But though the kings of the Visigoths had proscribed the Roman law, it still subsisted in the demesnes they possessed in South Gaul.y These countries being distant from the centre of the monarchy lived in a state of great independence. We see from the history of Vamba, who ascended the throne in 672, that the natives of the country had become the prevailing party.2 Hence the Roman law had greater authority and the Gothic less. The Spanish laws neither suited their manners nor their actual situation; the people might likewise be obstinately at- tached to the Roman law, because they had annexed to it the idea of liberty. Besides, the laws of Chaindasuinthus and of Re- cessuinthus contained most severe regulations against the Jews; but these Jews had a vast deal of power in South Gaul. The author of the history of King Vamba calls these provinces the brothel of the Jews. When the Saracens invaded these prov- inces, it was by invitation; and who could have invited them but the Jews or the Romans? The Goths were the first that were oppressed, because they were the ruling nation. We see in Procopius, that during their calamities they withdrew out of Narbonne Gaul into Spain.o Doubtless, under this misfortune, they took refuge in those provinces of Spain which still held out; and the number of those who in South Gaul lived under the law of the Visigoths was thereby greatly diminished, Did not that wretched compiler Benedictus Levita attempt to transform this Visigoth establishment, which prohibited the use X " Ut tam Gotho Romanam, quam Vamba durst not put to death the rebels Romano Gotham matrimonio liceat soci- whom he had quelled. The author of ari."— Law of the Visigoths, lib. III. the history calls Narbonne Gaul the tit. I. chap. i. nursery of treason.
y See Liv. IV. 19 and 26. a "Gothi, qui cladi superfuerant, ex z The revolt of these provinces was a Gallia cum uxoribus liberisque egressi, general defection, as appears by the sen- in Hispaniam ad Teudim jam palam tence in the sequel of the history. tyrannum se receperunt." — De Bello Paulus and his adherents were Romans; Gothorum," lib. I. cliap. xiii. they were even favored by the bishops.
I02 MONTESQUIEU of the Roman law, into a capitulary b ascribed since to Charle- magne? He made of this particular institution a general one, as if he intended to exterminate the Roman law throughout the universe.
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 fol- lowing manner: As fiefs became hereditary, and arriere-^tis, extended, many usages were introduced, to which these laws were no longer ap- plicable. Their spirit, indeed, was continued, which was, to reg- ulate 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,c where the lords fi!xed 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 lord- ships, which acknowledged rather a feudal than a political de- pendence, it was very difiticult for only one law to be authorized. And, indeed, it would be impossible to see it observed. The custom no longer prevailed of sending extraordinary officers d 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 ob- servance of it.
The Salic, Burgundian, and Visigoth laws were, therefore, ex- tremely neglected at the end of the second race; and at the be- ginning of the third they were scarcely ever mentioned.
Under the first and second race, the nation was often assem- bled; that is, the lords and bishops; the commons were not yet thought of. In these assemblies, attempts were made to regu- late the clergy, a body which formed itself, if I may so speak, h Capitularies, lib. VI. chap, cclxix. of c M. de la Thaumassiere has collected the year 1613, edition of Baluzius, p. many of them. See, for instance, chaps. 1021. Ixi., Ixvi., and others.
d " Missi Dominici."
THE SPIRIT OF LAWS 103 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 estabHshed 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; e a collection was made of the canons of councils and of the decretals of popes; /" 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 long- er 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.
10. — The same Subject continued Several Capitularies were added to the law of the Lombards, as well as to the Salic and Bavarian laws. The reason of this has been a matter of inquiry; but it must be sought for in the thing itself. There were several sorts of Capitularies. Some had relation to political government, others to economical, most of them to ecclesiastical polity, and some few to civil govern- ment. Those of the last species were added to the civil law, that is, to the personal laws of each nation; for which reason it is said in the Capitularies, that there is nothing stipulated therein contrary to the Roman law.g In effect, those Capitularies re- garding economical, ecclesiastical, or political government had no relation to that law; and those concerning civil government had reference only to the laws of the barbarous people, which were explained, amended, enlarged, or abridged. But the add- ing of these Capitularies to the personal laws occasioned, I im- agine, the neglect of the very body of the Capitularies them- selves; in times of ignorance, the abridgment of a work often causes the loss of the work itself.
e Let not the bishops, says Charles genuine and spurious decretals. The old the Bald, in the Capitulary of 844, art. 8, collection obtained in France till Char- under pretence of the authority of mak- lemagne. This prince received from ing canons, oppose this constitution, or the hand of Pope Adrian I the collection neglect the observance of it. It seems of Dionysius Exiguus, and caused it to he already foresaw the fall thereof. be accepted. The collection of Isidorus f In the collection of canons a vast Mercator appeared in France about the number of the decretals of the popes reign of Charlemagne; people grew pas- were inserted; they were very few in the sionately fond of it: to this succeeded ancient collection. Dionysius Exiguus what we now call " the course of canon fut a great many into his; but that of law."
sidorus Mercator was stuffed with g See the Edict of Pistes, art. 20.
I04 MONTESQUIEU II. — Other Causes of the Disuse of the Codes of Barbarian Laws, as well as of the Roman Law, and of the Capitularies When the German nations subdued the Roman Empire, they learned the use of writing; and, in imitation of the Romans, they wrote down their own usages, and digested them into codes.A The unhappy reigns which followed that of Charle- magne, the invasions of the Normans, and the civil wars, plunged the conquering nations again into the darkness out of which they had emerged, so that reading and writing were quite neglected. Hence it is, that in France and Germany the written laws of the barbarians, as well as the Roman law and the Capitularies fell into oblivion. The use of writing was bet- ter preserved in Italy, where reigned the popes and the Greek emperors, and where there were flourishing cities, which en- joyed almost the only commerce in those days. To this neigh- borhood of Italy it was owing, that the Roman law was pre- served in the provinces of Gaul, formerly subject to the Goths and Burgundians; and so much the more, as this law was there a territorial institution, and a kind of privilege. It is probable, that the disuse of the Visigoth laws in Spain proceeded from the want of writing, and, by the loss of so many laws, customs were everywhere established.
Personal laws fell to the ground. Compositions, and what they call Freda,i were regulated more by custom than by the text of these laws. Thus, as in the establishment of the monar- chy, they had passed from German customs to written laws; some ages after, they came back from written laws to unwritten customs.
12. — Of local Customs. Revolution of the Laws of barbarous Nations, as well as of the Roman Law By several memorials it appears, that there were local cus- toms, as early as the first and second race. We find mention made of the " custom of the place," / of the " ancient usage," k h This is expressly set down in some such were the severe laws against the i preambles to these codes: we even find Saxons.
in the laws of the Saxons and Frisians i Of this I shall speak elsewhere (chap, different regulations, according to the 14, book XXX.).
different districts. To these usages were; Preface to Marculfus's " Formulse."
added some particular regulations suit- k Law of the Lotnbards, book II. tit.
able to the exigency of circumstances; 58, sec. 3..
THE SPIRIT OF LAWS 105 of " custom," / of " laws," m and of " customs." It has been the opinion of some authors, that what went by the name of customs were the laws of the barbarous nations, and what had the ap- pellation of law were the Roman institutes. This cannot pos- sibly be. King Pepin ordained," that wherever there should happen to be no law, custom should be complied with; but that it should never be preferred to the law. Now, to pretend that the Roman law was preferred to the codes of the laws of the barbarians is subverting all memorials of antiquity, and espe- cially those codes of barbarian laws, which constantly affirm the contrary.
So far were the laws of the barbarous nations from being those customs, that it was these very laws, as personal institu- tions, which introduced them. The Salic law, for instance, was a personal law; but generally, or almost generally, in places in- habited by the Salian Franks, this Salic law, how personal so- ever, became, in respect to those Salian Franks, a territorial in- stitution, and was personal only in regard to those Franks who lived elsewhere. Now if several Burgundians, Alemans, or even Romans should happen to have frequent disputes, in a place where the SaHc law was territorial, they must have been de- termined by the laws of those people; and a great number of decisions agreeable to some of those laws must have introduced new customs into the country. This explains the constitution of Pepin. It was natural that those customs should affect even the Franks who lived on the spot, in cases not decided by the Salic law; but it was not natural that they should prevail over the Salic law itself.
Thus there were in each place an established law and received customs which served as a supplement to that law when they did not contradict it.
They might even happen to supply a law that was in no way territorial; and to continue the same example, if a Burgundian was judged by a law of his own nation in a place where the Salic law was territorial, and the case happened not to be explicitly mentioned in the very text of this law, there is no manner of doubt but that judgment would have been passed upon him according to the custom of the place.
/ Law of the Lombards, book II. tit. « Law of the Lombards, book II. tit.
m " Life of St. Leger."
io6 MONTESQUIEU In the reign of King Pepin, the customs then established had not the same force as the laws; but it was not long before the laws gave way to the customs. And as new regulations are generally remedies that imply a present evil, it may well be im- agined that as early as Pepin's time, they began to prefer the customs to the established laws.
What has been said sufficiently explains the manner in which the Roman law began so very early to become territorial, as may be seen in the edict of Pistes; and how the Gothic law con- tinued still in force, as appears by the synod of Troyes above mentioned.^ The Roman had become the general personal law, and the Gothic the particular personal law; consequently the Roman law was territorial. But how came it, some will ask, that the personal laws of the barbarians fell everywhere into dis- use, while the Roman law was continued as a territorial institu- tion in the Visigoth and Burgundian provinces? I answer, that even the Roman law had very nearly the same fate as the other personal institutions; otherwise we would still have the Theo- dosian code in those provinces where the Roman law was terri- torial, whereas we have the Institutes of Justinian. Those prov- inces retained scarcely anything more than the name of the country under the Roman, or written law, than the natural af- fection which people have for their own institutions, especially when they consider them as privileges, and a few regulations of the Roman law which were not yet forgotten. This was, how- ever, sufficient to produce such an efifect, that when Justinian's compilation appeared, it was received in the provinces of the Gothic and Burgundian demesne as a written law, whereas it was admitted only as written reason in the ancient demesne of the Franks.
13. — Difference between the Salic law, or that of the Saltan Franks, and that of the Ripuarian Franks and other bar- barous Nations.
The Salic law did not allow of the custom of negative proofs; that is, if a person brought a demand or charge against another, he was obliged by the Salic law to prove it, and it was not suf- ficient for the second to deny it, which is agreeable to the laws of almost all nations.
o See chap. v.
THE SPIRIT OF LAWS 107 The law of the Ripuarian Franks had quite a different spirit; P it was contended with negative proofs, and the person, against whom a demand or accusation was brought, might clear him- self, in most cases, by swearing, in conjunction with a certain number of witnesses, that he had not committed the crime laid to his charge. The number of witnesses who were obliged to swear 9 increased in proportion to the importance of the affair; sometimes it amounted to seventy-two.^ The laws of the Ale- mans, Bavarians, Thuringians, Frisians, Saxons, Lombards, and Burgundians were formed on the same plan as those of the Ripuarians.
I observed, that the Salic law did not allow of negative proofs. There was one case, however, in which they were allowed: s but even then they were not admitted alone, and without the con- currence of positive proofs. The plaintiff caused witnesses to be heard,' in order to ground his action, the defendant produced also witnesses on his side, and the judge was to come at the truth by comparing those testimonies." This practice was vastly different from that of the Ripuarian, and other barbarous laws, where it was customary for the party accused to clear himself by swearing he was not guilty, and by making his relatives also swear that he had told the truth. These laws could be suitable only to a people remarkable for their natural simplicity and candor; we shall see presently that the legislators were obliged to take proper methods to prevent their being abused.
14. — Another Difference The Salic law did not admit of the trial by combat; though it had been received by the laws of the Ripuarians v and of al- most all the barbarous nations.w To me it seems, that the law of combat was a natural consequence, and a remedy of the law which estabUshed negative proofs. When an action was brought, and it appeared that the defendant was going to elude p This relates to what Tacitus says, be possessed of a greater degree of libthat the Germans had general and par- erty. See tit. 76 of the " Pactus legis ticular customs. Salicae."
q Law of the Ripuarians, tits. 6, 7, 8, t See 76th tit. of the " Pactus legis and others. Salicje."
r Ibid. tits. 11, 12, and 17. u According to the practice now fols It was when an accusation was lowed in England, brought against an antrustio, that is, w Tit. 32; tit. 57, sec. 2; tit. 59, sec. 4.
the king's vassal, who was supposed to w See the following note.
io8 MONTESQUIEU it by an oath, what other remedy was left to a military man,^ who saw himself upon the point of being confounded, than to demand satisfaction for the injury done to him: and even for the attempt of perjury? The Salic law, which did not allow the custom of negative proofs, neither admitted nor had any need of the trial by combat; but the laws of the Ripuarians y and of the other barbarous nations s who had adopted the practice of negative proofs, were obliged to establish the trial by combat.
Whoever will please to examine the two famous regulations of Gundebald, King of Burgundy, concerning this subject will find they are derived from the very nature of the thing.o It was necessary, according to the language of the barbarian laws, to rescue the oath out of the hands of a person who was going to abuse it.
Among the Lombards, the law of Rotharis admits of cases in which a man who had made his defence by oath should not be suflfered to undergo the hardship of a duel. This custom spread itself further: & we shall presently see the mischiefs that arose from it, and how they were obliged to return to the ancient practice.
15. — A Reflection I do not pretend to deny that in the changes made in the code of the barbarian laws, in the regulations added to that code, and in the body of the Capitularies, it is possible to find some passages where the trial by combat is not a consequence of the negative proof. Particular circumstances might, in the course of many ages, give tise to particular laws. I speak only of the general spirit of the laws of the Germans, of their nature and origin; I speak of the ancient customs of those people, that were either hinted at or established by those laws; and this is the only mat- ter in question.
X This spirit appears in the law of the affairs. See also the law of the Thurin- Ripuarians, tit. S9> sec. 4, and tit. 67, gians, tit. i, sec. 31, tit. 7, sec. 6, and sec. 5, and in the Capitulary of Louis tit. 8; and the law of the Alemans, tit.
the Debonnaire, added to the law of 89; the law of the Bavarians, tit. 8, chap, the Ripuarians in the year 803, art. 22. ii. sec. 6, and chap. iii. sec. i, and tit. 9, y See that law. chap. iv. sec. 4; the law of the Frisians, s The law of the Frisians, Lombards, tit. 2, sec. 3, and tit. 14, sec. 4; the law Bavarians, Saxons, Thuringians, and of the Lombards, book I. tit. 32, sec. 3, Burgundians. and tit. 35, sec. i, and book II. tit. 35, a In the law of the Burgundians, tit. sec. 2.
8, sees. 1 and 2, on criminal affairs; b See chap, xviii., towards the end. ~>and tit. 45, which extends also to civil THE SPIRIT OF LAWS 16. — Of the Ordeal or Trial by boiling Water, established by the Salic Law The Salic law c allowed of the ordeal, or trial by boiling water; and as this trial was excessively cruel, the law found an expedi- ent to soften its rigor.rf It permitted the person, who had been summoned to make the trial with boiling water, to ransom his hand, with the consent of the adverse party. The accuser, for a particular sum determined by the law, might be satisfied with the oath of a few witnesses, declaring that the accused had not committed the crime. This was a particular case, in which the Salic law admitted of the negative proof.
This trial was a thing privately agreed upon, which the law permitted only, but did not ordain. The law gave a particular indemnity to the accuser, who would allow the accused to make his defence by a negative proof: the plaintiff was at liberty to be satisfied with the oath of the defendant, as he was at liberty to forgive him the injury.
The law contrived a middle course,^ that before sentence passed, both parties, the one through fear of a terrible trial, the other for the sake of a small indemnity, should terminate their disputes, and put an end to their animosities. It is plain, that when once this negative proof was completed, nothing more was requisite; and, therefore, that the practice of legal duels could not be a consequence of this particular regulation of the Salic law.
17. — Particular Notions of our Ancestors It is astonishing that our ancestors should thus rest the honor, fortune, and life of the subject, on things that depended less on reason than on hazard, and that they should incessantly make use of proofs incapable of convicting, and that had no manner of connection either with innocence or guilt.
The Germans, who had never been subdued,^ enjoyed an ex- cessive independence. Different families waged war with each other g to obtain satisfaction for murders, robberies, or affronts. This custom was moderated by subjecting these hostilities to rules; it was ordained that they should be no longer committed c As also some other laws of the bar- g Vclleius Paterculus, lib. II. chap, barians. d Tit. 55. e Ibid. tit. 56. cxviii., says that the Germans decided f This appears by what Tacitus says, all their disputes by the sword. " Omnibus idem habitus."
no MONTESQUIEU but by the direction and under the eye of the magistrate.^ This was far preferable to a general license of annoying each other.
As the Turks in their civil wars look upon the first victory as a decision of heaven in favor of the victor, so the inhabitants of Germany in their private quarrels considered the event of a combat as a decree of Providence, ever attentive to punish the criminal or the usurper.
Tacitus informs us, that when one German nation intended to declare war against another, they looked out for a prisoner who was to fight with one of their people, and by the event they judged of the success of the war. A nation who believed that public quarrels could be determined by a single combat might very well think that it was proper also for deciding the disputes of individuals.
Gundebald, King of Burgundy, gave the greatest sanction to the custom of legal duels.* The reason he assigns for this law is mentioned in his edict. " It is," says he, " in order to prevent our subjects from attesting by oath what is uncertain, and per- juring themselves about what is certain." Thus, while the clergy declared that an impious law which permitted combats,; the Burgundian kings looked upon that as a sacrilegious law which authorized the taking of an oath.
The trial by combat had some reason for it, founded on ex- perience. In a military nation, cowardice supposes other vices; it is an argument of a person's having deviated from the princi- ples of his education, of his being insensible of honor, and of having refused to be directed by those maxims which govern other men; it shows that he neither fears their contempt, nor sets any value upon their esteem. Men of any tolerable extrac- tion seldom want either the dexterity requisite to co-operate with strength, or the strength necessary to concur with courage; for as they set a value upon honor they are practised in matters without which this honor cannot be obtained. Besides, in a mihtary nation, where strength, courage, and prowess are es- teemed, crimes really odious are those which arise from fraud, artifice, and cunning, that is from cowardice.
With regard to the trial by fire, after the party accused had h See the codes of barbarian laws, i Law of the Burgundians, chap. xlv.
and, in respect to less ancient times, j See the works of Agobard.
Beaumanoir on the " Customs of Beau- voisis."
THE SPIRIT OF LAWS m put his hand on a hot iron, or in boiling water, they wrapped the hand in a bag and sealed it up; if after three days there ap- peared no mark, he was acquitted. Is it not plain, that among people inured to the handling of arms, the impression made on a rough or callous skin by the hot iron or by boiling water could not be so great as to be seen three days afterwards? And if there appeared any mark it showed that the person who had undergone the trial was an effeminate fellow. Our peasants are not afraid to handle hot iron with their callous hands; and, with regard to the women, the hands of those who worked hard might be very well able to resist hot iron. The ladies did not want champions to defend their cause; and in a nation where there was no luxury, there was no middle state.fe By the law of the Thuringians I a woman accused of adultery was condemned to the trial by boiling water only when there was no champion to defend her; and the law of the Ripuarians admits of this trial w only when a person had no witnesses to ap- pear in justification. Now a woman that could not prevail upon any one relative to defend her cause, or a man that could not produce one single witness to attest his honesty were, from those very circumstances, sufficiently convicted.
I conclude, therefore, that under the circumstances of time in which the trial by combat and the trial by hot iron and boil- ing water obtained, there was such an agreement between those laws and the manners of the people, that the laws were rather unjust in themselves than productive of injustice, that the effects were more innocent than the cause, that they were more con- trary to equity than prejudicial to its rights, more unreasonable than tyrannical.
1 8. — In what maimer the Custom of judicial Combats gained Ground From Agobard's letter to Louis the Debonnaire it might be inferred that the custom of judicial combats was not estab- lished among the Franks; for having represented to that prince the abuses of the law of Gundebald, he desires that private dis- putes should be decided in Burgundy by the law of the Franks.w k See Beaumanoir on the " Custom of / Tit. 14.
Beauvoisis," chap. Ixi. See also the law m Chap. xxxi. sec. 5.
of the Angli, chap, xiv., where the trial n " Si placeret Domino nostro ut eos by boiling water is only a subsidiary transferret ad legem Francorum." proof.
112 MONTESQUIEU But as it is well known from other quarters that the trial by com- bat prevailed at that time in France, this has been the cause of some perplexity. However, the difficulty may be solved by what I have said; the law of the Salian Franks did not allow of this kind of trial and that of the Ripuarian Franks did.o But, notwithstanding the clamors of the clergy, the custom of judicial combats gained ground continually in France; and I shall presently make it appear, that the clergy themselves were in a great measure the occasion of it.
It is the law of the Lombards that furnishes us with this proof. " There has been long since a detestable custom intro- duced," says the preamble to the constitution of Otho II: P " this is, that if the title to an estate was said to be false, the per- son who claimed under that title made oath upon the Gospel that it was genuine; and without any preceding judgment he took possession of the estate; so that they who would perjure themselves were sure of gaining their point." The Emperor Otho I having caused himself to be crowned at Rome 9 at the very time that a Council was there under Pope John XII all the lords of Italy represented to that prince the necessity of en- acting a law to reform this horrible abuse.*' The Pope and the Emperor were of opinion that the aflfair should be referred to the Council which was to be shortly held at Ravenna.^ There the lords made the same demands, and redoubled their com- plaints; but the affair was put off once more under pretence of the absence of particular persons. When Otho II and Conrad, King of Burgundy, arrived in Italy,^ they had a conference at Verona « with the Italian lords; z^ and at their repeated solicita- tions, the Emperor, with their unanimous consent, made a law, that whenever there happened any disputes about inheritances while one of the parties insisted upon the legality of his title and the other maintained its being false, the affair should be decided by combat; that the same rule should be observed in contests relating to fiefs; and that the clergy should be subject to the