Rights In Civil Society
Appendix 5. (fn. 165).
Montesquieu observed that under the barbarians the law was personal rather than territorial (Espr. des Lois, 28, 2). This was denied by some erudite people because riparian, Salic, Frankish and other laws speak of territories to which the law applies (Chabrit, De la Monarch. franc., bk. 8, c. 21). However, these savants fail to notice that a territorial law is not such because it applies to a given territory. It means that all the inhabitants of a given territory are subject to it as a result of the territory they inhabit. Barbarian laws, after the conquest, did not oblige all persons, but only certain classes dwelling in the given territory. In other words, each person could choose the law under which to live. This choice was made public according to the constitution of Lothaire I (Leges Longobard. bk. 2, c. 57).
Did this personalism of barbarian laws exist before the conquest or only afterwards? Montesquieu makes it depend on the condition of the barbarians before the conquest:
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The spirit of personal laws was present in
these peoples before they began to move from their native lands to the
territories they conquered. |
He also makes it depend on the separate life led by the tribes:
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These nations were divided by marshes, lakes
and forests. One can see in Caesar how they liked separate lives (De Bello
Germ., bk. 6). All these peoples were free and independent when they were
on their own. When they intermingled, independence remained. The fatherland was
common, and the republic particular. The territory was the same, the nations
different. |
Savigny (Introd. gener. allo studio del Diritto), in opposition to Montesquieu, claims that the barbarian laws became personal only through necessity, as a result of the clash between the conquerors and the defeated Romans. Montesquieu is right, however. He is speaking of the spirit not the fact of the laws. The spirit of personal law had to precede the conquest. It is easy enough to see this if we consider that barbarian life, in great part nomadic, was not bound to territory, and that it embraced family and tribal society, but not civil society, or at least not to any notable stage of development. The family, however, is ruled by paternal right, and therefore by seigniorial and personal right. This is what we said about seigniorial legislation and government. As we saw, the master as such does not lay down laws other than those which affect his seigniory, nor does he extend the care of his government except in relationship to the grandeur of his own family. This is a fact pertaining to seigniorial instinct. Hence, a people whose culture and development does not extend further than the limitations of seigniorial laws and government is forced to do what it can for itself when other civil needs show themselves. The master consents by granting the people certain laws, judges and officials of their own, provided they show no sign of weakening his dominion. This occurred when the leaders of barbarian families conquered Roman territories.
Later, the barbarians came to appreciate the worth of agriculture and a settled life as well as the importance of civil government. At this point, the dominant families embraced the civil element, broke away from their family restrictions and began to see in their subjects both a certain dignity and other families and rights. In fact, the importance and esteem of territorial wealth grew to such an extent that the opposite defect manifested itself. The law, which had first followed the free person, now required the person to be fixed to the soil. The law became territorial.
When the law as a whole became territorial, it also became tyrannical.
Clearly, if land is appreciated more than personal dignity, person is
sacrificed to land. The governing, seigniorial families became dependent on
land alone for their wealth and riches. This kind of excess is corrected later,
but normally only through the tremendous upheavals of revolution.
In the last century Rousseau found a sign of servitude and despotism in the
fact that kingdoms took their names from territories rather than from
government by persons. Actually, only the owner of land has the right to live
from its produce; others either receive alms from him, or leave the territory,
or die of hunger.
This explains the incessant struggle between personal and
territorial laws in social history. Each tends to regulate society to
the exclusion of the other. As soon as one succeeds and then goes to excess, a
social movement towards the other is initiated, and vice-versa. For example,
territorial laws had become excessive and almost dominant as a result of
feudalism. As we saw recently, society reacted against this excess with the
deliberation taken in France in 1830: the head of the nation was no longer to
be called king of France, but king of the French.
Should civil laws, therefore, be territorial or personal? Neither one nor the
other; they should be mutually tempered. It is precisely this tempering, this
just mean, that society often seeks in the midst of its agitation. The wisdom
of the Catholic Church has preceded civil legislators in this matter also; its
legislation has always been a mixture of personal and local laws.