Montesquieu
 

XXVIII.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 atta­ched to a cer­tain ter­ri­tory : the Frank was jud­ged by the law of the Franks, the Germans by the law of the Germans, the Burgundian by the law of the Burgundians, the Roman by Roman law ; and far from attemp­ting in those times to make the laws of the conque­ring peo­ples uni­form, they did not even think of making them­sel­ves the legis­la­tors of the conque­red peo­ple.

I find the ori­gin of this in the ways of the Germanic peo­ples. These nations were divi­ded by mar­shes, lakes, and forests ; we even see in Cæsar that they liked to sepa­rate.1 Their fear of the Romans brought them toge­ther again ; each man in these mixed nations was to be jud­ged by the prac­ti­ces and cus­toms of his own nation. All of these peo­ples taken sepa­ra­tely were free and inde­pen­dent, and when they were inter­mixed, the inde­pen­dence still remai­ned : the home­land was com­mon, and the repu­blic sepa­rate ; the ter­ri­tory was the same and the nations diverse. The spi­rit of per­so­nal laws was the­re­fore among these peo­ples before they left home, and they took it with them in their conquests.

We find this prac­tice esta­bli­shed in the for­mu­las of Marculfus,2 in the codes of bar­ba­rian laws, espe­cially in law of the Ripuairians, in the decrees of the kings of the first dynasty,3 whence derive the capi­tu­la­ries made on that sub­ject in the second.4 Children fol­lo­wed the law of their father, wives5 that of their hus­band, widows6 retur­ned to their own law, freed men7 had that of their patron. Furthermore, each could take the law he wished ; the cons­ti­tu­tion of Lotharius I requi­red that this choice be made public.8

De bello gallico, book VI.

Book 1, formulary 8.

Clotaire’s of the year 560 in edition of the capitularies of Baluze, vol. I, art. 4, ibid. in fine.

Capitulary appended to Leges Langobardoroum, book I, tit. 25, ch. lxxi ; book II, tit. 41, ch. vii, and tit. 56, chap. i–ii.

Ibid., book II, tit. 7, ch. i.

Ibid., ch. ii.

Ibid., book II, tit. 35, ch. ii.

In Leges Langobardoroum, book II, tit. 57.