Edward Gibbon

On Personal Law

from Chapter XXXVIII of
The Decline and Fall of the Roman Empire




These are the famous passages where Edward Gibbon refers, with a sort of admiration, to the practice of the Germans of allowing people to choose the legal system under which they wanted to live and be judged. This, according to Gibbon, contributed to the preservation of peace and to the improvement of society. And he goes on to say that, to follow the proposal of Agobard of introducing a uniform law as well as a uniform religious faith, would have been a very foolish act.



The rudest, or the most servile condition of human society, is regulated however by some fixed and general rules. When Tacitus surveyed the primitive simplicity of the Germans he discovered some permanent maxims, or customs, of public and private life, which were preserved by faithful tradition till the introduction of the art of writing, and of the Latin tongue. Before the election of the Merovingian kings, the most powerful tribe, or nation, of the Franks, appointed four venerable chieftains to compose the Salic laws, and their labours were examined and approved in three successive assemblies of the people. After the baptism of Clovis, he reformed several articles that appeared incompatible with Christianity: the Salic law was again amended by his sons; and at length, under the reign of Dagobert, the code was revised and promulgated in its actual form, one hundred years after the establishment of the French monarchy.

Within the same period, the customs of the Ripuarians were transcribed and published; and Charlemagne himself, the legislator of his age and country, had accurately studied the two national laws which still prevailed among the Franks (by these two laws most critics understand the Salic and the Ripuarian). The same care was extended to their vassals; and the rude institutions of the Alemanni and Bavarians were diligently compiled and ratified by the supreme authority of the Merovingian kings. The Visigoths and Burgundians, whose conquests in Gaul preceded those of the Franks, showed less impatience to attain one of the principal benefits of civilized society. Euric was the first of the Gothic princes who expressed in writing the manners and customs of his people; and the composition of the Burgundian laws was a measure of policy rather than of justice, to alleviate the yoke and regain the affection of the Gallic subjects.

Thus, by a singular coincidence, the Germans framed their artless institution at a time when the elaborate system of Roman jurisprudence was finally consummated. In the Salic laws, and the Pandects of Justinian, we may compare the first rudiments, and the full maturity, of civil wisdom; and whatever prejudices may be suggested in favour of barbarism, our calmer reflection will ascribe to the Romans the superior advantages, not only of science and reason, but of humanity and justice. Yet, the laws of the barbarians were adapted to their wants and desires, their occupation and their capacity; and they all contributed to preserve the peace, and promote the improvement of society for whose use they were originally established.

The Merovingians, instead of imposing a uniform rule of conduct on their various subjects, permitted each people and each family of their empire freely to enjoy their domestic institutions (*); nor were the Romans excluded from the common benefits of this legal toleration. The children embraced the law of their parents, the wife that of her husband, the freedman that of his patron; and in all causes where the parties were of different nations, the plaintiff or accuser was obliged to follow the tribunal of the defendant, who may always plead a judicial presumption of right or innocence. A more ample latitude was allowed, if every citizen, in the presence of the judge, might declare the law under which he desired to live, and the national society to which he chose to belong. Such an indulgence would abolish the partial distinctions of victory: and the Roman provincials might patiently acquiesce in the hardship of their condition, since it depended on themselves to assume the privilege, if they dared to assert the character, of free and warlike barbarians.

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(*) The Riparian law declares and defines this indulgence in favour of the plaintiff (tit. XXI, in tom. IV, p. 240); and the same toleration is understood or expressed in all the codes except that of the Visigoths of Spain. Tanta diversitas legum (says Agobard in the ninth century) quanta non solum is in [singulis] regionibus, aut civitatibus, sed etiam in multis domibus habetur. Nam plerumque contingit ut simul eant aut sedeant quinque hominess, et nullus eorum communem legem cum altero habeat (in tom. VI, p. 356). He foolishly proposes to introduce an uniformity of law as well as of faith.


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