*

their vassals; and the rude institutions of the Allemanni 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 affections, of their Gallic subjects. 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 contributed to preserve the peace, and promote the improvements of the society for whose use they were originally established. The Merovingians, instead of imposing a unitorm 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

not older than Clovis. Nor can they be much later, since they were altered by one of his sons." The Ripuarian law is called by the same writer "the code of a tribe of Franks settled upon the banks of the Rhine, and differing rather in words than in substance from the Salic law, which it serves to illustrate." Middle Ages, 1. 145.-ED.]

* 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 Ripuarian law declares, and defines, this indulgence in favour of the plaintiff (tit. 31, 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.

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 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.†

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

* 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. This liberty of choice has been aptly deduced (Esprit des Loix, 1. 28. 2) from a constitution of Lothaire I. (Leg. Langobard. 1. 2, tit. 57, in Codex Lindenbrog. p. 664) though the example is too recent and partial. From a various reading in the Salic law (tit. 44, not 45) 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 authorised only by the MS. of Fulda, from whence Heroldus published his edition. See the four original texts of the Salic law, in tom. iv. p. 147.

which had been ascertained as the price of blood.* 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 173. 196. 220. [Montesquieu's inference from Lothaire's law, which Gibbon doubts, Mr. Hallam accepts. The words which he quotes, are as explicit as could be used. "Volumus, ut cunctus populus Romanus interrogetur, quali lege vult vivere, ut tali, quali professi fuerint vivere velle, vivant." (It is our will that all Romans should be asked what law they wish to live under, and that they should live under that which they choose.) Though the date be 824, it is very improbable that any change should have been introduced at that period, but that an old custom was confirmed. The conquerors, who had never from the first imposed their laws on their new subjects, but left them free to enjoy their own, would not have denied them the lesser liberty of submitting themselves, if they wished it, to the code of their rulers. By degrees the latter prevailed, especially to the north of the Loire, where the feudal customs of succession and the pecuniary atonements for crime "contributed to extirpate the Roman jurisprudence." In the south of France the distinction was much longer maintained. Hallam, i. 149.-ED.] *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. 2, c. 8.) Heinec. cius, 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. [The Roman law on this subject is clearly explained by Niebuhr (Lectures, i, p. 316.) who says: "It is a generally received opinion, that every Roman citizen had the right of saving himself from the punishment of death by exile. If such had been the case, it might well be wondered why capital punishments, of which the old Roman laws have so many, were instituted at all. The deposition of witnesses to a delictum, was sufficient to have the accused instantly arrested and dragged before the magistrate. If it was no delictum manifestum, and he was a plebeian, he applied to the tribune and gave bail. Should he thus manage to get free, he might leave his sureties in the lurch and go into exile. But if he had been caught in a delictum manifestum in flagranti, and the testes locupletes asserted that they had been present, thereby identifying his person, no trial was allowed, but he was, obtorto collo, with his toga drawn over his head, conducted before the magistrate, who then at once gave judgment. The passages which prove this, are to be found in Livy and Cicero."-ED.]

conquest.* 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,† a name expressive of the most illustrious birth or dignity among the Franks, was appreciated at the sum of six hundred pieces of

*This proportion is fixed by the Salic (tit. 44, in tom. iv, p. 147) and the Ripuarian (tit. 7. 11. 36, 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 Allemanni between the Franks and the Romans. [Gibbon ought to have added here what he afterwards states, that the weregild of a priest was equal to that of an Antrustion, six hundred pieces of gold, but that of a bishop nine hundred. The relative places of individuals in the social scale, and their respective degrees of influence, cannot be more lucidly marked. It should also be remembered, that almost all the bishops and clergy were Romans, to whom in any other capacity, the very lowest rank would have been assigned. Hallam, vol. i, p. 147, and note.-ED.]

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 abbé de Mably (tom. i, p. 334-347) is not displeased to mortify the pride of birth, (Esprit, 1. 30, c. 25) by dating the origin of French nobility from the reign of Clotaire II. (A.D. 615.) [The rude, halí-settled form of government, in those days, was no more, as Schmidt justly observes, than the sapling, which was to grow up into the oak of after ages; and by this he endeavoured to reconcile the praises of Grotius with the censures of Leibnitz, on the earliest laws of their Gothic progenitors. (Geschichte der Deutschen, 1. 199.) Vanity alone would seek there for an hereditary nobility. This, Mr. Hallam considers on good grounds (vol. i, p. 157) to have been unknown among the Franks, till long after their settlement in Gaul. The Antrustion, undoubtedly then their highest title, was clearly a personal distinction, and has not left even such traces of perpetuated rank, as Dux and Comes subsequently introduced. Ducange (1. 539) gives it the meaning of "fidelis domino," and derives it from Trustis. This (6. 1325) he makes equivalent with fides or fiducia, and the latinized form of the German Trost. Here Adelung steps in and tells us (4. 1073) that, though the German word now denotes only consolation, in ancient times it expressed Zuversicht, Vertrauen, (confidence) and it is pleasant to follow him through the etymological windings, by which (p. 1032. 1054) he discovers its root in the adjective treu (our true or faithful) which Ulphilas used in the uncouth shape of triggwa. The Antrustion was, therefore, the trusted, the confidant, from whom his king sought advice on important occasions, and may be considered to be now represented by our privy councillor, or cabinet councillor. It was, therefore, a right honourable designation, but so far from being hereditary, it was most probably resumable whenever the sovereign's displeasure declared the holder of it be untrustworthy. How nearly the ancient term and

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 rigour of the Visigoths and Burgundians. 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.†

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 prefect; and the same officer assumed, within his district, the command

its sense are seen combined in our English phrase "A trusty one. ED.] * See the Burgundian laws (tit. 2, in tom. iv, p. 257), the Code of the Visigoths (1. 6, tit. 5, 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 (1. 11, tit. 1, in tom. iv, p. 435). See in the sixth volume of the works of Heineccius, the Elementa Juris Germanici, 1. 2, 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.