28.9. 9. In what manner the Codes of Barbarian Laws and the Capitularies
came to be lost.
The Salic, the Ripuarian, Burgundian, and Visigoth laws
came, by degrees, to be disused among the French in the following
manner:
As fiefs became hereditary, and arrire-fiefs extended, many usages
were introduced, to which these laws were no longer applicable. Their
spirit indeed was continued, which was to regulate most disputes by
fines. But as the value of money was, doubtless, subject to change, the
fines were also changed; and we see several charters,
[54]
where the
lords fixed the fines, that were payable in their petty courts. Thus the
spirit of the law was followed, without adhering to the law itself.
Besides, as France was divided into a number of petty lordships,
which acknowledged rather a feudal than a political dependence, it was
very difficult for only one law to be authorised. And, indeed, it would
be impossible to see it observed. The custom no longer prevailed of
sending extraordinary officers
[55]
into the provinces to inspect the
administration of justice and political affairs; it appears, even by the
charters, that when new fiefs were established our kings divested
themselves of the right of sending those officers. Thus, when almost
everything had become a fief, these officers could not be employed;
there was no longer a common law because no one could enforce the
observance of it.
The Salic, Burgundian, and Visigoth laws were, therefore, extremely
neglected at the end of the second race; and at the beginning of the
third, they were scarcely ever mentioned.
Under the first and second race, the nation was often assembled;
that is, the lords and bishops; the commons were not yet thought of. In
these assemblies, attempts were made to regulate the clergy, a body
which formed itself, if I may so speak, under the conquerors, and
established its privileges. The laws made in these assemblies are what
we call the Capitularies. Hence four things ensued: the feudal laws were
established and a great part of the church revenues was administered by
those laws; the clergy effected a wider separation, and neglected those
decrees of reformation where they themselves were not the only
reformers;
[56]
a collection was made of the canons of councils and of
the decretals of popes;
[57]
and these the clergy received, as coming
from a purer source. Ever since the erection of the grand fiefs, our
kings, as we have already observed, had no longer any deputies in the
provinces to enforce the observance of their laws; and hence it is that,
under the third race, we find no more mention made of Capitularies.
Footnotes
[54]
M. de la Thaumassire has collected many of them. See, for
instance, chapters 41, 46, and others.
[56]
Let not the bishops, says Charles the Bald, in the "Capitulary" of
844, art. 8, under pretence of the authority of making canons, oppose
this constitution, or neglect the observance of it. It seems he already
foresaw the fall thereof.
[57]
In the collection of canons a vast number of the decretals of
the popes were inserted; they were very few in the ancient collection.
Dionysius Exiguus put a great many into his; but that of Isidorus
Mercator was stuffed with genuine and spurious decretals. The old
collection obtained in France till Charlemagne. This prince received
from the hand of Pope Adrian I the collection of Dionysius Exiguus, and
caused it to be accepted. The collection of Isidorus Mercator appeared
in France about the reign of Charlemagne; people grew passionately fond
of it: to this succeeded what we now call the course of canon law.
