Montesquieu
 

XXVIII.4 How Roman law was lost in the country of the Frankish domain, and preserved in the country in the domain of the Goths and Burgundians

The things I have said will shed some light on other things which until now have been full of obs­cu­ri­ties.

The coun­try we today call France was gover­ned during the first dynasty by Roman law or the Theodosian code, and by the various laws of the bar­ba­rians who lived there.1

In the coun­try of Frankish domain, the Salic law was esta­bli­shed for the Franks, and the Theodosian code for the Romans.2 In the coun­try of Visigoth domain, a com­pi­la­tion of the Theodosian code, made by order of Alaric,3 set­tled the dis­pu­tes of the Romans ; the cus­toms of the nation which Euric4 had set down in wri­ting deci­ded those of the Visigoths. But why did the Salic laws acquire an almost ove­rall autho­rity in the land of the Franks ? And why was Roman law slowly lost, while in the Visigoth domain Roman law was exten­ded, and had ove­rall autho­rity ?

I say that Roman law lost its usage among the Franks because of the great advan­ta­ges that atta­ched to being a Frank, a bar­ba­rian, or a man living under the Salic law5 ; eve­ryone was eager to aban­don Roman law to live under the Salic law. It was kept only by the eccle­sias­tics,6 because they had no inte­rest in chan­ging. The dif­fe­ren­ces of condi­tions and ranks consis­ted only in the amount of the com­pen­sa­tions, as I shall show elsew­here. Now sepa­rate laws gave them com­pen­sa­tions as favo­ra­ble as those the Franks had,7 so they kept Roman law. They suf­fe­red no pre­ju­dice by it ; and they pre­fer­red it, besi­des, because it was the Christian empe­rors who had fashio­ned it.

On the other hand, in the patri­mony of the Visigoths, the Visigoth law8 offe­ring no civil advan­tage to the Visigoths over the Romans, the Romans had no rea­son to cease living under their law to live under ano­ther, so they kept their laws and did not adopt those of the Visigoths.

This beco­mes more cer­tain as we pro­ceed. The law of Gundebald was very impar­tial, and was not more favo­ra­ble to the Burgundians than to the Romans. It seems from the pro­lo­gue of that law that it was made for the Burgundians, and was also made to set­tle mat­ters that could arise bet­ween Romans and Burgundians ; and in this lat­ter case the tri­bu­nal was evenly divi­ded. That was neces­sary for par­ti­cu­lar rea­sons rela­ted to the poli­ti­cal arran­ge­ment of those times.9 Roman law sub­sis­ted in Burgundy to set­tle dis­pu­tes that Romans might have among them­sel­ves. These had no rea­son to aban­don their law, as they did in the land of the Franks, all the more so that the Salic law was not esta­bli­shed in Burgundy, as can be seen in the famous let­ter which Agobard wrote to Louis the Debonaire.

Agobard was asking this prince to esta­blish Salic law in Burgundy10 : the­re­fore it was not esta­bli­shed there. Thus Roman law sub­sis­ted and still sub­sists in many pro­vin­ces that used to depen­den­cies of that king­dom.

Roman law and Gothic law were simi­larly main­tai­ned in the land of Gothic esta­blish­ment ; there the Salic law was never recei­ved. When Pépin and Charles Martel drove out the Saracens, the cities and pro­vin­ces that sub­mit­ted to those prin­ces asked to pre­serve their laws, and this was gran­ted11 : which, des­pite the cus­tom of those times when all laws were per­so­nal, soon cau­sed Roman law to be regar­ded as a real and ter­ri­to­rial law in those lands.

This is pro­ven by the edict of Charles the Bald issued in Pistres in the year 864, which dis­tin­gui­shes bet­ween the lands where they jud­ged by Roman law and those where they did not.12

The Edict of Pistres pro­ves two things : first, that there were areas which jud­ged accor­ding to Roman law, and that there were others which did not judge accor­ding to that law ; the other, that those areas which jud­ged by Roman law were pre­ci­sely those where it is still fol­lo­wed today, as appears from this same edict13 ; thus the dis­tinc­tion bet­ween of regions of France under cus­tom and those gover­ned by writ­ten law were already esta­bli­shed in the time of the Edict of Pistres.

I have said that in the begin­nings of the monar­chy all laws were per­so­nal ; thus when the Edict of Pistres dis­tin­gui­shes lands of Roman law from those that were not, that means that in lands that were not of Roman law so many peo­ple had cho­sen to live under one or ano­ther of the laws of the bar­ba­rian peo­ples that there was hardly anyone remai­ning in those regions who chose to live under Roman law, and that in lands of Roman law there were few per­sons who had cho­sen to live under the laws of bar­ba­rian peo­ples.

I rea­lize that I am saying new things here ; but if they are true, they are very old. What dif­fe­rence does it make, after all, whe­ther it is me, the Valois, or the Bignons, who said them ?

The Francs, the Visigoths, and the Burgundians.

It was finished in 438 AD.

The twentieth year of the reign of this prince, and published two years later by Anian, as is stated in the preface of that code.

Year 504 of the era of Spain : chronicle of Isidorus of Seville.

Francum aut barbarum, aut hominem qui Salica lege vivit (Lex Salica, tit. 445, §1).

According to the Roman law under which the Church lives, as stated in the law of the Ripuarians, tit. 58, §1. See also the authorities without number on this recorded by Mr. du Cange under the word Lex romana.

See the capitularies appended to the Salic law in Lindenbrog, at the end of that law, and the various barbarian law codes on the privileges of ecclesiastics in this respect. See also the letter from Charlemagne to his son Pépin, king of Italy, in the year 807, in the Baluze edition, vol. I, p. 462, where it is said that an ecclesiastic must receive triple compensation ; and the compendiumof capitularies, book V, art. 302, vol. I, Baluze edition.

See this law.

I shall speak of this elsewhere (book XXX, ch. vi, vii, viii and ix).

Agobard, Opera.

[Guillaume] Catel, Histoire du Languedoc, reports on this a chronicle of the year 759 : Franci Narbonam obsident ; datoque sacramento Gothis, ut civitatem traderent partibus Pipini, permitterent eos legem suam habere : quo facto, Gothi Saracenos occiderunt, and civitatem partibus Pipini reddiderunt.

In illa terra in qua judicia secundum legem Romanam termìnantur, secundùm ipsam legem judicetur ; and in illa terra in qua, etc., art. 16 ; see also art. 20.

See art. 12 and 16 in Edict of Pistres, in Cavilono, in Narbona, etc.