28.2. 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 confined to a certain district; the Frank was tried by the law of
the Franks, the Aleman by that of the Alemans, the Burgundian by that of
the Burgundians, and the Roman by the Roman law; nay, so far were the
conquerors in those days from reducing their laws to a uniform system or
body, that they did not even think of becoming legislators to the people
they had conquered.
The original of this I find in the manners of the Germans. These
people were parted asunder by marshes, lakes, and forests; and Cæsar
observes
[13]
they were fond of such separations. Their dread of the
Romans brought about their reunion; and yet each individual among these
mixed people was still to be tried by the established customs of his own
nation. Each tribe apart was free and independent; and when they came to
be intermixed, the independence still continued; the country was common,
the government peculiar; the territory the same, and the nations
different. The spirit of personal laws prevailed therefore among those
people before ever they set out from their own homes, and they carried
it with them into the conquered provinces.
We find this custom established in the formulas of Marculfus,
[14]
in
the codes of the laws of the barbarians, but chiefly in the law of the
Ripuarians
[15]
and the decrees of the kings of the first race,
[16]
whence the capitularies on that subject in the second race were
derived.
[17]
The children followed the laws of their father,
[18]
the
wife that of her husband,
[19]
the widow came back to her own original
law,
[20]
and the freedman was under that of his patron.
[21]
Besides,
every man could make choice of what laws he pleased; but the
constitution of Lotharius I
[22]
required that this choice should be made
public.
Footnotes
[13]
"De Bello Gall.," lib. vi.
[16]
That of Clotarius in the year 560, in the edition of the
"Capitularies of Baluzius," vol. i, art. 4, ib. in fine.
[17]
Capitularies added to the "Law of the Lombards," lib. i, tit. 25, cap. 71,
lib. ii, tit. 41, cap. 7, and tit. 56, chaps. 1 and 2.
[18]
Ibid., lib. ii, tit. 5.
[19]
Ibid., ii, tit. 7, chap. 1.
[21]
Ibid., lib. ii, tit. 35, chap. 2.
[22]
In the "Law of the Lombards," lib. ii, tit. 37.
