Chapter 244

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 honorable, 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. 72 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 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. 73 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, 74 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 a 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 rigor of the Visigoths and Burgundians. 75 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. 76

72 (return) [ 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. l. ii. c. 8.) Heineccius, in his preface to the Elements of Germanic Law, favorably 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.]

73 (return) [ 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.]

74 (return) [ The Antrustiones, qui in truste Dominica sunt, leudi, fideles, undoubtedly represent the first order of Franks; but it is a question whether their rank was personal or hereditary. The Abbe de Mably (tom. i. p. 334-347) is not displeased to mortify the pride of birth (Esprit, l. xxx. c. 25) by dating the origin of the French nobility from the reign Clotaire II. (A.D. 615.)]

75 (return) [ See the Burgundian laws, (tit. ii. in tom. iv. p. 257,) the code of the Visigoths, (l. vi. tit. v. in tom. 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.)]

76 (return) [ See, in the sixth volume of the works of Heineccius, the Elementa Juris Germanici, l. ii. p. 2, 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.]

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 Praefect; and the same officer assumed, within his district, the command of the troops, and the administration of justice. 77 But the fierce and illiterate chieftain was seldom qualified to discharge the duties of a judge, which required 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 producing before their tribunal a number of friendly witnesses, who solemnly declared their belief, or assurance, that he was not guilty. According to the weight of the charge, this legal number of compurgators was multiplied; seventy-two voices were required to absolve an incendiary or assassin: and when the chastity of a queen of France was suspected, three hundred gallant nobles swore, without hesitation, that the infant prince had been actually begotten by her deceased husband. 78 The sin and scandal of manifest and frequent perjuries engaged the magistrates to remove these dangerous temptations; and to supply the defects of human testimony by the famous experiments of fire and water. These extraordinary trials were so capriciously contrived, that, in some cases, guilt, and innocence in others, could not be proved without the interposition of a miracle. Such miracles were really provided by fraud and credulity; the most intricate causes were determined by this easy and infallible method, and the turbulent Barbarians, who might have disdained the sentence of the magistrate, submissively acquiesced in the judgment of God. 79

77 (return) [ The whole subject of the Germanic judges, and their jurisdiction, is copiously treated by Heineccius, (Element. Jur. Germ. l. iii. No. 1-72.) I cannot find any proof that, under the Merovingian race, the scabini, or assessors, were chosen by the people. * Note: The question of the scabini is treated at considerable length by Savigny. He questions the existence of the scabini anterior to Charlemagne. Before this time the decision was by an open court of the freemen, the boni Romische Recht, vol. i. p. 195. et seq.—M.]

78 (return) [ Gregor. Turon. l. viii. c. 9, in tom. ii. p. 316. Montesquieu observes, (Esprit des Loix. l. xxviii. c. 13,) that the Salic law did not admit these negative proofs so universally established in the Barbaric codes. Yet this obscure concubine (Fredegundis,) who became the wife of the grandson of Clovis, must have followed the Salic law.]

79 (return) [ Muratori, in the Antiquities of Italy, has given two Dissertations (xxxvii. xxxix.) on the judgments of God. It was expected that fire would not burn the innocent; and that the pure element of water would not allow the guilty to sink into its bosom.]

But the trials by single combat gradually obtained superior credit and authority, among a warlike people, who could not believe that a brave man deserved to suffer, or that a coward deserved to live. 80 Both in civil and criminal proceedings, the plaintiff, or accuser, the defendant, or even the witness, were exposed to mortal challenge from the antagonist who was destitute of legal proofs; and it was incumbent on them either to desert their cause, or publicly to maintain their honor, in the lists of battle. They fought either on foot, or on horseback, according to the custom of their nation; 81 and the decision of the sword, or lance, was ratified by the sanction of Heaven, of the judge, and of the people. This sanguinary law was introduced into Gaul by the Burgundians; and their legislator Gundobald 82 condescended to answer the complaints and objections of his subject Avitus. “Is it not true,” said the king of Burgundy to the bishop, “that the event of national wars, and private combats, is directed by the judgment of God; and that his providence awards the victory to the juster cause?” By such prevailing arguments, the absurd and cruel practice of judicial duels, which had been peculiar to some tribes of Germany, was propagated and established in all the monarchies of Europe, from Sicily to the Baltic. At the end of ten centuries, the reign of legal violence was not totally extinguished; and the ineffectual censures of saints, of popes, and of synods, may seem to prove, that the influence of superstition is weakened by its unnatural alliance with reason and humanity. The tribunals were stained with the blood, perhaps, of innocent and respectable citizens; the law, which now favors the rich, then yielded to the strong; and the old, the feeble, and the infirm, were condemned, either to renounce their fairest claims and possessions, to sustain the dangers of an unequal conflict, 83 or to trust the doubtful aid of a mercenary champion. This oppressive jurisprudence was imposed on the provincials of Gaul, who complained of any injuries in their persons and property. Whatever might be the strength, or courage, of individuals, the victorious Barbarians excelled in the love and exercise of arms; and the vanquished Roman was unjustly summoned to repeat, in his own person, the bloody contest which had been already decided against his country. 84

80 (return) [ Montesquieu (Esprit des Loix, l. xxviii. c. 17) has condescended to explain and excuse “la maniere de penser de nos peres,” on the subject of judicial combats. He follows this strange institution from the age of Gundobald to that of St. Lewis; and the philosopher is some times lost in the legal antiquarian.]

81 (return) [ In a memorable duel at Aix-la-Chapelle, (A.D. 820,) before the emperor Lewis the Pious, his biographer observes, secundum legem propriam, utpote quia uterque Gothus erat, equestri pugna est, (Vit. Lud. Pii, c. 33, in tom. vi. p. 103.) Ermoldus Nigellus, (l. iii. 543-628, in tom. vi. p. 48-50,) who describes the duel, admires the ars nova of fighting on horseback, which was unknown to the Franks.]

82 (return) [ In his original edict, published at Lyons, (A.D. 501,) establishes and justifies the use of judicial combat, (Les Burgund. tit. xlv. in tom. ii. p. 267, 268.) Three hundred years afterwards, Agobard, bishop of Lyons, solicited Lewis the Pious to abolish the law of an Arian tyrant, (in tom. vi. p. 356-358.) He relates the conversation of Gundobald and Avitus.]

83 (return) [ “Accidit, (says Agobard,) ut non solum valentes viribus, sed etiam infirmi et senes lacessantur ad pugnam, etiam pro vilissimis rebus. Quibus foralibus certaminibus contingunt homicidia injusta; et crudeles ac perversi eventus judiciorum.” Like a prudent rhetorician, he suppresses the legal privilege of hiring champions.]

84 (return) [ Montesquieu, (Esprit des Loix, xxviii. c. 14,) who understands why the judicial combat was admitted by the Burgundians, Ripuarians, Alemanni, Bavarians, Lombards, Thuringians, Frisons, and Saxons, is satisfied (and Agobard seems to countenance the assertion) that it was not allowed by the Salic law. Yet the same custom, at least in case of treason, is mentioned by Ermoldus, Nigellus (l. iii. 543, in tom. vi. p. 48,) and the anonymous biographer of Lewis the Pious, (c. 46, in tom. vi. p. 112,) as the “mos antiquus Francorum, more Francis solito,” &c., expressions too general to exclude the noblest of their tribes.]

A devouring host of one hundred and twenty thousand Germans had formerly passed the Rhine under the command of Ariovistus. One third part of the fertile lands of the Sequani was appropriated to their use; and the conqueror soon repeated his oppressive demand of another third, for the accommodation of a new colony of twenty-four thousand Barbarians, whom he had invited to share the rich harvest of Gaul. 85 At the distance of five hundred years, the Visigoths and Burgundians, who revenged the defeat of Ariovistus, usurped the same unequal proportion of two thirds of the subject lands. But this distribution, instead of spreading over the province, may be reasonably confined to the peculiar districts where the victorious people had been planted by their own choice, or by the policy of their leader. In these districts, each Barbarian was connected by the ties of hospitality with some Roman provincial. To this unwelcome guest, the proprietor was compelled to abandon two thirds of his patrimony, but the German, a shepherd and a hunter, might sometimes content himself with a spacious range of wood and pasture, and resign the smallest, though most valuable, portion, to the toil of the industrious husbandman. 86 The silence of ancient and authentic testimony has encouraged an opinion, that the rapine of the Franks was not moderated, or disguised, by the forms of a legal division; that they dispersed themselves over the provinces of Gaul, without order or control; and that each victorious robber, according to his wants, his avarice, and his strength, measured with his sword the extent of his new inheritance. At a distance from their sovereign, the Barbarians might indeed be tempted to exercise such arbitrary depredation; but the firm and artful policy of Clovis must curb a licentious spirit, which would aggravate the misery of the vanquished, whilst it corrupted the union and discipline of the conquerors. 861 The memorable vase of Soissons is a monument and a pledge of the regular distribution of the Gallic spoils. It was the duty and the interest of Clovis to provide rewards for a successful army, settlements for a numerous people; without inflicting any wanton or superfluous injuries on the loyal Catholics of Gaul. The ample fund, which he might lawfully acquire, of the Imperial patrimony, vacant lands, and Gothic usurpations, would diminish the cruel necessity of seizure and confiscation, and the humble provincials would more patiently acquiesce in the equal and regular distribution of their loss. 87

85 (return) [ Caesar de Bell. Gall. l. i. c. 31, in tom. i. p. 213.]

86 (return) [ The obscure hints of a division of lands occasionally scattered in the laws of the Burgundians, (tit. liv. No. 1, 2, in tom. iv. p. 271, 272,) and Visigoths, (l. x. tit. i. No. 8, 9, 16, in tom. iv. p. 428, 429, 430,) are skillfully explained by the president Montesquieu, (Esprit des Loix, l. xxx. c. 7, 8, 9.) I shall only add, that among the Goths, the division seems to have been ascertained by the judgment of the neighborhood, that the Barbarians frequently usurped the remaining third; and that the Romans might recover their right, unless they were barred by a prescription of fifty years.]

861 (return) [ Sismondi (Hist des Francais, vol. i. p. 197) observes, they were not a conquering people, who had emigrated with their families, like the Goths or Burgundians. The women, the children, the old, had not followed Clovis: they remained in their ancient possessions on the Waal and the Rhine. The adventurers alone had formed the invading force, and they always considered themselves as an army, not as a colony. Hence their laws retained no traces of the partition of the Roman properties. It is curious to observe the recoil from the national vanity of the French historians of the last century. M. Sismondi compares the position of the Franks with regard to the conquered people with that of the Dey of Algiers and his corsair troops to the peaceful inhabitants of that province: M. Thierry (Lettres sur l’Histoire de France, p. 117) with that of the Turks towards the Raias or Phanariotes, the mass of the Greeks.—M.]

87 (return) [ It is singular enough that the president de Montesquieu (Esprit des Loix, l. xxx. c. 7) and the Abbe de Mably (Observations, tom i. p. 21, 22) agree in this strange supposition of arbitrary and private rapine. The Count de Boulainvilliers (Etat de la France, tom. i. p. 22, 23) shows a strong understanding through a cloud of ignorance and prejudice. Note: Sismondi supposes that the Barbarians, if a farm were conveniently situated, would show no great respect for the laws of property; but in general there would have been vacant land enough for the lots assigned to old or worn-out warriors, (Hist. des Francais, vol. i. p. 196.)—M.]

The wealth of the Merovingian princes consisted in their extensive domain. After the conquest of Gaul, they still delighted in the rustic simplicity of their ancestors; the cities were abandoned to solitude and decay; and their coins, their charters, and their synods, are still inscribed with the names of the villas, or rural palaces, in which they successively resided.

One hundred and sixty of these palaces, a title which need not excite any unseasonable ideas of art or luxury, were scattered through the provinces of their kingdom; and if some might claim the honors of a fortress, the far greater part could be esteemed only in the light of profitable farms. The mansion of the long-haired kings was surrounded with convenient yards and stables, for the cattle and the poultry; the garden was planted with useful vegetables; the various trades, the labors of agriculture, and even the arts of hunting and fishing, were exercised by servile hands for the emolument of the sovereign; his magazines were filled with corn and wine, either for sale or consumption; and the whole administration was conducted by the strictest maxims of private economy. 88 This ample patrimony was appropriated to supply the hospitable plenty of Clovis and his successors; and to reward the fidelity of their brave companions who, both in peace and war, were devoted to their personal service. Instead of a horse, or a suit of armor, each companion, according to his rank, or merit, or favor, was invested with a benefice, the primitive name, and most simple form, of the feudal possessions. These gifts might be resumed at the pleasure of the sovereign; and his feeble prerogative derived some support from the influence of his liberality. 881 But this dependent tenure was gradually abolished 89 by the independent and rapacious nobles of France, who established the perpetual property, and hereditary succession, of their benefices; a revolution salutary to the earth, which had been injured, or neglected, by its precarious masters. 90 Besides these royal and beneficiary estates, a large proportion had been assigned, in the division of Gaul, of allodial and Salic lands: they were exempt from tribute, and the Salic lands were equally shared among the male descendants of the Franks. 91

88 (return) [ See the rustic edict, or rather code, of Charlemagne, which contains seventy distinct and minute regulations of that great monarch (in tom. v. p. 652-657.) He requires an account of the horns and skins of the goats, allows his fish to be sold, and carefully directs, that the larger villas (Capitaneoe) shall maintain one hundred hens and thirty geese; and the smaller (Mansionales) fifty hens and twelve geese. Mabillon (de Re Diplomatica) has investigated the names, the number, and the situation of the Merovingian villas.]

881 (return) [ The resumption of benefices at the pleasure of the sovereign, (the general theory down to his time,) is ably contested by Mr. Hallam; “for this resumption some delinquency must be imputed to the vassal.” Middle Ages, vol. i. p. 162. The reader will be interested by the singular analogies with the beneficial and feudal system of Europe in a remote part of the world, indicated by Col. Tod in his splendid work on Raja’sthan, vol. ii p. 129, &c.—M.]

89 (return) [ From a passage of the Burgundian law (tit. i. No. 4, in tom. iv. p. 257) it is evident, that a deserving son might expect to hold the lands which his father had received from the royal bounty of Gundobald. The Burgundians would firmly maintain their privilege, and their example might encourage the Beneficiaries of France.]

90 (return) [ The revolutions of the benefices and fiefs are clearly fixed by the Abbe de Mably. His accurate distinction of times gives him a merit to which even Montesquieu is a stranger.]

91 (return) [ See the Salic law, (tit. lxii. in tom. iv. p. 156.) The origin and nature of these Salic lands, which, in times of ignorance, were perfectly understood, now perplex our most learned and sagacious critics. * Note: No solution seems more probable, than that the ancient lawgivers of the Salic Franks prohibited females from inheriting the lands assigned to the nation, upon its conquest of Gaul, both in compliance with their ancient usages, and in order to secure the military service of every proprietor. But lands subsequently acquired by purchase or other means, though equally bound to the public defence, were relieved from the severity of this rule, and presumed not to belong to the class of Sallic. Hallam’s Middle Ages, vol. i. p. 145. Compare Sismondi, vol. i. p. 196.—M.]

In the bloody discord and silent decay of the Merovingian line, a new order of tyrants arose in the provinces, who, under the appellation of Seniors, or Lords, usurped a right to govern, and a license to oppress, the subjects of their peculiar territory. Their ambition might be checked by the hostile resistance of an equal: but the laws were extinguished; and the sacrilegious Barbarians, who dared to provoke the vengeance of a saint or bishop, 92 would seldom respect the landmarks of a profane and defenceless neighbor. The common or public rights of nature, such as they had always been deemed by the Roman jurisprudence, 93 were severely restrained by the German conquerors, whose amusement, or rather passion, was the exercise of hunting. The vague dominion which Man has assumed over the wild inhabitants of the earth, the air, and the waters, was confined to some fortunate individuals of the human species. Gaul was again overspread with woods; and the animals, who were reserved for the use or pleasure of the lord, might ravage with impunity the fields of his industrious vassals. The chase was the sacred privilege of the nobles and their domestic servants. Plebeian transgressors were legally chastised with stripes and imprisonment; 94 but in an age which admitted a slight composition for the life of a citizen, it was a capital crime to destroy a stag or a wild bull within the precincts of the royal forests. 95

92 (return) [ Many of the two hundred and six miracles of St. Martin (Greg Turon. in Maxima Bibliotheca Patrum, tom. xi. p. 896-932) were repeatedly performed to punish sacrilege. Audite haec omnes (exclaims the bishop of Tours) protestatem habentes, after relating, how some horses ran mad, that had been turned into a sacred meadow.]

93 (return) [ Heinec. Element. Jur. German. l. ii. p. 1, No. 8.]

94 (return) [ Jonas, bishop of Orleans, (A.D. 821-826. Cave, Hist. Litteraria, p. 443,) censures the legal tyranny of the nobles. Pro feris, quas cura hominum non aluit, sed Deus in commune mortalibus ad utendum concessit, pauperes a potentioribus spoliantur, flagellantur, ergastulis detruduntur, et multa alia patiuntur. Hoc enim qui faciunt, lege mundi se facere juste posse contendant. De Institutione Laicorum, l. ii. c. 23, apud Thomassin, Discipline de l’Eglise, tom. iii. p. 1348.]

95 (return) [ On a mere suspicion, Chundo, a chamberlain of Gontram, king of Burgundy, was stoned to death, (Greg. Turon. l. x. c. 10, in tom. ii. p. 369.) John of Salisbury (Policrat. l. i.