Since it is
impossible to gain any insight into our political law unless we are
thoroughly acquainted with the laws and manners of the German nations, I
shall, therefore, pause here awhile, in order to inquire into those
manners and laws.
It appears by Tacitus that the Germans knew only two capital crimes;
they hanged traitors, and drowned cowards; these were the only public
crimes among that people. When a man had injured another, the relatives
of the person injured took share in the quarrel, and the offence was
cancelled by a satisfaction.
[131]
This satisfaction was made to the
person offended, when capable of receiving it; or to the relatives if
they had been injured in common, or if by the decease of the party
aggrieved or injured the satisfaction had devolved to them.
In the manner mentioned by Tacitus, these satisfactions were made by
the mutual agreement of the parties; hence in the codes of the barbarous
nations these satisfactions are called compositions.
The law of the Frisians
[132]
is the only one I find that has left
the people in that situation in which every family at variance was in
some measure in the state of nature, and in which, being unrestrained
either by a political or civil law, they might give freedom to their
revenge till they had obtained satisfaction. Even this law was
moderated; a regulation was made
[133]
that the person whose life was
sought after should be unmolested in his own house, as also in going and
coming from church and the court where causes were tried. The compilers
of the Salic law
[134]
cite an ancient usage of the Franks, by which a
person who had dug a corpse out of the ground, in order to strip it,
should be banished from society till the relatives had consented to his
being re-admitted. And as before that time strict orders were issued to
every one, even to the offender's own wife, not to give him a morsel of
bread, or to receive him under their roofs, such a person was in respect
to others, and others in respect to him, in a state of savagery till an
end was put to this state by a composition.
This excepted, we find that the sages of the different barbarous
nations thought of determining by themselves what would have been too
long and too dangerous to expect from the mutual agreement of the
parties. They took care to fix the value of the composition which the
party wronged or injured was to receive. All those barbarian laws are in
this respect most admirably exact; the several cases are minutely
distinguished,
[135]
the circumstances are weighed, the law substitutes
itself in the place of the person injured and insists upon the same
satisfaction as he himself would have demanded in cold blood.
By the establishing of those laws, the German nations quitted that
state of nature in which they seemed to have lived in Tacitus' time.
Rotharis declares, in the law of the Lombards,
[136]
that he had
increased the compositions allowed by ancient custom for wounds, to the
end that, the wounded person being fully satisfied, all enmities should
cease. And indeed as the Lombards, from a very poor people had grown
rich by the conquest of Italy, the ancient compositions had become
frivolous, and reconcilements prevented. I do not question but this was
the motive which obliged the other chiefs of the conquering nations to
make the different codes of laws now extant.
The principal composition was that which the murderer paid to the
relatives of the deceased. The difference of conditions produced a
difference in the compositions.
[137]
Thus in the law of the Angli, there
was a composition of six hundred sous for the murder of an adeling, two
hundred for that of a freeman, and thirty for killing a bondman. The
largeness therefore of the composition for the life of a man was one of
his chief privileges; for besides the distinction it made of his person,
it likewise established a greater security in his favour among rude and
boisterous nations.
This we are made sensible of by the law of the Bavarians:
[138]
it gives the names of the Bavarian families who received a double
composition, because they were the first after the Agilolfings.
[139]
The Agilolfings were of the ducal race, and it was customary with this
nation to choose a duke out of that family; these had a quadruple
composition. The composition for a duke exceeded by a third that which
had been established for the Agilolfings. "Because he is a duke," says
the law, "a greater honour is paid to him than to his relatives."
All these compositions were valued in money. But as those people,
especially when they lived in Germany, had very little specie, they
might pay it in cattle, corn, movables, arms, dogs, hawks, lands,
&c.
[140]
The law itself frequently determined the value of those
things; which explains how it was possible for them to have such a
number of pecuniary punishments with so very little money.
[141]
These laws were therefore employed in exactly determining the
difference of wrongs, injuries and crimes; to the end that every one
might know how far he had been injured or offended, the reparation he
was to receive, and especially that he was to receive no more.
In this light it is easy to conceive that a person who had taken
revenge after having received satisfaction was guilty of a heinous
crime. This contained a public as well as a private offence; it was a
contempt of the law of itself; a crime which the legislators never
failed to punish.
[142]
There was another crime which above all others was considered as
dangerous, when those people lost something of their spirit of
independence, and when the kings endeavoured to establish a better civil
administration; this was the refusing to give or to receive
satisfaction.
[143]
We find in the different codes of the laws of the
Barbarians that the legislators were peremptory on this article.
[144]
In
effect, a person who refused to receive satisfaction wanted to preserve
his right of prosecution; he who refused to give it left the right of
prosecution to the person injured; and this is what the sages had
reformed in the institutions of the Germans, whereby people were incited
but not compelled to compositions.
I have just now made mention of a text of the Salic law, in which
the legislator left the party offended at liberty to receive or to
refuse satisfaction; it is the law by which a person who had stripped a
dead body was expelled from society till the relatives upon receiving
satisfaction petitioned for his being re-admitted.
[145]
It was owing to
the respect they had for sacred things that the compilers of the Salic
laws did not meddle with the ancient usage.
It would have been absolutely unjust to grant a composition to the
relatives of a robber killed in the act, or to the relatives of a woman
who had been repudiated for the crime of adultery. The law of the
Bavarians allowed no compositions in the like cases, but punished the
relatives who sought revenge.
[146]
It is no rare thing to meet with compositions for involuntary
actions in the codes of the laws of the Barbarians. The law of the
Lombards is generally very prudent; it ordained
[147]
that in those cases
the compositions should be according to the person's generosity; and
that the relatives should no longer be permitted to pursue their
revenge.
Clotharius II made a very wise decree; he forbad the person robbed
to receive any clandestine composition, and without an order from the
judge.
[148]
We shall presently see the motive of this law.
