按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
e prevailing party。＇51＇ 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 attached to the Roman law； because they had annexed to it the idea of liberty。 Besides； the laws of Chaindasuinthus and of Recessuinthus 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 provinces； 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。＇52＇ 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。
8。 A false Capitulary。 Did not that wretched compiler Benedictus Levita attempt to transform this Visigoth establishment； which prohibited the use of Roman law； into a capitulary＇53＇ ascribed since to Charlemagne？ 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 following manner：
As fiefs became hereditary； and arrière…fiefs extended； many usages were introduced； to which these laws were no longer applicable。 Their spirit indeed was continued； which was to regulate most disputes by fines。 But as the value of money was； doubtless； subject to change； the fines were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。
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 government。 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。＇58＇ In effect； those capitularies regarding 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 adding of these capitularies to the personal laws occasioned； I imagine； the neglect of the very body of the Capitularies themselves； in times of ignorance； the abridgment of a work often causes the loss of the work itself。
11。 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。＇59＇ The unhappy reigns which followed that of Charlemagne； 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 better preserved in Italy； where reigned the Popes and the Greek Emperors； and where there were flourishing cities； which enjoyed almost the only commerce in those days。 To this neighbourhood of Italy it was owing that the Roman law was preserved 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；＇60＇ were regulated more by custom than by the text of these laws。 Thus； as in the establishment of the monarchy； 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 customs； as early as the first and second race。 We find mention made of the 〃custom of the place；〃＇61＇ of the 〃ancient usage；〃＇62＇ of 〃custom；〃＇63＇ of 〃laws；〃＇64＇ 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 appellation of l