The Origin of the French Civil Laws on Superphysics

The Different Character of the Laws of the German People

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AFTER the Franks left their own country, they compiled the Salic laws with the help of their own sages. The Ripuarian Franks under Clovis joined the Salians and preserved its own customs. Theodoric, king of Austrasia, ordered them to be written. He also collected the customs of those Bavarians and Germans who were dependent on his kingdom.

The Laws of Barbarians

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The laws of these Barbarians were distinguished in the fact that they were not confined to a certain district.

The Frank was tried by the law of the Franks
The Aleman was tried by the law of the Alemans
The Burgundian was tried by the law of the Burgundians
The Roman was tried by the Roman law.

Those conquerors were so far from forming their laws to an uniform system. They did not even think of becoming legislators to their conquered people. This is due to the manners of the Germans who were parted by marshes, lakes, and forests.

How the Roman Law was lost among the Franks but preserved among the Goths and Burgundians

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France was under the Franks governed by:

the Roman law
the Theodosian code
the different laws of the Barbarians, who settled in those parts.

Under the Franks, the Salic law was established for the Franks, and the Theodosian code for the Romans.

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

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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.

How the Codes of Barbarian Laws, and the Capitularies were lost

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THE Salic, the Ripuarian, Burgundian, and Visigoth laws, gradually became disused among the French.

Fiefs became hereditary and arriere-fiefs extended.

Many usages were introduced which made these laws obsolete. Disputes were still regulated by fines. But the value of money changed and so the fines were also changed.

Other Causes of the Disuse of the Barbarian Laws, Roman Law, and Capitularies

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WHEN the German nations subdued the Roman empire, they learned to write so they imitated the Romans and wrote down their own usages and digested them into codes.

The reign of Charlemagne was followed by:

Differences between the Salian Franks, the Ripuarian Franks, and other barbarous Nations

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Negative Proof

Negative proof is a person accusing someone and being burdened to prove it beforehand.

The law of the Ripuarian Franks allowed negative proofs.

The accused could clear himself by swearing among witnesses that he had not committed the crime.

Particular Notions of our Ancestors

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IT is astonishing that our ancestors should:

rest the honour, fortune, and life of the subject, on things that depended less on reason than on hazard, and
incessantly make use of proofs incapable of convicting, and that had no manner of connexion either with innocence or guilt.

The Germans were never subdued and so enjoyed excessive independence.

How the Custom of judicial Combats gained Ground

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We can infer from Agobard’s letter to Lewis the Debonnaire that the custom of judicial combats was not established among the Franks.

After having represented to that prince the abuses of the law of Gundebald, he desires* that private disputes should be decided in Burgundy by the law of the Franks.

Why the Salic and Roman Laws and the Capitularies were Disused

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The principal cause for the disuse of the Salic and Roman laws, and the Capitularies was the great extent given to judiciary combats.

The Salic laws did not admit of this custom and so they became useless and fell into oblivion. The Roman laws also rejected this custom. Their whole attention was then taken up in establishing the law of judicial combats, and in forming a proper digest of the several cases that might happen on those occasions.

Origin of the Point of Honour

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The laws of the Barbarians are strange.

The law of the Frisians allows only half a sou in composition to a person that had been beaten with a stick. Yet for ever so small a wound it allows more.

The Origin of Chivalry

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Male connections with females are founded on:

the pleasure of enjoyment
the happiness of loving and being beloved and
the ambition of pleasing the ladies because they are the best judges of some of those things which constitute personal merit.

This general desire of pleasing produces gallantry. It is not love itself, but the delicate and perpetual dissembler of love.

The Code of Laws on judicial Combats

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Those combats were most contrary to good sense. Yet after it was established, a kind of prudential management was used to execute it.

The regulations of Prince St. Lewis made such great changes to that judiciary order.

The Bounds prescribed to the Custom of judicial Combats

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WHEN pledges of battle had been received upon a civil affair of small importance, the lord obliged the parties to withdraw them.

If a fact was notorious;* for instance, if a man had been assassinated in the open market-place, then there was neither a trial by witnesses, nor by combat; the judge gave his decision from the notoriety of the fact.

Judicial Combats and Appeal of false Judgment

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Judicial combats ended the affair forever. It was incompatible with a new judgment, and new prosecutions. This made appeals unknown in France. Appeals were established by the Roman and Canon laws to a superior court, in order to re-judge the proceedings of an inferior court.

The Appeal of Default of Justice

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THE appeal of default of justice was when the court of a particular lord deferred, evaded, or refused to do justice to the parties.

During the time of our princes of the second race, though the count had several offices under him, their person was subordinate, but not their jurisdiction. These officers in their court-days, assizes, or placita, gave judgment in the last resort as the count himself; all the difference consisted in the division of the jurisdiction. For instance, the count had* the power of condemning to death, of judging of liberty, and of the restitution of goods, which the centenarii had not.

Epoch of the Reign of St. Lewis

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ST. LEWIS abolished the judicial combats in all the courts of his demesne. But he did not suppress them in the courts of his barons, except in the case of appeal of false judgment.

Observations on Appeals

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Appeals were challenges to a combat. They must have been made immediately on the spot.

Beaumanoir says:

“If the party leaves the court without appealing he loses his appeal, and the judgment stands good.” This continued still in force, even after all the restrictions of judicial combat.

How the Proceedings at Law Became Secret and Incur Costs

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DUELS had introduced a public form of proceeding. Beaumanoir says:

The witnesses should give their testimony in open court.

The Public Prosecutor

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The Salic, Ripuarian, and other barbarous laws punished crimes with pecuniary fines. They did not have a public officer who does criminal prosecutions. And indeed the issue of all causes being reduced to the reparation of damages, every prosecution was in some measure civil, and might be managed by any one.

How the Institutions of St. Lewis Fell Into Oblivion

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The origin, progress, and decline of institutions happened within a very short period.

The code called St. Lewis’s institutions, was never designed as a law for the whole kingdom, though such a design is mentioned in the preface. It is a general code which determines=

How the Judiciary Forms were borrowed from the Decretals

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The judicial forms of the canon law were preferred to those of the Roman law because they constantly had before them the ecclesiastic courts which followed the forms of the canon law.

Flux and Reflux of the ecclesiastic and temporal Jurisdiction

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THE civil power was in the hands of an infinite number of lords. This made it easy for the ecclesiastic jurisdiction to gain daily a greater extent.

The ecclesiastic courts weakened the courts of the lords and strengthened the royal jurisdiction which then gradually checked the clergy’s jurisdiction.

The Revival of the Roman Law and the Change in the Tribunals

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The Roman law seemed to rise out of its ashes upon the discovery of Justinian’s digest towards the year 1137

Schools were then established in Italy, where it was publicly taught. They had the Justinian code, and the Novellae. This code was so favourably received in Italy as to eclipse the law of the Lombards.

The Proof by Witnesses

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THE judges, who had no other rule to go by than the usages, inquired very often by witnesses into every cause that was brought before them.

The usage of judicial combats was then beginning to decline, so they made their inquests in writing.

The Customs of France

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FRANCE was governed by written customs. The particular usages of each lordship constituted the civil law.

Every lordship had its civil law, according to Beaumanoir, and so particular a law, that this author who is looked upon as a luminary, and a very great luminary, of those times, says, he does not believe that throughout the whole kingdom there were two lordships intirely governed by the same law.