Rome, corrupted by the riches of every nation, had changed her manners; the putting a stop to the luxury of women was no longer minded. Aulus Gellius, who lived under Adrian,* tells us, that in his time the Voconian law was almost abolished; it was buried under the opulence of the city. Thus we find in the sentences of Paulus,« who lived under Niger, and in the fragments of Ulpian,^ who was in the time of Alexander Severus, that the sisters on the father's side might succeed, and that none but the relatives of a more distant degree were in the case of those prohibited by the Voconian law.
The ancient laws of Rome began to be thought severe. The pretors were no longer moved except by reasons of equity, mod- eration, and decorum.
We have seen, that by the ancient laws of Rome mothers had no share in the inheritance of their children. The Vocon- ian law aflforded a new reason for their exclusion. But the Emperor Claudius gave the mother the succession of her chil- dren as a consolation for her loss. The Tertullian senatus-con- sultum, made under Adrian,^ gave it them when they had three children if free women, or four if they were freed-women. It is evident, that this decree of the Senate was only an extension of the Papian law, which in the same case had granted to women the inheritance left them by strangers. At length Justinian favored them with the succession independently of the number of their children.-*" q " Quod tibi filiolus, vel filia nascitur t Lib. XX. cap. i.
ex me, « Lib. IV. tit. 8, sec. 3.
Jura Parentis babes; propter me v Tit. 26, sec. 6.
scriberis haeres."— Juvenal. Sat. w That is, the Emperor Pius, who 9. changed his name to that of Adrian by r See law 9, C. Theod. " de bonis adoption, proscriptorum," and Dio, lib. V. See ^Lib. II. cod. " de jure liberorum."
the "Frag, of Ulpian," tit. last, sec. 6, " Instit." tit. 3, sec. 4, " de senatus and tit. 29, sec. 3. consult."
s " Fragments of Ulpian," tit. 16, sec. X. Sozomenus, lib. I. cap. ix.
THE SPIRIT OF LAWS 91 The same causes which had debilitated the law against the succession of women subverted that, by degrees, which had limited the succession of the relatives on the woman's side. These laws were extremely conformable to the spirit of a good republic, where they ought to have such an influence, as to prevent this sex from rendering either the possession, or the expectation of wealth, an instrument of luxury. On the con- trary, the luxury of a monarchy rendering marriage expensive and costly, it ought to be there encouraged, both by the riches which women may bestow, and by the hope of the inheritances it is in their power to procure. Thus when monarchy was es- tablished at Rome, the whole system of successions was changed. The pretors called the relatives of the woman's side in default of those of the male side; though by the ancient laws, the relatives on the woman's side were never called. The Orphitian senatus-consultum called children to the suc- cession of their mother; and the Emperors Valentinian, Theo- dosius, and Arcadius called the grandchildren by the daughter to the succession of the grandfather.^ In short, the Emperor Justinian z left not the least vestige of the ancient right of suc- cessions: he established three orders of heirs, the descendants, the ascendants, and the collaterals, without any distinction be- tween the males and females; between the relatives on the woman's side, and those on the male side; and abrogated all of this kind, which were still in force: he believed that he fol- lowed nature, even in deviating from what he called the em- barrassments of the ancient jurisprudence.
y Lib. 9, Cod. " de suis et legitimis s Lib. XIV. Cod. " de suis et legitimis haeredibus." hsercdibus," et " Nov." 118 and 127.
BOOK XXVIII OF THE ORIGIN AND REVOLUTIONS OF THE CIVIL LAWS AMONG THE FRENCH o In novafert animus mutatas dicere formas Corpora —Ovid, Metam.
I. — Different Character of the Laws of the several Peoples of Germany AFTER the Franks had quitted their own country, they made a compilation of the SaHc laws with the assistance of the sages of their own nation.^ The tribe of the Ri- puarian Franks having joined itself under Clovis c to that of the Salians preserved its own customs; and Theodoric,^^ King of Austrasia, ordered them to be reduced to writing. He collected likewise the customs of those Bavarians and Germans, who were dependent on his kingdom.^ For Gerrpany having been weak- ened by the migration of such a multitude of people, the Franks, after conquering all before them, made a retrograde march and extended their dominion into the forests of their ancestors. Very likely the Thuringian code was given by the same Theodoric, since the Thuringians were also his subjects.^ As the Frisians were subdued by Charles Martel and Pepin, their law cannot be prior to those princes.? Charlemagne, the first that reduced the Saxons, gave them the law still extant; and we need only read these last two codes to be convinced they came from the hands of conquerors. As soon as the Visigoths, the Burgundians, and the Lombards had founded their respective kingdoms, they re- duced their laws to writing, not with an intent of obliging the o In a private letter Montesquieu, quitted Germany, for at that time they speaking of this book, sajrs that it cost did not understand the Latin tongue, him so much labor that his hair turned c See Gregory of Tours.
gray on account of it. — Ed. d See the prologue to the law of the b See the prologue to the Salic law. Bavarians, and that to the Salic law.
Mr. Leibnitz says, in his treatise of the e Ibid.
origin of the Franks, that this law was f " Lex Angliorum Werinorum, hoc made before the reign of Clovis: but it est Thuringorum."
could not be before the Franks had g They did not know how to write.
92 THE SPIRIT OF LAWS 93 vanquished nations to conform to their customs, but with a de- sign of following them themselves.
There is an admirable simplicity in the Salic and Ripuarian laws, as well as in those of the Alemans, Bavarians, Thuringians, and Frisians. They breathe an original coarseness and a spirit which no change or corruption of manners had weakened. They received but very few alterations, because all those peoples, ex- cept the Franks, remained in Germany. Even the Franks them- selves laid there the foundation of a great part of their empire, so that they had none but German laws. The same cannot be said of the laws of the Visigoths, of the Lombards, and Burgun- dians; their character considerably altered from the great change which happened in the character of the peoples after they had settled in their new habitations.
The kingdom of the Burgundians did not last long enough to admit of great changes in the laws of the conquering nation. Gundebald and Sigismond, who collected their customs, were al- most the last of their kings. The laws of the Lombards received additions rather than changes. The laws of Rotharis were fol- lowed by those of Grimoaldus, Luitprandus, Rachis, and Astul- phus, but did not assume a new form. It was not so with the laws of the Visigoths; h their kings new-molded them, and had them also new-molded by the clergy.
The kings, indeed, of the first race struck out of the Salic and Ripuarian laws whatever was absolutely inconsistent with Chris- tianity, but left the main part untouched.* This cannot be said of the laws of the Visigoths.
The laws of the Burgundians, and especially those of the Visi- goths, admitted of corporal punishments; these were not tolerated by the Salic and Ripuarian laws;; they preserved their character much better.
The Burgundians and Visigoths, whose provinces were greatly exposed, endeavored to conciliate the affections of the ancient inhabitants, and to give them the most impartial civil laws; k but h They were made by Euric, and t See the prologue to the law of the amended by Leovigildus. See Isi- Bavarians.
dorus's chronicle. Chaindasuinthus and; We find only a few in Childebert's Recessuinthus reformed them. Egigas decree.
ordered the code now extant to be made, k See the prologue to the code of the and commissioned bishops for that pur- Burgundians, and the code itself, espose; nevertheless the laws of Chainda- pecially the 12th tit. sec. s. and tit. 38.
suinthus and Recessuinthus were pre- See also Gregory of Tours, book II.
served, as appears by the Sixth Council chap, xxxiii., and the code of the Visiof Toledo. gotns.
94 MONTESQUIEU as the kings of the Franks had established their power, they had no such considerations.^ The Saxons, who Hved under the dominion of the Franks, were of an intractable temper, and prone to revolt. Hence we find in their laws the severities of a conqueror,»w which are not to be met with in the other codes of the laws of the barbarians.
We see the spirit of the German laws in the pecuniary punish- ments, and the spirit of a conqueror in those of an afflictive nat- ure.
The crimes they commit in their own country are subject to corporal punishment; and the spirit of the German laws is fol- lowed only in the punishment of crimes committed beyond the extent of their own territory.
They are plainly told that their crimes shall meet with no mercy, and they are refused even the asylum of churches.
The bishops had an immense authority at the court of the Visi- goth kings, the most important affairs being debated in councils. All the maxims, principles, and views of the present inquisition are owing to the code of the Visigoths; and the monks have only copied against the Jews the laws formerly enacted by bishops.
In other respects the laws of Gundebald for the Burgundians seem pretty judicious; and those of Rotharis, and of the other Lombard princes, are still more so. But the laws of the Visi- goths, those for instance of Recessuinthus, Chaindasuinthus, and Egigas are puerile, ridiculous, and fooHsh; they attain not their end; they are stufifed with rhetoric and void of sense, frivolous in the substance and bombastic in the style.
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 Ale- mans, the Burgundian by that of the Burgundians, and the Ro- man 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.
I See lower down, chap. 3. m See chap. ii. sees. 8 and 9, and chap.
iv. sees. 2 and 7.
THE SPIRIT OF LAWS 95 These people were parted asunder by marshes, lakes, and forests; and Csesar observes,^ 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 independency still continued; the country was common, the gov- ernment peculiar; the territory the same, and the nations differ- ent. 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,o in the codes of the laws of the barbarians, but chiefly in the law of the Ripuarians P and the decrees of the kings of the first race,? whence the capitularies on that subject in the second race were derived.'' The children followed the laws of their father,^ the wife that of her husband,^ the widow came back to her own original law," and the freedman was under that of his patron.?^ Besides, every man could make choice of what laws he pleased; but the constitution of Lotharius I w required that this choice should be made public.
3. — Capital Difference between the Salic Laws and those of the Visigoths and Burgundians We have already observed that the laws of the Burgundians and Visigoths were impartial; but it was otherwise with regard to the Salic law, for it established between the Franks and Romans the most mortifying distinctions. When a Frank, a barbarian, or one living under the Salic law happened to be killed, a composition of 200 sols was to be paid to his relatives; •*■ only 100 upon the killing of a Roman proprietor,^' and no more than forty-five for a Roman tributary. The composition for the murder of one of the king's vassals, if a Frank, was 600 n " De bello Gallico," lib. VI..r Ibid.
o Lib. I. formul. 8. t Ibid. lib. VI. tit. 7, cap. i.
p Chap. xxxi. u Ibid. cap. ii.
q That of Clotarius in the year 560, in v Ibid. lib. II. tit. 35, cap. ii.
the edition of the Capitularies of Ba- w In the law of the Lombards, lib. II.
lusius, vol. i. art. 4, ib. " in fine." tit. STr Capitularies added to the law of the x Salic law, tit. 44, sec. 1.
Lombards, lib. I. tit. 25, cap. Ixxi. lib. y " Qui res in pago ubi remanet pro- II. tit. 41, cap. vii. and tit. 56, cap. i. prias habet." — Salic law, tit. 44, sec. 15. and ii.
96 MONTESQUIEU sols;2 ii a. Roman, though the king's guest,o only 300.& The Salic law made therefore a cruel distinction between the Frank and Roman lord, and the Frank and Roman commoner.
Further, if a number of people were got together to assault a Frank in his house,c and he happened to be killed, the Salic law ordained a composition of 600 sols; but if a Roman or a f reed- man was assaulted, only one-half that composition.^ By the same law,^ if a Roman put a Frank in irons, he was liable to a composition of 30 sols; but if a Frank had thus used a Roman, he paid only 15. A Frank, stripped by a Roman, was entitled to the composition of 623^ sols, and a Roman stripped by a Frank received only 30. Such unequal treatment must needs have been very grievous to a Roman.
And yet a celebrated author f forms a system of the establish- ment of the Franks in Gaul, on a supposition that they were the best friends of the Romans. The Franks then, the best friends of the Romans, they who did, and they who suffered from the Romans such an infinite deal of mischief! g The Franks, the friends of the Romans, they who, after subduing them by their arms, oppressed them in cold blood by their laws! They were exactly the friends of the Romans as the Tartars who conquered China were the friends of the Chinese.
If some Catholic bishops thought fit to make use of the Franks in destroying the Arian kings, does it follow that they had a de- sire of living under those barbarous people? And can we hence conclude that the Franks had any particular regard for the Ro- mans? I should draw quite different consequences; the less the Franks had to fear from the Romans, the less indulgence they showed them.
The Abbe du Bos has consulted but indifferent authorities for his history, such as poets and orators; works of parade and os- tentation are improper foundations for building systems.
2 " Qui in truste dominica est."— Ibid. c Salic law, tit. 45.
tit. 41, sec. 4. d Lidus whose condition was better a " Si Romanus homo conviva regis than that of a bondsman.— Law of the fuerit."— Ibid. sec. 6. Alemans, chap. xcv.
b The principal Romans followed the e Tit. 3s, sees. 3 and 4.
court, as may be seen by the lives of / The Abbe du Bos.
several bishops, who were there edu- g Witness the expedition of Arbocated; there were hardly any but Ro- gastes, in Gregory of Tours, "Hist."
mans that knew how to write. lib. II.
THE SPIRIT OF LAWS 97 4. — In what manner the Roman Law came to he 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,^ who settled in those parts.
In the country subject to the Franks the Salic law was estab- lished for the Franks, and the Theodosian code i for the Romans. In that subject to the Visigoths, a compilation of the Theodosian code, made by order of Alaric,; regulated disputes among the Romans; and the national customs, which Euric caused to be reduced to writing,^ determined those among the Visigoths. But how comes it, some will say, that the Salic laws gained al- most 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 gen- eral 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,/ or a person living under the Salic law; everyone, in that case, readily quitting the Roman to live under the Salic law. The clergy alone retained it,w 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 n allowed the clergy as favorable compositions as those of the Franks, for which rea- son they retained the Roman law. This law brought no hardh The Franks, the Visigoths, and Bur- on this head pronounced by Du Cange, gundians. under the words " Lex Romana."
t It was finished in 438. n See the Capitularies added to the i The 20th year of the reign of this Salic law in Lindembrock, at the end prince, and published two years after by of that law, and the different codes of Anian, as appears from the preface to the laws of the barbarians concerning that code. the privileges of ecclesiastics in this rek The year 504, of the Spanish era, the spect. See also the letter of Charle- " Chronicle of Isidorus." magne to his son Pepin, King of Italy, / *' Francum, aut Barbarum, aut homi- in the year 807, in the edition of Banem qui Salica lege vivit." — Salic law, luzius, torn. i. 462, where it is said, that tit. 44, sec. I. an ecclesiastic should receive a triple »«*' According to the Roman law un- compensation: and the "Collection of der which the church lives," as is said the Capitularies," lib. V. art. 302, tom.
in the law of the Ripuarians, tit. 58, sec. i., edition of Baluzius. I. See also the numberless authorities Vol. II.— 7 98 MONTESQUIEU ships upon them; and in other respects it was properest for them, as it was the work of Christian emperors.
On the other hand, in the patrimony of the Visigoths, as the Visigoth law o 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 there- fore 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 favoring 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 di- vided of a side. This was necessary for particular reasons, drawn from the political regulations of those times./* The Ro- man law was continued in Burgundy, in order to regulate the dis- putes of Romans among themselves. The latter had no induce- ment to quit their own law, as in the country of the Franks; and rather as the Salic law was not established in Burgundy, as ap- pears by the famous letter which Agobard wrote to Louis the Pious.
Agobard q desired that prince to establish the Salic law in Bur- gundy; 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 Sara- cens, the towns and provinces which submitted to these princes petitioned for a continuance of their own laws and obtained it; »* this, in spite of the usages of those times, when all laws were per- sonal, 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 o See that law. Pippino subjicitur. And a chronicle of p Of this I shall speak in another the year 759, produced by Catel, " Hist.
place, book XXX. chaps. 6, 7, 8, and 9. of Languedoc." And the uncertain auq Agob. " Opera." thor of the " Life of Louis the Debonr See Gervaise de Tilbury, in Du- naire," upon the demand made by the chesne's " Collection," torn. iii. p. 366. people of Septimania, at the assembly Facta pactione cum Francis, quod illic in Carisiaco, in Duchesne's " Collec- Gothi patriis legibus, moribus paternis tion," torn. ii. p. 316.
vivant. Et sic Narbonensis provincia THE SPIRIT OF LAWS 99 in the year 864, which distinguishes the countries where causes were decided by the Roman law from where it was otherwise.-y 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: f 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?
5. — The same Subject continued The law of Gundebald subsisted a long time among the Bur- gundians, in conjunction with the Roman law; it was still in use under Louis the Pious, as Agobard's letter plainly evinces. In like manner, though the edict of Pistes calls the country occupied by the Visigoths the country of the Roman law, yet the law of the Visigoths was always in force there; as appears by the synod of Troyes held under Louis the Stammerer, in the year 878, that is, fourteen years after the edict of Pistes.
In process of time the Gothic and Burgundian laws fell into disuse even in their own country, which was owing to those gen- eral causes that everywhere suppressed the personal laws of the barbarians.
J " In ilia terra in qua judicia secun- / See art. 12 and 16 of the " Edict of dum legem Romanam terminantur, se- Pistes," " in Cavilono," " in Narbona," cundum ipsam legem judicetur; et in etc. ilia terra in qua," etc., art 16. See also art. 20.
loo MONTESQUIEU 6. — How the Roman Law kept its Ground in the Demesne of the Lombards The facts all coincide with my principles. The law of the Lombards was impartial, and the Romans were under no temp- tation to quit their own for it. The motive which prevailed with the Romans under the Franks to make choice of the Salic law did not take place in Italy; hence the Roman law maintained itself there, together with that of the Lombards.
It even fell out, that the latter gave way to the Roman insti- tutes, and ceased to be the law of the ruling nation; and though it continued to be that of the principal nobility, yet the greatest part of the cities formed themselves into republics, and the no- bility moldered away of themselves, or were destroyed." The citizens of the new republics had no inclination to adopt a law which established the custom of judiciary combats, and whose institutions retained much of the customs and usages of chivalry. As the clergy of those days, a clergy even then so powerful in Italy, lived almost all under the Roman law, the number of those who followed the institutions of the Lombards must have daily diminished.
Besides, the institutions of the Lombards had not that extent, that majesty of the Roman law, by which Italy was reminded of her universal dominion. The institutions of the Lombards and the Roman law could be then of no other use than to furnish out statutes for those cities that were erected into republics. Now which could better furnish them, the institutions of the Lombards that determined on some particular cases, or the Roman law which embraced them all?
7. — How the Roman Law came to he lost in Spain Things happened otherwise in Spain. The law of the Visi- goths prevailed, and the Roman law was lost. Chaindasuin- thus V and Recessuinthus proscribed the Roman laws,w and even forbade citing them in their courts of judicature. Reces- suinthus was likewise author of the law which took oflf the pro- « See what Machiavel says of the ruin w We will no longer be harassed either of the anfcient nobility of Florence. by foreign or by the Roman laws. — Law V He began to reign in the year 642. of the Visigoths, lib. II, tit. i, sees, g THE SPIRIT OF LAWS loi hibition of marriage between the Goths and Romans.^ It is evident that these two laws had the same spirit; this king wanted to remove the principal causes of separation which sub- sisted between the Goths and the Romans, Now it was thought that nothing made a wider separation than the prohibition of intermarriages, and the liberty of living under different institu- tions.