Chapter 11-12

Other Causes of the Disuse of the Barbarian Laws, Roman Law, and Capitularies

March 26, 2020

WHEN the German nations subdued the Roman empire, they learned to write so they imitated the Romans and wrote down their own usages and digested them into codes.

The reign of Charlemagne was followed by=

  • unhappy reigns
  • the Norman invasions, and
  • the civil wars.

These plunged the conquering nations again into the darkness and caused reading and writing to be neglected. These led to the written laws of the Barbarians, the Roman law, and the capitularies to fall into oblivion in France and Germany.

Writing was better preserved in Italy where the popes and the Greek emperors reigned, and where there were flourishing cities which enjoyed the only commerce in those days. This helped preserve the Roman law around Italy better than in Gaul which was formerly subject to the Goths and Burgundians.

This law was there a territorial institution, and a kind of privilege. The disuse of the Visigoth laws in Spain and elsewhere probably came from the lack of writing.

Personal laws fell to the ground.

Compositions, and what they call Fredd, were regulated more by custom than by the text of these laws.

Thus, as in the establishment of the monarchy they had passed from German customs to written laws; some ages after, they came back from written laws to unwritten customs.

Chapter 12= The Local Customs. Revolution of the Laws of barbarous Nations, as well as of the Roman Law

BY several monuments it appears, that there were local customs, so early as the first and second race. We find mention made of the custom of the place, of the ancient usage, of the custom, of the laws, and of the customs. It has been the opinion of some authors, that what went by the name of customs were the laws of the barbarous nations, and what had the appellation of law were the Roman institutes.

This cannot possibly be. King Pepin ordained, that wherever there should happen to be no law, custom should be complied with; But that it should never be preferred to the law. Now, to pretend that the Roman law was preferred to the codes of the laws of the Barbarians, is subverting all monuments of antiquity, and especially those codes of Barbarian laws, which constantly affirm the contrary.

So far were the laws of the barbarous nations from being those customs, that it was these very laws, as personal institutions, which introduced them.

The Salic law, for instance, was a personal law; but generally, or almost generally, in places inhabited by the Salian Franks, this Salic law, how personal soever, became, in respect to those Salian Franks, a territorial institution, and was personal only in regard to those Franks who lived elsewhere. Now, if several Burgundians, Alemans, or even Romans, should happen to have frequent disputes, in a place where the Salic law was territorial, they must have been determined by the laws of those people; A great number of decisions agreeable to some of those laws must have introduced new customs into the country. This explains the constitution of Pepin. It was natural that those customs should affect even the Franks, who lived on the spot, in cases not decided by the Salic law; But it was not natural that they should prevail over the Salic law itself.

Thus there were in each place an established law, and received customs, which served as a supplement to that law when they did not contradict it.

They might even happen to supply a law that was no way territorial=

To continue the same example, if a Burgundian was judged by the law of his own nation, in a place where the Salic law was territorial, and the case happened not to be explicitly mentioned in the very text of this law, there is no manner of doubt but judgment would have been passed upon him according to the custom of the place.

In the reign of king Pepin, the customs then established had not the same force as the laws;

But it was not long before the laws gave way to the customs. As new regulations are generally remedies that imply a present evil, it may well be imagined that so early as Pepin’s time, they began to prefer the customs to the established laws.

What has been said, sufficiently explains the manner in which the Roman law began so very early to become territorial, as may be seen in the edict of Pistes;

How the Gothic law continued still in force, as appears by the synod of Troyes above-mentioned. The Roman was become the general personal law, and the Gothic the particular personal law; Consequently the Roman law was territorial.

But how came it, some will ask, that the personal laws of the Barbarians fell every where into disuse, while the Roman law was continued as a territorial institution in the Visigoth and Burgundian provinces? I answer, that even the Roman law had very near the same fate as the other personal institutions= Otherwise we should still have the Theodosian code in those provinces where the Roman law was territorial, whereas we have the institutes of Justinian.

Those provinces retained scarce any thing more than the name of the country under the Roman, or written law; than the natural affection which people have for their own institutions, especially when they consider them as privileges; A few regulations of the Roman law which were not yet forgotten. This was however sufficient to produce such an effect, that when Justinian’s compilement appeared, it was received in the provinces of the Gothic and Burgundian demesne as a written law, whereas it was admitted only as written reason in the ancient demesne of the Franks.