The heart of the French Constitution, however, lay in the crucial role the nobility played in the
Gothic system of balanced power and divided sovereignty. Montesquieu characterizes this complex
order: “In the French Constitution, the king, the nobility, and the clergy held all the power of the state in
their hands” (31.21.701). While he attaches relatively little significance to the clerical role in checking
the centralizing aspirations of the monarch (see 31.10.686, 4.3.34, 3.10.29-30), Montesquieu sees the role
of the nobility as enormous. The major historical development, which Montesquieu compares to a
revolution that “changed the whole of the French political state,” was the concession made by
Charlemagne’s royal successors to the nobility by which “every freeman could choose the lord he wanted,
whether the king or another lord” (31.25.708). With this act and the alteration of property laws of fiefs
that flowed from it the nobility acquired an independence from the crown allowing it to support the
complex system of balances and buffers that checked the power of the central state:
Most of the lords who had formerly answered immediately to the crown [now] answered to it
only mediately. These counts who had formerly rendered justice in the king’s
audiences…stood
between the king and his freemen, and power was pushed back yet
another degree (31.28.712
emphasis added).
Following this dramatic constriction of royal power in the ninth century, the conditions were set for the
establishment of the feudal monarchy in which the provincial and county nobility not only absorbed much
of the executive power of judging “things dependent on civil right” (11.6.156) but also gradually became
the foundation for the “depository of fundamental laws,” the political bodies in the provinces that
preserved the constitutional balance through the power to “announce the laws when they are made and
recall them when they are forgotten” (2.4.19). Unlike the English judges and juries who provide
individual protection through due process but are thoroughly subject to parliamentary supremacy, the
French nobility played a vital role in both the judicial and legislative process by safeguarding certain
fundamental laws from the potential predations of ordinary statute or royal edict (Stoner 1992: 157). In
the wake of this revolution in the monarchy prior to the accession of the Capetian line, the nobility also
acquired a powerful check on the crown’s capacity to exercise executive power in regard to foreign
relations and war. Montesquieu praises the law 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
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Convention