Montesquieu
 

XXVIII.9 How the law codes of the barbarians and the capitularies were lost

The Salic, Ripuarian, Burgundian, and Visigoth laws gra­dually cea­sed to be in use among the French : here is how.

Fiefs having become here­di­tary, and sub-fiefs having been exten­ded, many prac­ti­ces were intro­du­ced to which these laws were no lon­ger appli­ca­ble. Their spi­rit was indeed retai­ned, which was to set­tle most mat­ters with fines. But the values having doubt­less chan­ged, the fines also chan­ged, and we see many char­ters where lords set the fines that were to be paid in their petty courts.1 Thus the spi­rit of the law was being fol­lo­wed, but not the law itself.

Moreover, France being divi­ded into an infi­nite num­ber of petty sei­gnio­ries which reco­gni­zed feu­dal depen­dency rather than poli­ti­cal depen­dency, it was most unli­kely that anyone could have autho­ri­zed a sin­gle law ; indeed there would have been no way to enforce it. Nor was it any lon­ger the prac­tice to send extra­or­di­nary offi­cers2 into the pro­vin­ces to over­see the admi­nis­tra­tion of jus­tice and poli­ti­cal mat­ters ; it even appears from the char­ters that when new fiefs were esta­bli­shed, kings renoun­ced the right to send them. Thus, when almost eve­ry­thing had become a fief, these offi­cers could no lon­ger be employed ; there was no more com­mon law, because no one could enforce the com­mon law.

The Salic, Burgundian, and Visigoth laws were the­re­fore extre­mely neglec­ted at the end of the second dynasty, and at the begin­ning of the third they were scar­cely ever heard of.

Under the first two dynas­ties, the nation was often assem­bled, which is to say the lords and the bishops ; there was as yet no sug­ges­tion of com­mons. In these assem­blies they sought to regu­late the clergy, which was a body in the pro­cess of for­ma­tion, so to speak, under the conque­rors, and esta­bli­shing its pre­ro­ga­ti­ves ; the laws made in these assem­blies are what we call the capi­tu­la­ries. Four things occur­red : laws of fiefs were ins­ti­tu­ted, and a large part of the Church hol­dings were gover­ned by the laws of fiefs ; the eccle­sias­tics sepa­ra­ted them­sel­ves more and neglec­ted reform laws where they had not been the sole refor­mers3 ; the canons of the coun­cils and papal decre­tals were col­lec­ted4 ; and the clergy recei­ved these laws as coming from a purer source. Since the erec­tion of the great fiefs, the kings, as I have said, no lon­ger had envoys in the pro­vin­ces to enforce the laws they had pro­mul­ga­ted ; thus, under the third dynasty there was no more talk of capi­tu­la­ries.

M. de la Thaumassière has collected several. See, e.g., chapters lxi, lxvi, and others.

Missi domenici.

Let the bishops, says Charles the Bald in the capitulary of year 844 (art. 8), under pretext that they have to authority to make canons, not oppose or neglect this constitution. It seems he already could foresee its demise.

An infinite number of papal decretals were inserted into the compendiumof canons ; there were very few of them in the former collection. Denis the Small put many in his, but that of Isidore Mercator was filled with true and false decretals. The old compendiumwas in use in France until Charlemagne. That prince received from the hands of Pope Adrian I the compendiumof Denis the Small, and had it accepted. The compendium of Isidore Mercator appeared in France about the time of the reign of Charlemagne ; they persisted with it ; finally came what is called the course of Canon law.