Chapter 4

How the Roman Law was lost among the Franks but preserved among the Goths and Burgundians

by Montesquieu Icon

France was under the Franks governed by:

  • the Roman law
  • the Theodosian code
  • the different laws of the Barbarians, who settled in those parts.

Under the Franks, the Salic law was established for the Franks, and the Theodosian code for the Romans.

In that subject to the Visigoths, a compilation of the Theodosian code, made by order of Alaric, regulated disputes among the Romans;

the national customs which Euric caused to be reduced into writing, determined those among the Visigoths.

How did the Salic laws gained authority among the Franks, while the Roman law gradually declined, when in the jurisdiction of the Visigoths the Roman law spread and was generally received?

The Roman law came to be disused among the Franks because of the great advantages accruing from being:

  • a Frank
  • a Barbarian, or
  • a person living under the Salic law

Everyone left the Roman law to live under the Salic law. The clergy alone retained it, as a change would be of no advantage to them.

The difference of conditions and ranks consisted only in the largeness of the composition.

Particular laws allowed the clergy as favourable compositions, as those of the Franks; for which reason they retained the Roman law.

This law brought no hardships on them. In other respects, it was properest for them, as it was the work of Christian emperors.

On the other hand, in the patrimony of the Visigoths, as the Visigoth law 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 farther confirmed, in proportion as we proceed in our enquiry.

The law of Gundebald was extremely impartial, not favouring the Burgundians more than the Romans. According to its preamble, it was made:

  • for the Burgundians, and
  • to regulate the disputes between them and the Romans. The judges here were equally divided of a side. This was necessary for particular reasons, drawn from the political regulations of those times.

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.

As the Salic law was not established in Burgundy, as appears by the famous letter which Agobard wrote to Lewis the Pious.

Agobard 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 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; 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.

The edict of Pistes shews 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:

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.

In the beginning of the monarchy, all laws were personal. When the edict of Pistes distinguishes the countries of the Roman law, from those which were otherwise.

It means 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 scarce any who would be subject to the Roman law; In the countries of the Roman law there were few who would chuse to live under the laws of the Barbarians.

THE law of Gundebald subsisted a long time among the Burgundians, in conjunction with the Roman law.

It was still in use under Lewis 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 Lewis 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 every where suppressed the personal laws of the Barbarians.

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