Montesquieu
 

XXVIII.1 On the different character of the laws of the Germanic peoples

The Franks, after lea­ving their coun­try, had the Salic laws drawn up by the wise men of their nation.1 The tribe of Ripuarian Franks, when joi­ning the tribe of Salian Franks under Clovis, pre­ser­ved its own cus­toms,2 and Theodoric, king of Austrasia, had them set down in wri­ting.3 He like­wise col­lec­ted the cus­toms of the Bavarians and the Germans who were depen­den­cies of his king­dom.4 For Germania being wea­ke­ned by the exit of so many peo­ples, the Franks, after conque­ring before them, had taken a step back­ward and exten­ded their domi­na­tion into the forests of their fathers. It would appear that the code of the Thuringians5 was issued by the same Theodoric, since the Thuringians too were his sub­jects. The Frisians having been sub­dued by Charles Martel and Pépin, their law does not ante­date these prin­ces.6 Charlemagne, who was the first to defeat the Saxons, gave them the law that we have ; it suf­fi­ces to read these last two codes to see that they come from the hands of the conque­rors. The Visigoths, the Burgundians, and the Lombards, having foun­ded king­doms, had their laws writ­ten down, not to make conque­red peo­ples fol­low their cus­toms, but so that they them­sel­ves would fol­low them.

There is an admi­ra­ble sim­pli­city in the Salic and Ripuarian laws, in the laws of the Germans, the Bavarians, the Thuringians, and the Frisians : we find in them an ori­gi­nal cru­de­ness, and a spi­rit that had not been dilu­ted by any other spi­rit. They chan­ged lit­tle, because these peo­ples, if we except the Franks, remai­ned in Germania. Even the Franks foun­ded a large part of their empire there ; thus all their laws were Germanic. This was not the case with the laws of the Visigoths, the Lombards, and the Burgundians : they lost much of their cha­rac­ter because these peo­ples, who set­tled into their new dwel­lings, lost much of theirs.

The Burgundian king­dom did not last long enough for the laws of the conque­ring peo­ple to be greatly modi­fied. Gundebald and Sigismond, who col­lec­ted their cus­toms, were almost the last of their kings. The laws of the Lombards recei­ved more addi­tions than chan­ges. Those of the Rotharis were fol­lo­wed by those of Grimoaldus, Luitprandus, Rachis, and Astulphus, but they did not take on a new form. Such was not the case with the laws of the Visigoths7 : their kings rewrote them and had them rewrit­ten by the clergy.

The kings of the first dynasty of course remo­ved8 from the Salic and Ripuarian laws what was not per­fectly consis­tent with Christianity, but they left the sub­stance in place. That can­not be said of the laws of the Visigoths.

The laws of the Burgundians, and espe­cially those of the Visigoths, per­mit­ted cor­po­ral punish­ments. The Salic and Ripuarian laws did not accept them,9 and bet­ter pre­ser­ved their cha­rac­ter.

The Burgundians and the Visigoths, whose pro­vin­ces were very expo­sed, sought agree­ments with the for­mer inha­bi­tants, and sought to give them the most impar­tial civil laws10 ; but the Frankish kings, sure of their might, did not show such defe­rence.11

The Saxons who lived under the domi­nion of the Franks were of indo­mi­ta­ble tem­per, and per­sis­ted in revol­ting. We find in their laws12 seve­ri­ties of the conque­ror which we do not see in the other codes of bar­ba­rian laws.

We see there the spi­rit of the laws of the Germans in the pecu­niary penal­ties, and that of the conque­ror in the afflic­tive punish­ments.

The cri­mes they com­mit in their coun­try are puni­shed cor­po­rally, and the spi­rit of the Germanic laws is fol­lo­wed only in the punish­ment of those they com­mit out­side their ter­ri­tory.

They declare there that for their cri­mes they will never have peace, and every asy­lum is refu­sed them, even chur­ches.

Bishops had tre­men­dous autho­rity at the court of the Visigoth kings ; the most impor­tant mat­ters were deci­ded in coun­cils. We owe to the code of the Visigoths all the maxims, all the prin­ci­ples, and all the views of today’s Inquisition ; and the monks had only to copy against the Jews the laws for­merly made by the bishops.

Moreover, the laws of Gundebals for the Burgundians seem rather judi­cious ; those of Rotharis and the other Lombard prin­ces are even more so. But the laws of the Visigoths, those of Recessunthus, Chaindasuinthus, and Egigas, are pue­rile, awk­ward, and foo­lish ; they do not achieve their pur­pose, full of rhe­to­ric and void of mea­ning ; at bot­tom fri­vo­lous, and gigan­tic in style.

See the prologue of the Salic law. Mr. Leibniz says in his Treatis on the Origin of the Franks that this law was made before the reign of Clovis, but it could not have been made before the Franks had left Germania : at that time they did not understand the Latin tongue.

See Gregory of Tours.

See the prologues of the Lex Baiwariorum and of the Lex Salica.

Ibid.

Lex Angliorum werinorum, hoc est Thuringorum.

They did not know how to write.

Euric issued them ; Leuvigildus amended them. See Chronicles of Isidorus. Chindasuinth and Recessuinth reformed them. Egigas had the code we have written up, and gave that commission to the bishops ; they however preserved the laws of Chindasuinth and of Recessuinth, as it appears in the sixth Council of Toledo.

See the prologue of the Lex Baiuwariorum.

We find only some of them in Childebert’s decree.

See the prologue of the code of the Burgundians and the code itself, especially tit. 12, §5, and tit. 38. See also Gregory of Tours, book II, ch. xxxiii, and the code of the Visigoths.

See below, ch. iii.

See ch. ii, §8–9, and ch. iv, §2 and 7.