carcassonne, p.52. 73 Ibid, p.56.

40 Laboureur, who published the Histoire de la Pairie. In this work, commissioned by Saint-Simon and other high aristocrats to vindicate their power and status, Le Laboreur describes the constitution of a divided state, with enserfed Gallo-Romans and a free Frankish class, and claims that this was a “conquering nation, where the nobility, shared with the prince the governance of the state.”74 Le Laboureur continues that with hereditary feudalism, only the largest landholding nobles remained part of the Court – the Cour du Roi – and that “these high barons, who composed the ‘Cour du Roi’ at the beginning of the third race, are the ancestors of the Peers of France.”75

This Cour du Roi, or king’s council, he continues, “still subsists in the kingdom under the name of Parlement”; the argument of the earlier supporters of the noble thesis thus reemerges.76 In 1744,

François Richer d’Aube published a volume of his Réflexions sur le gouvernement de France in which he argues that in addition to the king, the country adopt a legislative council based on the

Parlements, charged with a form of judicial review.77 But until four years later, when Montesquieu published his Spirit of the Laws, nobody had systematically dismantled the Abbé Dubos’s work.

Montesquieu’s personal opposition to the Abbé Dubos’s work is as much of note as his historical opposition to it; as a noble and the president of the Parlement of Bordeaux, he was naturally inclined to support the noble thesis over the royal thesis. Montesquieu staunchly supported the rights of the parlements as “the most essential of the intermediary dependent powers” of the state, as they dissipated sole power from the executive and gave the aristocracy a

74 Carcassonne, p.12, my translation. Original reads: “la nation conquérante, où la noblesse, partageait avec le prince le gouvernement de l’État.” 75 Ibid, p.13, my translation. Original reads: “ces hauts barons, au commencement de la troisième race, sont les ancêtres des pairs de France.” 76 Ibid, p.13, my translation. Original reads: “[elle] subsiste encore dans le royaume sous le nom de Parlement.” 77 Ibid, p.58.

41 means by which they could be the ‘channels’ through which governmental power flowed.78

Nevertheless, he attempts to disprove Dubos through disproving his logic, rather than by directly opposing his argument. Montesquieu begins his discussion of Dubos in earnest when he notes in

Book XXX that “[he] would be briefer if [he] did not find still in front of [him] the book, The

Establishment of the French Monarchy in Gaul by Abbé Dubos …nothing pushes back the progress of knowledge like a bad work by a famous author, because before instructing, one must begin by correcting the mistakes” (XXX.15, 639). The Abbé is not alone in creating this deception, he explains; his sources are as culpable as he is himself, for “the Abbé Dubos drew from the wrong sources for an historian, from poets and orators; one must not found systems on works of ostentation” (XXVIII.3, 537). He then opens a series of three chapters devoted to the flaws he finds in Dubos’s Histoire critique de l’etablissement de la monarchie françoise dans les Gauls:

It is well, before finishing this book,for me to examine briefly the work by the Abbé Dubos, because my ideas are perpetually contrary to his and because, if he has found out the truth, I have not…[in his work], because an infinite number of conjectures are set up as principles and other conjectures are drawn from them as consequences…the reader forgets that he has doubted and begins to believe (XXX.23, 659).

From the outset of his criticism, Montesquieu thus establishes that Dubos relies on faulty logic, and that it is these logical flaws that led him to conclusions so opposite to those which Montesquieu supports.

Montesquieu quickly establishes his opposition to the idea that the Frankish conquest of

Gaul never happened; he decries the fact that “the Abbé Dubos wants to remove any idea that the

Franks entered Gaul as conquerors; according to him our kings, summoned by the people, did

78 Rahe, Paul A. Soft Despotism, Democracy’s Drift: Montesquieu, Rousseau, Tocqueville, and the Modern Prospect. Yale University Press, 2009. p.30.

42 nothing but take the place and succeed to the rights of the Roman Emperors” (XXX.24, 659). This conquest, in Montesquieu’s conception, is essential in establishing that the early Franks had a

Gothic legal system, and were one and the same as the people Tacitus describes in his Germania.

Following this claim, Montesquieu observes that without a conquest, Dubos cannot explain the different ranks of the early monarchy and aristocracy. He paints such a claim as injurious to the majesty of the monarchy, despite the fact that it actually supports the noble thesis in preference to the royal one: “the Abbé Dubos maintains that in the early time of our monarchy there was but one order of citizens among the Franks…this claim, insulting to the blood of our first families, would be no less harmful to the three great houses that have reigned over us in turn…the origin of their greatness would not go back to be lost in oblivion, in darkness, and in time; history would illuminate the centuries when they would have been common families and, in order for Chilperic,

Pepin, and Hugh Capet to be gentlemen, one would have to seek their origin among the Romans or the Saxons, that is, among the subjected nations” (XXX.25, 663). Montesquieu thus corners

Dubos: either his book paints the monarchy as less majestic, due to its humbler origins, or he is forced to directly contradict his own premise.

Montesquieu then focuses on Dubos’s problematic explanations of how French fiefs supposedly were based on Roman military structures. He explains that on this count “the Abbé

Dubos, who needed the Visigoths to pay taxes, departs from the literal and spiritual meaning of the law and imagines, solely because he imagines it, that there was between the establishment of the Goths and [a certain law of the Visigoths] an increase in taxes which concerned only the

Romans…[for he] seeks laws in the Justinian Code to prove that the military benefices among the

Romans were subject to taxation; from which he concludes that it was the same for fiefs or benefices among the Franks…but the opinion that our fiefs originated in this establishment of the

43 Romans is condemned today; it was accredited only at a time when Roman history was known and our own very little known and when our old records were buried to dust” (XXX.12, 631-2).

Dubos’s logic is thus exposed as antiquated and anachronistic.

Montesquieu, perhaps dryly (considering the length of his own work at this point) observes in Book XXX that “if the system of the Abbé Dubos had had a good foundation, he would not have been obliged to make three deadening volumes to prove it; he would have found everything in his subject and, without going to the ends of the earth to seek what was remote, reason itself would have taken up the charge of placing this truth in the chain of other truths” (XXX.23, 659).

Montesquieu thus accuses Dubos of carefully confusing the reader through complicated explanations that deviate from the truth at strategically important points, but do not in themselves constitute mistruths. Montesquieu thereupon continues that Dubos claims

Our kings, summoned by the people, did nothing but take the place and succeed to the rights of the Roman Emperors [but] this this claim cannot apply at the time when Clovis, entering Gaul, sacked and took the towns; nor can it be applied to the time when he defied Syagrius, the Roman officer, and conquered the country he held; therefore, it can relate only to the time when Clovis, who had become master of a great part of Gaul by violence, would have been summoned by the choice and the love of the peoples to dominate the rest of the country…and it is not enough for Clovis to have been accepted – he had to have been summoned; the Abbé Dubos must prove that the peoples preferred living under the dominion of Clovis to living under that of the Romans or under their own laws (XXX.24, 659-60).

Essentially, Montesquieu claims, Dubos paints history in a manner where the result is depicted as the cause: Clovis had already assumed control of Gaul in all but name, but for Dubos this power is not manifest until after its justification through the ‘invitation’ of the Gallo-Romans to occupy the territory. According to Montesquieu, Dubos “draws some consequence from this principle, that

Gaul was not conquered by the Franks but that the Franks were summoned by the Romans,

[though] one will always be able to deny it…Dubos proved his principles by the Roman ranks with

44 which Clovis was invested; he wants Clovis to have succeeded Childeric, his father, in the post of master of the soldiery…but these two posts are purely of his own creation [for] the letter from

Saint Rémi to Clovis on which he founds his principle is nothing but a congratulatory note on his ascension to the throne” (XXX.24, 661).

Montesquieu follows this disputation of this ‘first proof’ of Roman succession by the descendants of Chilpéric by attacking his ‘second proof’ of the proper right of Clovis and his descendants to call themselves the emperor-nominated successors to the Western Roman Empire.

Montesquieu elaborates that “the second proof alleged by the Abbé Dubos is the emperor

Justinian’s assignment to the children and grandchildren of Clovis of all the rights over

Gaul…[but] the Frankish kings were…masters of Gaul; they were peaceful sovereigns: Justinian did not possess an inch of land there; the Western empire had long since been destroyed, and the

Eastern emperor had a right over Gaul only as the representative of the Western emperor; these were right on top of rights[;] the Frankish monarchy was already founded; the regulation of its establishments was complete; the reciprocal rights of persons and of the various nations living under the monarchy were agreed upon; the laws of each nation were given and even put into writing” (XXX.24, 661-2). Montesquieu thus for a third time demonstrates that Dubos’s logic is faulty, due to his deliberate attempts to confuse sufficient and necessary facts regarding Clovis’s power. Montesquieu ultimately concludes his condemnation of Dubos’s Histoire critique de l’etablissement de la monarchie françoise dans les Gauls by stating that “the public should not forget that it is indebted to the Abbé Dubos for a number of excellent compositions…it is on these fine works that it should judge him and not on this one [for] the Abbé Dubos has fallen here into grave errors, because he had the Count of Boulainvilliers more in view than his subject [and] I shall draw from all my criticisms but this reflection: if this great man has erred, what should I not

45 fear” (XXX.25, 668). Appearing humble in his final remonstrance of Dubos’s work, Montesquieu moves on and summarizes his work in Book XXXI, Theory of the Feudal Laws among the Franks, in the Relation They Bear to the Revolutions of their Monarchy. It is to this very subject that we now turn.

46 CHAPTER IV: THE REVOLUTION OF THE LAWS

Montesquieu’s choice to consecrate three of the last four books of The Spirit of the Laws to the subject of French and Frankish feudal laws may stand out as unconventional, but the most unconventional aspect of these chapters themselves could be his usage of the word ‘revolution’ in relation to the French monarchy. Montesquieu himself, after all, lived less than a century after the bloody aftermath of the most recent revolutionary action against the French, in the strict sense of the word: La Fronde. His sense of the term here is quite different, but the underlying uneasiness of such a word’s use in relation to the monarchy undoubtedly made royal censors uncomfortable.

Within the context of Book XXXI, the meaning of the word revolution more accurately could be defined as a fundamental change in the principles of the country. To a certain degree, however, this word does recall Montesquieu’s discussion in his early books of how government can degenerate into despotism, as he details the decline of the Frankish institutions from their original state to their irrelevance under feudal society and an increasingly centralized monarchy.

Montesquieu opens Book XXXI with a discussion of how it came about that fiefs became hereditary. However, he breaks away from the logical chain he makes in the opening of the chapter to interject an assertion as to what the book as a whole has as its purpose: “I shall show later in this book,” he explains, “that, independently of the gifts [of fiefdom] princes made for a limited time, there were others that they made for all time” (XXXI.1, 669). Montesquieu inserted a note to this assertion, directing the reader to Chapter 7 of the same book; this chapter explains which grants of fiefs were supposedly in perpetuity, as its title is Of the great offices and fiefs under the mayors of the palace. Montesquieu here explains that this ‘revolution’ of the monarchy was made under the rule of the mayor of the palace – the Carolingian Dynasty, prior to their expulsion of the

Merovingian kings, known in French as the rois fainéants, the late Merovingian kings who ruled

47 nominally while allowing the mayor of the palace to control real power. Montesquieu thus places at the center of this book an examination of the historical changes in the French government, brought about by self-interest and corruption on the part of the executive power – for this is why he explains that the mayor of the palace created and maintained perpetual tenure of fiefdoms.

Montesquieu follows his first allusion to the focus of this book by discussing Brunhilda, and her execution following her attempts to weed out corruption in the Frankish monarchy.

Montesquieu observes that under her rule, when contemplating the royal and perpetual grants of fiefdoms, “the court wanted to revoke gifts that had been made; this set up a general discontentment in the nations, and one soon saw arise from it that revolution famous in the history of France, whose first period included the astonishing spectacle of the punishment of Brunhilda”

(XXXI.1, 669). By this first revolution, Montesquieu means the decay of the Merovingian

Dynasty; for Brunhilda was the great-great granddaughter by marriage of Mérovée, the fabled founder for whom the Dynasty is named, and her regency coincided with the first of the rois fainéants. Montesquieu, as discussed in Chapter I of this work, does not see Brunhilda as a necessarily nefarious character; rather, he faults the situations in which she found herself, where she was forced to strip “goods from the lords and filled the fisc [treasury] with them…[and] humbled the nobility, and [ensured] that no one could be sure of keeping the position he had”

(XXXI.1, 670). These actions, Montesquieu explains, were necessary to rid the government of corruption; for “when fiefs were given by avarice…[the lords] complained of being deprived” of their fiefdoms, despite the fact that they legally should not have had a perpetual claim to them to begin with (XXXI.1, 671). While she “became daily more odious to the nation” through her actions, Brunhilda set the stage for a return to the purer mores of the Franks, under the rule of her usurper, Clotaire II (XXXI.1, 670). Montesquieu explains that coinciding with her execution and

48 overthrow, “we have a constitution of Clotaire, given in the council of Paris, to reform abuses…[and while] on the one hand, he confirms in it all the gifts that had been made or confirmed by the kings, his predecessors, and on the other, he orders that all that had been taken away from his leudes, or faithful, should be returned to them” (XXXI.1, 671). Montesquieu thus sees the reforms that Clotaire II undertook in his bid to secure power after overthrowing Brunhilda as a ‘revolution’ of the laws of the Franks, enjoining that “we shall shortly see that the reform was still more widespread and extended to civil business” (XXXI.1, 672).

At this point, Montesquieu observes that the French nation under Clotaire II “did what had not been seen before: it looked over its present situation, it examined its laws coolly, it provided for their deficiency, it checked violence, it regulated power” (XXXI.2, 672). Early noble unrest in opposition to regal changes to land tenure – which Montesquieu notes before this point “they were neither given nor taken away capriciously and arbitrarily, and this was usually one of the principal topics considered in the assemblies of the nation” – resulted in a moderation of royal arbitrary power, and overthrew a sort of tyranny – a revolution indeed (XXXI.1, 669). Prior to the overthrow of Brunhilda and the reforms of Clotaire II, Montesquieu says that the Franks were “a ferocious and barbarous nation” who bore “murderous, unjust, and cruel” kings; but “the Franks” nevertheless “tolerated murderous kings because they were murderous themselves…[and] there were many laws established, but the kings rendered them useless by certain letters called precepts, which reversed these same laws,; these were nearly like the rescripts of the Roman emperors, either because the kings took this usage from them or because they drew them from the depths of their own nature (XXXI.2, 673). However, during this ‘revolution’ of the Merovingian Dynasty “the edict of Clotaire redressed all grievances” and provided for an early form of due process:

One could no longer be condemned without being heard; relatives were always to inherit

49 according to the order established by the law; all precepts for marrying girls, widows, or nuns were nullified, and those who had obtained and made use of such precepts were punished severely (XXXI.2, 673-4).

In detailing the reforms of the constitution that Clotaire presented to the Parlement de Paris,

Montesquieu ultimately concludes that “the events that occurred in the reign of Clotaire II…caused a revolution in the political state of the kingdom” in that it provided for a stable and written guarantee of legal protection against arbitrary royal power (XXXI.2, 675).

Montesquieu then turns his attention to the subject of the mayors of the palace, and has immediate recourse to Tacitus’s description of royal authority and succession among the Germanic tribes. The Franks “were descended from the Germans,” he explains, “of whom Tacitus says that in the choice of their king they determined according to nobility, and in the choice of their leader, according to virtue” (XXXI.4, 677). He thereby concludes that under the Merovingians, with regard to the kings and the mayors of the palace, “the first were hereditary, the second were elected” (XXXI.4, 677). The true power in the Merovingian Dynasty was thus vested in someone chosen by the members of the parlements, and this person was selected based upon merit and capabilities as leader. Montesquieu explains that once the Carolingian mayors of the palace overthrew the Merovingian Dynasty, “by their regal dignity our first kings were at the head of the tribunals and assemblies and gave laws with the consent of these assemblies; by their dignity as duke or leader, they made expeditions and commanded armies” (XXXI.4, 677-8). Montesquieu rationalizes the overthrow of the Merovingian kings by observing that ever since the reign of

Thibaut, who “was the first king to remain in the palace,” the Merovingians had excused themselves of any responsibilities, in favor of pleasure, and were thus not qualified to be the

‘leader’ of the people – a title that “was given to the mayors of the palace” (XXXI.5, 678-9).

Montesquieu notes that it was under the rule of the mayors of the palace that fiefs began to

50 regularly be granted in perpetuity rather than in recognition of service to the king. He explains that, because they “took care not to reestablish the revocability of posts and offices,” when they granted to the nobility perpetual fiefs, for “they ruled only by the protection that they granted the nobility in this regard thus, the great offices continued to be given for life and this usage grew even stronger” (XXXI.7, 680). Montesquieu explains that it was “Charles Martel, who founded new fiefs,” who began this practice in earnest; to this end he observes that “it was natural [that the mayors of the palace] should have begun to give fiefs in perpetuity, rather than counties” and other administrative positions of influence; for the fiefs encouraged the nobles to support the Carolingian family, whereas the counties were positions whose power limited that of the mayor of the palace

(XXXI.7, 681).

Stemming from this discussion about the increased power of the mayors of the palace,

Montesquieu finds it important to discuss “that famous period of the transfer of the crown to the

Carolingians, which was made under King Pepin: a thing which, unlike ordinary events, is perhaps more noticed today than it ever was even at the time it happened” (XXXI.16, 694). In this era,

Montesquieu explains, “kings had no authority, but they had a name…the title of king was hereditary, and that of mayor was elective” (XXXI.16, 694). When Pepin succeeded his father as mayor of the palace, he continues, a ‘revolution’ of the governmental form occurred:

Pepin, son of Charles Martel, believed that it was appropriate to blend these two titles, a confusion that would always leave some uncertainty as to whether the new royalty was hereditary or not; and it sufficed for the one who joined great power with royalty…[and] in the mixture of these two authorities, a king of reconciliation occurred…the mayor had been elective, the king hereditary: the crown, at the beginning of the [second race], was elected because the people did the choosing; it was hereditary because they always chose from the same family…[and so] when Pepin took the crown, it was a passage from one government to the same government (XXXI.16, 694-5).

But it appears that here, Montesquieu contradicts himself; he observes that the office of mayor of

51 the palace was absorbed into that of the king, and yet declares that the governments prior to this change and after this change were identical. He reconciles this discrepancy by claiming that both offices were merely united in the same person, but theoretically existed nevertheless. As evidence, he discusses the manner in which Pepin divided the empire between his sons, Charles

(Charlemagne) and Carloman, at St. Denis, as proof of this duality: “the right of the people during the reign of this house was to elect from within the family; it was, properly speaking, a right to exclude rather than a right to elect” (XXXI.17, 696).

There are several flaws to this theory to which Montesquieu refers during his discussion of the central French state; ultimately, they point to a centralized government’s formation throughout the Carolingian Dynasty. Montesquieu first observes that “one sees in the formula for the consecration of Pepin that Charles an Carloman were also anointed and blessed and that the French lords were obliged on penalty of interdiction and excommunication never to elect anyone other than a Carolingian” (XXXI.17, 696). The old Germanic tradition of electing a leader based on valor and ability thus vanished under the reign of Pepin the Short and Charlemagne. Montesquieu recalls a story of Augustus’s time in Egypt, and his desire to view the body of Alexander the

Great,79 as a metaphor of sorts for his analysis of the Carolingian Dynasty overall: “in the history of the Carolingians, one seeks Pepin and Charlemagne; one wants to see the kings and not the dead” (XXXXI.20, 699). This is to say, after the rule of these two kings, the dynasty fell into a state of disorder and weakness that its failing is of no consequence, as it was the kings themselves who failed the state, and not the government in its new form. He observes that under Charles

Martel, Pepin, and Charlemagne the empire created was ruled according to the principles they

79 “When Augustus was in Egypt, he had the tomb of Alexander opened; he was asked if he wanted to open those of the Ptolemies; he said he had wanted to see the king, and not the dead” (XXXI.20, 699).

52 established; under the children of Charlemagne, however, mismanagement of the treasury “had reduced the republic to nothing” and ripe for another revolution in the spirit of the monarchy

(XXXI.22, 702).

Principal among these failings that ruined the state, Montesquieu observes, is the fact that by the reign of Louis the Debonair, the Church had become one of the great estates of the kingdom, holding its lands like a fief and enjoying extrajudicial privileges due to its extreme influence on the kings. Montesquieu explains that “in order to maintain their shares [of the empire] the emperor’s children solicited the clergy and gave them rights unheard of until then…[which] were specious; the clergy were brought in as a guarantee of that thing which one had authorized”

(XXXI.20, 700). This ‘revolution’ Montesquieu mentions is the rejection of the extreme influence of the Church in the state; he consecrates a sizable portion of Book XXXI to this subject, starting with Chapter 9, How ecclesiastical goods were converted into fiefs. He explains that as early as

Clovis’s grandson Chilperic, “almost all his goods had been given to the churches” (XXXI.9, 684).

When the power of the royal family waned, “Pepin made himself master of the monarchy by protecting the clergy; Charles Martel, his son, could maintain himself only by oppressing them”

(XXXI.9, 685). Thus arose the ‘revolution’ to which Montesquieu referred: first Charles Martel, and then the descendants of Charlemagne after him, needed to both court the clergy and repossess

Church lands in order to create new fiefs. To this end, Montesquieu remarks that Charles Martel

“took for himself and for his officers the goods of the churches and even churches, and put an end to an abuse which, unlike ordinary evils, was the easier to cure for being so extreme” (XXXI.9,

685). Pepin, needing the support of the clergy in order to maintain power, created a capitulary “in which he enjoined those who held these benefices [held from the Church] to pay [the] tithe and fee and even to keep up the houses of the bishop or monastery on penalty of losing the goods given

53 to them” (XXXI.11, 688). Charlemagne, upon enforcing the tithe and himself bequeathing land to the Church, is viewed by Montesquieu in a relatively negative light: Montesquieu says that “it seemed that he regareded the immense gift he had just given to the churches less as a religious act than as a political dispensation” (XXXI.12, 692). Ultimately, it was through this process that the

Church became a major feudal presence in France in the first two races, and its own estate in the

Estates General.

In addition to the Church’s influence as a feudal landholder, Montesquieu also negatively views the changes in fief ownership under the Carolingians. Montesquieu has explained at this point that “when Charles Martel distributed the goods of the church to his soldiers, partly in fief and partly as [allodia], [he was] bringing about a kind of revolution in the feudal laws…it is likely that nobles who already had fiefs found it more advantageous to receive the new gifts as [allodia], and that the freemen were only too happy to receive them as fiefs” (XXXI.24, 707). Regarding expansion of the fiefs, Montesquieu starts a new section of the book entitled The Principle Cause for The Weakening of the Carolingians, which begins with Chapter 25, The change in the freeholds. In this chapter, Montesquieu makes an extreme claim: in the peace treaty that concluded the 841 AD Battle of Fontenay-en-Puisaye, he finds “clauses that must have changed the whole of the French political state” (XXXI.25, 708). As these two clauses, laid out below, are both regulations on feudal land tenure, Montesquieu is saying explicitly that the advent of feudalism fundamentally transformed the political structure of France. These regulations all rely upon the right of both freemen and lords to hold fiefs – already a drastic departure from the non-agricultural system of the Germanic peoples, where all only held land in allodium. The first of these clauses, he continues, made it so that “every freeman could subject his allodium to the king or to another lord…[which] changed their [allodium] into a fief, and [they thereby] left, so to speak, the civil

54 jurisdiction in order to enter the power of the king or of the lord they wanted to choose” (XXXI.25,

708). This system, whereby freemen were no longer subject to the Salic or other Frankish codes, allowed for the spread of feudal seisin courts administered within the jurisdiction of each liege lord; the rule of law in France was thus fractured, and the people subjected themselves to a strict hierarchy. The second clause, Montesquieu observes, made “a general law giving the fiefs to the children of the possessor”; that is to say, the official promulgation of a law requiring that fiefs become hereditary (XXXI.25, 708).

Montesquieu firmly believes that the origins of noble privilege are tied to the transformation of allodia into fiefs. He observes that as early as the reign of Marculf, nobles in possession of allodia “gave [their] land to the king, [who] returned it to the giver as a usufruct or benefice, [who then] recommended his heirs to the king” (XXXI.8, 682). For a noble to make this largely symbolic change in his land tenure, Montesquieu reasons, there must have been a significant advantage to the possession of a fief. He then declares that “in order to discover the reasons for a man thus to change the nature of his [allodium], I must seek, as in the very depths, the old prerogatives of that nobility which for eleven centuries has been covered with dust, blood, and sweat” (XXXI.8, 682). Montesquieu explains that “they who held fiefs had great advantages” in the codes of the king’s justice, for not only was the penalty for the murder of such an individual threefold that of the murder of a freeman, but also those who held fiefs were exempt from confiscation of goods should they flee from justice (XXXI.8, 682). Montesquieu reasons that it logically stems from these great advantages granted to the holders of fiefs that the possession of a fief was a prerequisite for enjoying the privileges of the nobility. Consequently, to be a member of the nobility; and from this it follows that the nobility of the Germanic Franks – people who were members of the assemblies – only remained noble under the Carolingians by virtue of their

55 hereditary land holdings.

Similarly, Montesquieu laments the changes in what Beaumanoir refers to as arrière-fiefs, and which Montesquieu here calls under-fiefs; these fiefs were held by lower nobles, with their lord being a vassal of the lord paramount, and they were a form of sub-division of the fief.

Montesquieu observes that originally, when fiefs were granted for life but not in perpetuity, “on the death of the leud the vassal also lost his under-fief; a new beneficiary came who in turn established new under-vassals” as he saw fit (XXXI.26, 709-10). Over time, this system changed as the system of fief tenure tended towards grants in perpetuity; and as a result of this tiered land tenure system, “what the king had held without mediation was no longer held except by mediation, and royal power was, so to speak, pushed back a degree, sometimes two, and often more”

(XXXI.26, 710). This may sound like a positive means of avoiding the centralized monarchical structure that Montesquieu associates with increased, Romanic authority, but it actually contributed to the judicial fragmentation of medieval France. Moreover, Montesquieu laments a change in the social mobility of the rear-vassals, which contributed to a centralization of royal authority. He notes that while originally “although the vassals of the king could give land as a fief, that is, as an under-fief of the king, nevertheless these under-vassals or petty vavasors could not likewise give land as a fief, so that what they had given they could always take back” (XXXI.26,

710). This is to say, while those who held land from the king could surrender it to him and re- receive it as a fief, rear-vassals originally could not do so. Over time, Montesquieu says, this custom was dropped, and by the time of a compilation of rules of feudal land law under two

Milanese senators, he observes, “finally, this rule was no longer followed in the senate of Milan”; he thus implies that the same was true in contemporary France (XXXI.26, 710).

Montesquieu further observes in the era of Charlemagne’s sons two significant corruptions

56 of the offices of the Germanic Franks, tied to their land tenures. Under the Franks as established under the Salic law, counts held counties as officers of the king, and only for life; and vassals of the king held fiefs in this era as reward for their military service to the king. However, following the Battle of Fontenay-en-Puisaye, the status of fiefs as military benefices changed dramatically.

Montesquieu explains that “a law was made providing that the nobility would not be constrained to follow the princes to war except when it was a question of defending the state against a foreign invasion” (XXXI.27, 711). At the same time, Montesquieu expounds that

Charles the Bald made a general regulation that affected the great offices [the counties] and the fiefs equally; he established in his capitularies that the counties would be given to the children of the count, and he wanted this regulation to apply also to fiefs. It will soon be seen that this regulation was more broadly extended so that the great offices and the fiefs passed to more distant relatives (XXXI.28, 712).

Montesquieu observes that as a result of this ordinance requiring the fiefs to be inherited, and the offices as well, the kings grew weaker while “the counts became more powerful because the vassals they already had put them in a position to procure others” (XXXI.28, 712). Montesquieu concludes from this that “in France the weak spirit of Charles the Bald put an equal weakness in the state” (XXXI.30, 715). Therefore, as he wrote, it follows logically that the Carolingian Dynasty would fall into chaos and collapse; indeed, he declares that “in order to get a good sense of the weakness that resulted at the end of the [second race], one only has to see what happened at the beginning of the reign of the Capetians when the multiplication of under-fiefs was the despair of the great vassals” (XXXI.28, N706). Ordaining that arrièrefiefs become hereditary thus hastened the fall of the Carolingians, just as the development of feudalism hastened the fall of the

Merovingians.

Montesquieu points to this era as the one in which “the inheritance of fiefs and the general establishment of under-fiefs extinguished political government and formed feudal government”

57 (XXXI.32, 716). He explains that while the government as originally constituted ceased to exist, the Carolingian Dynasty was only divested of power when the Normans arrived to plunder the kingdom; “Hugh Capet…held in his hands the two keys to the unhappy vestiges of the kingdom; a crown was conferred upon him that he alone was in a position to defend” (XXXI.32, 716). This conferring of the crown recalls the Germanic system of electing a leader, or duke, based on valor.

Nevertheless, Montesquieu observes that by this era, “when the French crown left the house of

Charlemagne, fiefs were really hereditary in this kingdom; the crown, like a great fief, was also”

(XXXI.32, 717). This conception of the crown as a great, hereditary fief was a final key

‘revolution’ of the French government:

When Hugh Capet, the first Capetian, was crowned king, there was a greater change [than in the transition from the first to second races] because the state passed from anarchy to some kind of government, but when Pepin took the crown, it was passage from one government to the same government…when Hugh Capet was crowned king, things changed, because a great fief, united with the crown, brought an end to anarchy…when Hugh Capet was crowned, the title of king was united to the greatest fief (XXXI.16, 695).

Montesquieu moreover notes that it was in this era, when the crown was considered hereditary and not elective within one family, that “the right of the eldest, or of primogenitor, was established among the French” (XXXI.33, 717). For he explains that “when fiefs became hereditary, the right of the eldest was established in the inheritance of fiefs, and for the same reason in that of the crown, the great fief…the old law that formed divisions no longer existed; as the fiefs were burdened with a service, the possessor had to be in a position to perform it [and so] a right of primogenitor was established; and the reasoning of the feudal law forced that of the political or civil law” (XXXI.33,

718). From this point, Montesquieu discusses the resurgence of the Salic Law as a means of excluding women from hereditary succession of the crown and of the fiefs, and how the feudal tenures ultimately became regulated by a civil code with no relation to the ancient Germanic codes,

58 for the system of government had deviated entirely from that system in and of itself; and from this point on, his remarks on the influence of Saint Louis and his Institutes in bringing Roman law back into France as the ideal basis of law carry much more weight. Ultimately, it appears that

Montesquieu concludes his “treatise on fiefs” and his discussion of France at the point where Rome resurges (XXXI.34, 722).

59 CONCLUSION TO PART I

In his discussion of the development of the laws of the French state, Montesquieu paints the development of French society at large, examining the mores, rights of inheritance, political institutions, creation myths, and political ‘revolutions’ of the 1,300 years prior to his time. He establishes the Germanic origins of the French people, attacking the theories of the Abbé Dubos and basing his understanding of Germanic government on the works of Tacitus. He traces the history of French government from an early amalgamation of Frankish tribes who did not practice agriculture or hold fixed land aside from their own homes, to a chivalry-based system of feudal estates, to the centralization of these estates under a monarch who re-introduced Roman law in the territory. Montesquieu thus creates a basis of understanding for the government and history of his own country that is both self-aggrandizing – for as a member of the nobility and the president of the Parlement de Bordeaux, the noble thesis supported his personal authority as well as that of his fellow nobles – and logical, and he demonstrates how a deviation from the mores and governance styles that this thesis sees as the roots of the Merovingian Dynasty led to the eventual Renaissance legalist infatuation with Roman law that brought France out of the feudal period and so far away from its origins as to be entirely unrecognizable from its former self. In the end, he thus demonstrates that feudalism as a perpetual and hereditary system, as developed in France, is anathema to Germanic governments; the ‘revolution’ that brought France so far away from this system has the echoes of Roman influence felt throughout, and profoundly corrupted the Germanic mores of the French.

Despite the seemingly esoteric topic of these sections of The Spirit of the Laws,

Montesquieu keenly insists on their importance in the grander scheme of his work; a full understanding of Montesquieu’s analysis of the different regimes, and of England’s government,

60 is impossible without the model of France to compare to them. In the preface to his work,

Montesquieu begs the reader “that one not judge by a moment’s reading the work of twenty years,

[and] that one approve or condemn the book as a whole and not some few sentences” (Preface, xliii). Therefore, with the full implications of the closing books of the work in mind, the reader may better examine the government of England – the analysis of which makes up a central portion of the work – and draw from it the true statements that Montesquieu wishes to make. It is thus to this topic that we now turn in Part II. Once Montesquieu’s analysis of England is complete, it may be compared to his analysis of France, in Part III.

61

PART II: ENGLAND

62 PART II: ENGLAND

In Book XI of the Spirit of the Laws, “On the laws that form political liberty in its relation with the constitution,” Montesquieu identifies England as unique among nations. There is “on nation in the world,” he says, “whose constitution has political liberty for its direct purpose” (XI.5,

156). A singular nation, found on a small island, hardly a fourth the size of the French kingdom, is thus identified as the paradigm of political liberty which “appear[s] there as in a mirror” (XI.5,

156). Montesquieu lived in England from October of 1729 through the early spring of 1731. 80 He undoubtedly was aware of the significant jurisprudential, political, religious, and cultural differences between England and Scotland. As such, he would have likely hesitated to treat the

United Kingdom as a politically unified nation. Indeed, when he discusses the relative offensive strength of France under Louis XIV, Montesquieu is quick to mention that “Scotland and England had not formed a monarchy” (IX.9, 136). Furthermore, “while it is not clear what knowledge of

English courts and jurisprudence he gained during his stay in England from 1729 to 1731 – his travel journal was lost or destroyed – it is known that he later met and regularly corresponded with

Charles Yorke, son of the then Lord Chancellor and later Chancellor himself.”81

Speaking about the English Constitution Montesquieu says that “no much trouble need be taken to discover: the political liberty of a nation, for “if it can be seen where it is, if it has been found,” no effort is required to “seek it” further (XI.5, 156). The reason that political liberty exists in England to a higher degree than elsewhere in Montesquieu’s time, is easy to identify. From this bold assertion Montesquieu continues with the start of a new chapter, in which he identifies the

80 Rahe, Paul A. “The Book That Never Was: Montesquieu’s Considerations on the Romans in Historical Context.” History of Political Thought 26.1 (2005): 43–89. p.57. 81 Carrese, p.27.

63 heretofore unnamed “one nation” whose constitution values political liberty as paramount: the name of this chapter is On the Constitution of England (XI.5, 156).

Despite not mentioning English common law by name, in order to tease out the logical reasoning behind Montesquieu’s often obscure conclusions about the state of England’s constitution – since England has no singular, written constitution to speak of in the conventional sense – it is necessary to first examine his own analysis of English law and the English constitution.

Following a clearly developed understanding of Montesquieu’s analysis of English law, a further examination into the influence of Roman and French law on English and British legal structures can then be undertaken. A keen examination into the influences of Church canon law and Germanic common law on English jurisprudence can be conducted in a methodical manner. From this approach, a complete understanding of England’s legal structure can begin to take shape.

64 CHAPTER V: MONTESQUIEU’S ANALYSIS OF ENGLAND

In discussing the English constitution, it is Montesquieu’s ultimate aim to examine the

“principles on which [England] founds political liberty [for] if these principles are good, liberty will appear there as in a mirror” in these very underpinnings of English law and society (XI.5,

156). One of Montesquieu’s very first mention of England in the main corpus of his work seems to set England apart from other kingdoms of his era; he refers to the island nation as “a nation where the republic hides under the form of monarchy” (V.19, 70). He seems to imply here that

England does not have a monarchical government, as he does when he writes that “in a few

European states, some people had imagined abolishing all the justices of the lords…[as] the

Parliament of England did…[but in doing so], [one] will soon have a popular state or else a despotic state” (II.4, 18). He adds that “in order to favor liberty, the English have removed all the intermediate powers that formed their monarchy [and] they are quite right to preserve that liberty;

[for] if they were to lose it, they would be one of the most enslaved people on earth” (II.4, 19).

Montesquieu thus uses England as a counterfactual example in his discussion of what constitutes a proper monarchy. He prefaces the special attention he pays to England in later books with the knowledge that its government tenuously exists at the edge of a precipice, risking a fall from its lofty state of liberty into a despotic regime the moment that popular vigilance falters.

When the people fail “to preserve that liberty,” and the executive or the legislative overstep their bounds – as when Charles I refused to convene Parliament for 11 years, or when Parliament voted to execute him during the English Civil War – the results can be pure and unrestrained tyranny

(II.4, 19). The untraditional form of English government is in itself a cause for vigilance among its people. It was formed when “Henry VII, a typical Renaissance prince, initiated the strategy of absolutism by elevating the commons and chastising the lords…by Henry VIII’s reign, absolutism

65 could move into its mature phase because the nobility was powerless and the people had not yet begun to feel their power...[and] later, religious differences turned large segments of society against the crown [and] although the monarchy survived the Puritan revolution, absolutism did not.”82 Such an analysis of the formation of the English government as Montesquieu was acquainted with has led some commentators to claim that “England exemplified what France might become were she to follow her island rival in casting off the yoke of absolutism” 83 through a similar rebellion against such a monarch. While extreme to advocate that Montesquieu, a member of the privileged aristocracy, would advocate for revolution in France, such declarations do underscore the fundamental shared basis of French and English law. Paul Carrese similarly purports that “for Montesquieu, an analysis of principles grasps the deeper reality of the English constitution, discerning how the constitution ought to be or is likely to be even if current practice diverges from this essence.”84

While clearly not a monarchy in form (though a monarchy in name) England in

Montesquieu’s conception is not a democratic republic, either. For him, a democracy is akin to despotism; the people, borne on by their caprice and by the inability of such a multitude to come to a consensus in a direct and effective manner, descend into anarchy, and the liberty of the state is destroyed. In order for the liberty of the people to be retained, Montesquieu advocates instead – and notes that such is the case in England – that the people “should not enter the government except to choose their representatives; this is quite within their reach” (XI.6, 160). He explains this limited role by insisting that “the people as a body should have legislative power; but, as this is impossible

82 Hulliung, Mark. Montesquieu and the Old Regime. First. Berkeley: Univ of California Pr, 1977. p.47. 83 Ibid, p.46. 84 Carrese, p.47.

66 in large states and is subject to many drawbacks in small ones, the people must have representatives do all that they themselves cannot do…[and] members of the legislative body must not be drawn from the body of the nation at large; it is proper for the inhabitants of each principle town to choose a representative from it” (XI.6, 159). The legislative power, which should belong to the people, cannot due to the size of the state; this power is channeled through elections, whereby the people choose from among themselves those who they believe best qualified to legislate on behalf of all.

The government itself is therefore the venue into which the people, due to their great number, channel their legislative power. England makes use of the “great advantage of representatives

[which] is that they are able to discuss public business…[as] the people are not at all appropriate for such discussions” (XI.6, 159). Thus, the spirit of the government of England can be truly defined as republican, and not monarchical; Montesquieu makes reference to this fact when he alludes to England as “a nation where the republic hides under the form of monarchy” (V.19, 70).

Through its unique political form, England both fulfills and explains Montesquieu’s later declaration that “island peoples are more inclined to liberty than continental peoples [as] islands are small; one part of the people cannot as easily be employed to oppress the other; the sea separates them from great empires, and tyranny cannot reach them; conquerors are checked by the sea; [and] islanders are not overrun by conquest, [whereby] they preserve their laws more easily”

(XVIII.5, 288).

While not a monarchy, England is, however, an aristocratic republic, not a democratic republic: Montesquieu declares that “when the sovereign power is in the hands of a part of the people, it is called an aristocracy” (II.2, 10). As an aristocracy, England inherently has a nobility; in order to serve as a depository of the values and mores of the nation – as Montesquieu claims that this is the primary purpose of a noble class – “the nobility should be hereditary” (XI.6, 160).

67 This nobility, he notes, will always exist as “in a state there are always some people who are distinguished by birth, wealth, or honors”; while the English nobility’s power was reduced in the period of absolutist expansion culminating in the English Civil War, the Hanoverian dynasty’s reliance on ministers to govern allowed the nobility to regain their earlier influence (XI.6, 160).

Carrese explains that such a declaration “quietly echoes earlier remarks that favor a more republican, commercial aristocracy through the selling of noble offices, a practice Montesquieu himself undertook.”85 This hereditary nobility must furthermore not be mixed into one body of notables to represent the nation, he argues, due to the relative scarcity of nobles in the population overall. Montesquieu explains:

If [the nobility] had only one voice like the others, the common liberty would be their enslavement and they would have no interest in defending it, because most of the resolutions would be against them. Therefore, the part they have in legislation should be proportionate to the other advantages they have in the state, which will happen if they form a body that has the right to check the enterprises of the people, as the people have the right to check theirs (XI.6, 160).

As Montesquieu observes is the case in England, the very nature of aristocracy thus demands a bicameral legislature. The House of Lords, considered to be the ‘upper house’ of Parliament with hereditary succession, exists alongside the ‘lower’ House of Commons, in which deputies are elected by the people at regular intervals. The election of members of the House of Commons allows the people to engage in their government to the greatest level in which Montesquieu believes them to be capable. The hereditary nature of the members of the House of Lords stabilizes the government, and provides an unbroken continuity to its composition. The bicameral nature of this legislature further preserves the liberty of the English by providing a check to unrestrained noble privilege, which Montesquieu sees as a sort of despotism ‘of the lord of the manor’ on a

85 Carrese, p.50.

68 localized scale. He states that “as a hereditary power could be induced to follow its particular interests and forget those of the people, in the things about which one has a sovereign interest in corrupting, for instance, in laws about levying silver coin [fr: la levee d’argent, taxation], it must take part in legislation only through its faculty of vetoing and not through its faculty of enacting”

(XI.6, 161).86 By this Montesquieu means the power of veto; by the “faculty of enacting” (fr: faculté de statuer) he means the actual writing of laws. Thus, the possibility that the nobility abuse its power is avoided with regard to fiscal legislation.

This division of responsibilities and capabilities that Montesquieu describes in his discussion of laws regarding taxation is the basis upon which he builds his most famous theory: that of the separation of powers of government. This theory, he explains, depends upon the recognition and isolation of these three powers, and the creation of a careful balance through which they can be made to work in concert with each other. As Montesquieu delineates these powers, “in each state there are three sorts of powers: legislative power, executive power over things depending on the right of nations, and executive power over the things depending on civil right…the last will be called the power of judging, and the former simply the executive power of the state” (XI.6, 156-

7). These three powers are united in the person of a despot; in order to establish liberty, as has been done in England, they must be separated from one another to best preserve the interests of all. It is for this reason that Montesquieu insists that “when legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can

86 It is of note that in Thomas Nugent’s 1752 translation, which Montesquieu himself approved, this phrase is noticeably softened from the French original; « Comme une puissance héréditaire pourrait être induite à suivre ses intérêts particuliers et à oublier ceux du peuple, il faut que dans les choses où l’on a un souverain intérêt à la corrompre » becomes solely “it is proper that where a singular advantage may be gained by corrupting the nobility” – no mention is retained of the ability of the nobility to ‘forget the particular interests of the people’ in favor of their own particular interests (XI.6, N177; GF289.I).

69 fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically”

(XI.6, 157). The reasoning behind this division thus is the hope that by minimizing the fear of others within a state, liberty is preserved and despotism – of which fear is the root principle – is avoided. The same can be said of a lack of division between the other branches:

Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to the executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals (XI.6, 157).

England, Montesquieu notes, is uniquely defined by its total separation of the three powers of government: for he declares that “in most kingdoms in Europe, the government is moderate government because the prince, who has the two first powers, leaves the exercise of the third to his subjects,” and that “among the Turks, where the three powers are united in the person of the sultan, an atrocious despotism reigns” (XI.6, 157).

England is thus one of few states, if not the only one in Europe, whose people should experience true political liberty. The form of their government ensures this, Montesquieu explains, as well as the spirit of the English people, whose nation is not founded on the principles common to monarchical and despotic regimes – honor in a monarchy, and fear in a despotism. To this end, commentators note that “the sina qua non of liberty is an independent judging power, and a legal profession practicing in its courts, which together embody the knowledge of these proper rules.”87

Montesquieu’s “examination of civil liberty confirms [the] prominence [of the judiciary], declaring that individual ‘security,’ defined as the essence of liberty, ‘is never more attacked than

87 Carrese, p.63.

70 in public or private prosecutions [and]…never in the work does Montesquieu declare legislative or executive power so singularly essential to a liberal constitution, nor so important for individual security or liberty.”88 But despite the great efforts he notes on the part of the English to remove fear from their government, “Montesquieu declares that the English are constantly ‘uneasy about their situation’ and believe themselves in danger even at the safest moments’…while he insists that the English do not have to fear one another because they are protected by the laws (see SL

19.27), he admits that they do have a vague sense of uneasiness (inquiétude) and fearfulness in general…this suggests that even if England enjoys ‘political liberty in its relation to the constitution’ (i.e., a separation of powers), it does not fully enjoy ‘political liberty…in its relation to the citizen’ (i.e., tranquility of spirit and the opinion of security).”89

Montesquieu continues to this end that in the case of England, the peoples’ sense of inquiétude is part and parcel of their government and laws, as “the mores and the manners of this nation should be closely related to its laws” (XIX.27, 325). In England, people do not fear one another, but fear the loss of their liberty, without which they would be “they would be one of the most enslaved people on earth” (II.4, 19). The unease they thus feel is a necessary byproduct of their desire to jealously guard their personal liberty; and Montesquieu notes the necessity for the discomfort when he states that “as all passions are free there, hatred, envy, jealousy, and the ardor for enriching and distinguishing oneself would appear to their full extent, and if it were otherwise, the state would be like a man who, laid low by disease, has no passions because he has no strength”; that is to say, without the full range of passions – including this inquiétude – the English would

88 Carrese, p.6. 89 Rasmussen, Dennis C. The Pragmatic Enlightenment: Recovering the Liberalism of Hume, Smith, Montesquieu, and Voltaire. New York: Cambridge University Press, 2014. p.94-5.

71 not be able to resist the loss of their liberty (XIX.27, 325). Beyond the real fear the English should feel to this end, Montesquieu more generally observes that “one is afraid of seeing the escape of a good that one feels, that one scarcely knows, and that can be hidden from us; and fear always enlarges objects” (XIX.27, 326). While the people of England “would be uneasy about their situation and would believe themselves in danger even at their safest moments,” this fear would be more for the loss of their liberty than of any other member of the state; their political liberty therefore should still exist, though it may not be taken advantage of, or ‘enjoyed,’ as it could be

(XIX.27, 326). Montesquieu of course does imply such a conclusion when he states in the conclusion of his first treatment of the English constitution that “it is not for me to examine whether at present the English enjoy this liberty or not [and] it suffices for me to say that it is established by their laws, and I seek no further” (XI.6, 166). The political liberty ensured by the English constitution does not necessarily exist in practice – and indeed Montesquieu records in his Notes

Sur l’Angleterre that “the English are no longer worthy of their liberty”90 – but their laws should allow for it to exist nevertheless. The inquiétude that prevents this liberty from being enjoyed does nevertheless serve a distinct purpose in relation to their government; for “if, in the case where uneasiness has no certain object, some foreign power threatened the state and put its fortune or glory in danger, at that time everything would unite in favor of executive power, as small interests would cede to national ones,” and the crisis would be averted (XIX.27, 326-7).

For every state, Montesquieu explains, there exists “relations that laws have with the nature and the principle of each government, and…this principle has a supreme influence on the

90 Montesquieu, Charles-Louis De Secondat, Baron de. Œuvres Complètes de Montesquieu. Paris: Firmin Didot Frères, 1838. p.631a. My translations; original reads: “Les Anglais ne sont plus dignes de leur liberté.”

72 laws…and [once uncovered] the laws will be seen to flow from it as from their source” (I.3, 9).

Montesquieu declares quite openly that the constitution of England “has political liberty for its direct purpose”; the principle upon which the English government is founded, however, appears more justly to be that of commerce, from whence spring the principles of frugality and equality

(XI.5, 156). Montesquieu explains that “certainly, when democracy is founded on commerce, it may very well happen that individuals have great wealth, yet that the mores are not corrupted [and] this is because the spirit of commerce brings with it the spirit of frugality, economy, moderation, work, wisdom, tranquility, order, and rule…[and so] as long as this spirit continues to exist, the wealth it produces has no bad effect” (V.6, 48). Thus, unlike in the Athenian republic – the other commercial republic Montesquieu discusses – the English love of frugality prevents a corruption of the spirit of commerce; moreover, “while commerce corrupts pure mores…it also softens harsh mores in both private and public life.”91 Montesquieu immediately follows this declaration with the discussion of a “very good” law of a “commercial republic,” but he does not name this nation; it is likely that this republic is none other than England itself (V.6, 48).

Montesquieu notes that the spirit of commerce only allows for the existence of a free republic so long as the spirit of frugality is preserved as well, for “the ill [only] comes when an excess of wealth destroys the spirit of commerce” (V.6, 48). Without this spirit, individual fortunes can grow excessively larger than the wealth of the average person; and when such destruction of the commercial spirit of a state occurs “one sees the sudden rise of the disorders of inequality which had not made themselves felt before” (V.6, 48). Thus, the spirit of commerce that is so central to the English state is a double-edged sword: it allows for the tranquil domestic order from

91 Carrese, p.75.

73 which England’s government benefits to assure the liberty of all, but it also risks self-destruction, were it to be uncoupled from the spirit of frugality. In England, in order that such a corruption of mores is not permitted to arise – in order to maintain the pure spirit of frugal commerce – the people adhere to the five principles of aristocratic commercialism that Montesquieu outlines. First, he insists that “the principal citizens must engage in commerce themselves”; in this way, the commercial interests of all citizens are equally favored by the national legislation (V.6, 48). For this same reason, he articulates the second principle, “this spirit [of commerce] must reign alone and not be crossed by another” (V.6, 48). His third principle, that “all laws must favor it,” ensures that no legislation contrary to the spirit of frugal commerce be passed (V.6, 48). It is a direct consequence of these three principles, Montesquieu observes, that

Almost none of England’s tariffs with other nations are regular; tariffs change, so to speak, with each parliament, as it lifts or imposes particular duties. England has also wanted to preserve its independence in this matter. Sovereignly jealous of the commerce that is done there, it binds itself with few treaties and depends only on its laws (XX.7, 342-3).

Thus it can be said that the English people favor commerce over other political interests, and make it the sole focus of their legislation, with regard to relations with foreign nations. As such,

Montesquieu declares that “England has always made its political interests give way to the interests of its commerce [and in this way] this is the people in the world who have best known how to take advantage of each of these three great things at the same time: religion, commerce, and liberty”

(XX.7, 343).

The fourth principle of aristocratic commerce directly addresses Montesquieu’s fear that excessive unequal wealth might destroy the spirit of frugality; he insists that “these same laws, whose provisions divide fortunes in proportion as commerce increases, must make each poor citizen comfortable enough to be able to work as the others do” (V.6, 48). The final principle of

74 aristocratic commercialism, that the laws “must bring each rich citizen to a middle level such that he needs to work in order to preserve or to acquire,” ensures that all members of such a society, regardless of wealth – for Montesquieu does acknowledge that by virtue of its nature as an aristocracy, wealth inequality to an extent will be present in such a state – have an equal and vested interested in commercial affairs (V.6, 48). “In a commercial republic,” he continues, “the law giving all children an equal portion in the inheritance of the fathers is very good…[for] in this way, whatever the fortune the father may have made, his children, always less rich than he, are led to flee luxury and work as he did” (V.6, 48). As he demonstrates for each of these principles,

Montesquieu believes that England epitomizes that which can be considered an aristocratic, commercial republic.

In addition to the political aspects of English commerce, Montesquieu calls attention to the aspects of English politics concerning fear as it exists with regard to others in a state – that is to say, the roots of despotism within a state. So important is the neutralization of such a fear in a free state that he declares that “in order to have [political] liberty [in a state] the government must be such that one citizen cannot fear another citizen” (XI.6, 157). In such a republic as he claims

England to be, Montesquieu explains, the people rightly fear a government of military men. It is due to this fear, which Montesquieu believes to be justified, that he observes that “one takes up arms,in the republic, only to defend the laws and the homeland; it is because one is a citizen that one becomes, for the first time, a soldier…[and] in a nation where the republic hides under the form of monarchy, observe how a particular estate for fighting men is feared and how the warrior remains a citizen or even a magistrate, so that these titles serve as a pledge to the homeland so that it is never forgotten” (V.19, 69-70). The people of England, he explains, are wont to trust a government fully separate from the established and permanent military of that same nation; those

75 who occupy both roles are first and foremost citizens, and only soldiers in a secondary capacity.

Beyond members of the military, the English fear those who make judgments with unfixed penalties as well: for “the more the government approaches a republic, the more the manner of judging becomes fixed…[for] in republican government, it is in the nature of the constitution for judges to follow the letter of the law” (VI.3, 76). To this end, “Montesquieu suggests that, while there is no interpretation against citizens in republics, there can be no interpretation for them either

– no moderating of the law’s requirements.”92 That is to say, English legal statutes are fixed, with set punishments for every infraction, and without room for a judge to be excessively harsh or excessively lenient in his judgment. The lack of such strict rules of sentencing, Montesquieu explains, led to fear of legal proceedings in ancient republics; set sentences allow for the English not to fear their own laws. Carrese notes that throughout Montesquieu’s writings, there is “a persistent teaching that elevating the judiciary power within liberal politics, or any political order, moderates partisanship and ensures political security…these arguments suggest that in

Montesquieu’s own work, and in the legacy he deliberately sought amongst thinkers and statesmen, a moderating reform of both classical political philosophy and earlier modern liberalism is cloaked in the robes of a subtly powerful judiciary.”93

It is significant to note that “when [Montesquieu] discusses the English constitution, he singles out for particular attention the power of judging and the criminal law.”94 In placing such a special emphasis on the importance and power of judges, “Montesquieu begins with Locke’s formulation [of the powers of government]…but then reverses the order of the latter two and

92 Carrese, p.38. 93 Carrese, p.3. 94 Rahe, Soft Despotism, p.36.

76 develops a distinct judging power.”95 It is not surprising that Montesquieu felt that the judicial field was significant; he was, after all, a lawyer and judge. Nevertheless, Carrese notes in this regard that “for Montesquieu, judging is not so much a potent mechanism in itself as a safety valve, the key to avoiding political extremes.”96 Through the act of judging, final determinations on the matters most dear to citizens – life, limb, and property – are reached, but without a specific fear of the judge himself. Rather, it is the laws that demand respect and obedience, to be found guilty of wrongdoing that incites fear, and the judge is seen merely as the hand of justice, with no personal bias. Carrese crucially observes that “in a constitution devoted to liberty, only an independent yet invisible and null judging power ensures tranquility by first ensuring moderation, rule of law, and separation of powers.”97 Rahe elaborates:

In praising the jury system, [Montesquieu] initially exclaims that “the power of judging” is “so terrible among men,” and he then recommends that this power “be attached neither to a certain condition nor to a certain profession” and that it “become, so to speak, invisible & null.” If this is the practice, “one does not continually have one’s judges before one’s eyes; & one fears [craint] the magistracy & not the magistrates.” In much the same spirit, he adds that the jury should be made up of peers of the accused so that “he cannot be of the mind that he has fallen into the hands of those inclined to do him violence” (2.11.6, pp.398- 99) [sic].98

Carrese notes that this spirit “is especially relevant in the case of English judging, since

[Montesquieu] indicates the populist extreme it is capable of reaching.99 It is to avoid the bias that populism can reach, Krause observes, that “the power of judging is exercised by persons drawn from the body of the people and convened only so long as necessity requires, except in special

95 Carrese, p.46. 96 Ibid, p.35. 97 Ibid, p.48. 98 Rahe, Soft Despotism, p.36. 99 Carrese, p.47.

77 cases.”100 In this way, with no fixed magistrate who could be susceptible to corruption or to populist tendencies, all judgements can be considered to be ex bona fide and unbiased, and thus the law itself does not pose a risk worthy of fear.

In order to further assuage the people of this fear of the office of judge, Montesquieu insists that in England, “though tribunals should not be fixed, judgments should be fixed to such a degree that they are never anything but a precise text of the law [for] if judgments were the individual opinions of a judge, one would live in this society without knowing precisely what engagements one has contracted” (XI.6, 158). Moderate and explicitly written punishments for specific crimes,

Montesquieu explains, are not only ideal in a republic because they assuage the people from fear for their own person, but also for their deterrence of committing varying degrees of crimes. When the punishment is in proportion to the crime, as in England, there exists some encouragement to refrain from some actions; Montesquieu notes that, to this end, “in England robbers do not murder because, unlike murderers, they can expect to be transported to the colonies” (VI.16, 92). The people of England exhibit little fear of the judicial office because “the judges must be of the same condition [rank] as the accused, or his peers, so that he does not suppose that he has fallen into the hands of people inclined to do him violence” (XI.6, 158-9). The abuses of noble prerogative and feudal privilege thus do not menace the common people; the King’s Justice is the sole judicial authority to which the common people must submit, to be judged by fellow subjects of royal justice.101 This regularity and moderation of punishments ultimately contributes to the people’s lack of fear of judicial procedure; and citizens should enjoy liberty as a result, Montesquieu

100 Krause, Sharon. “The Spirit of Separate Powers in Montesquieu.” The Review of Politics 62.2 (2000), p.235. 101 This topic will be addressed further in Chapter VII, “The Barriers of the Common Law.”

78 explains, for “political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another” (XI.6, 157). While the laws of England are constituted to make it so that nter-personal fear in England is thus reduced, a residual uneasiness persists, due to the people’s knowledge of the tenuous nature of their liberty.102 Montesquieu acknowledges the impediment this uneasiness or inquiétude places on the people’s ability to fully enjoy their liberty when he notes that “this nation would love its liberty prodigiously because this liberty would be true; and it could happen that, in order to defend that liberty, the nation might sacrifice its goods, its ease, and its interests, and might burden itself with harsher imposts than even the most absolute prince would make his subjects bear” (XIX.27, 327). The inquiétude of the people of England is thus the price they pay for their vigilant guarding of their liberty.

In order to avoid the mutable and subjective nature of unfixed penalties, the English have established that “the jury decides whether the accused is guilty or not of the deed brought before it; and, if he is declared guilty, the judge pronounces the penalty imposed by law for this deed; and he needs only his eyes for that” (VI.3, 76). Key to this means of deciding penalties, and to the

English judiciary as a whole, independent from individual prerogative, is the role of the jury. To this end, Montesquieu observes that in England, “the power of judging should not be given to a permanent senate but should be exercised by persons drawn from the body of the people at certain times of the year in the manner prescribed by law to form a tribunal which lasts only as long as necessity requires” (XI.6, 158). By this means, most importantly, the fear which people feel for unfixed penalties is assuaged, and the judiciary is not feared as a whole; for, as Montesquieu notes,

102 See p.70-71.

79 when a jury is convened only for specific circumstances, “the power of judging, so terrible among men, being attached neither to a certain state nor to a certain profession, becomes, so to speak, invisible and null [for] judges are not continually in view; [and] one fears the magistracy, not the magistrates” (XI.6, 158).

But in order that this lack of fear be common to all citizens in England, class divisions must be taken into account: for, as Montesquieu has stipulated, in England there exist two classes, the commoners [fr: roturier] and the nobility [fr: noble]. For this reason, he insists that the rank of the accused and the jury be the same. In the case of the nobility, he notes that “although in general the power of judging should not be joined to any part of the legislative power,” there must be an exception: the nobles as a rank constitute a house of the legislative, and thus make up the legislative and those from whom a jury of peers might be drawn to try a noble (XI.6, 163). Montesquieu explains that “important men are always exposed to envy; and if they were judged by the people, they could be endangered and would not enjoy the privilege of the last citizen of a free state, of being judged by his peers…therefore, nobles must not be called before the ordinary tribunals of the nation” (XI.6, 163). Thus exempted from trial before the people – that is to say, before the courts of the King’s Justice – the nobility is tried “before that part of the legislative body composed of nobles” (XI.6, 163). Thus the nobility is outside the purview of royal justice, but not exempt from the laws and punishments required by the laws of the realm, for the same reason for which it constitutes a separate house of the legislature.

But, Montesquieu warns, from time to time it may arise that the bonds of aristocracy may make it so that those of their own rank escape unscathed from conflicts with the law. To this end,

Montesquieu notes, the English have created a means of preserving justice that is uniquely suited to an aristocratic republic. He explains that “there are, in the sttes where one sets the most store by

80 liberty, laws that violate it for a single person in order to keep it for all [and] such are what are called bills of attainder in England” (XII.19, 204). Montesquieu explains that these laws, while contrary to the system of highly regulated and moderate justice which he claims is so essential to

English liberty, arise only in the gravest of circumstances, in moments when “a veil has to be drawn, for a moment, over liberty, as one hides the statue of the gods,” in order to preserve the liberty of all (XII.19, 204). He elaborates:

If the legislative power believed itself endangered by some secret conspiracy against the state or by some correspondence with its enemies on the outside, it could, for a brief and limited time, permit the executive power to arrest suspected citizens who would lose their liberty for a time only so that it would be preserved forever (XI.6, 159).

While seemingly extreme, these acts of attainder are designed to act merely as a safeguard against the inability of a prosecutor to obtain proof of guilt due to dishonest manipulation of witnesses.103

Montesquieu explains that “if a man, presumed guilty of what is called a high crime, had found a way to keep the witnesses from appearing so that it was impossible to condemn him under the law, one could bring a special bill of attainder against him, that is, make a singular law concerning his person” (XII.19 n.55, 204). In doing so, legislative due process is maintained; for such a bill of attainder, once proposed, “proceeds as with any other bill: it must pass the two Houses and the king must give his consent, otherwise there is no bill, that is, no judgment [and] the accused can have his advocates speak against the bill, and one can speak for the bill in the House” (XII.19 n.55,

204). These bills are not therefore extrajudicial acts, in the strictest sense; they respond to a weakness of the judicial system’s acceptance of negative proof of guilt, and provide a defense against abuse of noble prerogative.

103 This topic will be addressed further in the second and third chapters of this section, Chapter VI, “The Origins of English Law” and Chapter VII, “The Barriers of the Common Law.”

81 Other than in the case of bills of attainder, Montesquieu does not seem to support or encourage the existence of bills of specific performance – those that require representatives to act directly as prescribed by their constituents – in England. He thus is opposed to the idea of a direct mandate electoral system; he notes that such a system exists only in cases like that of Poland where

“the independence of each individual is the purpose of [their] laws…and what results from this is the oppression of all” (XI.5, 156). As such, Montesquieu explains that “it is not necessary that the representatives, who have been generally instructed by those who have chosen them, be instructed about each matter of business in particular, as is the practice in the Diets of Germany…[for] it would produce infinite delays and make each deputy the master of all the others,” which, “on the most pressing occasions,” would make it that “the whole force of the nation could be checked by a caprice” (XI.6, 159). The usage of the word caprice in this circumstance is significant,104 as it recalls the earlier definition Montesquieu offers for that which constitutes despotism: a government “one alone, without law and without rule, draws everything along by his will and his caprices” (II.1, 10). The method adopted in England, which in modern times is referred to as trusteeship representation, is justified by Montesquieu because “when the deputies represent a body of people, as in Holland, they should be accountable to those who have commissioned them; it is another thing when they are deputed by boroughs, as in England” (XI.6, 160). The people of

England thus do not have a direct say in the actions of their representatives, as these representatives are not the representatives of the popular will, but of the will of the municipalities from which they were selected. The difference between representing a body of people and representing a location or municipality is subtle: when representatives stand for a body of people, they act in expression of the will of those people, whereas when they represent a locale or municipality, they act as is fit

104 Fr: “toute la nation pourrait être arrêtée par un caprice” (GF297.I).

82 to best serve the interests of those living in that region, without need to consult them.

As the members of Parliament do not act under direct mandates, it is important that they meet regularly, in an established manner. Montesquieu explains, “if the legislative body were not convened for a considerable time, there would no longer be liberty…for one of two things would happen: either there would no longer be any legislative resolution and the state would fall into anarchy; or these resolutions would be made by the executive power, and it would be absolute”

(XI.6, 161). Likewise, “it would be useless for the legislative to be convened without interruption…[as] that would inconvenience the representatives and besides would overburden the executive power, which would not think of executing, but of defending its prerogatives and its right to execute” (XI.6, 161). These statements recall Oliver Cromwell’s 1653 ascent to the title of

Lord Protector following Parliament’s overthrow of Charles I. Charles I, seeking to create a more absolute monarchy, continually prorogued the state opening of Parliament for eleven years, and then – upon finally convening Parliament – dissolved it after just three weeks of business. The next convened session of Parliament lasted for twenty years, for the whole duration of the English Civil

War and Oliver Cromwell’s reign as Lord Protector.105 This Parliament, following the end of the war, could have adjourned itself like normal, but instead remained at the reins of power, lacking an executive to convene and adjourn its sessions. Cromwell was elevated to the title of Lord

Protector four years later, during the same parliamentary session; his son briefly succeeded him to this title. Charles II was restored to the throne by this same session of Parliament, which finally adjourned thereafter. The Short and Long Parliaments, as these were known, serve as important examples as to why Montesquieu devotes such attention to the duration of a parliamentary session.

105 Thompson, Faith. A Short History of Parliament: 1295-1642. New edition. University of Minnesota Press, 1953. p.241-70.

83 Importantly, the regular election of representatives, and breaks within the term of the legislative body, allow for the people to have hope of remedy to previous legislative failings:

When various legislative bodies follow each other, the people, holding a poor opinion of the current legislative body, put their hopes, reasonably enough, in the one that will follow; but if the legislative body were always the same, the people, seeing it corrupted, would expect nothing further from its laws; they would become furious or would sink into indolence (XI.6, 161-2).

For these reasons, as well as for the logistical issues surrounding deaths and illnesses of representatives, Montesquieu declares that in a regulated manner, “the legislative body should not convene itself” (XI.6, 162). Beyond the issues relating to the manner in which a body supposedly without its own will might decide that it must convene, and the ensuing disagreements that might stem from such a decision, Montesquieu notes that “there are some times more suitable than others for convening the legislative body; therefore, it must be the executive power that regulates, in relation to the circumstances it knows, the time of the holding and duration of these assemblies”

(XI.6, 162). The first responsibility of the executive power, therefore, is the convocation of the legislature, as is done in the ceremony of the royal opening of Parliament each year in England.

Nevertheless, “executive power, as we have said, should take part in legislation by its faculty of vetoing; otherwise it will soon be stripped of its prerogatives…[for] if the monarch took part in legislation by the faculty by enacting, there would no longer be liberty…[but as] he must take part in legislation in order to defend himself, he must take part in it by the faculty of vetoing” only; and it is for this reason that in England, the monarch is not permitted to enter the chamber of the House of Commons (XI.6, 164).

Despite this limitation against the executive’s direct interaction with the legislative body,

Montesquieu defines several key means by which the monarch might work in concert with the other powers of government to preserve liberty. In line with the distribution of these three powers,

84 Montesquieu foremost insists on the singularity of the person to whom the executive power is entrusted: “the executive should be in the hands of a monarch, because the part of the government that almost always needs immediate action is better administered by one than by many…[and so] if there were no monarch and the executive power were entrusted to a certain number of persons drawn from the legislative body, there would no longer be liberty, because the two powers would be united, the same persons sometimes belonging and always being able to belong to both” (XI.6,

161). In his declaration that the elevation of persons of the legislative body to the power of executive would destroy the liberty of the people, Montesquieu references the turmoil and absolutist takeover of Oliver Cromwell, who rose from Parliament during the English Civil War to become the Lord Protector of the realm, a regicide, and – ultimately – a far more absolute ruler than Charles I had been before him.106 This lack of liberty under the English Republic does not contradict Montesquieu’s beliefs on England, for “in constitutions devoted to freedom, such as

Cromwell’s England, the individual can be threatened with or actually suffer harm; either condition entails a loss of the tranquility or opinion of security by which Montesquieu measures liberty.”107

While in Montesquieu’s analysis of England he may make the case that the executive be royal, his power is by no means to be as inviolable as the power of an absolute monarch – for such power would be despotic in its nature. This is in line with the observation that “for Montesquieu, the greatest concern is whether a government is moderate, not whether it has the traditional form of republic or monarchy.”108 In this regard Carrese notes that “England’s Cromwellian tendencies

106 Thompson (1953), p.241-70. 107 Carrese, p.62. 108 Ibid, p.47.

85 are problematic, but the ancient republics are no better, since they had ‘no clear idea’ of the mixed, moderate government that constitutes a proper monarchy.

But while the executive in England does not, in Montesquieu’s conception, have the ease of overreach that is enjoyed by the executive of an absolutist or despotic regime, the monarch does nevertheless have some means of defending its own prerogative against the legislative body. The ability of the executive to check the power of the legislature is critical to the preservation of liberty,

Montesquieu explains, because “if the executive power does not have the right to check the enterprises of the legislative body, the latter will become despotic, for it will wipe out all the other powers, since it will be able to give to itself all the power it can imagine” (XI.6, 162). This power of restraining – which recalls Montesquieu’s explanation that the House of Lords can use the right of veto in regard to bills of taxation – is important to the preservation of equitable division of the three powers because “executive power, as we have said, should take part in legislation by its faculty of vetoing; otherwise it will soon be stripped of its prerogatives” (XI.6, 164). While the executive thus must have a means of preserving his own prerogative, there exists no logical reason

– according to Montesquieu – for why the legislature would have the need or authority to act against the executive in such a manner. “The legislative power must not,” he explains, “have the reciprocal faculty of checking the executive power…for, as execution has the limits of its own nature, it is useless to restrict it; besides, executive power is always exercised on immediate things

[and in this way] the power of the tribunes in Rome was faulty in that it checked not only legislation but even execution…[which] caused great ills” (XI.6, 162). The prerogatives of the executive, thus, are of too momentary a scope to warrant their being subject to legislative override.

While the legislative may not overrule the actions or vetoes taken by the executive, they may, to a limited extent, interrogate as to the extent to which the rightful execution of laws has or

86 has not taken place. Montesquieu explains that “if, in a free state, legislative power should not have the right to check executive power, it has the right and should have the faculty to examine the manner in which the laws it has made have been executed; and this is the advantage of this government over that of Crete and Lacedaemonia, where the kosmoi and the ephors were not held accountable for their administration” (XI.6, 162). This is a radical thought in his time – the only times in which monarchs had been examined with respect to the execution of the laws until

Montesquieu’s era being through regicide, as in the case of Charles I, or of other forms of rebellion and revolution, as in the case of James II. Montesquieu tempers this right of the legislature significantly:

But whether or not this examination is made, the legislative body should not have the power to judge the person, and consequently the conduct, of the one who executes. His person should be sacred because, as he is necessary to the state so that the legislative body does not become tyrannical, if he were accused or judged there would no longer be liberty (XI.6, 162).

The importance of maintaining the sacred inviolability of the royal person is simple: it protects against the possibility of revolution or of extrajudicial acts that might render the executive no longer capable of discharging its purpose, or that could eliminate the executive in its singular form entirely. Montesquieu further elaborates that while the impeachment of an executive might appeal as a means to voice resentment over actions taken – or not taken – by the monarchs themselves, these actions ultimately fail to serve any concrete purpose, except that of turning such a state so that it “would not be a monarchy but an unfree republic” (XI.6, 162).

Montesquieu’s analysis of the English government ultimately demonstrates how the three powers of government – executive, judiciary, and legislative – work in concert. The constitution of England, as Montesquieu declared, “has political liberty for its direct purpose”; by separating and checking the powers of each branch of the government, it ensures that all citizens equitably

87 profit from this liberty (XI.5, 156). Founded upon this liberty, the principle of commerce preserves a frugal and equal existence for all in such a government, as the moderation and domestic tranquility of a commercial aristocracy create the ideal crucible in which political liberty might be forged; by removing the fear of others from the minds of the people, the very roots of despotism are cut out from under the government. As Montesquieu summarizes the English government:

Here, therefore, is the fundamental constitution of the government of which we are speaking. As its legislative body is composed of two parts, the one will be chained to the other by their reciprocal faculty of vetoing. The two will be bound by the executive power, which will itself be bound by the legislative power. The form of these three powers should be rest or inaction. But as they are constrained to move by the necessary motion of things, they will be forced to move in concert (XI.6, 164).

As long as such a government exists, Montesquieu explains, the political liberty of its citizens is assured. This analysis of the origins of Europe’s moderate monarchies recalls the claim that “if one “‘read[s] the admirable work by Tacitus, On the Mores of the Germans, one will see that the

English have taken their ideas of government from the Germans’…[for it is thus clear that] the

Germans stumbled upon the right organization [of government] over several centuries.”109

Nevertheless, the roots of such a government require further explanation, as Montesquieu only hints at its origins, noting briefly that English law is strikingly similar to that of the Germanic tribes; the liberty of the people of England thus owes its origins to a “fine system [which] was first found in the forests” (XI.6, 166). In order to understand these origins, the influence of Roman law in England must first be dismissed.

109 Carrese, p.54-5.

88 CHAPTER VI: THE INFLUENCE OF ROMAN LAW IN ENGLAND

Montesquieu at most makes a passing reference to the influence of Roman law on the

English legal system; he mainly suggests Rome as a negative case to be contrasted with England.

Nevertheless, as Roman law has such a broad impact in the legislative and jurisprudential history of his own country, it is unlikely that Roman law would have escaped Montesquieu’s attention when he wrote on England. The historical evidence for any Roman influence in English legal history is similarly scant, but there are three fields in which this influence has been posited to exist: in the wording of English laws themselves, in the Magna Carta, and in the influence of the canon law of the Roman Church in English civil society. These fields must, therefore, be examined, in order to understand Montesquieu’s choice to avoid discussing Roman influence in England on a larger scale.

The field in which Roman law can be argued to have the most concrete and measurable influence on English law is the usage of actual wording specific to Roman civil law. The most prominent of these ‘borrowings’ of Latin from the Roman code occurred early in the development of what would later become the common law; the name common law itself derives from the name of non-ecclesiastical law treated in canon law, the ius commune.110 An early example of such borrowed wording dates to the reign of Edward I, king from 1239 to 1307 AD. T.F.T. Plucknett notes that in this era,

Lawyers were constantly speaking of ‘possession’ and ‘property’ in cases dealing with land. These terms are not native, and in their Roman sense did not at any period represent accurately the substance of English land law. We are here obviously in the presence of

110 Hudson, John. “Magna Carta, the Ius Commune, and English Common Law.” Magna Carta and the England of King John. Boydell and Brewer, 2010. 99–119. p.101-9.

89 Roman influence.111

The rights of property – inherently feudal in nature – were thus governed by Roman-influenced wording. Plucknett further notes that “another example of Roman terminology adopted, and misapplied, in English law is the use of ‘real’ and ‘personal’ as applied to actions…our different treatment of ‘real’ and ‘personal’ property, in spite of the words, is unconnected with Roman influence, being due to the early and intense feudalization of our land law, coupled with the tardiness of the common law in developing the law of chattels.”112 Similarly, in the Magna Carta, the use of the Latin word delictum to denote a crime can be ascribed to the influence of Roman law; for “whilst use of ius commune words is not very common in Magna Carta, instances such as

[the use of the word delictum in Clause XX] may suggest ‘a drafter who felt himself at home with

Continental law’[as] there were areas of English secular practice where learned law had probably been influential already before 1215.”113 The specific wording of some passages thus directly points to Roman law as a possible source.

Despite these parallels in wording, some commentators are skeptical that the use of specific

Latin words signifies anything more than a well-developed technical terminology for the practice of law at the time. John Hudson suggests that by the twelfth century, “ius commune, or indeed earlier canon law, might have already had an influence on English legal practice or vocabulary, so that the Magna Carta is presenting us with contemporary English law rather than the immediate influence of ius commune in 1215.”114 Lending credence to such a theory is that within Glanvill’s

111 Plucknett, T. F. T. “The Relations between Roman Law and English Common Law down to the Sixteenth Century: A General Survey.” The University of Toronto Law Journal 3.1 (1939): 24–50. p.41. 112 Ibid, p.41-2. 113 Hudson, p.104. 114 Ibid, p.101.

90 works on English law, his “most Romanesque passage is the classification of contracts into the usual categories of Roman law; but the law he states is purely English (or mercantile).”115 While seemingly at first glance a point in favor of Roman influence, this evidence weakens when one considers that “Glanvill was writing in Latin, and it is difficult to write about law in Latin without at least using some at least of the technical terminology of Roman law…[accordingly] we must not conclude from this that the author was necessarily a learned Romanist, or that he was trying to

Romanize his subject-matter.”116 Plucknett explains that “Romanism in Glanvill, however, is only a minor part of the problem before us…the most famous example [of Romanism in English law] is the assize of novel disseisin…the similarities between this action and the canonical action spolii and with the still remoter interdict unde vi are common knowledge [but as] the ‘assize’ or general enactment which made the action available as a matter of course is almost certainly dated 1166, but examples of relief against novel disseisin granted as a particular favor occur earlier.”117 These feudal laws can thus be ascribed to a knowledge of Roman terminology from canon and other ecclesiastical sources, rather than exclusively from Roman law itself. Furthermore, Sir William

Blackstone notes that the feudal assizes harken back to “the times of our Saxon ancestors, [when] the right of possession seems only to have been recoverable by writ of entry…[but] after the

Conquest, when all causes were drawn into the king’s courts…a new remedy was invented…[and] this was the remedy by assize.”118 Similarly, in the case of the Magna Carta itself, the use of delictum can be easily justified: in the case of Clause XX, “the choice of delictum presumably was in part because felonia and perhaps crimen were too specific…it seems plausible then that delictum

115 Plucknett, p.33. 116 Ibid, p.33. 117 Ibid, p.33-4. 118 Blackstone, William. Commentaries on the Laws of England. Twenty-First Edition, Volume III. New York: Harper & Brothers, Publishers. 1852. X.184 p.172.

91 was used for the lack of specificity of its sense, as illustrated by its biblical usage, rather than as a term derived from the ius commune.”119 Therefore wording itself cannot be exclusively attributed to and used as proof of Roman influence in English jurisprudence.

Shifting focus from the wording of the Magna Carta to its content itself, the argument for

Roman influence in England falls flat. Hudson explains that “rather than needing influence from learned law, many of the general ideas, specific concerns, ancient customs, and legal practices mentioned in Magna Carta can be traced to earlier English practice and circumstance.”120 Some commentators argue that similar charters on the Continent dating from the same era indicate the appeal of a movement for the reclamation of ‘Roman rights’ of which the Magna Carta is part;

R.H. Hemholz dismisses this possibility in his declaration that

The existence of so many parallels between the ius commune and Magna Carta’s chapters at the very least raises the possibility of influence. But is it really likely? There is no ‘smoking gun’ to prove it, and not all the parallels show the distinct footprints of emulation. They simply prove that a similar path was trod.121

Following this logic, it is more correct to say that the “Magna Carta…was in part a statement of existing law, and a demand for its observance.”122 Ultimately, the theory of the Magna Carta – and thus English common law overall – being influenced by Roman law rests on one (historically disputed) fact: “about seventy years before Magna Carta the tradition is that in the little Italian city of Amalfi was found a copy of the Digest of Justinian alleged to have belonged to the emperor himself…which became very largely instrumental in causing the wonderful Bologna revival of

119 Hudson, p.110. 120 Ibid, p.111. 121 R.H. Hemholz. “Magna Carta and the ius commune.” University of Chicago Law Review 66 (1999): 279-371. p.359. 122 Hudson, p.112.

92 Roman law study which spread over all western Europe.”123 Montesquieu himself mentions in passing this tradition, stating that “upon the discovery of Justinian’s digest towards the year 1137, the Roman law seemed to rise out of its ashes” (XXVIII.42, N586). While knowledge of Roman law in England in this era is seemingly substantiated by the fact that “in his preface Glanville imitates the prœmium or preface of the Institutes of Justinian…although he calls Roman law a

‘foreign law’,”124 the evidence is slim that a people who referred to Roman law as ‘foreign’ and who contrasted it to their own law would willingly overrule their indigenous laws in its favor.

Furthermore it was not until a few decades after the Magna Carta that “the study of Roman law was introduced at the new University of Cambridge.”125

In his extensive writings on the purported influence of Roman law on English legal history,

Charles P. Sherman prefaces his discussion on the influence of Roman canon law – which is itself based on Roman civil law – by observing that “it is idle to say that the English law of the twelfth century had no Roman element in it derived from Italy, when there had existed in England late in the proceeding century a person of vast constructive judicial influence like Lanfranc [the advisor and minister of William the Conqueror], who possessed a most profound knowledge of Roman law and Canon law in addition to his mastery of the rude English law of his age.”126 In the age leading up to Henry VIII’s divorcing the English Church from the Roman Church, “England curtailed greatly the claims of jurisdiction advanced by the Church, yet the fact is that within the limits of that curtailed ecclesiastical jurisdiction, the English Church, as a provincial church

123 Sherman, Charles P. “The Romanization of English Law.” The Yale Law Journal 23.4 (1914): 318–329. p.325. 124 Ibid p.325. 125 Ibid, p.323. 126 Ibid, p.321.

93 subordinated (by its own admission) to the supreme head of the Western Latin Church, administered and rendered obedience to Roman medieval Canon law in the English spiritual courts.”127

Roman law thus existed in ecclesiastical courts in England well before the ‘rediscovery’ of

Justinian’s Digest. But its influence on temporal law is not very extensive beyond providing technical terminology to codifiers of early common law, as these systems were held separate before the Conquest, and this separation of jurisdiction is emphasized in the very first clause of the Magna

Carta itself. Sherman observes that “it is usually asserted today that the ‘foreign Canon law’ was only applied in England when sanctioned by English custom or approved by the English rulers of the English provincial church.”128 Plucknett further insists that “we are entitled to point to the

‘baronial Nolumus’ and to the famous writ forbidding the teaching of civil law in London [writ of

1234] as evidence that [no Roman] law was being indiscriminately received.”129 Furthermore, in the century following this writ, during “the reign of…Richard II (1377-1399) it was prohibited to cite any longer the Roman law in the Common law courts.”130 Concluding his discussion of canon law in England, Plucknett declares that “before the thirteenth century was out, both Roman and canon law had lost their power to control the development of English temporal law…[and thus] the total result of that influence which can be confidently ascribed to Roman and canon law is very small.”131 The supposed Roman influence on English law thus is discounted in regard to its

127 Sherman, Charles P. “A Brief History of Medieval Roman Canon Law in England.” University of Pennsylvania Law Review and American Law Register 68.3 (1920): 233–258. p.233. 128 Ibid, p.236. 129 Plucknett, p.37. 130 Sherman, Canon Law in England, p.243. 131 Plucknett, p.44.

94 development later than the early thirteenth century.

Commentators on the history of English jurisprudence appear to concur that the influence of Roman law on the development of the common law is thus minimal at best; Plucknett goes as far as to declare that “no historian of repute has ventured to suggest that [the] question [of Roman law influence in England] is of major importance in English legal history; indeed most writers dismiss it summarily in the course of their general introductory remarks, or relegate it to an appendix.”132 From a purely chronological point of view, this lack of influence is logical. Sherman explains that “Edward [the Confessor] returned to England just before the time the rehabilitation of Roman law began on the continent…[and] the Saxon law of Edward’s time must be included in the basis of the later English common law, for this law was the standard of conduct constantly elevated before the early Norman kings, who swore to keep the laws of King Edward in order to obtain the favor of their subjects.”133 This continuity can be ascribed to “the novelty of the common law…[for] ex nihilo nihil fit: the framers of the king’s new jurisdiction were well aware that

England was covered with courts administering law which was already centuries old…[and] in the all-important field of procedure the essential continuity of Anglo-Saxon and Anglo-Norman law can be shown.”134 Indeed, before the Conquest, and “long before equity was a separate system, these ideas which lie at the root of it were put in practice by the king’s courts.”135

These roots of equity can be traced through the whole of the common law up to

Montesquieu’s time; its insistence on the rights of the people derives directly from these very

132 Plucknett, p.24. 133 Sherman, The Romanization of English Law, p.320. 134 Plucknett, p.25. 135 Winfield, Percy H. “Public Policy in the English Common Law.” Harvard Law Review 42.1 (1928): 76– 102. p.77.

95 concepts. Their endurance can be attributed to the fact that “the English common law never ceased to be ‘the common engagement of the republic,’ as Bracton had defined it, and when royal orders infringed the subjects’ rights protected by this law the common-law judges in one famous case repeatedly refused obedience to Queen Elizabeth, because ‘the orders were against the law of the land, in which case…no one is bound to obey such an order’.”136 Jurists of the Elizabethan and early Stuart eras thus navigated the narrow channel between royal will and common law right. To this end, in 1606 Chief Baron Fleming wrote “the King’s power is double, ordinary and absolute;

[while the Common law represents this ‘ordinary’ power, the absolute power] is properly named

Policy and Government; and as the constitution of this body varieth with the time, so varieth this absolute law, according to the wisdom of the king for the common good.”137

Overall, it is clear that Montesquieu’s lack of discussion of Roman influence on English law is justified, given that “modern historians do not regard the common law’s debt to Rome as being very considerable during the medieval period.”138 This lack of influence is twofold; first, due to the absence of general interest in the application of Roman law in the era during which the common law developed, and second, because “habit and practice [of courts refusing to acknowledge Roman law in the fourteenth century] gradually increased proportionally with the rise and increase of English prejudice against whatever bore the name ‘Roman’…this prejudice began in a well-founded English abhorrence of the absolutism of the Roman public law.”139

Nevertheless, one realm of law is considered by some scholars to be related to Roman law: “to

136 McIlwain, C. H. “The English Common Law, Barrier Against Absolutism.” The American Historical Review 49.1 (1943): 23–31. p.28. 137 Fleming, C.B. in Bates’ Case, 2 How. St. Tr. 371, 390 (1606). 138 Plucknett, p.47. 139 Sherman, The Romanization of English Law, p.328.

96 some, the old landboc is a proof of Roman influence on Anglo-Saxon law, and Sir Paul

Vinogradoff even went so far as to suggest that the alienability of land in general is equally a result of Roman influence.”140 This similarity appears to end here, however, as most commentators agree that “if there were, indeed, genuine Teutonic modes of transferring land by means of ceremonies alone, then Roman influence must have been confined to the introduction of a new form, the written charter, and was not responsible for the alienability of land in general.”141 Therefore, the overall notion of extensive Roman influence on English law can be dismissed – and Montesquieu’s minimal discussion thereof can be understood as doing just that.

140 Plucknett, p.26-7. 141 Ibid, p.27.

97 CHAPTER VII: THE ORIGINS OF ENGLISH LAW

Unlike his treatment of French law, Montesquieu devotes almost no attention to the origins of the English legal system; this exclusion is in line with his declaration in the preface that “the more one reflects on the details, the more one will feel the certainty of the principles…[but] as for the details, I have not given them all, for who could say everything without being tedious?”

(Preface, N15). Indeed, in part six of The Spirit of the Laws, topics discussed “range from a crucial statement of what Montesquieu has ‘brought forth this work only to prove’ to an apology for the

‘deadly boredom’ that his antiquarian researches in law ‘must produce’…[and a passage in which]

Montesquieu himself provides a defense for such a survey” of ancient jurisprudence.142 The most notable explanation he provides for the origins of the English legal system is a fleeting comparison he makes between this jurisprudential corpus and that which Tacitus describes as having existing amongst the Germanic tribes, which was “first found in the forests” (XI.6, 166). While only explicitly stated once, this theory of Gothic origin of English law is backed up elsewhere in

Montesquieu’s writings; he confirms in Books XXIX through XXXI, as well as in his private letters to Lord Chancellor Yorke, his enduring conviction of the “private notation on the Gothic root shared by English common law and French law.”143 The French legal system was later uprooted by the rediscovery of Roman law, but the English foundation of law in Germanic, Gothic codes was retained. Thus, “by suggesting that medieval due process is the source of English civil and criminal procedure that [Montesquieu] praises throughout the work, he quietly endorses a

Germanic prudence regarding not only ‘the circumstances of the times’ but also ‘the agreement between these laws and the mores’ of these peoples.”144 Carrese notes that while Montesquieu

142 Carrese, p.83. 143 Ibid, p.27. 144 Carrese, p.90.

98 does not mention the common law by name in his works, there are constant references to its origins in the sixth part of The Spirit of the Laws. He explains that “several examples reiterate that the roots of eighteenth-century English due process lie in the medieval Franks, and Montesquieu concludes that ‘it is impossible to inquire further into our political right if one does not know perfectly the laws and mores of the German peoples’…[which provides] further evidence that this silent treatment of the common law is deliberate.”145 Such examples include the use of jury trial, and the holding of county assizes, as this chapter will demonstrate.

Montesquieu disputes the theory of Norman jurisprudential imposition in England; this theory dictates that English jurisprudence as Montesquieu knew it was merely a preserved version of early Franco-Norman law. Mark Hulliung, who in his book Montesquieu and the Old Regime advocates in favor of this theory, states in this respect that besides Montesquieu, “very few historians came to realize that the common law was first and foremost a law regulating land tenures or that those tenures implied the military and feudal arrangements that had been transplanted by the Normans at the time of the Conquest.”146 While it is one-dimensional to believe that the legal tradition of England was simply supplanted by an invasion, there is some truth to this theory: for as Montesquieu himself notes, the laws of England and the laws of France prior to the reign of

Louis XI were both of Gothic extraction. A more complete version of this theory, such as that for which Montesquieu provides support, is one in which the Normans are credited with the first written code of English law. This code is based on pre-Conquest jurisprudence, because maintaining allegiance to the Anglo-Saxon legal codes the Norman conquerors gained legitimacy in the eyes of their conquered subjects, while remaining tangibly linked to the past kings of

145 Ibid, p.102-3. 146 Hulliung, p.58.

99 England. This theory does not ignore the influence of pre-conquest jurisprudence, but rather acknowledges that “Anglo-Saxon kings generally ran their kingdom orally rather than routinely dispatching written orders to their agents in the provinces.”147 Furthermore, Hulliung’s focus on the exclusive purpose of Norman legislation as a means of enforcing a ‘new’ feudal system on the island of Britain is erroneous; a feudal society existed in England prior to the Conquest, and legislation enforcing such a system after 1066 was merely to restore that which had been disturbed by war. Legal historian Harry Potter explains that “legally the Conquest marked a new start: no one other than the king had a title to property that pre-dated 1066 [because] every landholder held directly from the king or from a lord who held from the king [and therefore] all entitlement stemmed from the Conquest.”148 Legal promulgation after the Conquest was merely a means of re-stabilizing a system thrown out of balance by the Norman invasion.

The semblance of continuity following 1066 to which some commentators make reference is, in fact, more than merely a façade undertaken by the Norman rulers to make a claim of authority in England; the kings of England, from William I onward, claimed to protect and respect the heritage of their Anglo-Saxon predecessors. In 1066, following his victory at Hastings, William the Conqueror “was crowned Rex Anglorum – King of the English – and made the same coronation promises to preserve peace, protect the Church, exercise justice with mercy, and uphold the old laws of England as his predecessors had done.”149 His second son to succeed to the throne, Henry

I, was of the same mold as his father; under his reign, “life went on in England and English law

147 Snook, Ben, ed. “Brave New World: The Charters of Alfred and Edward.” The Anglo-Saxon Chancery. Boydell and Brewer, 2015. 29–56. The History, Language and Production of Anglo-Saxon Charters from Alfred to Edgar. p.46. 148 Potter, Harry, ed. “A Norman Yoke?” Law, Liberty and the Constitution. Boydell and Brewer, 2015. 33–45. p.40. 149 Potter, p.34.

100 with it…[and] Henry I directed that ‘my counties and hundreds’ meet in the same places and at the same times as in the days of King Edward and not otherwise, and that they be utilized just as before.”150 The claim to legitimacy for Norman kings was thus also the means by which they maintained an effective bureaucracy and ruled peacefully over a conquered people. Overall, it holds true that “the Norman kings had been careful to claim from St. Edward by hereditary right and had reinforced their putative Englishness by conforming to the English their old laws…in succeeding to the Anglo-Saxon throne, Henry may have considered himself to be succeeding also to the jurisdiction over land exercised by early English kings.”151

The importance of the preservation of a pre-Conquest legal system in England is ultimately not important in of itself; the fact that this legal system was preserved in order to lend a semblance of legitimacy to the Normans is far more significant. By relying on continuity in order to maintain legitimacy, the English monarchs preserved the Germanic legal system, and the Germanic form of government, which was eroded over the centuries in France. While Roman law grew to be the most influential legal system on the Continent, and elsewhere in the British Isles, the English preserved the form of government of the Anglo-Saxons. Though the French of this era could make claims of equal degrees of Germanic extraction as could the English, only the English relied on the continuity of Germanic tradition and governance in order to maintain their power. While both systems of governance grew and expanded as the power of their respective monarchs increased, and both introduced legal and governmental reforms at various phases of growth, the English monarchy was impeded in a manner unique to its country: it could not remove the Germanic basis

150 Ibid, p.39-40. 151 Arnold, Morris S. “Ex Nihilo Nihil.” Ed. R. C. van Caenegem. The Yale Law Journal 83.4 (1974): 855– 865. p.858.

101 of its government without pulling the metaphorical carpet out from under the feet of its claim to legitimacy.

The continuity of pre-Conquest legal tradition in England implicated far more than just the pledge undertaken by the king on his coronation day; the entire legal system of the English kingdom remained remarkably intact throughout this transition. Morris Arnold notes that after

1066, “the old English courts (the county and the hundred) were left intact by the conquerors, and the feudal courts were instituted by their side.”152 Two important legal treatises from the era of the

Conquest – the Quadripartitus and the Leges Henrici Primi – reveal much about the legal continuity of the era. The former, the Quadripartitus, “consists of two parts…one of which is a translation into Latin of a wide range of pre-Conquest legal documents, prefaced by a lament on the condition of England in the reign of William II.”153 The very existence of the Quadripartitus speaks to the strength of English legal traditions, that the documents upon which this tradition relies were translated in order to expose the Latin-speaking conquerors to their content.

Furthermore, “part one of Quadripartitus, that containing the pre-Conquest laws, was [likely] already in existence as a body of Old English texts assembled…[as] a kind of ‘legal encyclopedia’…[and thus] the writer’s contribution in book one was thus not merely to make pre-

Conquest writings more available but to fix their meaning by translation.”154 The second of these documents, “the Leges Henrici Primi…is a lengthy tract in Latin which sets out in general terms ideas about procedure and conduct in court, and how courts should proceed in cases concerning

152 Arnold, p.860. 153 Karn, Nicholas. “Quadripatitus, Leges Henrici Primi and the Scholarship of English Law in the Early Twelfth Century.” Anglo-Norman Studies 37. Boydell and Brewer, 2015. 149–160. Proceedings of the Battle Conference 2014. p.149. 154 Ibid, p.156.

102 public order, among other matters, and it draws extensively on the same pre-Conquest legal materials seen in Quandripartitus.”155 Ultimately, the fact “that both [the Quadripartitus and the

Leges Henrici Primi] depend so extensively on pre-Conquest written materials supports the belief that these were still sources of authority…that pre-conquest sources were still of relevance to law, society, and government…[and that post-Conquest law] blends extensive quotation from pre-

Conquest documents with much material which was not written exclusively for England, and which incorporates ideas, habits, and arrangements that were unknown [in Britain] before

1066.”156 The very written tradition of the decades following the conquest thus attests to the legal importance of pre-Conquest England.

Lending credence to Montesquieu’s statement that the English system of law arose from a

Germanic “beautiful system [that] was first invented in the woods” (XI.6, N183), Potter observes that “ironically, having been conquered by a continental power, England, in contrast to her unconquered neighbor Scotland, did not adopt a continental legal system…the Conquest was a fertile womb in which was conceived that mixed-race offspring of Anglo-Saxon and Norman parentage called the English common law.”157 It stands to reason, thus, that Montesquieu’s assertion about the Germanic roots of the English legal system relies upon the continuity of pre-

Conquest Anglo-Saxon law. Nevertheless, as Norman law was of equally Germanic origins, the liberty of the English constitution cannot be credited to the early Anglo-Saxon rulers of England alone. Rather, the continuity of this legal tradition long after the Conquest can be attributed to the legitimizing power it held for the conquering Norman kings. It is possible that the usage of writs

155 Karn, p.149. 156 Ibid, p.150. 157 Potter, p.35.

103 is not uniquely Anglo-Saxon in origin, though its usage predates the conquest. Similarly, “one

Norman innovation was the introduction [in England] of trial by battle, an early example of adversarial justice…found in the early law codes of many Germanic people though not in those of the Anglo-Saxons, this means if proof was imported as an alternative to ordeal in criminal accusations – especially treason – and in property disputes.”158 This Norman innovation in England thus was in line with earlier Germanic codes, and softened the mores of the Anglo-Saxons, as

Montesquieu claims such legal moderation is wont to do.

The Norman kings further introduced reform to England’s government through the creation of a veritable legal structure throughout the country. Prior to the Conquest, kings heard cases related to the breach of the King’s peace in the curia regis – the council of the King. The legal system of trial before the curia regis – as opposed to the court of the nobles under the feudal authority of which most inhabitants of England lived – was known as trial by the coram rege, the court of the King. The crimes heard before this court were generally of a grave nature – homicide, rape, and counterfeiting of currency were the key crimes tried here – and the structure of the court itself meant that often, a significant amount of time passed between the crime itself and the trial.

Under the legal reforms of Henry II, “it was the court of King’s Bench which was established in

1178 ‘as a separate committee of the Curia ‘Regis,’ holding sessions in banco in the Curia Regis

‘nominally but not actually coram rege’…the court of Common Pleas” was thus “a distinct court” from that of royal justice.159 In these reforms the phrase of coram rege, which “had been in common use since the Conquest but in a general and untechnical sense,” was designated to mean

158 Potter, p.38. 159 Adams, George Burton. “The Origin of the English Courts of Common Law.” The Yale Law Journal 30.8 (1921): 798–813. p.798-9.

104 both the Court of King’s Bench and the Court of Common Pleas.160 In the decades following these reforms and Henry II’s death, there grew “an effort to make the phrase [of coram rege] more emphatic and specific…it becomes coram ipso rege, or coram rege ubicumque fuerit in Anglia,”

‘the court of the King himself’ or ‘the court of the King such as that which had existed in Anglia’

(England prior to the Conquest) – and thus the court system changed, while the concept itself remained, from pre-conquest times.161 This legal system – whereby claims could be pursued on grave matters previously not within the jurisdiction of the curia regis – allowed for the development of the English system of courts.

The concept of the jury – which Montesquieu lauds as one of the means by which fear might be avoided in the English government – is another important aspect of the legal system that arose from the legal reforms of 1178. The provenance of the concept of the jury of one’s peers itself is unclear; there exist several claims as to its origins. Morris Arnold noted, in a review of

R.C. van Caenegem’s book Ex Nihilo Nihil, that while “Professor van Caenegem sees the jury as a tertium quid, an amalgam of Norman and indigenous Anglo-Saxon fact-finding institutions…that there was a Norman contribution at all, however, is difficult to maintain since there is not one example known of the use of a jury in Normandy prior to 1066…[and] perhaps it is not irrelevant to note that the most assiduous supporters of Norman origins for the jury are continental writers;

English medievalists, on the other hand, have stoutly, and almost unambiguously, argued for the jury’s insular roots.”162 Paul Brand similarly observes that “there is…some evidence for the occasional use of sworn local juries as fact-finders in litigation prior to Henry II’s reign…again, it

160 Ibid, p.806. 161 Ibid, p.808. 162 Arnold, p.862.

105 was only during his reign that jury trial became available as a standard procedure in the king’s courts, though only in civil litigation, and then only for certain specific types of civil litigation.”163

This practice may only have become standard procedure under Henry II, but its existence in

England predates his legal reforms: in the Quadripartitus one already observes that the judges

[iudices, singular iudex] are not a fixed profession; rather, “being a iudex was not a status, it was a role, one which many of those present in court could also fulfil…[for] in the traditional procedure used in all secular courts…when a judgment was called for, it was usual procedure that members of the court selected a number of its suitors to consider each case and ultimately render a draft judgment for the body of the court to adapt and adopt as their own.”164 The jury, which

Montesquieu identifies as a cornerstone of English legal and political liberty, thus has its roots in

Germanic pre-Conquest law and in Norman law of the twelfth century.

One key difference that Montesquieu notes between the government of England and those of other nations is the lack of torture in English criminal proceedings. In his chapter entitled On torture or the question for criminals, Montesquieu observes that “today we see a well-policed nation reject [use of the rack] without meeting drawbacks [and so] the use of the [rack] is, therefore, not necessary by its nature” (VI.17, 92). A footnote included in the original 1752 English translation, following the word “government,” makes the subject of this observation clear: “the

English nation” (VI.17, n.55, 92; N113). The very fact that torture is not practiced in England is sufficient for Montesquieu to deem that “is, therefore, not necessary by its nature” as a part of the criminal procedure (VI.17, 92). Montesquieu carefully treads the line between condemning his

163 Brand, Paul. “Henry II and the Creation of the English Common Law.” Henry II: New Interpretations. Boydell and Brewer, 2007. 215–241. p.219. 164 Karn, p.155.

106 own country, where the use of torture was prevalent, and noting the lack of necessity for torture.

In a footnote to his observations on torture, Montesquieu criticizes the insufficient restriction on the circumstances in which torture may be used in Athenian and Roman law, but does suggest that the reader “see the wise restrictions made by the laws of the Lex Wisigothorum [2.3.4] on this practice” (VI.17, n.56, 92).

It is significant to note that in continental Europe, “beginning in the 12th century, torture came to be used more frequently on citizens, both for ordinary criminal offences and for the special crimes of heresy and witchcraft…[and] in at least one case, the torture of heretics in 12th- and 13th- century France and Italy, torture was used extensively against citizens.”165 At this point,

Montesquieu declares that as “so many clever people and so many men of genius have written against this practice that I dare not speak after them” (VI.17, 92-3). He continues, “I was going to say that it might be suitable for despotic government, where everything inspiring fear enters more into the springs of government; I was going to say that slaves among the Greeks and Romans…but

I hear the voice of nature crying out against me” (VI.17, 93). Commentators purport that the

Inquisition, established by Pope Gregory IX in 1231 and grounded in Roman law, was the first means by which torture gained a foothold in continental European courts, and “a large number of these bodies operated throughout southern France.”166 As a result, “the application of torture seemed to radiate out of France to the rest of Europe.”167 At the same era as the torture of inquisitorial tribunals spread throughout Europe, such practices were relatively unheard of in

165 Einolf, Christopher J. “The Fall and Rise of Torture: A Comparative and Historical Analysis.” Sociological Theory 25.2 (2007): 107-9. 166 Tracy, Larissa. Torture and Brutality in Medieval Literature: Negotiations of National Identity. Boydell and Brewer, 2012. p.70-1. 167 Tracy, p.71.

107 England. Larissa Tracy notes that “from the twelfth century, English law forbade torture and its application in select instances was resisted by secular and religious authorities, except in the case of the Knights Templar.”168 Elizabeth Hanson further observes that the English held “a legal tradition that abhorred and ridiculed the highly organized practice of judicial torture on the

Continent.”169 Tracy conjectures that “the jury system…spared England from the European law of torture…[because] excessive brutality was not a hallmark of medieval English law, and…kings and commoners alike rejected torture.”170 Montesquieu suggests another possible root for the lack of corporeal punishment or torture in English jurisprudence when he notes that “the Germans almost none but pecuniary penalties…these men, who were both warriors and free, considered that their blood should be spilled only when they were armed” (VI.18, 93). As he has established that

English law is fundamentally Germanic, it is logical that for Montesquieu, the lack of a Germanic basis for torture was sufficient cause to explain the English abhorrence of this practice. English attitudes on torture, and consequently on criminal procedure as a whole, thus stand in stark contrast to the cruelties of torture. On the continent, and especially in France, torture was practiced, and incorporated from Roman and papal-inspired canonical law into the civil codes of these nations.

The English common law as it is conceived of in modern times did not – contrary to the epigraph of the Spirit of the Laws – spring forth fully formed, a progeny created without parentage.171 Rather, its development – which was well under way by the time of the Conquest and the ensuing legal reforms of Henry II in 1178 – was a slow process of assimilation and adaptation. The basis on which this law was expanded was always the pre-Conquest legal code;

168 Ibid, p.245. 169 Hanson, Elizabeth. “Torture and Truth in Renaissance England.” Representations 34 (1991): p.53. 170 Tracy, p.137-8. 171 Prolem sine matre creatum – progeny created without a mother (Ovid, Metamorphoses II.553).

108 Norman innovators appealed to a claim of continuity from the time of king Edward the Confessor in order to rule without revolt. The Glanvill, a twelfth-century record of English law, provides a clear record of these developments. As Brand explains, “Book VII of Glanvill shows the beginnings of ‘Common Law’ of inheritance governing succession to land (including rules about when land should escheat to the lord of whom it was held); determining which alienations of land were binding on a grantor’s heirs (or successors); governing entitlement to the wardship of the persons and lands of those under age.”172 This ‘common law’ for which the Glanvill gives evidence, however, was not originally conceived as a collected, unified means of establishing justice. Rather, “the clearest evidence of some kind of overall vision for the legal system is that implied by the beginnings of the General Eyre during Henry’s reign as a court (or series of courts) manned by justices appointed by the king and under oath to him, bringing civil and criminal justice of a standardized kind on a regular basis to each county.”173 The failings of early centralization of such a legal system are most clear in the historical application of the death penalty. While in theory such a grave punishment was a royal prerogative, it often occurred throughout the twelfth century that “gallows were erected for personal use by local lords as symbols of their capacity – often more aspirational than actual – to compete with or even supersede royal authority.”174 Andrew Rabin thus notes that “the rhetorical sensitivity of the textual record concerning the king’s application of the death penalty highlights the fissure between an ideology of royal power and the political realities of legal practice”; the death penalty is rarely mentioned in royal legal records of the time, despite the prevalence of gallows and other apparatus of legal execution.175 The common law as

172 Brand, p.223. 173 Ibid, p.235. 174 Rabin, Andrew. “Capital Punishment and the Anglo-Saxon Judicial Apparatus: A Maximum View?” Capital and Corporal Punishment in Anglo-Saxon England. Boydell and Brewer, 2014. 181–200. p.187-8. 175 Rabin, p.184.

109 defined in modern times could thus be considered to be a development far more modern than the

Conquest, but which relied on continuity of Anglo-Saxon codes after the Conquest in order to remain influential. Its roots having been established, attention can now turn to the application of common law in Montesquieu’s analysis of England.

110 CHAPTER VIII: THE BARRIERS OF THE COMMON LAW

Montesquieu unequivocally declares his belief that the English constitution “has political liberty for its direct purpose” and that liberty can be seen in it as clearly “as in a mirror” (XI.5,

156). He furthermore declares that the “Germanic nations who conquered the Roman empire” – upon whose Gothic legal roots English law is firmly established – and who “were very free,” created a government in which, due to geographic dispersion following this conquest, “did so by representatives” (XI.8, 167). These Germanic peoples once governed together, prior to their expansion, when “the whole nation could be assembled”; however, “when they dispersed during the conquest, they could no longer assemble,” and so they had recourse to representatives (XI.8,

167). “Here is,” Montesquieu declares, “the origin of Gothic government” the people of Europe

(XI.8, 167). Following the enfranchisement of the common people, who had previously been

“slaves,” their government entered a state in which “the civil liberty of the people, the prerogatives of the nobility and of the clergy, and the power of the kings, were in such concert that there has never been, I believe, a government on earth as well tempered as that of each part of Europe during the time that this government continued to exist; and it is remarkable that the corruption of the government of a conquering people should have formed” such a liberty-driven system (XI.8, 167-

8). This system of government – which Montesquieu labels “the best kind of government men have been able to devise” (XI.8, 168) – is thus directly tied to the English constitution, for “the

English have taken their idea of political government from the Germans” (XI.6, 166). Yet from its

Germanic roots and the use of a trustee-style representative structure of government alone, it is difficult to ascertain the concrete manners in which this government protects the political liberty of its people so well. Montesquieu explains the mechanisms themselves, but not their cause, nor the developments that led to their instauration in England.

111 The most pressing matter at hand for Montesquieu was the English legal system, which is unsurprising, given Montesquieu’s own profession, as well as his claim that knowledge of the law and “concerning the surest rules one can observe in criminal judgments” above all “is of more concern to mankind than anything else in the world” (XII.2, 188). Within Book XI, Chapter 6 –

On the constitution of England – Montesquieu explains the key clauses of English jurisprudence, coming close to citing the Magna Carta itself at times. The fact that he would cite or refer to such a significant foundation of English law is unsurprising; it does, however, provide a scaffolding upon which his analysis of English law is constructed. He first explains that to maintain the liberty of the people, the penalties must correspond to the severity of the crimes; he declares that “excess even of reason is not always desirable…[as] men almost always accommodate themselves better to [moderation] than to extremes” (XI.6, 166). His declaration echoes the twentieth clause of the

Magna Carta, which declares that “for a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood.”176 In the case of England, this means not only that the judgments and penalties must be plainly laid out in the legislation, but also that the system of stare decisis is to be respected; for a judgment that is conformable to the law will always be the same, regardless of the contextual issues surrounding it. To this end, he explains that to preserve the liberty of all,

“judgments should be fixed to such a degree that they are never anything but a precise text of the law” – that is to say, conforming to the ‘letter of the law’ (XI.6, 158). As Montesquieu insists that a permanent judiciary inspires fear in the people, he believes that as an institution itself the judiciary “becomes, so to speak, null and invisible,” as it does not exist as a permanent body (XI.6,

176 Swindler, William F. Magna Carta: Legend and Legacy. Indianapolis: Bobbs-Merrill Co, 1965. The British Library. Modern English translation of the Magna Carta, with Annotations, abridged. p.3.

112 158). Rather than have permanent judges in a body of courts of assize, he explains that – in a manner similar to institutions of justice of pre-Conquest England – the judiciary power “should not be given to a permanent senate but should be exercised by persons drawn from the body of the people at certain times of the year in the manner prescribed by law to form a tribunal which lasts only so long as necessity requires” (XI.6, 158).

The importance of such a regular judicial system is evidenced in English history by the fact that in the Magna Carta of 1225 – signed upon the cessation of rebellion between the defiant barons who wanted to return to the pre-Conquest high feudal system, and King John the Landless – this right to regular courts is guaranteed. Clause XVII177 established permanent and regular courts:

“ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place.”178

Clause XVIII established the regular sending of justices to county courts at set intervals: feudal cases concerning the assizes of mort d’ancestor, darrein presentment, and novel disseisin179 “shall be taken only in their proper county court…[and the nobles, in their absence] will send two justices to each county four times a year…[who] shall hold the assizes in the county court.”180 Clause XIX provided for a means of settling issues in the absence of a justice of the king: “if the assizes cannot be taken on the day of the county court, [the nobility of the area] will suffice for the administration of justice.”181

177 “Communia placita non sequantur curiam nostrum, set teneantur in aliquo loco certo” (Magna Carta, Clause XVII – The British Library). 178 Swindler, p.3. 179 Feudal assizes of inheritance and privilege. Mort d’ancestor concerns wrongful inheritance of an estate; darrein presentment concerns the privilege of advowson, or the nomination of parsons to parish churches; novel disseisin concerns wrongful dispossession of an estate. (White, Albert Beebe, and Wallace Notestein. Source Problems in English History. London: Harper & Brothers Publishers, 1915. Appendix, p.375-380). 180 Swindler, p.3. 181 Ibid, p.3.

113 A requirement that Montesquieu emphasizes in judicial proceedings the “judges must be of the same condition of the accused, or his peers” also stems from the Magna Carta, Clause XXI:

“earls and barons shall be fined only by their equals”182 (XI.6, 158-9). Under this system, the usage of bills of attainder becomes much clearer: attainder is a last resort against a particular privilege of the English nobility, the privilege of peerage. According to this privilege, when members of the

House of Lords faces trial before the assembled House of Lords, they are allowed to plead their

“privilege of Peerage to be discharged.” 183 If they had “received investiture” for the position they occupied – that is to say, if they were confirmed as a lord by the monarch upon inheritance of the title – then they are “entitled to the privilege of being free from arrest” and can exempt themselves from that specific judicial proceeding.184 However, even though the privilege of peerage has been invoked, a Lord can still be held liable for his crimes through a bill of attainder. The first recorded case of an act of attainder rectifying the invocation of privilege of peerage dates to the reign of

Edward II, when in 1321 Hugh Despenser, first Earl of Winchester, was attained through a bill alleging his treason and conspiracy against the king.185 These bills allowed for the declaration of a person to be killed on sight under laws related to felo in se – outlawing and placing a bounty on the head of a criminal186 – and for their entire bloodline to be stripped of their title of nobility and exiled as a peine forte et dure.187 Montesquieu’s explanation of the roots of attainder, the means by which such alienation of property was achieved, becomes clear when he states that these bills

182 Swindler, p.3. 183 Macqueen, John Fraser. Discussion and Judgment of the Lords, on the Life Peerage Question. London: W. Maxwell, Law Bookseller and Publisher, 1857. p.97. 184 Ibid, p.97. 185 Cobbett, William, and T.C. Hansard. Cobbett’s Parliamentary History of England, from the Norman Conquest, in 1066, to the year 1803. Volume I. London: R. Bagshaw, 1806. p.67-8. 186 Hawkins, William, and John Curwood. A Treatise of the Pleas of the Crown. Volume I: Of Criminal Offences. London: S. Sweet, 1824. Chapter IX: Of Felo de Se. p.76-7. 187 Ibid, Chapter XX: Of Piracy, Section 44: Judgment of Peine Forte et Dure, p.260.

114 “are in relation to those Athenian laws by which a private person was condemned…[and] also to those laws which were made at Rome against private citizens, and were called privileges” (XII.19,

N220).

In addition to the requirement that defendants be tried by those of their own social rank,

Montesquieu further recalls Clause XXXIX of the Magna Carta, which declares that

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.188

Montesquieu’s insistence on the importance of the jury echo the wording of this clause – the Latin per legale judicium parium suorum189 becomes those “of the same condition of the accused, or his peers” (XI.6, 158-9). To this end Montesquieu continues that “in important accusations,” a defendant in such a system “in cooperation with the law must choose the judges, or at least he must be able to challenge so many of them that those who remain are considered to be of his choice”

(XI.6, 158). This right of objection is not as integral to the assurance of due process as it is to the assurance of the protection of one’s fundamental right of self-preservation. In the first book of The

Spirit of the Laws Montesquieu identifies that the right to “the preservation of [one’s] being” “is the first of the natural laws in importance, though not first in the order of these laws” (I.2, 6). The insistence upon a trial by jury furthermore recalls the pre-Conquest process whereby “members of the court selected a number of its suitors to consider each case and ultimately render a draft judgment for the body of the court to adapt and adopt as their own.”190

188 Swindler, p.4. 189 Magna Carta, Clause XXXIX – The British Library. 190 Karn, p.155.

115 The final important clause of the Magna Carta the spirit of which Montesquieu invokes is

Clause XXXVI, which is a direct precursor to the requirement of the writ of habeas corpus. It reads that “in future nothing shall be paid or accepted for the issue of a writ of inquisition of life and limbs…it shall be given [for free], and not refused.”191 To this end Montesquieu declares that the suspension of habeas corpus would result in a state where “there is no longer any liberty, unless the citizens are arrested in order to respond without delay to an accusation of a crime the law has rendered capital; [for] in this case they are really free because they are subject only to the power of the law” (XI.6, 159). This statement is emphasized by his further explanation that “if the legislative power leaves to the executive power the right to imprison citizens who can post bail for their conduct, there is no longer any liberty,” as the executive overreaches its proper jurisdiction

(XI.6, 159). In addition to underscoring the importance of a fair due process of law – which in itself recalls Clause XL of the Magna Carta, “to no one will we sell, to no one deny or delay right or justice”192 – this assertion that the alienation of due process to the executive’s mercy is results in such a manner that “there is no longer any liberty” directly refutes the basic structure of absolutist government (XI.6, 159). The legal system of England as Montesquieu describes and prescribes it to be thus is rooted in both the legal tradition of England and in the rejection of absolutism. Every prescription he assigns to English legal structure is designed to combat a specific ill that is otherwise open to manipulation by one faction of English society, from the nobility, to the people, to the monarch himself.

Beyond the judicial power, Montesquieu divides the remaining powers of government into legislative and executive. This division is not only bi-fold in regard to the number of those involved

191 Swindler, p.4. 192 Ibid, p.4.

116 – one only or the multitudes – but also between external and internal powers. The legislative power operates exclusively within the state: it “makes laws for a time or for always and corrects or abrogates those that have been made” (XI.6, 156). In contrast, the executive exercises almost no power within the state itself, save for the power of rejection: it “makes peace or war, sends or receives embassies, establishes security, and prevents invasions” (XI.6, 157). This division seems to allow for the head of government to be a single person, without risking the pitfalls of a change in regime to despotism, wherein “one alone, without law and without rule, draws everything along by his will and his caprices” (II.1, 10). These separate powers of government are perpetually set against each other, so that a moderate government results; Montesquieu explains that “in order to form a moderate government, one must combine powers, regulate them, temper them, make them act; one must give one power ballast, so to speak, to put it in a position to resist another” (V.14,

63).

To do so, the executive must have a “faculty of vetoing” in order to check against republicanism. In Rome the people alone had this power, which led to the indecisiveness of the people and thus to their inability to reject legislation (XI.6, 161). However, to prevent against a populist fury that could lead to the deposition of the monarchy, “the legislative body should not have the power to judge the person, and consequently the conduct, of the one who executes…[for] as he is necessary to the state so the legislative body does not become tyrannical, if he were accused or judged…the state would not be a monarchy but an unfree republic” (XI.6, 162). For the executive, Montesquieu is insistent that “his person should be sacred,” though his ministers may be arraigned for their bad counsel leading to his faulty conduct. These restrictions are designed to prevent legislative overreach, and to this end Montesquieu declares quite emphatically that if “he were accused or judged there would no longer be liberty” in the state (XI.6, 162). The first reason

117 why the monarch is ineligible for trial is that it would undermine the legitimacy of Parliament if the monarch who convened it were accused; all rights of Parliament to meet, and all rights of nobility, are held from the monarch. Montesquieu continues, it is not proper that “the legislative power…have the reciprocal faculty of checking the executive power,” as was “the power of the tribunes in Rome,” and which “caused great ills” (XI.6, 162).

The executive’s actions are momentary in scope, the laws of the legislature permanent; the legislative nevertheless “has the right and should have the faculty to examine the manner in which the laws it has made have been executed” (XI.6, 162). This examination cannot directly focus on the monarch, for “he who executes cannot execute badly without having as ministers wicked counsellors who hate the law” (XI.6, 162). The trial of these men, for bad actions taken by the monarch, is permissible, as “although the laws favor them as men, these counsellors can be sought out and punished” for misleading the executive (XI.6, 162). Such an examination of a citizen, charged fir actions taken improperly “in matters of public business,” takes the form of a trial before the joint Houses of Parliament, in which “that part of the legislature drawn from the people must make its accusations before the part of the legislature drawn from the nobles, which has neither the same interests nor the same passions” (XI.6, 163). The people thus cannot directly challenge the monarch; at the same time, “as executive power belongs to the legislative only through its faculty of vetoing, it cannot enter into the business of public business…[nor is it] even necessary for it to propose [legislation], as it can always disapprove of resolutions, [whereby] it can reject decisions on propositions it would have wanted left unmade” (XI.6, 164). Indeed, ever since

Charles I entered the House of Commons in 1642 to arrest members of Parliament, no monarch of

England has been allowed to enter the chamber – a literal inability to take part in the debates of

118 the Commons.193

The matter of taxation is another area in which the counterbalance of the powers of the legislative and executive, as well of those of the Commons and the Lords, are poised in opposition to one another. Montesquieu insists that taxation is “the most important point of legislation” because “if the legislative power enacts [legislation], not from year to year, but forever, on the raising of public funds, it runs the risk of losing its liberty, because the executive power will no longer depend upon it; and when one holds such a right forever, it is unimportant whether that right comes from oneself or from another” (XI.6, 164-5). In Montesquieu’s time, the executive in

England received revenue from two sources: first, from their personal estates, 194 and second, from parliamentary income, chosen by Parliament upon the monarch’s ascension or per annum.

Following the 1660s, “Parliament began to replace some of the monarch’s ‘ordinary revenue’

[from personal estates] with annual stipends of fixed value.”195 While the Lords has its own house of Parliament and its titles are “hereditary” so that it might protect its “great interest in preserving its prerogatives” which “in a free state, must always be endangered,” regarding taxation it “take part in legislation only through its faculty of vetoing and not through its faculty of enacting” to make Commons re-draft taxation laws (XI.6, 160-1). Such a system prevents corruption of the nobility from its excess riches, by preventing passing tax laws that disproportionately benefit it at the expense of the spirit of frugality. In a footnote to this requirement, Montesquieu observes that

“after the conquest of Macedonia, the taxing ceased in Rome”; what followed shortly thereafter

193 Bagley, John Joseph, and A.S. Lewis. Lancashire at War: Cavaliers and Roundheads, 1642-51: A Series of Talks Broadcast from BBC Radio Blackburn. Clapham, Yorkshire: Dalesman, 1977. p.15. 194 Sinclair, John. The History of the Public Revenue of the British Empire. Third Edition, Volume I. London: A. Strahan, 1803. p.64. 195 Swain, John, and B.J. Reed. Budgeting for Public Managers. London: M.E. Sharpe, 2015. p.21.

119 was the corruption and fall of the Republic, in favor of the Roman Empire (XI.19, n.78, 186). By keeping the monarch annually dependent upon the legislative, the government of England maintains the proper balance of powers.

Between the House of Lords and The House of Commons, Montesquieu advises that a similar balance be struck; if not, one group would be at risk to overpower the other. Already the people as a whole are checked by the legislative power, as representatives “are deputed by boroughs” wherein “all citizens in the various districts should have the right to vote except those whose estate is so humble that they are deemed to have no will of their own” (XI.6, 160). Limited franchise of this sort exists as a check against the populist elements of society – the poor, bondmen, and others thought not to have a sufficient stake in government. Furthermore, the people are checked by Montesquieu’s belief that representatives are fit “to make laws or [to investigate] in order to see if those that they have made have been well executed” (XI.6, 160). No direct mandates exist; trusteeship representation allows for the best interest of the Commons overall to be enacted.

Within Parliament, the House of Lords exists in order that “the part that they have in legislation should be in proportion to the other advantages they have in the state” and so that they might

“check the enterprise of the people, as the people have the right to check theirs” (XI.6, 160). As with trial by jury or by courts of lords, the two chambers are bodies of peers; these bodies check each other but cannot overrule each other, to protect their “separate views and interests” (XI.6,

160). Finally, both houses of Parliament have the power to reject, which is “the right to render null a resolution taken by another [through] the faculty of vetoing, which was the power of the tribunes of Rome” (XI.6, 161). In such a manner, each body can check the actions of the other, but avoid the pitfall of the two tribunes of Rome, which is that coercion of one against another is much easier than that of one body of people against another.

120 While the most important way in which liberty is preserved is the counterpoise of different elements of government, the English government occasionally transgresses this separation.

Montesquieu does note to this effect that while set against each other, as there is “the necessary motion of things” in all human affairs, the three powers “will be forced to move in concert” (XI.6,

164). The most striking example of this movement in concert is that which arises “if the legislative power believed itself endangered by some secret conspiracy against the state or by some correspondence with its enemies on the outside”, whereupon “it could, for a brief and limited time, permit the executive power to arrest suspected citizens who would lose their liberty for a time only so that it would be preserved forever” (XI.6, 159). Such a circumstance arises when an external power – a foreign state, or an enemy of the government – acts within the country itself; as such, the internal power of the legislature is unequipped to deal with the threat, and must be assisted by the external power of the state, the executive. Ultimately acting in concert in a system that “the

English have taken” from the Germanic tribes, the three powers of English government and the common law all act against the absolutist tendencies of Roman law (XI.6, 166).

121 CONCLUSION TO PART II

Throughout his discussion of England, Montesquieu makes reference to the exceptional manner in which the country’s constitution “has political liberty for its direct purpose” (XI.5, 156).

Ultimately, such liberty stems from two key facets of English legal and political structure. First, the political structure of England as Montesquieu describes it has a clear division of the powers of government, which he explains are of “three sorts:” “legislative power, executive power over the things depending on the right of nations, and executive power over the things depending on civil rights...[and while by the former executive power] he makes peace or war, sends or receives embassies, establishes security, and prevents invasions…[by the latter] he punishes crimes, or judges disputes between individuals…[and] will be called the power of judging” (XI.6, 156-7).

These powers exist in check to one another, and thus are able to prevent the seizing of total power by any one person or group of people.

Second, the political and legal structure of England owes its origins to the Germanic tribes first described by Tacitus; the establishment of their political structure, according to Montesquieu, was followed by “the civil liberty of the people, the prerogatives of the nobility and of the clergy, and the power of the kings, [which] were in such concert that there has never been, I believe, a government on earth as well tempered as that of each part of Europe during the time that this government continued to exist” (XI.8, 167). It is not surprising, therefore, that the English government, based upon this system, allows for such a remarkable degree of political liberty of its citizens. A close reading of Montesquieu’s observations on the matter – combined with a deep analysis of his purposeful silence – reveals that he believed, like most modern commentators on

English legal history, that Roman law had a negligible effect on English legal development.

Existing in a vacuum, these observations are significant, but do not allow for a wide applicability

122 to European political development overall. When compared to Montesquieu’s analysis of the

French political and legal system – highly influenced by Roman law, as was demonstrated in Part

I – the broader consequences of this appear clear. This will be addressed in Part III.

123

PART III – SYNTHESIS

124 PART III: SYNTHESIS

In the Preface to The Spirit of the Laws, Montesquieu observes that “the more one reflects on the details, the more one will feel the certainty of the principles…[but] as for the details, I have not given them all, for who could say everything without being tedious?” (Preface, xliv). Strikingly absent amongst his great many ‘details’ on the French and English legal and political systems, however, is an explicit comparison between them. Montesquieu of course states, at the end of Book

XI, his reasoning for this omission: rather than present an explicit comparison between the two, he reminds the reader that “one must not always so exhaust a subject that one leaves nothing for the reader to do…[for] it is not a question of making him read but of making him think” (XI.20, 186).

It is noteworthy that this observation concludes the book in which Montesquieu makes a point of fully exploring the nature of the English state; the observations he makes about England, it follows, should provoke the reader to mentally compare the nature of such a state to that of the state which they inhabit.

In his private correspondence, Montesquieu is explicit in his belief that France and England share a common history, to a point; in his work, both states are said to have Germanic, or ‘Gothic,’ constitutions at different points in their history. Whether or not these constitutions were preserved to Montesquieu’s own day, however, is not clear on the face of the issue. Through careful analysis of Montesquieu’s observations on France in Part I, we have established that the French constitution of his era greatly diverged from its Germanic roots; through a careful elucidation of his observations on England in Part II, we have determined that the spirit of the English constitution at the time remained generally true to its Gothic form. A discussion of the causes of this divergence must take two parts. First, the legal distinctions and changes between the two states must be established, and then a discussion of the influence of these changes on the governmental structure

125 of each state can proceed. Montesquieu declares to this end that while “the formalities of justice are necessary to liberty,” an overabundance of them, or a change in their fundamental nature,

“could be so great that it would run counter to the end of the very law establishing them…[and] citizens would lose their liberty and their security; accusers would no longer have the mean to convict nor the accused, a means to vindicate themselves” (XXIX.1, 602). It is in this light that the consequences of a deviation from the original Germanic system within a state can be understood.

Montesquieu sought to couch his analysis of the French government in a shroud of obscurity, in an effort to evade royal censorship; undoubtedly, a condemnation of his own government would have had grave consequences. The true meaning of his examination of the laws of France and England, therefore, must be uncovered by stripping away layer upon layer of obscurity. Like the creation of an oil painting, these layers have been placed one upon another, in a complex web of foundation and substance that spans 31 books and almost 700 pages. As the layers are stripped down, we have begun to expose the preparatory sketches below; and below it all, the greater consequences of these designs will become clear. Montesquieu’s final implications regarding England and France are slowly unveiled, and when the whole work is then examined, the painting’s fundamental form becomes at last clear. For as he exclaims in the Preface to the work, like Correggio, Montesquieu too is, through the creation of The Spirit of the Laws, a painter.196

196 “When I have seen what so many great men in France, England, and Germany have written before me, I have been filled with wonder, but I have not lost courage. ‘And I too am a painter,’ have I said with Correggio” (Preface, xlv).

126 CHAPTER IX: THE COMMON ROOTS OF THE LAW

Montesquieu is unequivocal in his belief that at the dawn of the fifth century AD, the governments in England and France were very much of the same structure and spirit, and that both were inherently inspired and shaped by the Germanic past of the people who had formed them. On the surface the governments of this era seem similar enough: a conglomeration of tribes united under one king, whose power derived from the consent of his various nobles, and whose kingdom was run through a series of assemblies. Montesquieu undoubtedly noted the similarities between medieval French and English government structures, and surmised from them a shared origin. He does not, of course, make such an observation clear in The Spirit of the Laws, but he at certain key points does point in this direction. At the very end of his celebrated chapter On the constitution of

England Montesquieu declares – as noted in Chapter V – that “if one wants to read the admirable work by Tacitus, On the Mores of the Germans, one will see that the English have taken their idea of political government from the Germans…this fine system was found in the forests” (XI.6, 166).

He observes that these Germanic people “spread out across the country” in Britain and in Gaul, and thereupon due to distance between their respective nobles, they had recourse to

“representatives” (XI.8, 167). “Here is the origin,” Montesquieu concludes, “of Gothic government among us” – by this us, he does not mean the people of Europe generally, but the

French specifically (XI.8. 167). While this government was short-lived in France – as Books

XXVIII through XXXI of The Spirit of the Laws have shown – Montesquieu contends that its roots were ultimately the same as those of the government of England.

In his Pensées, Montesquieu provides a resounding affirmation of his belief in the common

Gothic origins of English and French government. He explains: “I have observed that, with regard to the feudal laws and ancient laws of England, they do not seem to me very difficult to understand,

127 no more than those of all the other nations, because, all the laws of Europe are Gothic, they all have the same origin and are of the same nature.”197 Montesquieu’s “private notation on the Gothic root shared by the English common law and French law” is thus clear; he maintains this belief in his analysis of the origins of French law and government in Books XXVIII and XXX of The Spirit of the Laws, when he explains that the origins of French government are inherently Germanic in nature.198 In the same private notes, Montesquieu “suggests that Gothic law transforms itself in each particular country” over time, “taking on a new, ever-developing spirit” as the spirit of the people develops as well.199 The noble thesis of French governmental development is key in this reasoning: if the king assumed his power from the consent of the Germanic nobles, as Montesquieu and Boulainvilliers believed, then the original institutions of his state were inherently Germanic and based on a Gothic constitution; if he assumed power at the behest of the Roman emperor, however, then the origins of the French state would be fundamentally Romanesque.

In the fifth century, when Montesquieu implies that the Gothic constitution became the predominant governance of both England and France, it therefore stands to reason that both states had similar governmental structures. Both countries, of course, had a king; in France, the power swiftly was divided between a king and the mayor of the palace, but at the onset of Clovis’s rule their powers were united in his one person. In both nations, moreover, there were originally several tribes, who coalesced into one unified kingdom under a specific ruler. In France, this ruler was

Clovis, and the tribes were the Salian and Ripuarian Franks; in England there were the principalities of Essex, Wessex, Mercia, Northumbria, East Anglia, Kent, and several others that

197 Carrese, p.27. Quoting Pensée No.1964. 198 Ibid, p.27. 199 Ibid, p.28.

128 were all unified to a degree by the time of the co-rule of Hloþhere and Eadric, c.680.200 Both of these early kings created legal codes. Montesquieu explains that under Clovis, “when the Franks left their country [Germany], they had the Salic laws drawn up by the sages of their nation”

(XXVIII.1, 532). Hloþhere and Eadric similarly compiled a set of laws during their reign, and “a sure terminus post quem non for this compilation is Eadric’s death in 686.”201 Both nations even adopted Christianity in similar eras in their own history: Clovis converted to Catholic Christianity in 499 AD,202 following his assumption of sole authority, and when the Anglo-Saxon throne passed to Eorcenberht in 640 he “was the first English king to order idols to be abandoned and destroyed throughout the whole kingdom.”203 The two nations thus shared a similar political unification and

Christianization, despite the delay of almost 150 years in English development when compared to

France.

Both of these newly-minted kingdoms were ruled by a king, but their true power came through assemblies of the nobles. In France, scholars note that “during the fourth, fifth, and sixth centuries, [notables]…were accustomed to surround themselves with bands of household guards usually called scholares or buccellarii… [and] the Gothic leaders, evidently, continued a Roman practice that had already been adopted by such barbarian generals as Stilicho and Ricimer… and the Merovingian antrustiones were nothing else than scholares or buccellarii under a Frankish name.”204 In England, the king held a group of advisors around his person as the curia regis – the

200 Oliver, Lisi, ed. “The Laws of Hloþhere & Eadric.” The Beginnings of English Law. University of Toronto Press, 2002. p.117-20. 201 Ibid, p.120. 202 Du Tillet, p.6v. “Au retour de la guerre la royne Clotilde, pour luy gratifier, à cause de la victoire, alla au devant de luy iusques à Reims: où il fut baptisé par S. Remy, Archevesque dudict lieu, & receut la loy de Iesus-Christ.” 203 Oliver, p.119. 204 Stephenson, p.796.

129 court of the king. Within this body, he enacted laws with their advice, dispensed justice through their power as the coram rege, or king’s court, and generally advised the king on actions he should take pertaining to legal, military, or administrative matters of rule.205 While in England these advisors clearly held real power, in France their status is more debatable, depending on whether or not one subscribes to the noble or royal thesis. According to the royal thesis, these nobles courted the king to gain his favor, and thus to gain power; according to the noble thesis, which

Montesquieu supported, these nobles were the basis for the French state, in which a “people provided with free institutions, governing themselves in assemblies, with a king who was merely the delegate of the people.”206 Montesquieu, a staunch supporter of the noble thesis in regard to its treatment of the assemblies of nobles, thus saw the ancient predecessors of the French parlements as analogous to the curia regis and its eventual modern counterpart, English Parliament.

In both kingdoms, royal assemblies held considerable sway, as did the hundred courts.

Simon Keynes notes that, as in the case of the Merovingian court, “royal assemblies were central to the form or forms of itinerant kingship practiced through the Anglo-Saxon period.”207 In both of these kingdoms, “royal assemblies might have been convened perhaps five or six times a year” in order to administrate laws, succession to titles, and grave criminal matters.208 In France these assemblies gave rise to the parlements, and in England they were the source of the Parliament; both were comprised of the atrustiones who advised the monarch. Beyond these assemblies, both countries had established a structure known as the hundred courts. Alexander Murray notes that

205 Potter, p.38. 206 Lombard, p.678, my translation. Original reads : Hotman croyait en “un peuple pourvu d’institutions libres, se gouvernant lui-même dans des assemblées, avec un roi qui n’était que le délégué de la nation.” 207 Keynes, Simon. “Church Councils, Royal Assemblies, and Anglo-Saxon Royal Diplomas.” Kingship, Legislation, and Power in Anglo-Saxon England. Vol. 13. Boydell and Brewer, 2013. p.30. 208 Ibid, p.35.

130 “Merovingian and Carolingian sources refer to a subordinate official, called a centenarius, and his jurisdiction, called a centenae…the centenarius was selected by the count (comes) to exercise administrative, police, and judicial functions within the centena or hundred, a subdivision of the county.”209 The hundred court was a widespread and widely utilized custom in both nations; indeed, “the centena or hundred was a primitive, pan-Germanic institution, first and very imperfectly attested in the centeni comites and pedites of Tacitus’s Germania.”210

The fact that Tacitus discussed this institution, and that it existed in the Gothic constitution of both England and France, lends credence to Montesquieu’s assertion that the Gothic constitution of both nations was derived from the inherently free institutions of the Germanic people as Tacitus describes. Murray further notes that as “a basic political and judicial unit of the Germanic peoples, the hundred supposedly reflected the popular or democratic underpinnings of the Germanic state; the centenarius, therefore, far from being in origin a subordinate royal official, was at first a popular official elected by the hundred as its leader and as president of the hundred court or mallus.”211 The roots of this democratic institution are clear; its longevity is equally apparent, as the basic role of the hundred is “perceptible in sixth-century sources, especially Lex Salica, and also, to a lesser extent, in the capitularies of the Merovingian kings.”212 In England this structure was preserved and gave rise to the multi-tiered system of legal appeal, based on the principles of jurisdiction and standing; there were limits to these appeals, to preserve a multi-rung structure.213

Over two hundred years prior to the Norman Conquest, the legal code known as “III Edmund

209 Murray, Alexander Callander. “From Roman to Frankish Gaul: ‘Centenarii’ and ‘Centenae’ in the Administration of the Merovingian Kingdom.” Traditio 44 (1988): 59–100. p.59. 210 Ibid, p.59. 211 Ibid, p.60. 212 Ibid, p.60. 213 This topic will be discussed at greater length in Chapter X, “The Divergence of the Law.”

131 contains the first reference to the hundred as a unit of organization in England”; the reference to the hundred supports the “assumption that West Saxon kings were beginning to organize their sundry dominions in at least a similar, if not identical fashion.”214 These courts developed further over King Edmund’s reign and in “the Hundred Ordinance…[he] lays down the fundamental ground-rules for the holding of the local hundred courts, and makes provision for how a case might be handled should it be deemed applicable to more than one hundred’s particular jurisdiction.”215

In France, however, the hundred courts developed differently; for while at their origin “the

Frankish centenarius acted as a judge, iudex, a function he exercised on behalf of his superior, the count…[and] in the late Merovingian and Carolingian periods his jurisdiction consisted of the centena, the subdivision of the county,”216 it is true that “the limited nature of the centenarius’ jurisdiction in the sixth-century law texts was probably dependent on the particular status of the ethnic Franks in the early Merovingian kingdom and their right to bring important matters before the count or the king.”217

Beyond the king’s councils and hundred courts, the two nations had similar means of adjudicating disputes prior to the advent of feudalism. In France the Lex Salica and Lex Ripuaria

“are amongst the most ‘barbarian’ of laws, in that they largely consist of compensation tariffs, and crime is conceived as an injury against a person which requires compensation rather than as a delict against the law or the public authority which requires punishment.”218 The English legal code of Hloþhere and Eadric similarly relied on pecuniary fines for similar injustices done: while

214 Trousdale, Alaric A. “Being Everywhere at Once: Delegation and Royal Authority in Late Anglo-Saxon England.” Kingship, Legislation and Power in Anglo-Saxon England. Vol. 13. Boydell and Brewer, 2013. p.289-90. 215 Ibid, p.290. 216 Murray, p.93. 217 Ibid, p.98. 218 Fouracre, p.15.

132 for severe crimes trial by punishment was common, less serious ones were considered

“disturbances of the peace, in increasing degrees of seriousness,” for which the violator is liable to pay a fine; interestingly enough, the law here “begins the consideration of disturbance of the peace…[but] extends the principle of payment for damage to honor from personal injury to an instance in which there has been no physical harm.”219 In English law a wider range of acts are therefore considered crimes warranting pecuniary payment, as offense of one’s honor in France was not liable to pecuniary punishment at this time. Commentators posit that in England, the insistence on pecuniary punishment and “the funding of the hundred courts from the fines levied by local justice may have been an attempt to promote administrative self-sufficiency” in unifying disparate legal systems.220 In France as in England serious crimes were decided through trial by combat, which Montesquieu explains occurred because “the German peoples took the outcome of combat as a mandate of providence, ever mindful to punish the criminal or the usurper”

(XXVIII.17, 552).221 The fundamental basis of legal proceedings was thus the same in both nations.

Ultimately, the evidence supports Montesquieu’s contention that both English and French government has their origins in the Gothic constitution of the Germanic peoples who overran the

Roman Empire in the fifth century. Montesquieu does not speak too much about this private notion in regard to the English – merely noting that their government is Germanic in origins once – but does develop this idea extensively in regard to the French. Both nations had similar patterns of consolidation under a sole ruler who created or compiled a unified legal code for the people to live by; both kings were surrounded by a court composed of a body of advisors who helped to decide

219 Oliver, p.136. 220 Trousdale, p.291. 221 This topic will be discussed at greater length in Chapter X, “The Divergence of the Law.”

133 legislative affairs and mete out justice. Indeed, these legal codes were originally based on the same principles: pecuniary punishment for minor crimes, and trial by combat for major ones. It is therefore clear that England and France had similar, if not identical histories in the early years of their national development; this contention is not shocking. Montesquieu’s focus, however, is on the manner in which these two similar early nations diverged from their common legal code, and the political consequences thereof; it is to this legal deviation that we now turn.

134 CHAPTER X: THE DIVERGENCE OF THE LAW

While Montesquieu insists that England and France originally shared the same Gothic constitution and thus the same legal code, it is apparent that these legal schemes diverged to a large degree, and have ultimately evolved into two mostly different, distinct systems of jurisprudence.

The history of these nations is highly influential in determining how their legal systems developed so disparately; England was conquered by an invading Norman force whereas France remained under three regimes of French nationals. Montesquieu’s belief in the Gothic constitution of a state

“taking on a new, ever-developing spirit” as the nation develops is thus demonstrated in the comparison of France and England.222 England’s new ruling family relied on continuity to maintain legitimacy, and thus the spirit of the laws was artificially stunted and preserved as it was in the era prior to the conquest; in France, where the monarch’s legitimacy was not so brazenly questioned, adaptations were much more welcome, and innovation altered the spirit of the nation and its laws. The advent of feudalism in each state did affect the legal structure; the presence or absence of a unifying legal scaffold for the kingdom limited the extent to which feudal mores overturned those of the Gothic constitution.

In England, the gravest threat to the continuity of the original Anglo-Saxon Gothic constitution was the 1066 Norman Conquest; it would stand to reason that a conquering force would want to overturn the institutions of a subjugated nation in order to impose his own order. In

France, where the Normans originated, Montesquieu explains that the Gothic constitution had been entirely abandoned by the late tenth Century when Hugh Capet ascended to the throne: “when

Hugh Capet was crowned king, things changed, because a great fief, united with the crown,

222 Carrese, p.28.

135 brought an end to anarchy” (XXXI.16, 695). The Normans would therefore have been expected to have installed in England a feudal system devoid of Gothic construction, as had occurred in France.

This outcome, however logical it may have seemed, did not come to pass. William the Conqueror himself decided in 1066 that continuity of the Anglo-Saxon traditions of government was the easiest means to maintain legitimacy; he “was crowned Rex Anglorum – King of the English – and made the same coronation promises to preserve peace, protect the Church, exercise justice with mercy, and uphold the old laws of England as his predecessors had done.”223 William’s insistence on the final clause of this coronation oath – to preserve the Anglo-Saxon jurisprudence and legal system – demonstrates the degree to which he believed that a conquering force needed to be tied to the previous regime to ensure a semblance of legitimacy.

William the Conqueror’s sons William II and Henry I similarly preserved Anglo-Saxon laws and the Gothic constitution as a means of claiming legitimacy. As was shown in Chapter VII, these claims of legitimacy through preservation of the English legal and governmental system were a key policy of early post-Conquest monarchs. Indeed, “the Norman kings had been careful to claim from St. Edward by hereditary right and had reinforced their putative Englishness by conforming to the English their old laws…[for] in succeeding to the Anglo-Saxon throne, Henry

[I] may have considered himself to be succeeding also to the jurisdiction over land exercised by early English kings.” 224 The early English kings thus relied on a claim of legitimacy of succession from Anglo-Saxon kings through their preservation of the Anglo-Saxon laws. It was in the rule of these same early kings, moreover, that the Quadripartitus and Leges Henrici Primi were compiled, with sections of these documents devoted to “a translation into Latin of a wide range of pre-

223 Potter, p.34. 224 Arnold, p.858.

136 Conquest legal documents.” 225 Henry I recognized this same legitimizing factor to a large degree, and in ordering his legal system “he directed that ‘my counties and hundreds’226 meet in the same places and at the same times as in the days of King Edward and not otherwise, and that they be utilized just as before.”227 In ordering this, Henry I made the conscious decision to relegate a portion of his authority to his Anglo-Saxon vassals as representatives, a means of maintaining power in England followed for over three hundred years by that point. Indeed, “in the second quarter of the tenth century the kings of England were still developing the ways and means by which they would organize and administrate the former kingdoms of Wessex, Mercia,

Northumbria and the areas of the Danelaw not separately, but jointly.”228

The right of what might be in modern times called an appeal – a petition to the king for pardon or for re-consideration of a case – was not unheard of, but it was curtailed quite purposefully, as it undermined the bureaucracy of the Anglo-Saxon kings. To this end, in “the law code known as I Edmund…the third clause…establishes the mediation of the bishop as a necessary step before one ‘polluted’ by the crime of homicide may approach the king…one could interpret this clause’s emphasis on proper channels as an attempt to prevent a killer from going over the head of the local bishop to appeal directly to the king’s own personal justice.”229 In the years following the introduction of this code, the II Edmund legal code exhibits “a further move towards the elevation of the status of the king in the administration of law, but in such a way as to further separate the concept of his personal justice from the responsibilities delegated to local officials in

225 Karn, p.149. 226 See Chapter IX for an explanation of the hundred courts. 227 Potter, p.39-40. 228 Trousdale, p.275. 229 Ibid, p.280-1.

137 I Edmund, and vice versa.”230 Ultimately, therefore, the danger to the bureaucracy posed by the right of appeal was minimized under II Edmund, where “a criminal may no longer appeal directly to the king if the local authorities do not see things his way.”231 This effective and protected bureaucracy, which helped the Norman conquerors gain legitimacy and govern in England, ultimately restrained the country’s constitution to the bounds of the Anglo-Saxon, Gothic constitution that it possessed in the time of King Edward the Confessor.

In France, by contrast, the change of regime at the beginning of the third race did not happen as abruptly as the Norman Conquest. Rather, following the gradual decline of two races of

Gothic constitution-inspired monarchies, the French elected Hugh Capet as their king.

Montesquieu notes that this change was significant because whereas “when Pepin was crowned king, the title of king was united to the greatest office [that is, mayor of the palace]; when Hugh

Capet was crowned, the title of king was united to the greatest fief” (XXXI.16, 695). As such, the system of feudalism, which had slowly eroded the Gothic constitution of the state, dealt Germanic institutions their death blow upon Hugh Capet’s ascension. This disappearance of the Gothic constitution in France ultimately prepared it for the reception of Roman law; the end of the

Germanic institution of trial by combat was the means by which this Roman law was introduced into the country. Both England and France experienced a form of feudalism; thus, the total victory of feudalism in France upon Hugh Capet’s ascension to the throne is not the explanation in se for how the legal systems in France and England diverged so greatly. Neither is the existence of judicial combat in the legal code, as both countries utilized systems that ascribed to the Germanic belief in combat as “a mandate of providence” (XXVIII.17, 552). The key difference between

230 Trousdale, p.283. 231 Ibid, p.285.

138 England and France in this era, legally speaking, was the degree of legal fragmentation of the kingdoms. England inhabited one end of this scale, especially in the early thirteenth century and

France staunchly stood at the far end of the spectrum.

In this era, English legal procedure – at least in the case of the nobility – was formally codified in a comprehensive manner. Under the early Norman kings, legal proceedings were adjudicated in the king’s court – the curia regis – when the king granted audience to them, or as was convenient for the parties involved. In legal reforms under Henry II, “the court of King’s

Bench which was established in 1178 ‘as a separate committee of the Curia ‘Regis,’ holding sessions in banco in the Curia Regis ‘nominally but not actually coram rege’…[and so] the court of Common Pleas” was thus “a distinct court” from that of royal justice.232 Under Henry II trial by jury also became a common convention in England; it was “during his reign that jury trial became available as a standard procedure in the king’s courts, though only in civil litigation, and then only for certain specific types of civil litigation.”233 The legal system as envisioned in the Magna Carta, dating from 1215, similarly is unified throughout the country: Clause XVII ensured that “ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place,” while Clause

XVIII established the observation of royal judges at set intervals, and Clause XIX provided for means to resolve disputes on dates when royal observers were not in attendance.234 It is ultimately fair to say that by the rule of King John, England has entered into a feudal society, but that its laws nevertheless were designed in such a manner as to give the impression of “of some kind of overall vision for the legal system.” 235 Judicial combat took its place in this system – it was among the

232 Adams, p.798-9. 233 Brand, p.219. 234 Swindler, p.3. 235 Brand, p.235.

139 possible outcomes of a civil or criminal case, should the court decide that the case be decided in that manner – but it was integrated into this national legal system, inspired by the Gothic constitution on the state.

In France, by contrast, legal unification disintegrated as feudalism spread; Montesquieu points to the popularity of judicial combat, as well as to the prerogatives of the nobles and the clergy acting in concert, as the cause of this disintegration. According to the laws of the Ripuarian

Franks, the principal modes of remedying an ill in the original Germanic legal system were through the payment of a fine to the victim for damage done, or through judicial combat, should guilt be contested. The Salian Franks, as Montesquieu notes, differed from other Germanic peoples in that they “did not admit the use of the negative proof” in their trials, and thus rejected the usage of judicial combat (XXVIII.13, 548). The two Frankish tribes had different legal codes until “509

[when] Clovis had eliminated his rival kings and had united all of the Franks, both Ripuarian and

Salian, under his rule.”236 Under Clovis, the Franks whose legal code originally gained precedence in France were the Salians; the original Frankish form of the Gothic constitution did not require trial by combat, for “it appears to me that the law of combat was a natural consequence of, and remedy for, the law that established negative proofs” (XXVIII.14, 549). Rather, trial by ordeal – by boiling water, or by hot iron – did exist in France; and the desirable outcome in such a situation was to settle without ordeal, which prevented excessive litigation in France.

The Ripuarian laws gained precedence after the year 600, 237 and under them “judicial combat was in use in France” (XXVIII.18, 554). This system coincided with the militaristic nature of the Franks. As women could not represent themselves if charged with an offense in such a

236 Drew, p.5. 237 Siedentop, p.142.

140 system, Montesquieu concludes that “at the time of our combats, the spirit of gallantry must have been in force,” and that “from this was born the marvelous system of chivalry” (XXVIII.22, 561-

2). Montesquieu notes that Charlemagne, in order to unify the already discordant legal practices of his kingdom, attempted to require the swearing of an oath before the clergy to provide a positive proof in a legal proceeding. Thereafter “the nobility asked for proof by combat because of the drawback of the proof introduced by the churches…[and thus] the use of judicial combat should be regarded as a privilege of the nobility” (XXVIII.18, 555). The clergy were pleased with this arrangement, he continues, because while “on the one hand, the ecclesiastics took pleasure in seeing that in all secular business one had recourse to the churches and altars, and, on the other, a proud nobility liked to maintain its rights by the sword” (XXVIII.18, 556). This preference among the nobility for trial by combat, while the people were constrained to oaths in the presence of the clergy, divided the legal code into two disparate castes. The particular preferences of different feudal lords for forms of combat and manners of proceeding led to a legal fragmentation among the different fiefs and regions; for “such a nation” that uses judicial combat exclusively “had no need of written laws, and its written laws were quite easily eclipsed” (XXVIII.19, 558).

While originally inherently militaristic and happy to fight in judicial combat, the feudal people the Franks had become preferred the idea of a recourse to higher authority over combat to determine who was at fault, once the option of appeal was introduced by Saint Louis in his

Institutes. Prior to the twelfth century, Montesquieu explained, “appeal as established by Roman laws and canonical laws, that is, appeal to a higher tribunal to rectify the judgment of the other, was unknown in France” (XXVIII.27, 569). Furthermore, “Saint Louis said in his Establishments that appeal is felonious and iniquitous…[for] if a man wanted to complain of some offense committed against him by his lord, he had to denounce the lord and leave his fief; after which he

141 challenged him before his overlord [lord paramount] and offered battle gages…[and moreover] to put forward such words against one’s lord was to commit a kind of felony” (XXVIII.27, 569).

Nevertheless, such a sort of appeal to the lord paramount – the king, ultimately, as all titles were held from him under the third race – centralized the judging power in the hands of the king’s person, and began to re-unify the kingdom’s disparate legal orders. Ultimately, in his appeal to

Roman law in his Institutes, Saint Louis “introduced the usage of declaring judgments false without combat, a change that was a kind of revolution” (XXVIII.29, 578). That is to say, he undermined the entire process of judicial combat through the Roman concept of an appeal. This revolution in the laws, the introduction of appeals, is described by Prothero as Roman innovation that spoiled the French legal system entirely:

The definitive triumph of the right of appeal, of the theory of “prevention” [right of inquiry and action in the case of crimes the authors of which were unknown], of the jurisdiction in regard to privileged persons, and above all the system of “cas royaux,” assured the preponderance of the parlement…’the theory of the “cas royaux” was borrowed from the legislation of the Roman emperors,’ but doubtless, whatever its origin, the principles of Roman law largely influenced its development. The list of ‘cas royaux’…was gradually extended, till ‘in the sixteenth century it included all crimes and grave misdemeanours,’ as well as a large number of civil causes, such as mortgages, legitimations, university matters, &c [that could be appealed to central royal justice].238 It was this reordering of the French legal system that re-centralized power, but that also finalized the corruption and abandonment of the Gothic constitution of the old Franks, in favor of an increasingly modern judiciary wherein the king or his representatives judged all matters in their court of last resort.

Ultimately, the development of the English legal system is a short story compared to that of the French system. England’s rulers were precariously in power, having overthrown the original dynasty at Hastings, and relied upon the allure of continuity to maintain their power. They thus

238 Prothero, G. W. “The Parlement of Paris.” The English Historical Review 13.50 (1898): p.236-7.

142 continued to observe the legal unity of the Gothic constitution as established by the Anglo-Saxon kings before the Conquest, and preserved the Germanic system in large part out of the fear of appearing as oppressors should they drastically revoke guarantees the people and the nobles enjoyed under their Anglo-Saxon predecessors. The French system, by contrast, varied widely over the seven centuries from Clovis’s rule to Saint Louis’s Institutes. Originally a standard system through which wrongs were remedied through financial restitution or trial by ordeal, the Franks wholeheartedly adopted judicial combat, losing use for their written legal codes, only to find recourse to a written, Roman-inspired code five centuries later, once the legal procedure had become so fragmentary as to differ widely from fief to fief. The king of France amassed the power to be the final arbiter of disputes; this power made him infallible to an extent, as he had joined in his person the executive, judicial, and legislative powers to varying degrees. Ward concludes from this that “with respect to criminal law, the English clearly remained more faithful to their Gothic origins than the French as can be seen in the contrast Montesquieu draws between England’s mild and France’s draconian laws.”239 The Gothic constitution of the Franks had thus been destroyed; the political implications of this wholesale destruction remain to be examined.

239 Ward, Lee. “Montesquieu on Federalism and Anglo-Gothic Constitutionalism.” Publius 37.4 (2007): p.565.

143 CHAPTER XI: DEVIATING POLITICS

The legal systems in early medieval England and France developed in strikingly different ways, given their common early history and their original shared Gothic constitution. Nevertheless, the degree of difference between their legal systems by the fifteenth century were not as significant as their political differences by this time. It is a distinct possibility that the different political systems within these countries derives from their differing legal structures; the opposite could be equally true. The divisions that led to these two vastly different systems began to arise at the same era as the most sweeping legal reforms to be enacted in each country: the century following Henry

I’s legal restructuring and John the Landless’s signing of the Magna Carta in England, and the century following the publication of Saint Louis’s Institutes in France. In both nations, the original

Germanic assemblies of their forbearers underwent fundamental shifts during this period, to strikingly different results. In England, the Parliament asserted its authority to approve and prevent royal legislation through its plena potestas prerogative of restraining expenses from the royal exchequer; in France, the king relied on Roman right and on a taxation system based on canonical tithes to sidestep the parlement’s bid for power. Ultimately, while both nations resembled each other politically to a large degree in the late eleventh century, the forms taken on by their political systems deviated to such an extent that by the fifteenth century they had evolved into entirely different regimes.

The English monarchy’s parliament in the late eleventh century was less a formal authority and more a council surrounding a powerful warlord, who traveled around the country to enforce his power and ensure his subject’s loyalties. Indeed, in the era of Edward I, “neither [council nor parliament] was an established, solid institution with a clear-cut composition and well-defined

144 function.”240 Nevertheless, the modern conception of English Parliament began in this period;

“Edward I’s reign witnessed very important changes in the royal council…he emphasized its acquisition of executive authority, and its growing importance as a court.”241 He took the Anglo-

Saxon concept of the curia regis, the king’s council and court, and developed a body with consultative authority and the power of approving the king’s actions. By the end of his reign, commentators note, he had fundamentally shaped the concept of a parliament, for “the assembly of 1295 was the ‘model parliament’, and the date of its meeting ‘may be accepted as fixing finally the right of shire and borough representation’.”242 Edward I engaged in a variety of small wars and skirmishes over the course of his reign, including the total conquest and subjugation of Wales and continual wars with Scotland, and relied on an indirect taxation system for funding these conflicts, due to the lack of a direct taxation system in his kingdom. He thus sought approval from magnates prior to imposing taxes, to avoid the risk of rebellion. In such circumstances, “the magnates, both ecclesiastical and lay, were summoned to parliament in recognition of the fealty and affection they owed to the king…[but] they were not, as a rule, summoned in the formal feudal language of homage, and hence there was no absolute obligation on them to attend.”243 They then were allowed to consult the king on his taxation and other actions, in order to help him enact his policies evenly throughout his kingdom. It is for this reason that “the author of the Mirror of Justices [c.1320] considered that parliaments in his day were largely held for the purpose of granting money to the king.”244 The original reason for which Parliament arose, therefore, was for the granting of monies to the king.

240 Prestwich, Michael, ed. “Council and Parliament.” Edward I. Yale University Press, 1997. p.436. 241 Ibid, p.439. 242 Ibid, p.441. 243 Ibid, p.447. 244 Ibid, p.453.

145 While the original cause of convoking Parliament under Edward I was to fund his desires to conquer Wales and Scotland, this was not the sole matter discussed at such assemblies.

Prestwich notes that “taxation may have been the main reason why representatives were summoned to parliaments and councils under Edward I, but it was not the only one…[for people also engaged in] petitioning, and the hearing of legal cases, [which] have been stressed…as distinguishing parliaments from other types of assembly, despite the stress of the 1280 [parliament] memorandum on the major matters of politics and diplomacy.”245 In contrast to this broad forum in England, in France parlements were not even called for the creation of taxes; nobles insisted that such assemblies were required, but “resistance by the French nobility and others to the imposition (and continuation) of direct taxation was further weakened by the fact that throughout the period in question they lacked a single, well-established organizational basis for joint action against Crown policies, such as existed in England in the form of parliament.”246 Hopcroft, in her analysis of the taxation systems of France and England in this era, draws a fine point on the issue:

“Many analysts have linked the endurance of constitutionalism in England to the reliance of the

Crown on indirect taxation in the crucial period from the fourteenth to the seventeenth century…by the early fifteenth century, indirect taxes (i.e., taxes on trade) composed about 75 percent of the

English Crown’s net revenue from all sources…this was in contrast to the situation in France in the same period: about one-half to one-third of all the king’s revenue came from the direct [feudal] tax on people or land known as the taille.”247 As the kings of France relied on the taille of 10% (or even higher) of every citizen’s annual income, there was no need for the convocation of an

245 Prestwich, p.458-9. 246 Hopcroft, Rosemary L. “Maintaining the Balance of Power: Taxation and Democracy in England and France, 1340-1688.” Sociological Perspectives 42.1 (1999): p.76. 247 Ibid, p.70.

146 assembly to discuss the imposition of taxation. In England, however, “they were unsuccessful in creating a system of direct taxation to rival the French, and were forced to rely on more traditional sources of revenue.”248 Commentators, noting that Parliament’s importance in England relied on the king’s need to pay for troops for his wars, have observed that had the hearing of petitions and of cases not been incorporated into Parliament’s responsibilities and privileges, it could have evolved in an entirely different manner:

Although parliament had played a very significant part in the political struggles of the late 1250s and 1260s, it would have still been possible in the 1270s and 1280s for it to have become something much more like the French parlement…had Edward not chosen to summon large numbers of magnates to his parliaments, along with representatives on occasion; had he not chosen to receive petitions, often in considerable quantity, in parliaments; then there might have appeared in England a small, specialized parliament, little more than a legal committee of the royal council, along French lines.249 The English Parliament was thus preserved in form and rose to prominence due to the relative poverty of the English monarchs in this era, and due to their incorporation of representatives and non-financial debates into the assemblies as a means of ensuring the magnates’ assent to their actions.

In contrast to the regular and financially-necessitated meetings of English Parliament, in

France “parlements were the periodic meetings of the king’s counsellors who displayed especial competence and loyalty in handling the ‘cases and affairs’ that came before the king in swelling volume after about 1250…the prelates, knights, and clerks of parlements were committees of the undifferentiated curia regis.”250 While the French kings of the Merovingian and Carolingian eras held assemblies for the purpose of conducting legislative and judicial business in regular meetings

248 Hopcroft, p.74. 249 Prestwich, p.465. 250 Bisson, Thomas N. “Consultative Functions in the King’s Parlements (1250-1314).” Speculum 44.3 (1969): p.354.

147 – as the original Gothic constitution of the Franks held necessary – this tradition was not long- lived. Indeed, “what survived in France from the pivotal 1250’s and ‘60’s was the faint impress of an archaic tradition of periodic councils and the strong impress of a justiciar-king who demonstrated once and for all that the administration of justice did not necessitate general convocations.”251 These councils all but faded from relevance in the short period from the ascension of Hugh Capet to the reign of Louis VIII; they were resuscitated in part when “the parlement, to which were entrusted judicial questions, became a separate body [from the Cour du

Roi] in the reign of St. Louis.”252 While it may appear that the French parlement thus derived its origins from the earlier Frankish assemblies, as late as the sixteenth century this origin was debated. In 1574, “François Hotman in the Francogallia [sic] detected the relatively recent origins of Parlement’s place in the French body politic and accused the parlementaires of having undermined the ancient constitution and imposing a ‘kingdom of unnecessary litigation’ in place of the traditional assemblies of the Three Estates.”253 The idea of a consultative assembly for the king remained, but its powers did not; the lack of need for parliamentary assistance in funding freed the king from reliance on such assemblies.

While the parlement in France did not possess many of the powers of the English

Parliament, assemblies of circumstance called by the king to discuss issues of great judicial import

– called not parlements, but lit de justice assemblies – were convened several times in the centuries following Saint Louis’s reign. On such occasions, the presiding officer was invited to make an opening address before the king; the topic of such address at times included justification for the

251 Bisson, p.372. 252 Prothero, p.231. 253 Bryant, Lawrence M. “Parlementaire Political Theory in the Parisian Royal Entry Ceremony.” The Sixteenth Century Journal 7.1 (1976): p.23.

148 existence of such an assembly. In one such speech, the origins of the parlement was discussed:

“According to President Guillart [the President of the 1527 Lit de Justice] the ancient ‘parlement’ was originally a public assembly similar to the Estates…it was an itinerant body composed of judges from different parts of the kingdom and convoked at the king’s pleasure two or three times a year to travel about the kingdom dispensing royal justice.”254 In her analysis of this speech,

Hanley notes the references to the idea of the two bodies of the king, as well as to the idea of the state as a body; she explains that “Guillart described the French body politic, head and members, as a mystical body (corps mystique, soit en chef ou membres) and the king in his royal dignité

(under the canopy) as the living and animate law (droit vivant et animé), naturally above the law but bound by reason to observe it.”255 The French parlement thus was widely seen, by the sixteenth century, as a body serving and subservient to the person of the king, and not an authority in its own right.

While in comparison to this weak and rarely-invoked style of assembly the English

Parliament of the era of Edward I seems to have amassed a remarkable power through the preservation of the original, Gothic constitution of the state, much of this authority remained only conceptual until a few centuries later. Indeed, commentators observe that in regard to “parliament during the reign of Edward I,” its “nature and essence” is ultimately unclear.256 Sir Maurice

Powicke noted that

In England [Parliament] had come to mean the king in council in a gathering of wider scope. It implied the presence of the king and we may assume that any parliament held in the king’s absence would be held only by his command. It implied also the presence of

254 Hanley, Sarah, ed. “The Juristic Monarchy in French Constitutional Ideology: The Ceremonial Lit de Justice Assemblies of 1527.” The Lit de Justice of the Kings of France. Princeton University Press, 1983. Constitutional Ideology in Legend, Ritual, and Discourse. p.54. 255 Ibid, p.53-4. 256 Cuttino, G. P. “Mediaeval Parliament Reinterpreted.” Speculum 41.4 (1966): p.682.

149 council and especially of the judicial element without which business in council could hardly be done.257 Clearly, therefore, Parliament had not gained an official status in Edward I’s reign, but was a general term with a specific definition. Cuttino observes to this end that “Henry III’s conception of parliament, which prevailed both before 1258 and after 1265, was that it was an occasion; it is

Professor Treharne’s view that the men who were responsible for the Provisions of Oxford258 made it into an institution.”259 Following the Provisions of Oxford, the second important constitutional innovation contributing to the development of parliamentary authority was the “development of a

‘right to rule’…given as 25 October 1460, when Henry VI and Richard of York agreed to an accord

‘to be authorized by the authority of this present parliament’.”260 It is evident, therefore, that somewhere between 1265, when the Provisions of Oxford were annulled by papal bull, and 1460, the Parliament of England gained a significant political stature. What is clear, in any case, is that

“parliamentary ascendency was achieved in the fifteenth century, thereafter surviving as legal precedent and political model for a much later age.”261 Some commentators argue that this ascendancy was achieved as the power of the king waned due to weak rulers and the financial drain of wars. To revive the faltering monarchy, therefore, “fifteenth-century English kings employed a

257 Cuttino, p.682. Citing from Powicke, Maurice, The Thirteenth Century, 1216-1307. Vol. IV of The Oxford History of England, ed. G. N. Clark. Oxford: Oxford U. Press (1953), p.344. 258 According to the Encyclopedia Britannica, the Provisions of Oxford were “a plan of reform accepted by Henry III, in return for the promise of financial aid from his barons,” issued c.June 10, 1258; under the Provisions, “the government was placed under the joint direction of the king and a 15-member baronial council that was to advise the king on all important matters…[whereby] all high officers of the realm were to swear allegiance to the king and the council[,] Parliament was to meet three times a year to consult on further reforms[,] a justiciar was appointed (for the first time since 1234) to oversee local administration, and the majority of sheriffs were replaced by knights holding land in the shires that they administered.” “Provisions of Oxford.” Encyclopedia Britannica. London: Encyclopedia Britannica. Ltd. (1998). 259 Cuttino, p.684. 260 McKenna, J. W. “The Myth of Parliamentary Sovereignty in Late-Medieval England.” The English Historical Review 94.372 (1979): p.494. 261 Ibid, p.482.

150 revival of the ‘elective’ or acclamatory element to buttress their faltering regality…the coronation rite had preserved a formality of election or ‘recognition’ by the lords, and various attempts throughout the century to demonstrate public support for new kings evoked ancient tribal rituals of acclamation,” including references to parliamentary consent and approval of royal actions.262

Ultimately, Parliament had achieved true independent power in England by this era, and retained its authority and stature through Montesquieu’s own era.

While a combination of happy circumstance and conscious choice by the kings to use

Parliament as a means of assuring their authority helped to preserve the forms of the Gothic constitution in England, such was not the case in France. Indeed, “in France a single assembly was a rarity…there was instead a multiplicity of general and regional Estates.”263 In his treatise on

French political development, Lewis lends the following insights:

Unlike England, France was a country in which the king had only recently in the early fourteenth century extended a precarious authority over domains from the beginning divided by those geographical, ethnographical and linguistic barriers. Regional economy, law, custom, politics and sentiment had had time to harden under regional rulers effectively independent of the crown. Such independence was still reflected in the fact that no representative sat in a medieval general Estates, for instance, from Béarn or Britanny… The structure of politics was essentially a regional one. In England centuries of social development had made possible a "community of the shire" and a "community of the realm", however aristocratic these may have been. There were no "provinces" interposed between a unit too small for independent political feeling and the whole kingdom. Such unity seems to have been possible only in England; even Edward I, the Father of English Parliaments, could not beget a central assembly for Wales or for Ireland. It was little wonder Philippe IV, the Father of the French Estates, was unable to do so in his kingdom.264 The political situation in France thus reflected the legal fragmentation that feudalism created in this era, as discussed in Chapter X; the king could hardly be opposed by a judicial and legislative

262 McKenna, p.491. 263 Lewis, P. S. “The Failure of the French Medieval Estates.” Past & Present 23 (1962): p.4. 264 Ibid, p.10.

151 body if the laws and judicial procedures of the different fiefdoms were in such a state of disunion.

The inability of the nobility, church, and magnates to unify politically extended further than their failure to compose a body analogous to Parliament; for “not only was there not a single assembly; but the system of representation was unformed…[for] representation proper of the nobility in a general assembly did not appear until 1484; representation of the nobility in a regional assembly seems to have been confined to Normandy in the fifteenth century, where it presumably appeared because it was twenty years under English rule”265 Political unification of the nobles in a form similar to the English Parliament thus was unfeasible at this era in French history.

Along with the regional and legal division that made parliamentary assemblies in France inherently difficult, the size of the kingdom itself made such a gathering problematic. It is clear, in the case of a country the size of France, that “an assembly of the whole kingdom was necessarily large; but both in 1356 and in 1484 a perfectly workable ad hoc committee system overcame this difficulty.”266 The Estates General was the apparent solution to this difficulty, through its representative nature. Its 1302 and 1320 convocations resembled more convocations of the Lit de

Justice, however, as they dealt with extremely specific issues and were not legislative in nature; the 1356 and 1484 convocations similarly relied on this “workable ad hoc committee system” to discuss financial matters including the raising of taxes, and were constrained to these issues alone.267 However workable the Estates General may have been, its authority threatened that of the king, and so as early as “in 1484 some of the old servants of Louis XI (1461-83) thought ‘it is lèse majesté to talk of assembling Estates; it is to diminish the power of the crown’…[and] the greater nobles – like the duke of Berry and the duke of Burgundy – could at times seem to have

265 Lewis, p.4-5. 266 Ibid, p.10. 267 Ibid, p.10.

152 much the same attitude towards the regional assemblies in their own territories.”268 Lewis notes that beyond royal opposition to the Estates, other issues were posed by their reunions:

There were pains, as well as constitutional pleasures, in Estates too much under pressure. At some assemblies royal or seigneurial officers were present and clearly influenced the discussion; the president of the Estates was controlled by the government and there were government men amongst the members as well as partisans of the conflicting parties. Every kind of pressure, according to Masselin, was put on the independent deputies to submit; and eventually they did so. But there were even more open forms of coercion of a reluctant assembly. It could be kept in session or threatened with a further meeting under troublesome conditions with a personal summons for its members. In the last resort the Estates could be bypassed and commissioners sent to make "particular demands" of groups of taxpayers directly. Direct negotiation, too, had its painful side.269 The problems caused by the manner in which the Estates were convoked, by their composition, and by the occasions in which they were convoked were thus all overwhelmingly inconvenient for the parties involved, not the least of which was the king. The royal prerogative was furthermore more easily achieved by individual action than by the convocation of the Estates, in most circumstances; it is for this reason that they were so rarely convened in the 400 years leading up to Montesquieu’s own era, and only once after.

Without a representative assembly that satisfactorily exercised some form of power, the

French government by the fifteenth century had strayed far from its original Gothic constitution.

The king, once elected by the members of the Frankish assembly, instead succeeded to the throne through hereditary right, and exercised his inherited power with little formal opposition. In

England, however, the king was by this era restrained by the powers of Parliament, through his own doing. What had originally been a consultative council in the curia regis of each kingdom evolved in starkly different manners in each state. England developed an assembly who had, by

268 Lewis, p.7. 269 Ibid, p.14.

153 1460, the right to approve and direct royal action, whereas France – through a gradual legal disintegration brought on by feudalism, then through a re-unification under Roman right – witnessed the ceding of authority from the assembly, or parlement, to the king, with the weak and rarely-invoked Estates General as the recourse of last resort. The implications of this divergence are far-reaching; the royal power in each state differed greatly by the year 1500, as a result of these developments. It is to the overall implications of Montesquieu’s analysis of these differences that we must now turn.

154 CHAPTER XII: CONSEQUENCES

It is immensely clear in Montesquieu’s analysis of both countries that by his own time,

France and England were vastly different countries with disparate regimes and ‘spirits’ of government. Nevertheless, as Montesquieu shows throughout The Spirit of the Laws, they arose from like, if not identical, origins, and both retained – for a period of varying length – a typically

Gothic constitution. The intervening centuries fundamentally shaped and changed this constitution, but while the principles were preserved, so was the effect it had on the liberty of the people. This development is in fact in line with Montesquieu’s assertion “that Gothic law transforms itself in each particular country…taking on a new, ever-developing spirit” as the spirit of the people changes as well.270 The development of a feudal society in France and England admittedly was very much to the detriment of the Gothic disposition of power in each nation; in

England, this menace was less significant than it was in France, for reasons discussed in Chapter

X, “The Divergence of the Law.” While the legal and political distinctions developed during this period are clear, it is necessary to examine their ultimate consequences in the degree to which they effect the political and overall liberty of the citizens in each country.

Montesquieu, in his discussion of political liberty immediately following from his analysis of the English constitution, notes that “the monarchies we know do not have liberty for their direct purpose as does the one we have just mentioned [England]; they aim only for the glory of the citizens, the state, and the prince…the three powers are not distributed and cast on the model of the constitution which we have mentioned; each instance shows a particular distribution of them and each approximates political liberty accordingly; and, if it did not approximate it, the monarchy

270 Carrese, p.28.

155 would degenerate into despotism (XI.7, 166-7). France, in such a formulation, does not ensure the political liberty of its citizens as the express purpose of the government. Rather, any assurance or protection of political liberty in France – or in any other monarchy of Montesquieu’s era – is a happy accident, a vestige of the original Gothic constitution that has endured the centuries.

England itself is unique in its governmental design, which expressly provides for political liberty.

Rahe notes to this end that “one consequence of the fortuitous origins of Europe’s monarchies is that they only ‘approach political liberty more or less’…in this regard, England’s government would appear to be quite different: if it actually provides for ‘political liberty’ – as Montesquieu insists it does – it is because the form of government peculiar to England aims directly at it[;]

English liberty is, at least in some measure, a product of ‘prudence’ rather than ‘chance’.”271

Rahe’s assertion could be expanded upon further: not only is English liberty a “product of prudence,” but its continued existence relies on the prudent preservation of the original spirit of the Gothic Anglo-Saxon constitution. 272

In stark contrast to the English preservation of the Gothic constitution, France stands as an example of a nation that has engaged in innovation of governance to the point that its constitution could not truly be said to have a relation with the original Frankish constitution of its origins.

While in England Roman law had little to no demonstrable impact on the legal, political, or social development of the nation,273 in France the opposite is true.274 Indeed, Montesquieu directly states

271 Rahe, Soft Despotism, Democracy’s Drift, p.33. 272 Ibid, p.33. 273 See Chapter VI, “The Influence of Roman Law in England,” for a detailed account of this assertion. It is of note that in 1234 the teaching of Roman law was banned in England, and under Richard II citation of Roman law in court was further outlawed. (Cf. Plucknett, p.37; Sherman, Canon Law in England, p.243.) 274 See Chapter II, “The Influence of Roman Law in France,” for an account of its influence in French jurisprudence, and Chapter IV, “The Revolution of the Laws,” for an examination of how Roman law was introduced into France.

156 that in France “we find the law of Justinian” as a basis upon which the French legal code was based in his own era (XXVIII.12, 548). The careful distribution of powers between the three discrete branches of government was idealized in the prototypical Gothic constitution which Montesquieu declares that France abandoned in favor of the Justinian Digest. Through its disintegration into a feudal, disjointed conglomeration of rival duchies and principates, France lost this distributive form, and in its reunification under the Institutes of St. Louis and the following centuries of legal development, its government was fundamentally reshaped by Renaissance Romanists. By

Montesquieu’s own era, it is therefore a necessary conclusion that the proper Gothic distribution of powers has crumbled to nothing, and been replaced by an emulation of Roman imperialism. In

France, therefore, the king is the most powerful figure; in England, by contrast, Rahe observes that

“the laws are primary: they are themselves sufficient to give form to the nation’s mores, manners, and character…in practice, then, it must be the separation of powers itself, the fundamental law of the English constitution, that transforms the characteristic uneasiness of the English into a passion capable of setting their polity in motion.”275

The singular manner in which England has remained true to its original Germanic distribution of powers – its Gothic constitution – is ultimately accountable for the inquiétude of the citizens, as citizens only ensure the preservation of their liberty through a vigilant ensurance of the proper separation of powers as existed under the Franks. This inquiétude is a well-founded uneasiness because Montesquieu insists that “if they were to lose [their liberty], they would be one of the most enslaved people on earth” (II.4, 19). This uneasiness is not without its failings, principal among them being that Montesquieu later declares that the English people do not enjoy their liberty due to a combination of inquiétude and avarice; thus, “for Montesquieu the British system of

275 Rahe, Soft Despotism, Democracy’s Drift, p.46-7.

157 parliamentary sovereignty is a laudable, but in important respects, defective constitutional model that fails to guarantee moderate government.”276 Despite the negative aspects of this uneasiness,

Montesquieu lauds how it makes the people cautious and jealous of their liberty, and how this vigilance prevents those in power from limiting it. Due to this vigilance, the English constantly are on the vanguard of liberty, and ensure its protection for their citizens to the highest degree possible. Boesche illustrates this vigilance in noting that “in 1749, [Montesquieu] responded by letter to Domville who had asked Montesquieu’s opinion about the future of England [to which]

Montesquieu answered that ‘in Europe the last sigh of liberty will be given by an Englishman,’ and he went on to suggest that ‘your liberty is linked to your commerce and your commerce is linked in some fashion to your existence’…in Montesquieu Pensées, however, we find the draft of a letter to the same Domville, trying to answer the same question about England’s future, but here we find Montesquieu praising England, but also saying, ‘your riches are causing your corruption’.”277 While England’s government may have its weakness and flaws, its citizen’s inquiétude nevertheless preserves the inherent desire for liberty incarnated in the original Anglo-

Saxon Gothic constitution.

What the French lack in political liberty, Montesquieu observes, is somewhat compensated for in their ability to enjoy life to a manner far superior to the dour vigilance of the English. A portion of this lively spirit he ascribes to the respective climates of the two countries, explaining that “I do not say that the climate has not in large part produced the laws, the mores, and the manners of this nation, but I say that the mores and the manners of this nation should be closely related to its laws” (XIX.27, 325). He further explains that the French are a people “which had a

276 Ward, p.552. 277 Boesche, Roger. “Fearing Monarchs and Merchants: Montesquieu’s Two Theories of Despotism.” The Western Political Quarterly 43.4 (1990): p.754.

158 sociable humor, an openness of heart; a joy in life, a taste, an ease in communicating its thoughts…lively, pleasant, playful, sometimes imprudent, often indiscrete; and which had, with all that, courage, generosity, frankness, and a certain point of honor” (XIX.5, 310). Another portion of this enjoyment he ascribes to the fact that while men and women exist in entirely separate spheres in England,278 they mingle freely in French society, where while “one could contrain its women, make laws to correct their mores, and limit their luxury, but who knows whether one would not lose a certain taste that would be the source of the nation’s wealth and also a politeness that attracts foreigners to it?” (XIX.5, 310). Ultimately, therefore, while the French do not truly enjoy political liberty due to their total abandonment of the original Gothic constitution, they nevertheless are afforded some form of freedom by their mores.

While it may seem that Montesquieu offers a harsh dichotomy between England and

France, in which one state fully ensures the political liberty of its citizens and another represses this liberty entirely, this is not the case. Montesquieu does believe and argue that the citizens of

England are as a rule afforded more political rights due to the preservation of the essence of their

Gothic constitution, but overall “he mourns the loss in England and France of the intermediary regional institutions that were once distinctive features of the Gothic Constitution.”279 This loss, however, is consistent with his observations that indicate that “Gothic constitutionalism involves two principle features: the guiding principle of balanced power and the gradual evolution from a simple form of representative government to a complex [monarchy]…with intermediate

278 “In a nation where each man in his own way would take part in the administration of the state, the women should scarcely live among men. Therefore, women would be modest, that is, timid; this timidity would be their virtue, whereas the men, lacking gallantry, would throw themselves into a debauchery that would leave them their liberty as well as their leisure” (XIX.27, 332). 279 Ward, p.552.

159 institutions and territorially divided powers.”280 It is thus impossible for a state to preserve the original form of its Gothic constitution; the very essence of a this sort of government, as

Montesquieu himself explains, is that it changes and conforms itself to the nature to which it is confined by the climate, spirit, and nature of the people it rules over.

Montesquieu furthermore does not argue that the English constitution be the model of government for every nation in the world; this generalist and universalistic approach flies in the face of his careful analysis of the effects of climate, geography, history, and culture on the legal systems best suited for governing people the world over. Rather, Montesquieu points to the Gothic vestiges and the distribution of power in the English constitution – and even then, in an idealized version of the English constitution – as an example of how the political liberty of a people might be preserved, but not the sole manner in which it ought to be. Krause opines that “Montesquieu nowhere defends the view that the English constitution should be replicated by other nations in precise detail…the balance of power can take a variety of forms (XI.7), and the specific form it takes in any given regime should be suited to the broader context of social, cultural, economic, religious, and historical factors that comprise what Montesquieu calls ‘the spirit’ of its laws.”281

The best reasoning for why England serves as such an ideal example of this sort of concern for liberty, Krause continues, is that England provides an easily understandable example of a moderate and properly distributed government: “regardless of the specific form it takes, however, a constitutional balance of power is Montesquieu’s general model for moderate government…insofar as it provides a mechanism for constraining the encroaching nature of power,

280 Ward, p.552. 281 Krause, Sharon R. “The Uncertain Inevitability of Decline in Montesquieu.” Political Theory 30.5 (2002): p.716.

160 it also provides a means for attenuating corruption and decline.”282

Adopting the manner of government that exists in England is therefore not the only means by which a people might attain a higher degree of political liberty. Indeed, the way that he paints it, Montesquieu seems to suggest that the people of France – were they to support the noble thesis, push back against the Roman-inspired changes of the French legal and judicial system, and demand a return to even some of the principles and some part of the spirit of the Gothic constitution of their

Frankish forbearers – might at the very least correct some of the abuses of their government. This desire to correct the abuses of a former age is not a novel idea in Montesquieu’s writing – indeed, in the preface of The Spirit of the Laws he declares that “I would consider myself the happiest of mortals if I could make it so that men were able to cure themselves of their prejudices” – nor is it one that he believes unattainable (Preface, xliv). While the political development of France has brought it so far from the form it originally possessed, and has made it so distinct from England,

Montesquieu still appears to suggest that France might cure itself of some of the prejudices introduced by Roman law, and thereby increase the degree to which French citizens enjoy political liberty.

282 Krause, p.716-7.

161 CONCLUSION TO PART III

Throughout The Spirit of the Laws, Montesquieu expounds upon the merits and demerits of the French and English legal and political systems. He examines both some of the manners in which they developed and the manners in which they promote or restrict the political liberty of the citizen. Essentially absent from the work, however, is a section devoted to an explicit comparison of these two countries’ forms of government. Montesquieu is clear in his personal correspondence, his Pensées, and even in some aspects of The Spirit of the Laws that the French and English governments were inherently based upon the same original Germanic code and the same Gothic constitution; their deviation from these systems, or their fidelity to the forms these codes prescribed, dictates to a degree the reason why these two nations developed such disparate legal and political structures by Montesquieu’s time.

England and France, though both of Germanic origins, had different histories of legal and political innovation. England, whose history is most significantly marked by the Norman Conquest and the five centuries of English monarchs seeking to legitimize and justify their rule thereafter, attached itself to the Germanic assembly – which by the fifteenth century had developed into the modern conception of Parliament, but which prior to that appellation was known as the curia regis

– and to the limited powers of a moderate government whose distribution of the three powers ensured political liberty of the citizens. France, on the other hand, was most significantly marked by the change from the Carolingian to the Capetian Dynasty, which heralded a new age of feudal society in which the Roman legal system, and the centralizing force of its appeal structure in judgment, led to the emergence of a strong king and a weakened, perpetually undermined, and politically impotent nobility. While the people of France do enjoy some manner of liberty despite their lack of understanding of the proper distribution of the three powers in the Gothic constitution,

162 there hangs above them the possibility of correcting the abuses of their former governance style, and stressing a stronger nobility as a check to some of the powers of the king. In the end, the people of France could not possess political liberty to the degree that the English do, due to the specter of

Rome in the very spirit of their laws; but by having recourse to the Gothic constitution of the

Franks, they might be inspired to assert their political will in order to correct some of the prejudices which shape their political state.

163

CONCLUSION

164

CONCLUSION

Charles-Louis de Secondat, Baron de la Brède et de Montesquieu, was indisputably one of the most influential political minds of the Ancien Régime; his Spirit of the Laws has had an enduring legacy both in the French political psyche and in its influence on the constitutions of modern democracies the world over. In his analysis of the legal, cultural, and environmental formation of the various political systems of his era, Montesquieu devotes particular attention to the origins, formation, and fundamental changes of the legal codes of France and England. These codes, he explains, were derived from the same Gothic constitution of their shared Germanic roots, but developed to vastly different regimes by his time. While to a certain degree the mutability of the Gothic constitution these nations once shared is unsurprising in Montesquieu’s conception, the extent to which these countries no longer resembled each other by the seventeenth century is indicative that an external force shaped one of their developments. This force ultimately proves to have been that of Roman law, which was adopted in France, but not in England.

Part I of this work examined Montesquieu’s analysis of the development of the French government. Montesquieu examines France’s legal and political history in a broad scope, from the very beginnings of its recorded history under the Franks – and prior to the Franks, in Tacitus’s writings on the Germans – through the sixteenth century. His focus on the rise and fall of the assemblies that surrounded the king gave clear indication of the structural element of the Frankish

Gothic constitution that was most of interest to him. In doing so, Montesquieu aligns his thought with that of François Hotman, Henri de Boulainvilliers, and other supporters of the noble thesis.

He both confirmed his belief that the origins of the French were inherently Germanic, and that

Roman law was a later introduction into the originally free and liberty-protecting regime of the

165 Merovingian and Carolingian Dynasties. Through tracing the introduction, development, and fall of feudalism, Montesquieu demonstrates that the hereditary and perpetual nature of fiefs under the early Capetian Dynasty was closely tied to the destruction and abandonment of the earlier Gothic constitution, and that this system’s ties to the introduction of Roman law in France facilitated a

‘revolution’ in the laws that fundamentally altered the spirit of the French government.

Part II of this work examined Montesquieu’s analysis of the laws and constitution of

England; this examination focused on how his famed theory of the separation of powers developed in England. The influence of Roman law in England was examined and wholeheartedly rebuked – for, as Montesquieu appears to imply in his explanation that Roman law only tainted the French government, it was necessary to disprove its influence in England. An analysis of the Anglo-Saxon constitution displays that the English monarchs following the Norman Conquest relied on a continuity of the Germanic legal code in order to maintain an aura of authority and legitimacy, and so the original disposition of English government is relatively true to the spirit of the Gothic constitution. With this need for continuity in mind, the means by which the English government ensures the political liberty of its citizens, and the careful distribution of the three powers of government, becomes clear.

In Part III of this work, Montesquieu’s analysis of the French and English legal systems combines to provide a framework through which his interests become evident. It is apparent that both England and France, until a certain point, had similar legal and political systems deriving from a common Germanic origin and ensuring a common level of liberty of the citizens. In

England, the Norman Conquest and Norman desire for legitimacy prevented significant deviation from the code that existed in the early eleventh century, and the Magna Carta’s assurances of consistent justice prevented legal fragmentation. In France, by contrast, the advent of feudalism

166 led to a disintegration of the unified legal system, and to the rise of seigniorial justice in the independent fiefs, which were only re-unified under the introduction of the Roman legal code and its concept of a tiered appeal structure. The political systems of these two nations accordingly developed in different manners: in England, the original Germanic assembly of the nobles developed into the curia regis, which in turn became the House of Lords in Parliament, whereas in France the nobles had their power undermined by the advent of appeals to the king as lord paramount under the Institutes of Saint Louis. Finally, Montesquieu appears to explain that while the government of France does not have political liberty as its express purpose, it would neither suffice nor be possible to replace it with a system like that of the English. The French could reform their government to attain a greater degree of freedom, but the English form of government is appropriate for England only, and only serves as an example of a government whose citizens enjoy a high degree of political liberty. Through the introduction of Roman law, France deviated from its original legal and political system; in releasing itself from the chains introduced under Roman law, it could regain part of its original liberty.

By examining Montesquieu’s analysis of the legal and political structures and codes of the

French and the English as presented in his Spirit of the Laws, a fuller understanding of the inherent nature of political liberty is exposed. In France and in England, the original Gothic constitution ensured a citizenry free from excessive fear, through a careful distribution of the three powers of government and a moderated judiciary. In France, the introduction of Roman law in the thirteenth century weakened the protections of the political liberty of its citizens, and ultimately resulted in a strong central monarchy whose powers are not properly distributed. In England, however, such a drastic revolution of the laws never occurred. While not prescriptive, the example of England’s laws, untainted by Roman law, demonstrate the manner in which one might constitute a

167 government that would ensure the political liberty of its citizens. While the French spirit is naturally social and full of joie de vivre that affords its people some degree of freedom, their political liberty is inhibited by the specter of Rome in their political institutions. Montesquieu, ultimately, seems to indicate that such a people, blessed with such moderating sociability and fine manners, might reform their political institutions to repossess the nobles of their deserved rights, and thereby become, to a greater degree, truly politically free.

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