Laws of the
Barbarians

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.70 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; 71 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.72 The same care was extended to their vassals; and the rude institutions of the Alemanni and Bavarians were diligently compiled and

70 I have derived much instruction from two learned works of Heineccius, the History, and the Elements, of the Germanic law. In a judicious preface to the Elements, he considers, and tries to excuse, the defects of that barbarous jurisprudence.

71 Latin appears to have been the original language of the Salic law. [So Waitz, Verfassungsgeschichte, 2, p. 89.] It was probably composed in the beginning of the fifth century, before the æra (A.D. 421) of the real or fabulous Pharamond. The preface mentions the four Cantons which produced the four legislators; and many provinces, Franconia, Saxony, Hanover, Brabant, &c. have claimed them as their own. See an excellent Dissertation of Heineccius, de Lege Salicâ, tom. iii. Sylloge iii. p. 247-267. [There is little trace of Roman, and none of Christian, influence in the Lex Salica; and the probability is that the original edition was composed in the Salic land. The four legislators have a legendary sound.]

72 Eginhard, in Vit. Caroli Magni, c. 29, in tom. v. p. 100. By these two laws, most critics understand the Salic and the Ripuarian. The former extended from the Carbonarian forest to the Loire (tom. iv. p. 151), and the latter might be obeyed from the same forest to the Rhine (tom. iv. p. 222). [On the Lex Ribuaria see Sohm's edition, 1883, and his dissertation Ueber die Entstehung der Lex Ribuaria (Ztsch. für Rechtsgesch., v. 380 sqq.). It admits of analysis into four parts, of which the first (titles 1-31) seems to belong to the early 6th century, the second (taken from the Salic Law) to the end of the 6th century, the third to the 7th, and the fourth to the 8th century. This and all the later codes exhibit, when compared with the Lex Salica, the change which had taken place in the position of the king-a change which was the work of Chlodwig-through the significant formulæ jubemus, constituimus, &c. The origin of the Lex Rib. is generally connected with the Lower Rhine; but J. Ficker has recently sought it on the Upper Mosel. Mittheil. Inst. Oesterr. Gesch.-Forsch., Ergänz. Band, v. i. The short code of Amor, or Hamaland, the small territory which lay between Frisians, Ripuarians and Saxons, represents the modification which the Lex Ribuaria underwent there. It is known as the Lex Chamavorum, and is edited by Sohm along with the Lex Ribuaria.]

M

ratified by the supreme authority of the Merovingian kings. The e Visigoths and Burgundians, whose conquests in Gaul preceded those of the Franks, shewed 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 affections of their Gallic subjects.73 Thus, by a singular coincidence, the Germans framed their artless institutions 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 reflections 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 occupations, and their capacity; and they all contribute to preserve the peace, and promote the improvements, of the society for whose use they were originally established. The Merovingians, instead of imposing an uniform rule of conduct on their various subjects, permitted each people, and each family of their empire, freely to enjoy their domestic institutions; 74 nor were the Romans excluded from the common benefits of this legal toleration.75 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,

73 Consult the ancient and modern prefaces of the several Codes, in the fourth volume of the Historians of France. The original prologue to the Salic law expresses (though in a foreign dialect) the genuine spirit of the Franks, more forcibly than the ten books of Gregory of Tours. [The Lex Burgundionum (ed. Bluhme) and the Lex Alamannorum (which has come down in a fragmentary state) will be found in vol. iii. of the Leges in the Mon. Germ. Hist. ; the Lex Bajuwariorum in the same vol. (ed. Merkel), and the Lex Frisionum (ed. Richthofen). Vol. v. contains the much later Lex Angliorum et Werinorum id est Thuringorum (ed. Richthofen); see Stubbs, Const. Hist. of England, vol. i. p. 50.]

74 The Ripuarian law declares and defines this indulgence in favour of the plaintiff (tit. xxxi. [§ 3] 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 in [singulis] regionibus, aut civitatibus, sed etiam in multis domibus habetur. Nam plerumque contingit ut simul eant aut sedeant quinque homines, 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."

75 Inter Romanos negotia causarum Romanis legibus præcipimus terminari. Such are the words of a general constitution promulgated by Clotaire, the son of Clovis, and sole monarch of the Franks (in tom. iv. p. 116) about the year 560.

Pecuniary fines for homicide

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 hardships of their condition; since it depended on themselves to assume the privilege, if they dared to assert the character, of free and warlike Barbarians.76

When justice inexorably requires the death of a murderer, each private citizen is fortified by the assurance that the laws, the magistrate, and the whole community are the guardians of his personal safety. But in the loose society of the Germans revenge was always honourable, and often meritorious; the independent warrior chastised, or vindicated, with his own hand, the injuries which he had offered, or received; and he had only to dread the resentment of the sons, and kinsmen, of the enemy whom he had sacrificed to his selfish or angry passions. The magistrate, conscious of his weakness, interposed, not to punish, but to reconcile; and he was satisfied if he could persuade, or compel, the contending parties to pay, and to accept, the moderate fine which had been ascertained as the price of blood.77 The fierce spirit of the Franks would have opposed a more rigorous sentence; the same fierceness despised these ineffectual restraints; and, when their simple manners had been corrupted by the wealth of Gaul, the public peace was continually violated by acts of hasty or deliberate guilt. In every just government, the same penalty is inflicted, or at least is imposed, for the

76 This liberty of choice has been aptly deduced (Esprit des Loix, 1. xxviii. 2) from a constitution of Lothaire I. (Leg. Langobard, 1. ii. tit. lvii. in Codex Lindebrog. p. 664), though the example is too recent and partial. From a various reading in the Salic law (tit. xliv. not. xlv.) [tit. xli. (xliv. ed. Herold.), col. 244-51, ed. Hessels] the Abbé de Mably (tom. i. p. 290-293) has conjectured that, at first a Barbarian only, and afterwards any man (consequently a Roman), might live according to the law of the Franks. I am sorry to offend this ingenious conjecture by observing that the stricter sense (Barbarum) is expressed in the reformed copy of Charlemagne, which is confirmed by the Royal and Wolfenbuttle Mss. The looser interpretation (hominem) is authorized only by the Ms. of Fulda from whence Heroldus published his edition [A.D. 1557]. See the four original texts of the Salic law, in tom. iv. p. 147, 173, 195, 220. [Out of numerous editions of the Lex Salica in the present century, it is enough to mention here that of J. H. Hessels (1880).]

77 In the heroic times of Greece, the guilt of murder was expiated by a pecuniary satisfaction to the family of the deceased (Feithius, Antiquitat. Homeric. 1. ii. c. 8). Heineccius, in his preface to the Elements of Germanic Law, favourably suggests that at Rome and Athens homicide was only punished with exile. It is true; but exile was a capital punishment for a citizen of Rome or Athens.

murder of a peasant or a prince. But the national inequality established by the Franks, in their criminal proceedings, was the last insult and abuse of conquest.78 In the calm moments of legislation, they solemnly pronounced that the life of a Roman was of smaller value than that of a Barbarian. The Antrustion, 79 a name expressive of the most illustrious birth or dignity among the Franks, was appreciated at the sum of six hundred pieces of gold; while the noble provincial, who was admitted to the king's table, might be legally murdered at the expense of three hundred pieces. Two hundred were deemed sufficient for a Frank of ordinary condition; but the meaner Romans were exposed to disgrace and danger by a trifling compensation of one hundred, or even fifty, pieces of gold. Had these laws been regulated by any principle of equity or reason, the public protection should have supplied in just proportion the want of personal strength. But the legislator had weighed in the scale, not of justice, but of policy, the loss of a soldier against that of a slave; the head of an insolent and rapacious Barbarian was guarded by an heavy fine; and the slightest aid was afforded to the most defenceless subjects. Time insensibly abated the pride of the conquerors and the patience of the vanquished; and the boldest citizen was taught by experience that he might suffer more injuries than he could inflict. As the manners of the Franks became less ferocious, their laws were rendered more severe; and the Merovingian kings attempted to imitate the impartial rigour of the Visigoths and Bur

78 This proportion is fixed by the Salic (tit. xliv. in tom. iv. p. 147), and the Ripuarian (tit. vii. xi. xxxvi. in tom. iv. p. 237, 241), laws; but the latter does not distinguish any difference of Romans. Yet the orders of the clergy are placed above the Franks themselves, and the Burgundians and Alemanni between the Franks and the Romans.

79 The Antrustiones, qui in truste Dominicâ sunt, leudi, fideles, undoubtedly represent the first order of Franks; but it is a question whether their rank was personal, or hereditary. The Abbé de Mably (tom. i. p. 334-347) is not displeased to mortify the pride of birth (Esprit. 1. xxx. c. 25), by dating the origin of French nobility from the reign of Clotaire II. (A.D. 615). [The antrustions were the members of the king's trustis or comitatus. Elevation to the position is thus described by Venantius Fortunatus, 7, 16: Jussit et egregios inter residere potentes, convivam reddens, proficiente gradu. The antrustions must be distinguished from the fideles and leudes. The fideles were all subjects who had taken the oath to the king; the leudes were the more important of the fideles, and thus included the antrustions. We find the leudes contrasted (1) with men of no influence and (2) with powerful ecclesiastics. Their position in regard to the king had nothing to do with commendation. Those who "commended" themselves were termed the king's vassi, or homines, "vassals". Compare Waitz, Deutsche Verfassungsgeschichte, ii. 1, 348, sqq. The origin of vassaldom has nothing to do with the comitatus. The rank of the antrustion was personal, not hereditary. Cp. Waitz, ib. p. 340.]

Judgments of God

gundians.80 Under the empire of Charlemagne, murder was universally punished with death; and the use of capital punishments has been liberally multiplied in the jurisprudence of modern Europe.81

The civil and military professions, which had been separated by Constantine, were again united by the Barbarians. The harsh sound of the Teutonic appellations was mollified into the Latin titles of Duke, of Count, or of Præfect; 82 and the same officer assumed, within his district, the command of the troops and the administration of justice.83 But the fierce and illiterate chieftain was seldom qualified to discharge the duties of a judge, which require all the faculties of a philosophic mind, laboriously cultivated by experience and study; and his rude ignorance was compelled to embrace some simple and visible methods of ascertaining the cause of justice. In every religion, the Deity has been invoked to confirm the truth, or to punish the falsehood, of human testimony; but this powerful instrument was misapplied and abused by the simplicity of the German legislators. The party accused might justify his innocence by pro

80 See the Burgundian laws (tit. ii, in tom. iv. p. 257), the Code of the Visigoths (1. vi. tit. v. in tom. iv. p. 384), and the constitution of Childebert, not of Paris, but most evidently of Austrasia (in tom. iv. p. 112). Their premature severity was sometimes rash, and excessive. Childebert condemned not only murderers but robbers; quomodo sine lege involavit, sine lege moriatur; and even the negligent judge was involved in the same sentence. The Visigoths abandoned an unsuccessful surgeon to the family of his deceased patient, ut quod de eo facere voluerint habeant potestatem (l. xi. tit. i. in tom. iv. p. 435).

81 See, in the sixth volume of the works of Heineccius, the Elementa Juris Germanici, 1. ii. p. ii. No. 261, 262, 280-283. Yet some vestiges of these pecuniary compositions for murder have been traced in Germany as late as the sixteenth century.

82 [The count appears as the king's officia Irepresentative, opposed to the duke who is the native lord of the Gau. The Teutonic name of the Count was garafio, or gerefa (German graf, English reeve); no satisfactory derivation of the name has yet been found, and it was not common to all the German peoples. Thus among the Lombards we do not find reeves, but gastalds. The opposition which we meet in England between the reeve and ealdorman, in the Lombard kingdom between the gastald and duke, is not found among the Merovingian Franks. In the Frank kingdom the duke disappears (except in the case of Bavaria) and the count has undivided authority over the Gau. The dukes whom we do find in Merovingian history have a totally different origin from that of the Lombard dukes. Several provinces (Gaue) were sometimes temporarily united to form a single government, under a royal officer, to whom the title dux was given, and to whom the counts of the provinces were subordinate. For the title praefectus see below, note 121.]

83 The whole subject of the Germanic judges and their jurisdiction is copiously treated by Heineccius (Element. Jur. Germ. 1. iii. No. 1-72). I cannot find any proof that, under the Merovingian race, the scabini, or assessors, were chosen by the people. [The name does not appear till Carolingian times.]