Montesquieu
 

XXVIII.12 On local customs ; revolution of the laws of barbarian peoples and of Roman law

We see from seve­ral docu­ments that there were already local cus­toms in the first and second dynas­ties. We read there about local cus­tom,1 for­mer prac­tice,2 cus­tom,3 laws,4 and cus­toms. Some wri­ters have thought that what they refer­red to as cus­toms was the laws of the bar­ba­rian peo­ples, and that what they were cal­ling law was Roman law. I am pro­ving that that can­not be. King Pépin orde­red that whe­re­ver there was no law, cus­tom would be fol­lo­wed, but that cus­tom would not be pre­fer­red to law.5 Now to say that Roman law had the pre­fe­rence over the law codes of the bar­ba­rians is to upend all the ancient docu­ments, and above all those law codes of the bar­ba­rians which are fore­ver saying the oppo­site.

Far from the laws of bar­ba­rian peo­ples being these cus­toms, it was these very laws which as per­so­nal laws intro­du­ced them. The Salic law, for exam­ple, was a per­so­nal law ; but in pla­ces gene­rally or almost gene­rally inha­bi­ted by Salian Franks, the Salic law, per­so­nal as it was, became with res­pect to those Salian Franks a ter­ri­to­rial law, and it was per­so­nal only for Franks who lived elsew­here. Now if, in a place where the Salic law was ter­ri­to­rial, it had hap­pe­ned that a num­ber of Burgundians, Germans, or even Romans had often had conten­tions, they would have been deci­ded by the laws of those peo­ples, and a large num­ber of judg­ments consis­tent with some of those laws should have intro­du­ced new prac­ti­ces into the coun­try. And that well explains the cons­ti­tu­tion of Pépin. It was natu­ral that those prac­ti­ces should affect the Franks them­sel­ves who lived there in cases which were not deci­ded by the Salic law, but it was not natu­ral that they be able to pre­vail over the Salic law.

Thus there was in each place a domi­nant law and accep­ted prac­ti­ces which ser­ved to sup­ple­ment the domi­nant law when they did not clash with it.

They could even some­ti­mes serve as sup­ple­ment to a law that was not ter­ri­to­rial ; and to fol­low the same exam­ple, if in a place where the Salic law was ter­ri­to­rial, a Burgundian was jud­ged by the law of the Burgundians, and the case was not found in the text of that law, there is no doubt that the judg­ment would be made in accor­dance with local cus­tom.

In the time of king Pépin, the cus­toms that had grown up had less force than the laws, but soon the cus­toms des­troyed the laws ; and as new sta­tu­tes are always reme­dies that are signs of a pre­sent malady, we can believe that in Pépin’s time cus­toms were already begin­ning to be favo­red over laws.

What I have said explains how from the ear­liest times Roman law began beco­ming a ter­ri­to­rial law, as we see in the Edict of Pistres ; and how the Gothic law conti­nued still in use, as appears from the Synod of Troyes which I have men­tio­ned.6 Roman law had become the gene­ral per­so­nal law, and Gothic law the par­ti­cu­lar per­so­nal law ; and conse­quently Roman law was the ter­ri­to­rial law. But how did igno­rance make the per­so­nal laws of bar­ba­rian peo­ples fall eve­ryw­here, whe­reas Roman law sub­sis­ted as ter­ri­to­rial law in the Visigoth and Burgundian pro­vin­ces ? My ans­wer is that Roman law itself had more or less the fate of other per­so­nal laws ; other­wise we would still have the Theodosian code in the pro­vin­ces where Roman law was the ter­ri­to­rial law, whe­reas ins­tead we have the laws of Justinian. Almost all that remai­ned in these pro­vin­ces was the name land of Roman law or writ­ten law, the love that dif­fe­rent peo­ples have for their law, espe­cially when they regard it as a pri­vi­lege, and some pro­vi­sions of Roman law retai­ned for the time in men’s memory ; but that was enough to pro­duce the effect that when Justinian’s com­pi­la­tion appea­red, it was recei­ved in the pro­vin­ces of the domain of the Goths and the Burgundians as writ­ten law, whe­reas in the old domain of the Franks it was recei­ved only as writ­ten rea­son.

Preface of the formulas of Marculfus.

Leges Langobardoroum, book II, tit. 58, §3.

Leges Langobardoroum, book II, tit. 41, §6.

Life of St. Léger.

Leges Langobardoroum, book II, tit. 41, §6.

See above, ch. v.