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framed their artless institutions, at a time when the elabo rate 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 favor 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 contributed to preserve the peace, and promote the improvement, of the 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.70 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 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.

60 The Ripuarian law declares, and defines, this indulgence in favor of the plaintiff (tit. xxxi. 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 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 a uniformity of law, as well as of faith.t

70 Inter Romanos negotia causarum Romanis legibus præcipimus terminari. Such are the words of a general constitution promulgated by Clotaire, the son oi Clovis, and sole monarch of the Franks (in tom. iv. p. 116) about the year 560. 71 This liberty of choice has been aptly deduced (Esprit des Loix, I. xxviii. 2)

*The most complete collection of these codes is the "Barbarorum leges antiquæ," by P. Carciani, 5 vols. folio, Venice, 1781-9.-M.

t it is the object of the important work of M. Savigny, Geschichte des Römisches Rechts in Mittelalter, to show the perpetuity of the Roman law from the 5th to the 12th century.-M.

Gibbon appears to have doubted the evidence on which this "liberty of

When justice inexorably requires the death of a mur derer, each private citizen is fortified by the assurance, that the laws, the magistrate, and the whole community, are tne 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." In the calm moments of legislation, they solemnly pronounced, that the life of a Roman was of smaller value than

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from a constitution of Lothaire I.* (Leg. Langobard. 1. ii. tit. lvii. in Codex Lindenbrog. p. 664); though the example is too recent and partial. From a various reading in the Saiic law (tit. xliv. not. xlv.) the Abbe de Mably (tom. i. pp. 290293) has conjectured, that, at first, a Barbarian only, and afterwards any man (consequently a Roman), might live according to the law of the Franks. 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. See the four original texts of the Salic law in tom. iv. pp. 147, 173, 196, 220.

72 In the heroic times of Greece, the guilt of murder was expiated by a pecu niary satisfaction to the family of the deceased (Feithius Antiquitat. Homeric 1. ii. c. 8). Heineccius, in his preface to the Elements of Germanic Law, favor. ably 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 This proportion is fixed by the Salic (tit. xliv. in tom. iv. p. 147) and the Ripuarian (tit. vii. xi. xxxvi. in tom. iv. pp. 227, 2:1) 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.

choice" rested. His doubts have been confirmed by the researches of Savigny, who has not only confuted but traced with convincing sagacity the origin and progress of this error. As a general principle, though liable to some exceptions, cach lived according to his native law. Römische Recht, vol. i. pp. 123-138.-M. *This constitution of Lothaire at first related only to the duchy of Rome; it afterwards found its way into the Lombard code. Savigny, p. 138.-M.

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that of a Barbarian. The Antrustion, 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

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; and the same officer assumed, within his district, the command of the troops, and the adminstration of justice." But the

74 The Antrustiones, qui in truste Dominica sunt, lendi, 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. pp. 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).

75 See the Bnrgundian 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 bat robbers; quomodo sine lege involavit, sine lege moriatur; and even the neg. ligent 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 (1. xi. tit. i. in tom. iv. p. 435).

76 See, in the sixth volume of the works of Heineccius, the Elementa Juris Germanici, 1. 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.

77 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

fierce and illiterate chieftain was seldom qualified to dis charge 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; seventytwo 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."8 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 readily 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

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

any proof that under the Merovingian race, the scabini, or assessors, were chosen by the people.*

78 Gregor. Turon. 1. 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 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 bosoin.

*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 homines. Rö mische Recht, vol. i. p. 195, et seq.--M,

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coward deserved to live. Both in civil and criminal proceedings, the plaintiff, or accuser, the defendant, or even the witness, were exposed to mortal challenge from the antago nist 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 na tion; 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, or to trust the doubtful aid of a mercenary champion. This oppressive

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20 Montesquieu (Esprit des Loix, 1. xxviii. c. 17) has condescended to explain and excuse "la manière de penser de nos pères," 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 sometimes lost in the legal antiquarian.

81 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 pugnâ congressus est (Vit. Lud. Pii, c. 33, in tom. vi. p. 103). Ermoldus Nigellus (1. iii. 543-628, in tom. vi. pp. 48-50), who de scribes the duel, admires the ars nova of fighting on horseback, which was unknown to the Franks.

32 In his original edict, published at Lyons (A. D. 501), Gundobald establishes and justifies the use of judicial combat), Leg. Burgund. tit. xlv. in tom. ii. pp. 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. pp. 356-358). He relates the conversation of Gundobald and Avitus.

83 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.

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