Chapter 6 to 8 of The Spirit of the Laws by Montesquieu

How the Roman Law kept its Ground in the Demesne of the Lombards

March 28, 2020

The law of the Lombards was impartial. The Romans were under no temptation 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 institutes, 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 nobility mouldered 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?

Chapter 7= How the Roman Law came to be lost in Spain

THINGS happened otherwise in Spain.

The law of the Visigoths prevailed, and the Roman law was lost. Chaindasuinthus* and Recessuinthus† proscribed the Roman laws, and even forbade citing them in their courts. Recessuinthus was likewise author‡ of the law which took off the prohibition of marriages between the Goths and Romans.

These two laws had the same spirit. Recessuinthus wanted to remove the separation 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 institutions.

But though the kings of the Visigoths had proscribed the Roman law, it still subsisted in the demesnes they possessed in South Gaul. These countries being distant from the center 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 were become the prevailing party*.

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. 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.

Chapter 8= A False Capitulary

DID not that wretched compiler Benedictus Levita attempt to transform this Visigoth establishment, which prohibited the use of the Roman law, into a capitulary, 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.