Montesquieu
 

XXVIII.11 Other causes of the fall of the law codes of the barbarians, of Roman law, and of the capitularies

When the Germanic nations conque­red the Roman empire, they found there the prac­tice of wri­ting ; and in imi­ta­tion of the Romans, they set down their prac­ti­ces in wri­ting and made them into codes.1 The unhappy rei­gns that fol­lo­wed that of Charlemagne, the inva­sions of the Normans, and the inter­ne­cine wars plun­ged the vic­to­rious nations back into the dark­ness from which they had come : they no lon­ger knew how to read and write. As a result, in France and in Germany, they for­got the writ­ten bar­ba­rian laws, Roman law, and the capi­tu­la­ries. The prac­tice of wri­ting was bet­ter pre­ser­ved in Italy, where the popes and Greek empe­rors rei­gned, and where there were flou­ri­shing cities and almost the only com­merce there was at that time. This proxi­mity of Italy cau­sed Roman law to be bet­ter pre­ser­ved in the regions of Gaul that had for­merly been sub­ject to the Goths and Burgundians, all the more so that this law was a ter­ri­to­rial law and a sort of pri­vi­lege. It seems likely that it was the igno­rance of wri­ting that cau­sed the fall of the Visigoth laws in Spain ; and through the fall of so many laws, cus­toms came eve­ryw­here into being.

Personal laws disap­pea­red. Compensations and what were cal­led freda were set­tled more by cus­tom than by the text of those laws. Thus, as the esta­blish­ment of the monar­chy had seen a change from German prac­ti­ces to writ­ten laws, there was a return some cen­tu­ries later from writ­ten laws to unwrit­ten prac­ti­ces.

This is indicated expressly in some prologues of these codes ; we even see different provisions in the laws of the Saxons and of the Frisians, according to the various districts. Some particular provisions which the circumstances required were added to these usages ; such were the harsh laws against the Saxons.