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of the troops, and the administration of justice.* 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 producing before their tribunal a number of friendly witnesses, who sc.emnly 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.f 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 wero 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. J
* The whole subject of the Germanic judges and their jurisdiction, is copiously treated by Heineccius. (Element. Jur. Germ. 1. 3, No. 1 —72.) I cannot find any proof that, under the Merovingian race, tha tcabini, or assessors, were chosen by the people.
+ Gregor. Turon. 1. 8, c. 9, in tom, ii, p. 316. Montesquieu observes, (Esprit des Loix, 1. 28, 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 tho grandson of Clovis, must have followed the Salic law.
% Muratori, in the Antiquities of Italy, has given two Dissertation? (38, 39) on the judgments of God. It was expected that fire would not burn the innocent; and that the pure element of water would not 190
JUDICIAL COMBATS. [CH. XXXVIIT.
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.* 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 honour in the lists of battle. They fought either on foot or on horseback, according to the custom of their nation ;f 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,J 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
allow the guilty to sink into its bosom. * Montesquieu
(Esprit des Loix, 1. 28, 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. Louis; and the philosopher is sometimes lost in the legal antiquarian. + In a memorable duel at. Aix-la-Chapelle,
(&.D. 820) before the emperor Louis the Pious, his biographer observes, secundum legem propriam, utpote quia uterque Gothus erat, equestri pugna congressus est (Vit. Lud. Pii, c. 33, in tom, vi, p. 103.) Ermoldus Nigellus, (1. 3, 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. J In his original edict published at
Lyons, (a.d. 501,) Gundobald establishes and justifies the use of judicial combat. (Leg. Burgund. tit 45, in tom, ii, p. 267, 268.) Three hundred years afterwards, Agobard, bishop of Lyons, solicited Louis the Pious to abolish the law oi an Arian tyrant (in tom, vi, p. 356— 358). He relates the conversation of Gundobald and Avitus.
A.D. 580.] DIVISION or LANDS Ey The Eaeeaeians. 191
alliance with reason and humanity. The tribunals were stained with the blood, perhaps, of innocent and respectable citizens; the law which now favours 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 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.f
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 twentyfour thousand barbarians, whom he had invited to share the rich harvest of Gaul. J 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
* "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 ae perversi eventus judiciorum." Like a prudent rhetorician, he suppresses the legal privilege of hiring champions.
+ Montesquieu, (Esprit des Loix, 28, c. 14,) who understands why the judicial combat was admitted by the Burgundians, Ripuarians, Allemanni, 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 cases of treason, is mentioned by Ermoldua Nigellus, (1 . 3,543, in tom, vi, p. 48,) and the anonymous biographer of Louis 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.
X C*sar de Bell. Gall. 1 . 1, c. 31, in tom, i, p. 213.
POLICY or CLOVIS. [CH. XXXVIII.
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.* 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. 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 ot Clovis to provide rewards for a successful army, and 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
* The obscure hints of a division of lands occasionally scattered in the laws ot the Burgundians (tit. liv. No. 1, 2, in tom, iv, p. 271, 272,) and Visigoths, (1. 10, tit. 1, No. 8. 9, 16, in tom, iv, p. 428—430,) are skilfully explained by the president Montesquieu. (Esprit des Lois, 1 . 30, c. 7—9.) I shall only add, that, among the Goths, the division. seems to have been ascertained by the judgment ot the neighbourhood; that the barbarians frequently usurped the remaining third, and that the Romans might recover their right, unless they were barred by a prescription ot fifty years. [The Franks, who took pos, session of Gaul, appear to have been, for the most part, an army of adventurous young men; not a colony followed by families and dependents. (Schmidt, 1. 192.) This idea has been taken up by Sismondi (Hist, des Francois, 1. p. 197), who deduced from it many consequences. It must be borne in mind, tor it will account for much that was peculiar in their laws, in their more matured institutions, A.D.536.] DOMAIN OF THE ITEEOVINGIAIfB.
patiently acquiesce in the equal and regular distribution of their loss.*
The wealth of the Merovingian princes consisted in tb«ir 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 honours of a fortress, the far greater part could be esteemed only in the light of profitable farms. The mansion of the longhaired 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 labours 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.f This ample patrimony was appro
and in the general character subsequently appertaining to tho people of France.—Ed.] * It is singular enough, that the president
de Montesquieu (Esprit des Loix, 1. 30, c. 7), and the Abbe1 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,) shews a strong understanding, through a cloud of ignorance and prejudice. + 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 (Capitanece) shall maintain one hundred liens and thirty geese; and the smaller (Mansionales) fifty hens and twelve geese. Mabilion (de Re Diplomatic^) has investigated the names, the number, and the situation of the Merovingian villas. [A ruined wall now shows where one of these stood, in the depths of a forest, a few miles to the west of the University of Marburg, in Hesse Cassel. It still bears the name o< Dagobertshaus. When the writer visited the spot, there was also an aged oak, which is said to be mentioned in some ancient chronicle, as having sheltered the building in the days of its royal owner. The hollow trunk was so capacious, that it was used as a shed for his cattle, by a peasant who lived near. There is no villa in Mabillon's long list VOl. IV. O