modern France, such has been the progress of arts and policy, far surpasses in wealth, populousness, and power, the spacious but savage realms of Clotaire or Dagobert.

Political

controversy.

The Franks, or French, are the only people of Europe who can deduce a perpetual succession from the conquerors of the western empire. But their conquest of Gaul was followed by ten centuries of anarchy and ignorance. On the revival of learning, the students, who had been formed in the schools of Athens and Rome, disdained their barbarian ancestors; and a long period elapsed before patient labour could provide the requisite materials to satisfy, or rather to excite, the curiosity of more enlightened times." At length the eye of criticism and philosophy was directed to the antiquities of France; but even philosophers have been tainted by the contagion of prejudice and passion. The most extreme and exclusive systems of the personal servitude of the Gauls, or of their voluntary and equal alliance with the Franks, have been rashly conceived, and obstinately defended: and the intemperate disputants have accused each other of conspiring against the prerogative of the crown, the dignity of the nobles, or the freedom of the people. Yet the sharp conflict has usefully exercised the adverse powers of learning and genius; and each antagonist, alternately vanquished and victorious, has extirpated some ancient errors, and established some interesting truths. An impartial stranger, instructed by their discoveries, their disputes, and even their faults, may describe, from the same original materials, the state of the Roman provincials,

9 M. de Foncemagne has traced in a correct and elegant dissertation (Mem. de l'Academie, tom. 8. p. 505-528.) the extent and limits of the French monarchy. The abbé Dubos (Histoire Critique, tom. 1. p. 29-36.) has truly and agreeably represented the slow progress of these studies; and he observes, that Gregory of Tours was only once printed before the year 1560. According to the complaint of Heineccius, (Opera, tom. 3. Sylloge 3. p. 248, &c.) Germany received with indifference and contempt the codes of barbaric laws, which were published by Heroldus, Lindenbrogius, &c. At present those laws (as far as they relate to Gaul), the history of Gregory of Tours, and all the monuments of the Merovingian race, appear in a pure and perfect state in the first four volumes of the Historians of France.

after Gaul had submitted to the arms and laws of the

Merovingian kings."

Laws of

The rudest, or the most servile, condition of the barba- human society, is regulated, however, by some rians. fixed and general rules. When Tacitus surveyed the primitive simplicity of the Germans, he discovered some permanent maxims, or customs, of public and private life, which were preserved by faithful tradition, till the introduction of the art of writing, and of the Latin tongue. Before the election of the Merovingian kings, the most powerful tribe, or nation, of the Franks, appointed four venerable chieftains to compose the Salic laws;" and their labours were examined and approved in three successive assemblies of the people. After the baptism of Clovis, he reformed several articles that appeared incompatible with Christianity: the Salic law was again amended by his sons; and at length, under the reign of Dagobert, the code was revised and years after promulgated in its actual form, one hundred the establishment of the French monarchy. Within the same period, the customs of the Ripuarians were transcribed and published: and Charlemagne himself, the legislator of his age and country, had accurately studied the two national laws, which still prevailed among the Franks. The same care was extended to

X

In the space of thirty years, (1728-1765.) this interesting subject has been agitated by the free spirit of the count de Boulainvilliers, (Memoires Historiques sur l'Etat de la France, particularly tom. 1. p. 15—49.) the learned ingenuity of the abbé Dubos, (Histoire Critique de l'Etablissement de la Monarchie Françoise dans les Gauls, 2 vols. in 4to.) the comprehensive genius of the president de Montesquieu, (Esprit des Loix, particularly lib. 28. 30. 31.) and the good sense and diligence of the abbé de Mably. (Observations sur l'Histoire de France, 2 vols. 12mo.)

t I have derived much instruction from two learned works of Heineccius, the History and the Elements, of the Germanic law. In a judicious preface to the Elements, he considers, and tries to excuse, the defects of that barbarous jurisprudence.

"Latin appears to have been the original language of the Salic law. It was probably composed in the beginning of the fifth century, before the era (A. D. 421.) of the real or fabulous Pharamond. The preface mentions the four cantons which produced the four legislators; and many provinces, Franconia, Saxony, Hanover, See an excellent Dissertation of Brabant, &c. have claimed them as their own.

Heineccius, de Lege Salicâ, tom. 3. Sylloge 3. p. 247–267.

Eginhard, in Vit. Caroli Magni. c. 29. in tom. 5. p. 100. By these two laws, most critics understand the Salic and the Ripuarian. The former extended from the Carbonarian forest to the Loire; (tom. 4. p. 151.) and the latter might be obeyed from the same forest to the Rhine. (tom. 4. p. 222.)

their vassals; and the rude institutions of the Alemanni 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, shewed 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 barbarians, 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 peace, and promote the improvements, 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 ex

the

y 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. 4. 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. 6. p. 356.) He foolishly proposes to introduce an uniformity of law as well as of faith.

cluded 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 cases, 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."

Pecuniary

homicide.

When justice inexorably requires the death fines for 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,

a 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. 4. p. 116.) about the year 560. b This liberty of choice has been aptly deduced (Esprit des Loix, lib. 28.2.) from a constitution of Lothaire I. (Leg. Langobard. lib. 2. tit. 57. in Codex Lindebrog. 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. 1. p. 290–293.) has conjectured, that, at first, a barbarian only, and afterward any man (consequently a Roman), might live according to the law of the Franks. I am sorry to offend this 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. 4. p. 147. 173. 196. 220.

d

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. 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 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

c 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. lib. 2. c. 8.) Heineccius, in his preface to the Elements of the 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.

d This proportion is fixed by the Salic, (tit. 44. in tom. 4. p. 147.)and the Ripuarian, (tit. 7.11. 36. in tom. 4. 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.

e 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. 1. p. 334-347.) is not displeased to mortify the pride of birth, (Esprit. lib 30. c. 25.) by dating the origin of French nobility from the reign of Clotaire II. (A. D. 615.)