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 administration of justice (77). 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 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 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 Judicial and authority, among a warlike people, who could not believe, that combats. a brave man deserved to suffer, or that a coward deserved to live (80). (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 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 Lois, 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 (xxxviii, 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. (80) Montesquieu (Esprit des Lois, 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. *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 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 (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 provi"dence 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 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 (83), or to trust the doubtful aid of a mercenary champion. This oppres sive 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). (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 pugna Congressus est (Vit. Lud. Pii, c. 33. in tom. vi. p. 103.). Ermoldus Nigellus (1. 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) 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. 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) "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 in"justa; et crudeles ac perversi eventus judiciorum." Like a prudent rhetorician, he suppresses the legal privilege of hiring champions. (84) Montesquieu (Esprit des Lois, 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 cases of treason, is mentioned by Ermoldus Ni A devouring host of one hundred and twenty thousand Germans Division of lands by the had formerly passed the Rhine under the command of Ariovistus. Barbarians. 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.* The memorable vase gellus (1. 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. (85) Cæsar de Bell. Gall. 1. i. c. 31. in tom. i. p. 213. (86) 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 (1. x. tit. i. No. 8, 9. 16. in tom. iv. p. 428, 429, 430.), are skilfully explained by the president Montesquieu (Esprit des Lois, 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 neighbourhood; 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. * Sismondi (Hist. des Français, vol. i. p. 197.) observes that the Franks 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 Domain and benefices of gians. 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, 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 patiently acquiesce in the equal and regular distribution of their loss (87). The wealth of the Merovingian princes consisted in their extensive the Merovin- 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 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 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 (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 an horse, or a suit of armour, each companion, according to his rank, or merit, or favour, 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 (87) It is singular enough, that the president de Montesquieu (Esprit des Lois, 1. xxx. c. 7.), and the Abbé de Mably (Observations, tom. i. p. 21, 22.), agree in this strange supposition of arbitrary and private rapine. The count de Boulainvilliers (État de la France, tom. i. p. 22, 23.) shows a strong understanding through a cloud of ignorance and prejudice.* (88) 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 (Capitanea) shall maintain one hundred bens 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. * Sismondi supposes that the Barbarians, if a farm were conveniently situated, would show no great respect for the laws of property; but in ge neral there would have been vacant land enough for the lots assigned to old or worn-out warriors. (Hist. des Français, vol. i. p. 196.) — M. * his liberality. 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). 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 licence 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 neighbour. 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 (89) 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) The revolutions of the benefices and fiefs are clearly fixed by the Abbé de Mably. His accurate distinction of times gives him a merit to which even Montesquieu is a stranger. (91) 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.+ (92) 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 hæc omnes (exclaims the bishop of Tours), potestatem habentes, after relating, how some horses run mad, that had been turned into a sacred meadow. (93) Heinec. Element. Jur. German. l. ii. p. 1. No. 8. *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. i. c. i. p. 129, &c.-M. No solution seems more probable, than that the ancient lawgivers of the Salic Franks prohi- Private usurpations. |