1If Montesquieu undertook very early his research on the history of feudalism, it was only in the few months preceding the publication of L’Esprit des lois that he wrote the books devoted to the history of France (XXVIII, XXX and XXXI) – to the point that the final books on feudal laws might not have appeared (letter to Monsignor Ceruti, 28 March 1748; OC, t. XX). Nevertheless, these books are not a simple historical appendix unrelated to the rest of the work: they are central both for the controversy between “Germanists” and “Romanists” on the origins of the Frankish monarchy – a polemic of which echos would be heard in the debate over French law a century later (Ellis, 1989) – and for the conception of the moderate monarchy defended in L’Esprit des lois. Montesquieu’s posture must therefore be restored between that of his two privileged interlocutors, Dubos and Boulainvilliers: “M. the count of Boulainvilliers and M. the abbé Dubos have each made a system, one of which seems to be a conjuration against the third estate, and the other a conjuration against the nobility” (“M. le comte de Boulainvilliers et M. l’abbé Dubos ont fait chacun un système, dont l’un semble être une conjuration contre le tiers état, et l’autre une conjuration contre la noblesse”, XXX, 10). It is the “fine spectacle” of feudal laws that Montesquieu wishes to expose while avoiding the partiality of his predecessors: he must remain “between the two”. The idea was to reread the history of feudalism and its laws “which did infinite good and harm” and have “left rights” which would subsist in the monarchy (XXX, 1). The reflection on the origins of public law brings out the conflicts that were at the origin of the distribution of intermediary powers capable of preserving political liberty.

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“History must be illuminated by laws, and laws by history” (XXXI, 2)

2In order to determine the origins of intermediary powers, Montesquieu therefore goes back to the foundation of the “French constitution” (XXX, 21). It was aristocratic and military government by the assemblies of the nation that led, by the preservation of common law after the conquest of the Gauls, to “gothic government” of which the French monarchy of the 18^th century was the corrupted form. The history of feudalism is primarily concerned with the power of the king, nobility and clergy: analysis of the divisions of the military power, the judiciary power and the fiscal power, associated with the policy of fiefs, makes it possible to oppose the theories favorable to absolute monarchy.

3L’Esprit des lois thus takes a position between the rival histories of Boulainvilliers and Dubos (Carcassonne). For the first, the conquest of the Franks was the founding event of the monarchy, followed, after a division of the lands, by a subjection of the conquered Gauls (called Gallo-Romans since the nineteenth century). According to Boulainvilliers, the conquerors formed an aristocracy admitted to participate in power on an equal basis with their chief who, following Germanic customs, was but a freely chosen warlord. Given the status of the fiefs, seigniorial justices existed from the beginnings of the monarchy; vassalage, which appeared at the end of the second dynasty, was feudal from the start. The fiefs, a compensation given to vassals from the state domains, were “noble and successive heritages, consisting in lands, tribunals, and homages, restricted solely to nobles of ancient lineage, by the possession of which they were engaged by troth and vow to serve the sovereign lords in war, both by their persons and those of their subjects” (Dissertation sur la noblesse de France, p. 110). Boulainvilliers associates the heredity of fiefs with the protection proposed by the lords in those times of insecurity; it is natural that they should have wished to preserve and transmit to their heirs the fortresses they had built at their expense (p. 108-109). Seen this way, the power of the feudal aristocracy is original and it is the despotic power of monarchs that has challenged, by successive usurpations, primordial rights and freedoms.

4Conversely, the history evoked by Dubos in Histoire critique de l’établissement de la monarchie française dans les Gaules denies the reality of the conquest and maintains that royal authority, absolute from the start, derived from the Roman imperium. The alliance between Franks and Romans turned into domination only by the very will of the Gauls, who saw in Clovis a “tutelary angel”, and by the cession of Justinian who conferred full sovereignty on his descendents. For this reason, the Franks were not a military caste dominating subjugated populations but a submissive minority. This time it is the concentration of powers in the hands of the Merovingian kings that is foundational, and the seigneurial jurisdictions could only arise, in the 9^th and 10^th centuries, by usurpation: “At the beginning of the eighth century, all the citizens of our monarchy recognized no other jurisdiction or other power than the jurisdiction and power of the king, and the officer he had personally chosen to be for a time the depositary of his authority. Individuals had then not yet usurped the rights of the state” (“Au commencement du VIII^e siècle, tous les citoyens de notre monarchie ne reconnaissaient d’autre juridiction et d’autre pouvoir que la juridiction et le pouvoir du roi, et celui des officiers qu’il avait choisis personnellement pour être durant un temps les dépositaires de son autorité. Les particuliers n’avaient point encore usurpé alors les droits de l’État […]”, t. III, p. 299). According to Dubos, the royal monopoly of justice was abolished only at the time when, at the end of the Carolingian dynasty, the vassals assumed it as a patrimonial right; the officers delegated by the sovereign then arrogated to themselves an undue power by converting what was in their administrative purview to hereditary dignities. The instauration of the heredity of fiefs was a baneful revolution, which contravened at once the “rights of the prince” and the “rights of the people”. It was at this moment that the usurpers instituted their justice, imposed their laws and invented seigneurial rights: “it was then that the Gauls truly became a conquered country” (t. III, p. 442).

5Now between the version favorable to absolute monarchy and the one that defends the flouted rights of the aristocracy of the sword, between Romanism and Germanism, the historical final books of L’Esprit des lois propose a median path. Dubos more than Boulainvilliers is the first adversary to combat. From a factual point of view, the Histoire critique de l’établissement de la monarchie française dans les Gaules is a colossus with clay feet since its point of departure, the negation of the conquest, renders more fragile the whole edifice built in “three mortal volumes” (XXX, 23; see also 24). Above all, Dubos delivers an arbitrary and despotic vision of history, that of kings called by the peoples to succeed to the rights of the Roman emperors, and whose salutary recourse to the Church was to allow for the durable seating of authority against the exactions of the robber barons. Instead, Montesquieu denies the idea of a continuity of admirable mechanisms of Roman administration after Clovis was made consul, as that of a subsequent rupture, toward the end of the Carolingian dynasty: feudalism, far from issuing from an internal decomposition of the central power by a dominating caste, largely preceded the instauration of absolute monarchy; the aristocracy, far from arising from a usurpation of the powers of the prince and the rights of the people, went back to the original point of the conquest. As Tacitus relates it, the division of legislative power was first materialized among the Franks in the form of assemblies of the nation, composed of the leudes which gave their consent to the taxes and military expeditions, and participated in arms in deliberations on the principal matters of the kingdom (XVIII, 30; see LP, [‣]). Now in virtue of the inertia of customs understood in the “genius of the nation”, the power of the leudes was perpetuated after the conquest. Beginning with Tacitus’ Germania (De origine et situ germanorum), Montesquieu privileges the role of military obligations in the feudal process. By showing that only the nobles had “the dignity of feudals” L’Esprit des lois furnishes a point of historical anchorage for the fixity of the nobility as of its political function: in the early French monarchy, the nobles alone were eligible for a fief and “fiefs were given at birth, often with the consent of the nation”; the removability of fiefs did not originally mean that they could be given and taken back “capriciously and arbitrarily” (XXXI, 1). Correlatively, the right of justice being inherent to the fief, seigneurial jurisdictions derived from this territorial implantation: “I can already see the origins of seigneurial justice. The fiefs embraced large territories, as is apparent from countless monuments. I have already proved that the kings did not levy anything on the lands which fell to the Franks; even less could they reserve to themselves rights on the fiefs. Those who obtained them had in this regard the most extended use of them; they drew from them all the fruits and emoluments; and, as one of the most important […] was the judiciary profits (freda) that were received by Frankish custom, it followed that he who had the fief also had the justice” (“Je vois déjà naître la justice des seigneurs. Les fiefs comprenaient de grands territoires, comme il paraît par une infinité de monuments. J’ai déjà prouvé que les rois ne levaient rien sur les terres qui étaient du partage des Francs ; encore moins pouvaient-ils se réserver des droits sur les fiefs. Ceux qui les obtinrent eurent à cet égard la jouissance la plus étendue ; ils en tirèrent tous les fruits et tous les émoluments ; et, comme un des plus considérables […] était les profits judiciaires (freda) que l’on recevait par les usages des Francs, il suivait que celui qui avait le fief avait aussi la justice […]”, XXX, 20). Montesquieu grants to Boulainvilliers that the charters that attest to the existence of seigneurial justices are “the principal monument of our freedom” (Pensées, no. 1184; see Boulainvilliers’s Histoire, t. II, p. 92).

6The erudite use of history thus justifies the existence of seigneurial justices and therefore the attribution of judiciary power to bodies independent of the monarch, just as it justifies the nobility’s exemption from taxation, against the erroneous allegations of Dubos (XXX, 12-15). But the system of Boulainvilliers is not for that without flaws: if Montesquieu recognizes the existence of the conquest of Gaul, he attenuates its inegalitarian effects. In reality, the conquerors did not subjugate the vanquished but permitted them to preserve their political rights, while making possible a fusion between their peoples, once the Romans accepted to live under the Salic law (XXVIII, 2-4) – Montesquieu’s position seems to have evolved on this point since the Considérations, where the Frankish conquest explained “the overwhelming difference between a noble nation and a nation of commoners” (XVIII). The modalities of the division between conquerors and conquered peoples is understood on the basis of their mode of subsistence: whereas the Franks did not strip the Romans of lands for which they had no use and therefore made no general division (XXX, 8), “the Burgundian, a warrior, hunter and pastor, was not above taking fallow land” (XXX, 9). If the Goths and the Burgundians had to obtain their subsistence from emperors or Roman magistrates who gave them wheat and then land according to precise conventions, “the Franks did not follow the same plan. In the Salic and Ripuary laws we find no trace of such a division of the land. They had conquered, they took what they wanted, and the only regulation was amongst themselves” (“les Francs ne suivirent pas le même plan. On ne trouve dans les lois saliques et ripuaires aucune trace d’un tel partage des terres. Ils avaient conquis, ils prirent ce qu’ils voulurent, et ne firent de règlement qu’entre eux”, XXX, 7). So it was the “mutual needs of the two peoples that were to inhabit the same country” that determined the division of the soil and serfs and that must explain the diversity of legal dispositions after the conquest, against the hypothesis of spoliation and subjugation maintained by Boulainvilliers (XXX, 9, 11). Above all, he was wrong in identifying vassalage with feudalism (XXX, 3-11) and attributing the right of seigneuries to the spontaneous submission of the people to their lords, which would have made their fiefs hereditary. First a “benefice”, or recompense for a military service, the fief then became the currency of the fidelity of barons or of ecclesiastical dignitaries, helping the kings to retain always ephemeral support, before their lifetime and then hereditary future made the perpetuation of the exchange impossible. Boulainvilliers still was right on the main point: the establishment of feudalism derives from the institutions and mores of the Germans, history justifies the antiquity of the rights of the nobility and the limitation of royal power. The formation of seigneurial jurisdictions, of which Montesquieu makes one of the essential points of resistance to the despotic swing (II, 4), did indeed come – even if in the course of history – from an original right. In this respect, Montesquieu remains closer to Boulainvilliers than to Dubos, who presented the appropriation of the power to judge as a scandalous usurpation: seigneurial justice was from the start a lucrative right inherent to the fief, deriving from the “first establishment”, and not from its corruption (XXX, 22) (Gautier).

7The nature of sovereign power is thereby clarified. For Montesquieu as for Boulainvilliers, the monarch is first of all a simple suzerain. Viewing Clovis as a Roman consul, Dubos had denied all survival of assemblies of the nation at the beginning of the monarchy: “it is clear that when all the Franks had become subjects of Clovis, and they were dispersed in the Gauls, it was no longer possible to assemble them every year, and to deliberate over important matters in such a numerous council. The old military esplanade was therefore abolished under the successors of that ruler” (“on voit bien que lorsque tous les Francs furent devenus sujets de Clovis, et qu’ils eurent été dispersés dans les Gaules, il n’était plus possible de les assembler chaque année, et de délibérer des affaires importantes dans un conseil si nombreux. L’ancien champ de mars fut donc aboli sous les successeurs de ce prince”, t. III, p. 327). Inversely, Montesquieu maintains that the masters of the palace [maires du palais] were elected, in assemblies of the nation, according to procedures utilized before the conquest (XXXI, 4). At the origin, among peoples who did not till the land, all power was military and royalty did not exist (XVIII, 30); the election of the masters of the palace, which concentrated the power, was subsequently done collegially (XXXI, 3-4); finally, when the master’s authority was joined to royal authority – thus concentrating the military and civil powers – the alliance of the principle of election and the principle of heredity led to a new form of “conciliation” (XXXI, 16). Only the instauration of the heredity of fiefs generalized in France the principle of heredity and the rule of male primogeniture which Dubos considered as concomitant with the advent of the monarchy (ibid., p. 260-270). After Boulainvilliers, Montesquieu therefore historicizes the first “fundamental law” of the Frankish monarchy: the political law – the Salic law, the principal fundamental law of the realm – was derived from the civil law (XVIII, 22). The lowering of royalty and the perpetuation of the regime of fiefs, whose statute the Church possessions ended up following, were subsequently closely associated, without the rule of devolution of the crown avoiding the struggles of power between the principle of election and the principle of heredity: the realm, with the crowning of Hugues Capet, the most important landholder of the realm and primus inter pares, thus became hereditary, according to Montesquieu, for the same reason as the fiefs.

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Equilibrium of powers and balance of orders

8History thus justifies the apparently naturalistic affirmation that “the most natural intermediate, subordinate power is that of the nobility. It enters in a way into the essence of the monarchy, the fundamental maxim of which is: no monarch, no nobility; no nobility, no monarch; but there is a despot” (“le pouvoir intermédiaire subordonné le plus naturel est celui de la noblesse. Elle entre en quelque façon dans l’essence de la monarchie, dont la maxime fondamentale est : point de monarque, point de noblesse ; point de noblesse, point de monarque ; mais on a un despote”, II, 4). Because the voluntary usurpation denounced by the two principal protagonists in the contemporary debate – usurpation due to the nobles, for Dubos, usurpation due to the monarchs, according to Boulainvilliers – did not take place, it is important to retrace in detail the evolution of the relations of force between the king and his officers on one hand, the nobility and clergy (themselves rivals) on the other. The history of the balance of orders (XXXI, 24 [25]) is closely tied to that of the balance of powers. That being so, the moment of harmony of the orders described under Charlemagne is only a parenthesis in the affrontment of interests, which gives rise to precarious and ever-changing alliances (XXX, 21). Whereas Louis the Debonaire, pretending to rely on the recently ennobled and deprive the clergy like the nobility of its functions, was abandoned by those two bodies, henceforth “separate”, Lothaire, Louis and Charles “sought, each on his own, to attract the grandees into their party, and make themselves some dependents. They gave to those who were willing to follow them arbitrary titles to Church properties; and to win the nobility, they delivered the clergy to them” (“cherchèrent, chacun de leur côté, à attirer les grands dans leur parti et à se faire des créatures. Ils donnèrent à ceux qui voulurent les suivre des préceptions des biens de l’Église; et pour gagner la noblesse, ils lui livrèrent le clergé”, XXXI, 22 [23]). To this period marked by the fluctuation of public properties and the king’s inability to arbitrate the conflicts of the two orders then succeeded another alliance, at the moment when the clergy and the nobility seemed to “join their interests”. But while the union was done against the Normans, it did not assure the support of the clergy, and succeeded only in causing their reciprocal weakening (ibid.). Far from manifesting the intangible alliance of the throne and the altar against the centrifugal forces of the lords – according to Dubos’s clerical history – history therefore translates the relations of force between rival instances: “The civil power being in the hands of countless lords, it had been easy for the ecclesiastical jurisdiction to give itself greater extension every day: but as the ecclesiastical jurisdiction sapped the jurisdiction of the lords and thereby contributed to giving strength to the royal jurisdiction, the royal jurisdiction little by little restricted the ecclesiastical jurisdiction, and it receded before the first” (“La puissance civile étant entre les mains d’une infinité de seigneurs, il avait été aisé à la juridiction ecclésiastique de se donner tous les jours plus d’étendue : mais, comme la juridiction ecclésiastique énerva la juridiction des seigneurs et contribua par là à donner des forces à la juridiction royale, la juridiction royale restreignit peu à peu la juridiction ecclésiastique, et celle-ci recula devant la première”, XXVIII, 41). However, the insistence on the formation of intermediate powers able to limit the concentration of the state’s powers is accompanied by a reflection on the necessary limitation of the power of the nobility: Book XXVIII of L’Esprit des lois constitutes a notable critique of the “conspiracy” of Boulainvilliers against the third estate. Far from any voluntary usurpation on the part of royal officers, bailiffs or wily, ambitious senechals, the separation of justice from the fief resulted from the internal evolution of law, and of the new rules of appeal that came after the jurisprudence of judiciary combat – when judging, which was part of vassals’ duties, was no longer just combating. In an abandoned chapter, Montesquieu studies in Beaumanoir the balance of powers between the bailiff and the lord (Ms 2506/14, f. 1-3 ; L’Atelier de Montesquieu, p. 224-226 ; OC, t. 6, in press). Just as the first attempt at integration of Roman law was not done to constrain the nobility, the second renaissance, once rediscovered in the 12^th century in Justinian’s Digest, should not be attributed to an intention to harm: if, as Boulainvilliers had remarked, the triumph of Roman law was that of men of letters, practicians and jurisconsults who took the place of peers and prud’hommes who had become incapable of judging – thus signing the decline of seigneurial justices – the responsibilities were divided once “judgments, instead of being a notable action, agreeable to the nobility, helpful to men of war, was no longer anything but a practice which they neither knew, nor wished to know” (XXVIII, 42, our italics). Montesquieu insists on the introduction by Saint Louis of the “appeal for default of law”, which was at the origin of the reappropriation of justice by the king: he became the last recourse and no longer simply the judge of major causes (having to do directly with the political order). In his eyes, this major evolution in law should not be imputed to the royal will to usurp a power that did not belong to it, but to the negligence of the feudal lords and the coherent evolution of law (XXVIII, 28; see XXVIII, 43).

9Montesquieu’s position is therefore nuanced: the rejection of Dubos’s Romanist thesis does not mean the unqualified adoption of Boulainvilliers’s “Germanism”, as attested by the attitude of the different protagonists with respect to St Louis. Dubos had invoked an initial and free choice of the (Latinist) royal judges in favor of Roman law, against the barbarian common law “made by still half-savage legislators” (t. III, p. 339-340). On the contrary, Boulainvilliers criticizes the king who allowed the lawgivers to dispossess a nobility unfamiliar with Latin as well as the complex customs of law: by retracing the origin of the parlements, the Histoire de l’ancien gouvernement de France assails this king “who created such prejudice against the jurisdictions of his vassals, by receving all the appeals of their justices, and abolishing as much as he could that of the peers to put in their place the pretended insights of jurists and men of the Church” (t. II, p. 48-49). Now L’Esprit des lois renders fervent homage to St. Louis, who, after abolishing judiciary combat in the tribunals of his domains, managed gently to wean his subjects from French jurisprudence. By having the books of Roman law translated and even establishing a mixed compilation of Roman law and barbarian customs, the king, despite the contradictions, finally melded the two forms of law (XXVIII, 30-39). Preferring incitation to constraint, St. Louis made legislation evolve by utilizing Roman law to regulate, limit and correct French law. He thereby manifested his moderation, as well in his way of reforming as in putting into place a “masterpiece of legislation” leaving room for the role of the parlement, which became at that moment a “fixed body”, the decisions of which they began to compile (XXVIII, 39). Thus was born an intermediate power of the very highest importance, guarantor of the common law and of the fundamental laws of the realm, preventing the king from believing himself absolute (legibus solutus), guardian of a major condition of political freedom. Montesquieu admits that the “ignorance” of the sword nobility was the cause of its loss of power, and in no way manifests the scorn of Boulainvilliers with respect to the robe (II, 4). The birth of the parlements, sovereign courts, is connected with the extension of the appeal and to the redaction of the customs. For this reason, the hypothesis of a royal plot must be rejected. The consequences of the mutations of law must not be imputed to a political will seeking to take its power from the nobility, but to unanticipated effects and a gradual evolution: the laws which St. Louis made “had effects which could not have been anticipated from this masterpiece of legislation. Sometimes it takes many centuries to prepare for changes; events mature, and then you have revolutions” (“eurent des effets qu’on n’aurait pas dû attendre de ce chef-d’œuvre de la législation. Il faut quelquefois bien des siècles pour préparer des changements ; les événements mûrissent, et voilà les révolutions”, XXVIII, 39). Boulainvilliers was wrong to impute to the corruption of monarchs and their henchmen that which in reality is owing to an inherent feature of human conduct – the pleasure of domination (XXVIII, 41).

10In this way, the criticism of despotism, common to Boulainvilliers and Montesquieu, has quite different consequences for the latter, which reinforces the sense of its “moderation” (Venturino, 1995). For the political moderation which is sought does not simply concern the king’s power, but also the pretension to independence of the intermediary powers, which must remain “subordinate” if not “dependent” (II, 4). Two dangers must be avoided: on the one hand, the administrative centralization and the concentration of powers in the hands of the monarch defended by Dubos; on the other, the excessive fragmentation of authority that leads to the dissolution of the state. Between the two, feudal laws “produced the rule with an inclination to anarchy; and anarchy with a tendency to order and harmony” (XXX, 1). The demonstration of anteriority of privileges to the monarchy as well as the demystification of the royal function therefore lead in no way to a panegyric of feudal government, which corresponds to a pathological figure of the state. Under the Capetians, the lords left nothing to the king except the name and instead of making up a “monarchical body”, as under the end of the first line dynasty (or “race”), they left it in shreds, dividing the authority which they had enjoyed in common under a magister: “Thus there was a body composed of patchwork, lacking harmony or connection; no authority in the head; no union in the members; each lord governing his own particular state with the same flaws as the monarchy; majesty without power; wars waged with courage, in truth, but without purpose or design […]. The assemblies of the nation were nothing but conspiracies and continual pretexts of vexation, sometimes to despoil a lord, sometimes to undo him: everyone sought to oppress each other; no one to help each other” (“Ainsi on voyait un corps composé de pièces rapportées, sans harmonie et sans liaison ; point d’autorité dans le chef, aucune union dans les membres, chaque seigneur régissant son État particulier avec les mêmes défauts de la monarchie ; de la majesté sans pouvoir, des guerres faites avec courage à la vérité, mais sans but et sans dessein […] Les assemblées de la nation n’étaient que des conjurations et des prétextes continuels de vexation, tantôt pour dépouiller un seigneur, tantôt pour le perdre : tout le monde cherchait à s’opprimer, personne à se secourir”, Pensées, no. 1302, transcribed before 1739). Montesquieu describes feudal barbarity as a moment of individual excess, as opposed to the moment of the excess of absolute power. History furnishes the example, when through a third revolution of the feudal laws, the freeholders could be dependent on lords whereas the fiefs, sub-fiefs and counties freed themselves from the monarchical power by becoming hereditary. Even if Montesquieu’s thought seems to have evolved on this point (see Pensées, no. 1730, transcribed in 1748-1750), the heredity of fiefs is not presented as the desirable outcome of the process; it is much more like a form of “corruption”, the cause of a disequilibrium in the system of forces which culminates by successive abuses in the dissolution of the central authority, once “renouncing the great offices was to lose power itself” (XXXI, 7). On one side, the institution of heredity, which makes of the limited remuneration of the benefice a patrimonial donation, legalizing the vassalage, reinforces the stability of the nobility by confering on it a territorial seat where it can take precautions against the good pleasure of princes and thus serve them with honor (VI, 1). If certain persons like Dubos were able to refute the claim that the body of antrustions did constitute a nobility of origin in the state, it is because “the prerogatives were not attached to an hereditary fief” (XXX, 25). On the other, the autonomy of the nobility entailed a risk if it was not put into the service of the prince but utilized against him. Thus, thanks to the new power due to the perpetuation of fiefs, “most lords who were directly dependent on the crown now were only indirectly dependent on it”; the counts found themselves henceforth between the king and the freemen: “power was another degree further removed” (XXXI, 27 [28]). The communication of power was disrupted thereby, and the monarch, instead of being the source of all political and civil power limited by “intermediate channels where power flows” (II, 4), was almost stripped of all authority. This incapacity to dominate the pyramidal apparatus of vassal relations, directly caused by the heredity of fiefs, forced under Hugues Capet the regrettable passage from political government to “feudal government” – the moment when Montesquieu, contrary to many other historians, ends his inquiry: “A power that should pass through so many other powers, and such great powers, halted or went astray before it reached its goal. Such great vassals no longer obeyed; and they even made use of their own vassals so as not to obey. Kings, deprived of their domains, reduced to the cities of Reims and Laon, remained at their mercy. The tree extended its branches too far, and the head withered” (“Un pouvoir qui devait passer par tant d’autre pouvoirs, et par de si grands pouvoirs, s’arrêta ou se perdit avant d’arriver à son terme. De si grands vassaux n’obéirent plus ; et ils se servirent même de leurs arrière-vassaux pour ne plus obéir. Les rois, privés de leurs domaines, réduits aux villes de Reims et de Laon, restèrent à leur merci. L’arbre étendit trop loin ses branches, et la tête se sécha”, XXXI, 31 [32]).

11The use of the history of law and the balance of powers appears like this: determining the conditions of the combination of interests among political powers and social groups does not so much make it possible to return to a past order as to recreate a propitious equilibrium in the new circumstances. Between Clovis and Hugues Capet (the period covered by the last two books of L’Esprit des lois), the monarchy reaches a summit under Charlemagne, who presided over a political union holding the medium between factional fragmentation and autocracy: “Charlemagne was attentive to holding the power of the nobility within his limits, and to prevent the oppression of the clergy and of freemen. He put such a temperament in the orders of the state that they were counterbalanced, and he remained the master. Everything was unified by the power of his genius” (“Charlemagne songea à tenir le pouvoir de la noblesse dans ses limites, et à empêcher l’oppression du clergé et des hommes libres. Il mit un tel tempérament dans les ordres de l’État qu’ils furent contrebalancés, et qu’il resta le maître. Tout fut uni par la force de son génie”, XXXI, 18). When the nation could no longer assemble after the conquest, the introduction of representatives did not modify the equilibrium favorable to freedom, and it was this temperate government that gave rise, by successive mutations, to the “best kind of government that men have been able to conceive”: “And soon the people’s civil liberty, the prerogatives of the nobility and of the clergy, and the power of kings, were in such concert that I do not believe there has been on earth such a temperate government as was that of every part of Europe as long as it lasted. And it is wondrous that the corruption of the government of a conquering people should have formed the best sort of government that men have been able to conceive” (“Et bientôt la liberté civile du peuple, les prérogatives de la noblesse et du clergé, la puissance des rois, se trouvèrent dans un tel concert, que je ne crois pas qu’il y ait eu sur la terre de gouvernement si bien tempéré que le fut celui de chaque partie de l’Europe dans le temps qu’il y subsista. Et il est admirable que la corruption du gouvernement d’un peuple conquérant ait formé la meilleure espèce de gouvernement que les hommes aient pu imaginer […]”, XI, 8).

12One can no doubt point out the fact that Montesquieu, who mentions the charters that freed the serfs, evoked once more at the end of history of French law (XXVIII, 45), and integrates municipal powers into intermediary powers (II, 4), in no way makes communal freedoms the point of departure for the advent of freedom in Europe. Despite his critique of Boulainvilliers, L’Esprit des lois does not restore the legitimate place of the third estate. If French freedom and English freedom have a common source, and it if is indeed from barbarian, aristocratic breeding ground that the principles of freedom historically emerged (“This wonderful system was found in the woods”, XI, 6), it is only in England, in a history which Montesquieu was not to write, that the power (and not simply the “freedom”) of the bourgeois was first imposed.

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—,« “Il faut éclairer l’histoire par les lois et les lois par l’histoire” : statut de la romanité et rationalité des coutumes dans L’Esprit des lois de Montesquieu », Généalogie des savoirs juridiques : le carrefour des Lumières, Mikhaïl Xifaras dir., Bruxelles, Bruylant, « Penser le droit », 2007, p. 15-41.