28.1. 1. Different Character of the Laws of the several People of Germany.
After the Franks had quitted their own country, they made a compilation
of the Salic laws with the assistance of the sages of their own
nation.
[1]2
The tribe of the Ripuarian Franks having joined itself under
Clovis
[2]
to that of the Salians preserved its own customs; and
Theodoric,
[3]
King of Austrasia, ordered them to be reduced to writing.
He collected likewise the customs of those Bavarians and Germans, who
were dependent on his kingdom.
[4]
For Germany having been weakened by
the migration of such a multitude of people, the Franks, after
conquering all before them, made a retrograde march and extended their
dominion into the forests of their ancestors. Very likely the Thuringian
code was given by the same Theodoric, since the Thuringians were also
his subjects.
[5]
As the Frisians were subdued by Charles Martel and
Pepin, their law cannot be prior to those princes.
[6]
Charlemagne, the
first that reduced the Saxons, gave them the law still extant; and we
need only read these last two codes to be convinced they came from the
hands of conquerors. As soon as the Visigoths, the Burgundians, and the
Lombards had founded their respective kingdoms, they reduced their laws
to writing, not with an intent of obliging the vanquished nations to
conform to their customs, but with a design of following them
themselves.
There is an admirable simplicity in the Salic and Ripuarian laws, as
well as in those of the Alemans, Bavarians, Thuringians, and Frisians.
They breathe an original coarseness and a spirit which no change or
corruption of manners had weakened. They received but very few
alterations, because all those people, except the Franks, remained in
Germany. Even the Franks themselves laid there the foundation of a great
part of their empire, so that they had none but German laws. The same
cannot be said of the laws of the Visigoths, of the Lombards and
Burgundians; their character considerably altered from the great change
which happened in the character of those people after they had settled
in their new habitations.
The kingdom of the Burgundians did not last long enough to admit of
great changes in the laws of the conquering nation. Gundebald and
Sigismond, who collected their customs, were almost the last of their
kings. The laws of the Lombards received additions rather than changes.
The laws of Rotharis were followed by those of Grimoaldus, Luitprandus,
Rachis, and Astulphus, but did not assume a new form. It was not so with
the laws of the Visigoths;
[7]
their kings new-moulded them, and had them
also new-moulded by the clergy.
The kings indeed of the first race struck out of the Salic and
Ripuarian laws whatever was absolutely inconsistent with Christianity,
but left the main part untouched.
[8]
This cannot be said of the laws of
the Visigoths.
The laws of the Burgundians, and especially those of the Visigoths,
admitted of corporal punishments; these were not tolerated by the Salic
and Ripuarian laws;
[9]
they preserved their character much better.
The Burgundians and Visigoths, whose provinces were greatly exposed,
endeavoured to conciliate the affections of the ancient inhabitants, and
to give them the most impartial civil laws;
[10]
but as the Kings of the
Franks had established their power, they had no such considerations.
[11]
The Saxons, who lived under the dominion of the Franks, were of an
intractable temper, and prone to revolt. Hence we find in their laws the
severities of a conqueror,
[12]
which are not to be met with in the other
codes of the laws of the barbarians.
We see the spirit of the German laws in the pecuniary punishments,
and the spirit of a conqueror in those of an afflictive nature.
The crimes they commit in their own country are subject to corporal
punishment; and the spirit of the German laws is followed only in the
punishment of crimes committed beyond the extent of their own territory.
They are plainly told that their crimes shall meet with no mercy,
and they are refused even the asylum of churches.
The bishops had an immense authority at the court of the Visigoth
Kings, the most important affairs being debated in councils. All the
maxims, principles and views of the present inquisition are owing to the
code of the Visigoths; and the monks have only copied against the Jews
the laws formerly enacted by bishops.
In other respects the laws of Gundebald for the Burgundians seem
pretty judicious; and those of Rotharis, and of the other Lombard
princes, are still more so. But the laws of the Visigoths, those for
instance of Recessuinthus, Chaindasuinthus, and Egigas are puerile,
ridiculous and foolish; they attain not their end; they are stuffed with
rhetoric and void of sense, frivolous in the substance and bombastic in
the style.
Footnotes
[1]
See the prologue to the Salic Law. Mr. Leibnitz says, in his
treatise of the origin of the Franks, that this law was made before the
reign of Clovis: but it could not be before the Franks had quitted
Germany, for at that time they did not understand the Latin tongue.
[2]
See Gregory of Tours.
[3]
See the prologue to the "Law of the Bavarians," and that to the
Salic Law.
[5]
Lex Angliorum Werinorum, hoc est Thuringorum.
[6]
They did not know how to write.
[7]
They were made by Euric, and amended by Leovigildus. See
Isidorus's chronicle. Chaindasuinthus and Recessuinthus reformed them.
Egigas ordered the code now extant to be made, and commissioned bishops
for that purpose; nevertheless the laws of Chaindasuinthus and
Recessuinthus were preserved, as appears by the sixth council of Toledo.
[8]
See the prologue to the "Law of the Bavarians."
[9]
We find only a few in Childebert's decree.
[10]
See the prologue to the "Code of the Burgundians,' and the code
itself, especially tit. 12, section 5, and tit. 38. See also Gregory of
Tours, ii. 33, and the "Code of the Visigoths."
[11]
See lower down, chapter 3.
[12]
See cap. ii, sections 8 and 9, and cap. iv, sections 2 and 7.
