第 76 页

2. That the Laws of the Barbarians were all personal. It is a distinguishing character of these laws of the barbarians that they were not confined to a certain district; the Frank was tried by the law of the Franks, the Aleman by that of the Alemans, the Burgundian by that of the Burgundians, and the Roman by the Roman law; nay, so far were the conquerors in those days from reducing their laws to a uniform system or body, that they did not even think of becoming legislators to the people they had conquered.

The original of this I find in the manners of the Germans. These people were parted asunder by marshes, lakes, and forests; and C?sar observes[13] they were fond of such separations. Their dread of the Romans brought about their reunion; and yet each individual among these mixed people was still to be tried by the established customs of his own nation. Each tribe apart was free and independent; and when they came to be intermixed, the independence still continued; the country was common, the government peculiar; the territory the same, and the nations different. The spirit of personal laws prevailed therefore among those people before ever they set out from their own homes, and they carried it with them into the conquered provinces.

We find this custom established in the formulas of Marculfus,[14] in the codes of the laws of the barbarians, but chiefly in the law of the Ripuarians[15] and the decrees of the kings of the first race,[16] whence the capitularies on that subject in the second race were derived.[17] The children followed the laws of their father,[18] the wife that of her husband,[19] the widow came back to her own original law,[20] and the freedman was under that of his patron.[21] Besides, every man could make choice of what laws he pleased; but the constitution of Lotharius I[22] required that this choice should be made public.

3. Capital Difference between the Salic Laws and those of the Visigoths and Burgundians. We have already observed that the laws of the Burgundians and Visigoths were impartial; but it was otherwise with regard to the Salic law, for it established between the Franks and Romans the most mortifying distinctions. When a Frank, a barbarian, or one living under the Salic law happened to be killed, a composition of 200 sols was to be paid to his relatives;[23] only 100 upon the killing of a Roman proprietor,[24] and no more than forty-five for a Roman tributary. The composition for the murder of one of the king's vassals, if a Frank, was 600 sols;[25] if a Roman, though the king's guest,[26] only 300.[27] The Salic law made therefore a cruel distinction between the Frank and Roman lord, and the Frank and Roman commoner.

Further, if a number of people were got together to assault a Frank in his house,[28] and he happened to be killed, the Salic law ordained a composition of 600 sols; but if a Roman or a freedman was assaulted, only one-half that composition.[29] By the same law,[30] if a Roman put a Frank in irons, he was liable to a composition of 30 sols; but if a Frank had thus used a Roman, he paid only 15. A Frank, stripped by a Roman, was entitled to the composition of 62 1/2 sols, and a Roman stripped by a Frank received only 30. Such unequal treatment must needs have been very grievous to a Roman.

And yet a celebrated author[31] forms a system of the establishment of the Franks in Gaul, on a supposition that they were the best friends of the Romans. The Franks then, the best friends of the Romans, they who did, and they who suffered from the Romans such an infinite deal of mischief![32] The Franks, the friends of the Romans, they who, after subduing them by their arms, oppressed them in cold blood by their laws! They were exactly the friends of the Romans as the Tartars who conquered China were the friends of the Chinese. If some Catholic bishops thought fit to make use of the Franks in destroying the Arian Kings, does it follow that they had a desire of living under those barbarous people? And can we hence conclude that the Franks had any particular regard for the Romans? I should draw quite different consequences; the less the Franks had to fear from the Romans, the less indulgence they showed them.

The Abbé du Bos has consulted but indifferent authorities for his history, such as poets and orators; works of parade and ostentation are improper foundations for building systems.

4. In what manner the Roman Law came to be lost in the Country subject to the Franks, and preserved in that subject to the Goths and Burgundians. What has been above said will throw some light upon other things, which have hitherto been involved in great obscurity.

The country at this day called France was under the first race governed by the Roman law, or the Theodosian code, and by the different laws of the Barbarians,[33] who settled in those parts.

In the country subject to the Franks, the Salic law was established for the Franks, and the Theodosian code[34] for the Romans. In that subject to the Visigoths, a compilation of the Theodosian code, made by order of Alaric,[35] regulated disputes among the Romans; and the national customs, which Euric caused to be reduced to writing,[36] determined those among the Visigoths. But how comes it, some will say, that the Salic laws gained almost a general authority in the country of the Franks, and the Roman law gradually declined; whilst in the jurisdiction of the Visigoths the Roman law spread itself, and obtained at last a general sway?

My answer is that the Roman law came to be disused among the Franks because of the great advantages accruing from being a Frank, a Barbarian,[37] or a person living under the Salic law; every one, in that case, readily quitting the Roman to live under the Salic law.

The clergy alone retained it,[38] as a change would be of no advantage to them. The difference of conditions and ranks consisted only in the largeness of the composition, as I shall show in another place. Now particular laws[39] allowed the clergy as favourable compositions as those of the Franks, for which reason they retained the Roman law. This law brought no hardships upon them; and in other respects it was most proper for them, as it was the work of Christian emperors.

On the other hand, in the patrimony of the Visigoths, as the Visigoth law[40] gave no civil advantages to the Visigoths over the Romans, the latter had no reason to discontinue living under their own law in order to embrace another. They retained therefore their own laws without adopting those of the Visigoths.

This is still further confirmed in proportion as we proceed in our inquiry. The law of Gundebald was extremely impartial, not favouring the Burgundians more than the Romans. It appears by the preamble to that law that it was made for the Burgundians, and to regulate the disputes which might arise between them and the Romans; and in the latter case the judges were equally divided of a side. This was necessary for particular reasons, drawn from the political regulations of those times.[41] The Roman law was continued in Burgundy, in order to regulate the disputes of Romans among themselves. The latter had no inducement to quit their own law, as in the country of the Franks; and rather as the Salic law was not established in Burgundy, as appears by the famous letter which Agobard wrote to Louis the Pious.

Agobard[42] desired that prince to establish the Salic law in Burgundy; consequently it had not been established there at that time. Thus the Roman law did, and still does subsist in so many provinces, which formerly depended on this kingdom.

The Roman and Gothic laws continued likewise in the country of the establishment of the Goths, where the Salic law was never received. When Pepin and Charles Martel expelled the Saracens, the towns and provinces which submitted to these princes petitioned for a continuance of their own laws and obtained it;[43] this, in spite of the usages of those times, when all laws were personal, soon made the Roman law to be considered as a real and territorial law in those countries.

This appears by the edict of Charles the Bald, given at Pistes in the year 864, which distinguishes the countries where causes were decided by the Roman law from where it was otherwise.[44]

The edict of Pistes shows two things; one, that there were countries where causes were decided by the Roman law, and others where they were not; and the other, that those countries where the Roman law obtained were precisely the same where it is still followed at this very day, as appears by the said edict:[45] thus the distinction of the provinces of France under custom and those under written law was already established at the time of the edict of Pistes.

I have observed that in the beginning of the monarchy all laws were personal; and thus when the edict of Pistes distinguishes the countries of the Roman law from those which were otherwise, the meaning is that, in countries which were not of the Roman law, such a multitude of people had chosen to live under some or other of the laws of the Barbarians that there were scarcely any who would be subject to the Roman law; and that in the countries of the Roman law there were few who would choose to live under the laws of the Barbarians.

I am not ignorant that what is here advanced will be reckoned new; but if the things which I assert be true, surely they are very ancient. After all, what great matter is it, whether they come from me, from the Valesiuses, or from the Bignons?

5. The same Subject continued. The law of Gundebald subsisted a long time among the Burgundians, in conjunction with the Roman law; it was still in use under Louis the Pious, as Agobard's letter plainly evinces. In like manner, though the edict of Pistes calls the country occupied by the Visigoths the country of the Roman law, yet the law of the Visigoths was always in force there; as appears by the synod of Troyes held under Louis the Stammerer, in the year 878, that is, fourteen years after the edict of Pistes.

In process of time the Gothic and Burgundian laws fell into disuse even in their own country, which was owing to those general causes that everywhere suppressed the personal laws of the Barbarians.

6. How the Roman Law kept its Ground in the Demesne of the Lombards. The facts all coincide with my principles. The law of the Lombards was impartial, and the Romans were under no temptation to quit their own for it. The motive which prevailed with the Romans under the Franks to make choice of the Salic law did not take place in Italy; hence the Roman law maintained itself there, together with that of the Lombards.

It even fell out that the latter gave way to the Roman institutes, and ceased to be the law of the ruling nation; and though it continued to be that of the principal nobility, yet the greatest part of the cities formed themselves into republics, and the nobility mouldered away of themselves, or were destroyed.[46] The citizens of the new republics had no inclination to adopt a law which established the custom of judiciary combats, and whose institutions retained much of the customs and usages of chivalry. As the clergy of those days, a clergy even then so powerful in Italy, lived almost all under the Roman law, the number of those who followed the institutions of the Lombards must have daily diminished.

Besides, the institutions of the Lombards had not that extent, that majesty of the Roman law, by which Italy was reminded of her universal dominion. The institutions of the Lombards and the Roman law could be then of no other use than to furnish out statutes for those cities that were erected into republics. Now which could better furnish them, the institutions of the Lombards that determined on some particular cases, or the Roman law which embraced them all?

7. How the Roman Law came to be lost in Spain. Things happened otherwise in Spain. The law of the Visigoths prevailed, and the Roman law was lost. Chaindasuinthus[47] and Recessuinthus proscribed the Roman laws,[48] and even forbade citing them in their courts of judicature. Recessuinthus was likewise author of the law which took off the prohibition of marriage between the Goths and Romans.[49] It is evident that these two laws had the same spirit; this king wanted to remove the principal causes of separation which subsisted between the Goths and the Romans. Now it was thought that nothing made a wider separation than the prohibition of intermarriages, and the liberty of living under different institutions.

But though the kings of the Visigoths had proscribed the Roman law, it still subsisted in the demesnes they possessed in South Gaul.[50] These countries being distant from the centre of the monarchy lived in a state of great independence. We see from the history of Vamba, who ascended the throne in 672, that the natives of the country had become the prevailing party.[51] Hence the Roman law had greater authority and the Gothic less. The Spanish laws neither suited their manners nor their actual situation; the people might likewise be obstinately attached to the Roman law, because they had annexed to it the idea of liberty. Besides, the laws of Chaindasuinthus and of Recessuinthus contained most severe regulations against the Jews; but these Jews had a vast deal of power in South Gaul. The author of the history of King Vamba calls these provinces the brothel of the Jews. When the Saracens invaded these provinces, it was by invitation; and who could have invited them but the Jews or the Romans? The Goths were the first that were oppressed, because they were the ruling nation. We see in Procopius, that during their calamities they withdrew out of Narbonne Gaul into Spain.[52] Doubtless, under this misfortune; they took refuge in those provinces of Spain which still held out; and the number of those who in South Gaul lived under the law of the Visigoths was thereby greatly diminished.

8. A false Capitulary. Did not that wretched compiler Benedictus Levita attempt to transform this Visigoth establishment, which prohibited the use of Roman law, into a capitulary[53] ascribed since to Charlemagne? He made of this particular institution a general one, as if he intended to exterminate the Roman law throughout the universe.

9. In what manner the Codes of Barbarian Laws and the Capitularies came to be lost. The Salic, the Ripuarian, Burgundian, and Visigoth laws came, by degrees, to be disused among the French in the following manner:

As fiefs became hereditary, and arrière-fiefs extended, many usages were introduced, to which these laws were no longer applicable. Their spirit indeed was continued, which was to regulate most disputes by fines. But as the value of money was, doubtless, subject to change, the fines were also changed; and we see several charters,[54] where the lords fixed the fines, that were payable in their petty courts. Thus the spirit of the law was followed, without adhering to the law itself.

Besides, as France was divided into a number of petty lordships, which acknowledged rather a feudal than a political dependence, it was very difficult for only one law to be authorised. And, indeed, it would be impossible to see it observed. The custom no longer prevailed of sending extraordinary officers[55] into the provinces to inspect the administration of justice and political affairs; it appears, even by the charters, that when new fiefs were established our kings divested themselves of the right of sending those officers. Thus, when almost everything had become a fief, these officers could not be employed; there was no longer a common law because no one could enforce the observance of it.