inform ourselves what were the rights of each of these orders in the
time of peace. The king, we are assured by Tacitus, was far from being
absolute[60]. He was judge, indeed, among his own peculiar vassals, who
lived on his demesne, as the other chieftains were in their respective
districts. He presided in their general assemblies, and was the first
who proposed matters for their deliberation. His opinion had great
weight, indeed, from his rank and dignity, but his power was rather
that of persuasion than of command. The royal family was no otherwise
distinguished from others, than as their personal merit acquired
influence, or their high birth and capability of succession engaged
respect. The companions of the prince were highly honoured for their
faithful attachment to him, and their valourous atchievements in war;
but, as to rights and privileges, were on the common footing of other
freemen. The only distinction was between the chieftains, or lords of
the villages, and the vassals who were under their jurisdiction. The
chieftains were judges in their respective districts; but, to prevent
partiality, to each of them were assigned an hundred persons, chosen
among the populace, to accompany and assist him, and to help him at once
with their authority and their counsel. And this institution was, in all
probability, the original of the jurisdiction of the _pares curiæ_ in
the feudal law. Another, and a very great check on their chieftains, was
their being elective, and consequently amoveable every year, if their
conduct was displeasing either to prince or people. These elections, as
well as those of their assessors, were made in their assemblies; where,
indeed, every thing of any consequence was transacted, and therefore they
deserve to be particularly treated of.
These conventions, then, unless they were summoned on extraordinary
occasions, were regularly held once a month, on certain stated days; but
such was the impatience of this people of controul, or any regularity
of proceeding, that Tacitus observes, that frequently two or three days
were spent before they were all assembled. For in these meetings, every
freeman, that is, every soldier, had an equal voice. They appeared all
in arms, and silence was proclaimed by the priests, to whom also it
belonged to keep the assembly in order, and to punish all disturbers
of its regularity. The king in the first place was heard, next such of
the chiefs as had any thing to propose, and lastly others, according to
their precedence in age, nobility, military virtue, or eloquence. If the
proposition displeased, they rejected it by an inarticulate murmur. If it
was pleasing, they brandished their javelins; the most honourable manner
of signifying their consent being by the sound of their arms. But this
approbation of the general assemblies was not of itself sufficient to
establish a resolution. As the sudden determinations of large multitudes
are frequently rash, and injudicious, it was found necessary to have what
they had so determined re-considered by a select body, who should have a
power of rejecting or confirming them. For this purpose the chieftains
were formed into a separate assembly, who, in conjunction with the king,
either disannulled, or ratified what had been agreed to by the people at
large[61].
Such then was the constitution of a German kingdom, a constitution so
nearly resembling our own at present, as at first view would tempt any
one to think the latter derived immediately from thence. Yet this was not
the case. With respect to the Saxon times, as far as we can judge from
the few lights remaining, the form of government seems very nearly to
resemble this account which Tacitus gives us; but, for two centuries, at
least, after the conquest, the English constitution wore a face purely
feudal. The sub-vassals had long lost the privilege of being members of
the general assembly, from causes that shall be hereafter attempted to
be explained; and the whole legislative power was lodged in the king
and his immediate vassals, whose interests frequently clashing, and
creating continual broils, it was found necessary, for the advantage both
of the sovereign and nobles, that a proper balance should be formed.
Accordingly, much at the same time in France, Spain, and England, namely,
in or about the thirteenth century, the happy method of readmitting the
third estate, by way of representation, was found out, with an addition
very favourable to the natural rights of mankind, that traders and
artizans, who before had been treated with the most sovereign contempt,
were now permitted to make part of the general assembly, and put on an
equal footing with other subjects[62].
But to return to the assembly of German chieftains, or their house of
lords, as I may call it; besides a share in the legislative power, they
were likewise a council, to assist the king in the execution of the
resolutions of the general assembly, and determined solely by their
own authority all matters of lesser moment, that did not immediately
affect the whole community. _De minoribus rebus principes consultant, de
majoribus omnes._
Many other things were likewise transacted in these general assemblies,
as particularly the admission of a new member into the political society.
When a youth was judged capable of bearing arms, he was introduced by
his relations into the assembly; and if they testified his capacity of
wielding them, he was dignified with a lance and javelin by one of the
chieftains, or by his father, or some other near relation. This was his
_toga virilis_. Then, and not before, was he emancipated from the family
he belonged to, was permitted to become a soldier, and in consequence
admitted to all the privileges of a free subject. A practice that,
in after ages, gave rise to the solemn and public manner of creating
knights[63].
This, likewise, was the proper place of accusing criminals of public
crimes, namely such as were looked upon by those people particularly
to affect the whole society; neither was it unusual, likewise, to
bring hither accusations of private wrongs, if the party injured was
apprehensive of partiality in his own canton.
But the business of greatest moment, next to legislation, was, that,
once in a year, in these assemblies, each village, with the approbation
of the king, chose their chiefs, and their hundred assistants[64]. Here
it was they either received a testimony of their good behaviour, by
being continued in office another year, or saw themselves reduced to
the rank of private subjects, if their conduct had not been acceptable.
At the same time were the lands distributed to the several chieftains,
which leads me to say something on the next head, their regulations with
respect to property; as to which their institutions were very singular,
and totally different from those of all ancient, as well as modern
nations.
All property being then naturally divisible into two kinds, moveable and
immoveable, of the first these people had but a scanty share, their whole
wealth consisting in their arms, a few mean utensils, and perhaps some
cattle. The use of gold and silver, in the way of commerce, was utterly
unknown to them, except to a few of their nations, namely such as lived
near the Rhine, and had acquired some by dealing with the neighbouring
Gauls. Consequently, there was no such thing as an accumulation of wealth
among them, or any great disparity in the distribution of this kind of
property, over which each had uncontrouled dominion during his life. But
as testaments, or last wills, were unknown amongst them, upon death, the
right went according to the plain dictates of nature. Tacitus saith, “To
every man his own children were heirs and successors. For want of them,
his nearest of kin, his own brothers, next his father’s brothers, or
his mother’s.” Whatever there was, was divided among the males next in
degree; save that to each of the females, a few arms were assigned, the
only dowry in use among those people; a dowry which, as Tacitus saith,
signified that they were to share with their husbands in all fortunes of
life and death. Accordingly, they constantly attended them to the field,
were witnesses of their valour, took care of the wounded[65]; and often,
if their party had the worst, they ran into the ranks, and by their
presence and danger, animated the men to renew the charge.
But with respect to real or landed property, the case was very different.
Here a man had only the use, or enjoyment of the profits; and that,
too, but a temporary one. The real property, or _dominium verum_, was
lodged in the community at large; and was, at the end of every year,
cantoned out, and distributed to the several tribes of the people; and
the portion assigned to each was after that subdivided to the respective
individuals; who by these means were perpetually removed from one part
of the territory to another; nor could any man tell in what place his
lot was to fall the next year[66]. And this custom, absurd as it seems
to us, they were so fond of, as to continue for some time after they
settled in the Roman territories; until, growing by degrees acquainted
with the conveniencies of life, a change of manners was introduced, and
they wished for more settled habitations. Then came into use grants
for terms of years, after for life, and lastly, estates descendible
to heirs, which are those we, properly speaking, called _fiefs_. This
continual removal of habitation, so intolerable to a people any way
accustomed to comfortable dwellings, was no manner of inconvenience to
them. Their little substance was easily removed, and two or three days
were sufficient to erect a sorry hovel, which contented the wishes of
the greatest among them[67]. But their passion for this constant change
of place seems derived from that condition which I have already observed
they were in, namely, a middle state between hunters and shepherds;
and that they still retained that practice, was an evidence that they
had not been long reclaimed from a savage life. Tacitus indeed says,
that, in the intervals of war, they were not much employed in hunting,
but lived a lazy and inactive life. This, however, I apprehend, must
be understood only of a few nations, nearest to the Romans, where game
was not so plentiful, and not of all the Germans in general: for it
is certain the Franks had a strong passion that way, after they were
settled in Gaul; and from them the plan of the forest laws, so justly
complained of in England, after the conquest, was derived. And true it
is, that whole nations, as well as individuals, were possessed with this
rambling inclination; and that, not always with a view of settling in a
better country. If the Germans changed their barren wilds for the warm
sun and fertile climate of Gaul, we are assured by the same authority,
that many tribes of the Gauls, on the other hand, removed to the forests
of Germany. If Jornandes tells us, that the Goths quitted the bleak and
barren mountains of Scandinavia for the pleasant banks of the Danube,
he likewise informs us, that, afterwards, they returned back into their
native country.
As to their methods of administering justice, I have already observed,
that their chieftains, in the several districts, assisted by their
assessors, were their judges. Before them all causes were brought, which
were not discussed in their general assemblies; but as to the manner of
investigating the truth, all the German nations did not agree. Nay the
Salian Franks differed considerably from their brethren, the Ripuarian
Franks. If the judge, or his assessors, or any of them, had knowledge of
the fact in dispute, which often happened, as these people lived much in
public, and in the open air, they gave sentence on such their knowledge.
This was common to them all; but if there was no such knowledge in any
of the _pares curiæ_, as I may call them, and the fact in question was
denied, the Salians proceeded thus: The accuser or plaintiff produced his
witnesses, the accused did the like; and on comparing the evidence on
both sides, the judges gave sentence. If the plaintiff had no witnesses,
the defendant, on his denial, was dismissed of course. If the witnesses
for the plaintiff failed in fully proving the point, and yet their
testimony was such, as induced a presumption which the other party was
not able to remove, the trial was referred to the ordeal[68]. That of
boiling water was the most usual among them. The manner was thus: The
person suspected plunged his hand into the boiling water, which was
afterwards carefully closed up, and inspected at the end of three days:
If no sign of the scalding then appeared, he was acquitted; if otherwise,
he was esteemed guilty[69].
It is strange that any people should, for ages, make use of such a
method, which a very little reflection, or common experience, might
easily satisfy them had no manner of connection with guilt or innocence.
But, besides the gross superstition of these nations, who thought the
honour of providence concerned in the detection and punishment of
criminals, Montesquieu hath given us another reason for this practice,
which, whether just or not, for its ingenuity, deserves to be taken
notice of. He observes, that the military profession naturally inspires
its votaries with magnanimity, candour, and sincerity, and with the
utmost scorn for the arts of falshood and deceit. This trial, then, he
imagines calculated to discover plainly to the eye, whether the person
accused had spent his whole life in the arts of war, and in the handling
of arms. For if he had, his hands would thereby have acquired such a
callousness, as would prevent any impression from the boiling water,
discernible at that distance of time. He therefore was acquitted, because
it was presumed he would not screen himself by a falshood. But if the
marks appeared, it was plain he was an effeminate soldier, had resisted
the force of education, and the general bent of his countrymen; that he
was not to be moved by the spur of constant example, that he was deaf to
the call of honour; and consequently such a person whose denial could
have no weight to remove the presumption against him[70].
These were the methods of trial among the Salians, but the Ripuarian
Franks, the Burgundians, and several other German nations acted very
differently. No witnesses were produced among them on either side, but
they contented themselves with what were called negative proofs; that is,
the person accused swore positively to his own innocence, and produced
such a number of his relations as the custom of the country required:
or if he had not relations enough, the number was made up out of his
intimate acquaintance: These were to swear that they believed his oath
to be true, and upon this he was acquitted. But if he declined the oath,
or could not produce a sufficient number of compurgators, he was found
guilty; a practice that fully proves these nations were, when this method
was introduced, a people of great simplicity and sincerity[71].
But as, by this means, every profligate person, with the assistance of
a few others as wicked as himself, was sure to escape, the defects of
this kind of trial introduced another, or rather revived an antient one,
no less inconclusive. Antiently, the Germans had no judicatures for the
decision of private wrongs; but each in person took his own satisfaction,
and this introduced perpetual combats. When the new method of trial came
in use, a party seeing his adversary ready to defeat his just demands,
and screen his injustice with perjury, resorted to his antient right,
refused to accept the oath, and appealed to the providence of God by
the trial of battle: a method as absurd, indeed, as the former, but
peculiarly adapted to the way of thinking of the Germans, who frequently,
before they entered into a war, prognosticated the success of it from
the event of a combat between one of their own nation, and a captive of
the enemy[72]. This kind of trial gained ground among all the defendants
of this ferocious people[73], and introduced itself at length among the
Salians, who had it not at first, and who, by admitting positive proofs,
had no need of it; and, though long fallen into disuse, hath left behind,
its offspring, private duelling. It hath been long since observed, that
this fashionable custom owed its origin to these northern nations, the
ancestors of the present inhabitants of Europe, as no other nations,
antient or modern, however martial or disposed to war, had any knowledge
or practice of it; but it is undeniably evinced by this, that as a lie,
above all other provocations, is the strongest, and what lays gentlemen
of honour under an indispensible necessity of duelling, so were _you lie_
the very words mutually given and received in old times, the accustomed
form of joining issue by battle, after which neither party, without
perpetual infamy and degradation from his rank, could recede.
I have taken the more notice of these four different methods of trial
among the old Germans, as every one of them has been received into
England. Concerning the first, the trial by witnesses, little need be
said. As it is the fairest, and the justest, it has accordingly, pursuant
to the practice of all civilized nations, prevailed over all the rest;
and it is that, and that only, that we use at this day. But the ordeal
also was in use among the Saxons, and continued some time after the
Norman conquest; as appears, not only by the old records of the law,
but from the famous story, whether true or false, of queen Emma, mother
of Edward the Confessor, and the plow-shares[74]. The trial by negative
proofs, though out of practice, is still in being, in what is called by
us the _wager of law_; where, if a person is impleaded in an action of
debt, on a simple contract, he may clear himself, by swearing he oweth
it not, and by producing eleven others, who swear to their belief that
he has deposed the truth[75]. Hence it has happened, that, for a long
time past, _actions of debt_, in such cases, have not been brought, but
another, called an _action on the case_, is the usual method, which
admits the parties on both sides, as to the point of debt, _vel non
debet_ to an examination of witnesses. For the last, the trial by battle,
our old books are full of it, in real actions; and although, to prevent
the inconvenience and uncertainty of it, the grand assize was invented;
yet was it in the tenant’s, that is, the defendant’s option, to choose
which method of trial he pleased. The latest instance of joining issue
by battle, I have met with, is in Dyer’s Reports, in the beginning of
Elizabeth’s reign[76]; but by this time it was so much discouraged, that,
by force of repeated adjournments, the parties were prevailed on to
agree, and judgment was at length given upon the failure of one of the
parties appearing on the day appointed for the combat.
When the truth, by some of the methods above-mentioned, was ascertained,
judgment was to be given. Here it will be proper to observe, that, among
these people, there were only two kinds of crimes, that were looked upon
as public ones, and consequently capital. The first was treason, or
desertion in the field, the punishment hanging; the second cowardice,
or unlawful lust, for they were strict observers of the nuptial band,
the punishment stifling in a morass, with an hurdle over them. It
seems, at first view, surprising, that murder, which Tacitus assures
us, from sudden gusts of passion, and intemperance in liquor, was very
frequent, should not, as it so much weakened the strength of the nation,
be considered as a criminal offence, and punished accordingly[77]. But
a little reflection on their situation will reconcile us to it. The
person slain was already lost to the society, and if every murder was a
capital offence, the state would lose many of its members, who were its
chief supporters. Besides, if the slayer had no hopes of mercy, nothing
else could be expected than his desertion to their enemies, to whom he
could be of infinite service, and to them of infinite detriment, from his
knowledge of their strength and circumstances, and of the passes into
their country, through the morasses and forests, which were their chief
defence. Murder, therefore, like other lesser crimes, was atoned among
those people, as it was among the ancient Greeks, who were in pretty
similar circumstances, in the heroic times, as Ajax assures us in these
words, in the ninth Iliad:
και μεν τις τε κασιγνητοιο φονοιο
Ποινεν, η του παιδος εδεζατο τεθνειωτος,
namely, by a satisfaction of cattle, corn, or money, to the persons
injured, that is, to the next of kin to the deceased, with a fine to the
king or lord, as an acknowledgment of his offence, and to engage the
society to protect him against the future attempts of the party offended.
These satisfactions were not regulated originally, nor fixed at any
certain rate, but left to the discretion of the injured, or next of kin.
However, if he appeared extraordinarily unreasonable, and refused what
was judged competent, the society, upon payment of his fine to their
head, took the offender into protection, and warranted his security
against the attempts of the other party, or his friends. After these
nations were settled in the Roman empire, these satisfactions for each
offence were reduced to a certainty by their laws[78].
This is as much as I have thought necessary to observe at present,
concerning the manners and customs of these people, while they remained
beyond the Rhine. It will next be proper to see how far afterwards
they retained them, and what alterations were introduced by their new
situation.
LECTURE V.
_The decline of the Roman empire—The invasions of the Northern
nations—The manner in which they settled in the Roman
provinces—The changes insensibly introduced among them in
consequence of their new situation—The policy and condition of
the Franks after they had settled in France—The rise of the
feudal law—Estates beneficiary and temporary._
It is full time now to quit the wilds of Germany, to attend these nations
in their passage into the Roman dominions, and to take a view of the
manner wherein they settled themselves in these new countries. The Roman
empire had been long on the decline; but especially, from the time of
Severus, it every day grew weaker. This weakness arose, in a great
measure, from an excessive luxury, which disqualified not only their
great ones, but the bulk of the Roman people for soldiers; and also from
the tyrannical jealousy of their emperors, who were afraid of trusting
persons of virtue or ability, and had no other method of supporting their
authority, than by employing numerous standing armies, that, under them,
pillaged and oppressed the defenceless populace; and lastly, from the
licentiousness of the soldiery, who made and unmade emperors according
to their wild caprices. Hence proceeded many competitions for that
dignity, and continual battles and slaughters of their men at arms; the
natural consequence of which was, that whoever prevailed in these bloody
contests, always found himself less able and powerful to defend the
empire from foreign enemies or domestic competitors, than his predecessor
was[79].
About the year 200 after Christ, the several nations who had been
hitherto cooped up beyond the Rhine and the Danube, and kept in some
awe by the terror of the Roman name, began to gather some courage from
the weakness of the empire; and from that time few years passed without
incursions into, and ravages of, some part of the southern territories,
by one or other of these people; and how redoubtable they became to that
decaying state, may easily be judged from the particular fondness the
emperors of those days had, upon every slight advantage gained over them,
for assuming the pompous titles of Gothicus, Vandalicus, Alemannicus,
Francicus, &c. not for the conquest, or reducing into subjection those
several people, as in antient times, but merely for having checked them,
and kept them out of the Roman boundaries[80].