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usages of his nation were reduced to statutory


In general, the barbarian laws were such

as sprang necessarily out of the conditions

present in their rude society. Each tribe had

its local customs and usages, which in the

course of time obtained first the sanction of

observance and then of authority. When the

kingdom was consolidated under the Merovingians each tribe was permitted to retain its

own laws; nor did Clovis and his successors

attempt to exact uniformity. The same freedom which was thus extended to the various

nations composing the Frankish power was

conceded to the different classes of society.

In some sense there was a law for each member

of the tribe. Individuality was the essential

principle-free doom the first thing consulted

in legislation.

The barbarian customs were persistent-transmitted from father to son. The child

received and followed the law of the parent;

the wife, of her husband; the freedman, of

his patron. In all procedures the preference

was given to the defendant, who must be tried

in his own court, and might choose the law

under which he was prosecuted.

The peculiar vice of the barbarian legislation was the fact of its being personal. Crime

was regarded as committed against the individual, not against society. This led inevitably

to the substitution of private vengeance for

public punishment. As among the American

aborigines, so among the ancient Germans,

revenge was regarded as honorable. Society

conceded to each the privilege of vindicating

his own rights and punishing the wrongdoer.

The individual executor of the law was thus

in his turn subjected to the will of the kinsmen of any whom he had punished. Vengeance and

counter-vengeance thus became the

common methods of obtaining redress. The

lex talionis was the law of society. To the

extent that this principle prevailed the magistrate was reduced to an advisory officer, whose

duty was to mediate between man and man,

rather than enforce by authority a common

law upon all.

Growing out of these vicious principles was

the idea present in nearly all the barbarian codes that human life might be measured by

monetary valuation, that blood had its price.

The admission of this element into the legislation of the Germans left the principle of fine

and forfeiture as almost the only restraint

against the commission of crime. Each member of society was permitted to take the life

of the other, subject only to his ability to pay

the price of the deed. Every person was appraised for criminal purposes. Upon the life

of each was set an estimate, and this estimate

was freely admitted as the basis of criminal

proceedings. Of the Antrustions, or persons

of the first rank, the lives were appraised at

six hundred pieces of gold. The next grade

of persons, embracing those who sat at the

king's table, were listed at one-half as much as

the Antrustions. The ordinary Frankish freeman was reckoned as worth two hundred

pieces of gold, while the lives of persons of

inferior quality were set at a price of a hundred or even fifty pieces. In general, the

commission of crime against the life of a person was followed by the payment of a fine

equal to the price at which the murdered man

was appraised.

With the lapse of time greater rigor was

introduced in the administration of justice;

and by the time of the advent of Charlemagne

legislation had for the most part become impersonal-that is, punishment was thenceforth

inflicted in the name of society, and not in the

name of the individual.

In the sixth century the law was generally

executed by the duke or prefect of the county.

The judge was nearly .always unlearned, passionate, perhaps vindictive. The methods

employed in the alleged courts of justice were

worthy of a barbarous age. The defendant

might introduce his friends as witnesses, and

prove that they believed him innocent! If as

many as seventy-two persons could be found

so to testify, it was sufficient to absolve an

incendiary. It was found that the barbarian

conscience was a very indifferent safeguard

against the crime of perjury. In order more

certainly to obtain the truth, two new methods

were invented of putting the parties to the

test. These were known by the common name

of the "Judgment of God." The first was by