28.4. 4. In what manner the Roman Law came to be lost in the Country
subject to the Franks, and preserved in that subject to the Goths and
Burgundians.
What has been above said will throw some light upon other
things, which have hitherto been involved in great obscurity.
The country at this day called France was under the first race
governed by the Roman law, or the Theodosian code, and by the different
laws of the Barbarians,
[33]
who settled in those parts.
In the country subject to the Franks, the Salic law was established
for the Franks, and the Theodosian code
[34]
for the Romans. In that
subject to the Visigoths, a compilation of the Theodosian code, made by
order of Alaric,
[35]
regulated disputes among the Romans; and the
national customs, which Euric caused to be reduced to writing,
[36]
determined those among the Visigoths. But how comes it, some will say,
that the Salic laws gained almost a general authority in the country of
the Franks, and the Roman law gradually declined; whilst in the
jurisdiction of the Visigoths the Roman law spread itself, and obtained
at last a general sway?
My answer is that the Roman law came to be disused among the Franks
because of the great advantages accruing from being a Frank, a
Barbarian,
[37]
or a person living under the Salic law; every one, in
that case, readily quitting the Roman to live under the Salic law.
The clergy alone retained it,
[38]
as a change would be of no
advantage to them. The difference of conditions and ranks consisted only
in the largeness of the composition, as I shall show in another place.
Now particular laws
[39]
allowed the clergy as favourable compositions as
those of the Franks, for which reason they retained the Roman law. This
law brought no hardships upon them; and in other respects it was most
proper for them, as it was the work of Christian emperors.
On the other hand, in the patrimony of the Visigoths, as the
Visigoth law
[40]
gave no civil advantages to the Visigoths over the
Romans, the latter had no reason to discontinue living under their own
law in order to embrace another. They retained therefore their own laws
without adopting those of the Visigoths.
This is still further confirmed in proportion as we proceed in our
inquiry. The law of Gundebald was extremely impartial, not favouring the
Burgundians more than the Romans. It appears by the preamble to that law
that it was made for the Burgundians, and to regulate the disputes which
might arise between them and the Romans; and in the latter case the
judges were equally divided of a side. This was necessary for particular
reasons, drawn from the political regulations of those times.
[41]
The Roman law was continued in Burgundy, in order to regulate the disputes
of Romans among themselves. The latter had no inducement to quit their
own law, as in the country of the Franks; and rather as the Salic law
was not established in Burgundy, as appears by the famous letter which
Agobard wrote to Louis the Pious.
Agobard
[42]
desired that prince to establish the Salic law in
Burgundy; consequently it had not been established there at that time.
Thus the Roman law did, and still does subsist in so many provinces,
which formerly depended on this kingdom.
The Roman and Gothic laws continued likewise in the country of the
establishment of the Goths, where the Salic law was never received. When
Pepin and Charles Martel expelled the Saracens, the towns and provinces
which submitted to these princes petitioned for a continuance of their
own laws and obtained it;
[43]
this, in spite of the usages of those
times, when all laws were personal, soon made the Roman law to be
considered as a real and territorial law in those countries.
This appears by the edict of Charles the Bald, given at Pistes in
the year 864, which distinguishes the countries where causes were
decided by the Roman law from where it was otherwise.
[44]
The edict of Pistes shows two things; one, that there were countries
where causes were decided by the Roman law, and others where they were
not; and the other, that those countries where the Roman law obtained
were precisely the same where it is still followed at this very day, as
appears by the said edict:
[45]
thus the distinction of the provinces of
France under custom and those under written law was already established
at the time of the edict of Pistes.
I have observed that in the beginning of the monarchy all laws were
personal; and thus when the edict of Pistes distinguishes the countries
of the Roman law from those which were otherwise, the meaning is that,
in countries which were not of the Roman law, such a multitude of people
had chosen to live under some or other of the laws of the Barbarians
that there were scarcely any who would be subject to the Roman law; and
that in the countries of the Roman law there were few who would choose
to live under the laws of the Barbarians.
I am not ignorant that what is here advanced will be reckoned new;
but if the things which I assert be true, surely they are very ancient.
After all, what great matter is it, whether they come from me, from the
Valesiuses, or from the Bignons?
Footnotes
[33]
The Franks, the Visigoths, and Burgundians.
[34]
It was finished in 438.
[35]
The 20th year of the reign of this prince, and published two
years after by Anian, as appears from the preface to that code.
[36]
The year 504 of the Spanish era, the "Chronicle of Isidorus."
[37]
Francum, aut Barbarum, aut hominem qui Salica lege vivit. --
Salic Law, tit. 44, section 1.
[38]
"According to the Roman law under which the church lives," as is
said in the "Law of the Ripuarians," tit. 58, section 1. See also the
numberless authorities on this head pronounced by Du Cange, under the
words "Lex Romana."
[39]
See the Capitularies added to the Salic law in Lindembrock, at
the end of that law, and the different codes of the laws of the
Barbarians concerning the privileges of ecclesiastics in this respect.
See also the letter of Charlemagne to his son Pepin, King of Italy, in
the year 807, in the edition of Baluzius, tome i, 462, where it is said, that
an ecclesiastic should receive a triple compensation; and the "Collection
of the Capitularies," lib. v, art. 302, tome i. Edition of Baluzius.
[41]
Of this I shall speak in another place, Book xxx, chaps. 5, 6, and 7.
[43]
See Gervais of Tilbury, in Duchesne's "Collection," tome iii, p. 366.
And a chronicle of the year 759, produced by Catel, "Hist. of Languedoc."
And the uncertain author of the "Life of Louis the Debonnaire," upon the
demand made by the people of Septimania, at the assembly in Carisiaco,
in Duchesne's "Collection," tome ii, p. 316.
[44]
Art. 16. See also art. 20.
[45]
See arts. 12 and 16 of the edict of Pistes in Cavilono, in
Narbona, &c.
