The Spirit Of Laws Part 29

31 t.i.t. 35, secs. 3 and 4.

32 The Abbe du Bos.

33 Witness the expedition of Arbogastes, in Gregory of Tours, "Hist." lib. II.

34 The Franks, the Visigoths, and Burgundians.

35 It was finished in 438.

36 The 20th year of the reign of this prince, and published two years after by Anian, as appears from the preface to that code.

37 The year 504, of the Spanish era, the "Chronicle of Isidorus."

38 "Franc.u.m, aut Barbarum, aut hominem qui Salica lege vivit."-Salic law, t.i.t. 44, sec. 1.

39 "According to the Roman law under which the church lives," as is said in the law of the Ripuarians, t.i.t. 58, sec. 1. See also the numberless authorities on this head p.r.o.nounced by Du Cange, under the words "Lex Romana."

40 See the Capitularies added to the Salic law in Lindembrock, at the end of that law, and the different codes of the laws of the barbarians concerning the privileges of ecclesiastics in this respect. See also the letter of Charlemagne to his son Pepin, King of Italy, in the year 807, in the edition of Baluzius, tom. i. 462, where it is said, that an ecclesiastic should receive a triple compensation: and the "Collection of the Capitularies," lib. V. art. 302, tom. i., edition of Baluzius.

41 See that law.

42 Of this I shall speak in another place, book x.x.x. chaps. 6, 7, 8, and 9.

43 Agob. "Opera."

44 See Gervaise de Tilbury, in d.u.c.h.esne's "Collection," tom. iii. p. 366. Facta pactione c.u.m Francis, quod illic Gothi patriis legibus, moribus paternis vivant. Et sic Narbonensis provincia Pippino subjicitur. And a chronicle of the year 759, produced by Catel, "Hist. of Languedoc." And the uncertain author of the "Life of Louis the Debonnaire," upon the demand made by the people of Septimania, at the a.s.sembly in Carisiaco, in d.u.c.h.esne's "Collection," tom. ii. p. 316.

45 "In illa terra in qua judicial secundum legem Romanam terminantur, secundum ipsam legem judicetur; et in illa terra in qua," etc., art 16. See also art. 20.

46 See art. 12 and 16 of the "Edict of Pistes," "in Cavilono," "in Narbona," etc.

47 See what Machiavel says of the ruin of the ancient n.o.bility of Florence.

48 He began to reign in the year 642.

49 We will no longer be hara.s.sed either by foreign or by the Roman laws.-Law of the Visigoths, lib. II. t.i.t. 1, secs. 9 and 10.

50 "Ut tam Gotho Romanam, quam Romano Gotham matrimonio liceat sociari."-Law of the Visigoths, lib. III. t.i.t. 1. chap.i.

51 See Liv. IV. 19 and 26.

52 The revolt of these provinces was a general defection, as appears by the sentence in the sequel of the history. Paulus and his adherents were Romans; they were even favored by the bishops. Vamba durst not put to death the rebels whom he had quelled. The author of the history calls Narbonne Gaul the nursery of treason.

53 "Gothi, qui cladi superfuerant, ex Gallia c.u.m uxoribus liberisque egressi, in Hispaniam ad Teudim jam palam tyrannum se receperunt."-"De Bello Gothorum," lib. I. chap. xiii.

54 Capitularies, lib. VI. chap. cclxix. of the year 1613, edition of Baluzius, p. 1021.

55 M. de la Thauma.s.siere has collected many of them. See, for instance, chaps. lxi., lxvi., and others.

56 "Missi Dominici."

57 Let not the bishops, says Charles the Bald, in the Capitulary of 844, art. 8, under pretence of the authority of making canons, oppose this const.i.tution, or neglect the observance of it. It seems he already foresaw the fall thereof.

58 In the collection of canons a vast number of the decretals of the popes were inserted; they were very few in the ancient collection. Dionysius Exiguus put a great many into his; but that of Isidorus Mercator was stuffed with genuine and spurious decretals. The old collection obtained in France till Charlemagne. This prince received from the hand of Pope Adrian I the collection of Dionysius Exiguus, and caused it to be accepted. The collection of Isidorus Mercator appeared in France about the reign of Charlemagne; people grew pa.s.sionately fond of it: to this succeeded what we now call "the course of canon law."

59 See the Edict of Pistes, art. 20.

60 This is expressly set down in some preambles to these codes: we even find in the laws of the Saxons and Frisians different regulations, according to the different districts. To these usages were added some particular regulations suitable to the exigency of circ.u.mstances; such were the severe laws against the Saxons.

61 Of this I shall speak elsewhere (chap. 14, book x.x.x.).

62 Preface to Marculfus's "Formulae."

63 Law of the Lombards, book II. t.i.t. 58, sec. 3.

64 Law of the Lombards, book II. t.i.t. 41, sec. 6.

65 "Life of St. Leger."

66 Law of the Lombards, book II. t.i.t. 41, sec. 6.

67 See chap. v.

68 This relates to what Tacitus says, that the Germans had general and particular customs.

69 Law of the Ripuarians, t.i.ts. 6, 7, 8, and others.

70 Ibid. t.i.ts. 11, 12, and 17.

71 It was when an accusation was brought against an antrustio, that is, the king's va.s.sal, who was supposed to be possessed of a greater degree of liberty. See t.i.t. 76 of the "Pactus legis Salicae."

72 See 76th t.i.t. of the "Pactus legis Salicae."

73 According to the practice now followed in England.

74 t.i.t. 32; t.i.t. 57, sec. 2; t.i.t. 59, sec. 4.

75 See the following note.

76 This spirit appears in the law of the Ripuarians, t.i.t. 59, sec. 4, and t.i.t. 67, sec. 5, and in the Capitulary of Louis the Debonnaire, added to the law of the Ripuarians in the year 803, art. 22.

77 See that law.

78 The law of the Frisians, Lombards, Bavarians, Saxons, Thuringians, and Burgundians.

79 In the law of the Burgundians, t.i.t. 8, secs. 1 and 2, on criminal affairs; and t.i.t. 45, which extends also to civil affairs. See also the law of the Thuringians, t.i.t. 1, sec. 31, t.i.t. 7, sec. 6, and t.i.t. 8; and the law of the Alemans, t.i.t. 89; the law of the Bavarians, t.i.t. 8, chap. ii. sec. 6, and chap. iii. sec. 1, and t.i.t. 9, chap. iv. sec. 4; the law of the Frisians, t.i.t. 2, sec. 3, and t.i.t. 14, sec. 4; the law of the Lombards, book I. t.i.t. 32, sec. 3, and t.i.t. 35, sec. 1, and book II. t.i.t. 35, sec. 2.

80 See chap. xviii., towards the end.

81 As also some other laws of the barbarians.

82 t.i.t. 55 83 Ibid. t.i.t. 56.

84 This appears by what Tacitus says, "Omnibus idem habitus."

85 Velleius Paterculus, lib. II. chap. cxviii., says that the Germans decided all their disputes by the sword.

86 See the codes of barbarian laws, and, in respect to less ancient times, Beaumanoir on the "Customs of Beauvoisis."

87 Law of the Burgundians, chap. xlv.

88 See the works of Agobard.

89 See Beaumanoir on the "Custom of Beauvoisis," chap. lxi. See also the law of the Angli, chap. xiv., where the trial by boiling water is only a subsidiary proof.

90 t.i.t. 14.

91 Chap. x.x.xi. sec. 5.

92 "Si placeret Domino nostro ut eos transferret ad legem Francorum."

93 See this law, t.i.t. 59, sec. 4, and t.i.t. 67, sec. 5.

94 Law of the Lombards, book II. t.i.t. 55, chap. 34.

95 The year 962.

96 "Ab Italiae proceribus est proclamatum, ut imperator sanctus mutata lege, facinus indignum destrueret."-Law of the Lombards, book II. t.i.t. 55, chap. x.x.xiv.

97 It was held in the year 967, in the presence of Pope John XIII and of the Emperor Otho I.

98 Otho II's uncle, son to Rodolphus, and King of Transjurian Burgundy.

99 In the year 988.

100 "c.u.m in hoc ab omnibus imperiales aures pulsarentus."-Law of the Lombards, book II. t.i.t. 55, chap. x.x.xiv.

101 In the law of the Lombards, book II. t.i.t. 55, sec. 33. In the copy which Muratori made use of it is attributed to the Emperor Guido.

102 Ibid., sec. 23.

103 Ca.s.siod, iii., let. 23 and 24.

104 "In palatio quoque, Bera comes Barcinonensis, c.u.m impeteretur a quodam vocato Sunila, et infidelitatis argueretur, c.u.m eodem secundum legem propriam, utpote quia uterque Gothus erat, equestri praelio congressus est et victus."-The anonymous author of the "Life of Louis the Debonnaire."

105 See in the law of the Lombards, book I. t.i.t. 4 and t.i.t. 9, sec. 23, and book II. t.i.t. 35, secs. 4 and 5, and t.i.t. 55, secs. 1, 2, and 3. The regulations of Rotharis; and in sec. 15, that of Luitprandus.

106 Ibid. book II. t.i.t. 55, sec. 23.

107 The judicial oaths were made at that time in the churches, and during the first race of our kings there was a chapel set apart in the royal palace for the affairs that were to be thus decided. See the formulas of Marculfus, book I. chap. x.x.xviii. The laws of the Ripuarians, t.i.t. 59, sec. 4, t.i.t. 65, sec. 5. The history of Gregory of Tours; and the Capitulary of the year 803, added to the Salic law.

108 Chap. x.x.xix. p. 212.

109 We find his Const.i.tutions inserted in the law of the Lombards and at the end of the Salic laws.

110 In a const.i.tution inserted in the law of the Lombards, book II. t.i.t. 55, sec. 31.

111 In the year 1200.

112 "Custom of Beauvoisis," chap. x.x.xix.

113 Chap. lxi. pp. 309, 310.

114 Charter of Louis the Fat, in the year 1145, in the Collection of Ordinances.

115 Ibid.

116 Charter of Louis the Young, in 1168, in the Collection of Ordinances.

117 See Beaumanoir, chap. lxiii. p. 325.

118 See the "Custom of Beauvoisis," chap. xxviii. p. 203.

119 "Additio sapientium Willemari," t.i.t. 5.

120 Book I. t.i.t. 6, sec. 3.

121 Book II. t.i.t. 5, sec. 23.

122 Added to the Salic law in 819.

123 See Beaumanoir, lxiv. p. 323.

124 Ibid. p. 329 125 See Beaumanoir, iii. pp. 25 and 329.

126 See in regard to the arms of the combatants, Beaumanoir, chap. lxi. p. 308, and chap. lxiv. p. 328.

127 Ibid. chap. lxiv. p. 328. See also the Charters of St. Aubin of Anjou, quoted by Galland, p. 263.

128 Among the Romans, it was not infamous to be beaten with a stick, "lege ictus fustium. De iis qui notantur infamia."

129 They had only the baston and buckler.-Beaumanoir, chap. lxiv. p. 328.

130 Book I. t.i.t. 6, sec. 1.

131 Book I. t.i.t. 6, sec. 2.

132 "De Moribus Germanorum."