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CHARLEMAGNE AS A LEGISLATOR.
Necessity of guarding against the errors suggested by the
names we use in historical investigations-State of the law on the accession of Charlemagne-His determination to reform it-The legislative assembly—The reorganization of the Champs de Mai-Its character, constitution, and labours -The legislation-Its heterogeneous character-Moral precepts-Penal enactments—The Wehr-The ordeal and judi. cial combat-The law of sanctuary-Ecclesiastical legislation - Provides for the formation of an educated ministry, and insists upon the faithful preaching of the gospel-Influence of Alcuin on this part of his legislation-Social legislationInquiry into the merits of this code-Administration and exécution of the laws-Judicial activity of Charlemagne himself-Governors of provinces Elevation of ecclesiastics to these posts-Motives and results of this-Missi Dominici -Report of Theodulf and Leidrade on the administration of law in the provinces-Copies of instructions given to Missi -Characteristic peculiarities and merits of the legislative
system of Charlemagne. The tyranny exercised over us, and the illusions practised upon us by the words which we use, have been remarked by many writers. suppose,” says Bacon, “that we command and control our words, whereas it not unfrequently happens that they command and control us." We use a word to describe some object, and it serves our purpose exactly and precisely. When we wish to speak of something which is similar, but not identical, we are compelled,
from the poverty of language and the paucity of words, to apply to it the same name, to speak of it in the same terms. It is impossible for us so to multiply words as to define precisely our various shades of meaning. Hence arises a fruitful source of fallacy and mistake ; for by using the same names in speaking of various objects, their points of similarity only are brought before the mind, whilst their points of difference are left out of sight and are apt to be forgotten."
In nothing is this more true than in historical investigations. We employ some phrase to describe a distinct and definite idea or institution of our own times. When we wish to speak of the ideas and institutions of past ages, and of other states of society, we are compelled to use the same terms, though we are describing something very different. Thus we speak of monarchy, a king, the kingly power; and by this we in the present day mean a fixed and settled government, administered by an individual whose authority is fortified by prerogative and restrained within constitutional limits, these mutual prerogatives and limitations being strictly defined and recognised both by the ruler and the subjects. When we speak of government and legislation among the Franks, we are compelled to employ the same terms, and in transferring the words we can scarcely avoid transferring with them their present meaning. But the words king and monarchy expressed very different ideas and very different facts
then and now. There was nothing in existence among the Franks analogous to what we, in the present day, mean by those names. power was little more than a military chieftainship. In the rare intervals of peace, the monarch's authority depended, not on any prescriptive and admitted right, but on his own personal character and influence, varying with these from absolute despotism to utter powerlessness. The imbecility of the predecessors of Pepin had reduced the royal power to its lowest possible point, all the functions of government had fallen into disorder, and anarchy prevailed in every department of the state. The language of a modern historian is scarcely exaggerated, who says: “ The monarchy was left without any regular establishment of justice, of arms, or of revenue. The successors of Clovis wanted resolution to assume and strength to exercise the legislative or executive powers. Among the people, the love of freedom was reduced to a contempt of order and the desire of impunity," This description is amply borne out by the words of Gregory of Tours : longer fears or respects his king, his chief, or his count. Each man loves to do evil, and freely indulges his desires. The most gentle correction provokes an immediate tumult, and the magistrate who presumes to censure or restrain his subjects seldom escapes from them alive."
Whilst if the executive functions of the government had become thus disorganized, its legislation was in a condition scarcely less anarchical.
6. No one any
Charlemagne, on his accession to the throne, found the Franks as little disposed to acknowledge his authority to enact laws, as they were to yield obedience to the magistrates in the execution of them. The legislative assembly common to the Franks with the other Germanic nations, had fallen into disuse since their settlement in Gaul, and no other political institution had taken its place. As a consequence of this, neither the king nor any one else was regarded as having authority to make laws binding on the nation. Nor was this all. Each tribe as it settled in Gaul had transplanted thither its own code, which it retained unaltered, though its enactments were utterly unsuited to its new mode of life, and at variance with the usages of its neighbours. At least five such contradictory and inconsistent codes are known to have been in operation in France at the same time, namely, the Salic, the Ripuarian, the Gothic, the Burgundian, and the Roman. “ So great is the diversity of the laws," writes Agobard, “ that not only does it exist in the same province, or in the same city, but even in the same household. For it often happens, that if five men meet on a journey, or in a house, no one of them has a law in common with the others." Nor did the confusion stop even here. Most of these codes being handed down by tradition, or reduced to writing in different places at different times, the various enactments of each became so corrupted and altered, that the copies of professedly the same law differed as
widely from one another, as they did from those of other nations.
It was to a government thus anarchical that Charlemagne succeeded. It will therefore behove us to be on our guard against the error into which so many historical inquirers have fallen, of being deceived by the ambiguities of language, and thus being led to measure his policy by rules only applicable to times like
The repression of such universal anarchy, and reconstruction of society when so utterly disorganized, might have seemed a hopeless enterprise even to one who could devote to the task the uninterrupted energies of a lifetime. What, then, must we think of the prodigious energy of him who, spending his whole mature life in the camp, yet attempted this and succeeded ? In tracing out the career of Charlemagne as a lawgiver, our best and simplest course will be—first, to describe the legislative body of his times, and its mode of procedure ; secondly, to give some account of the legislation itself; and thirdly, to consider the execution and administration of the laws which it enacted.
The legislative council consisted of that annual muster of the Frankish warriors to which frequent reference has been made in the preceding chapters, and seems to have been the source from which the representative institutions of modern Europe originated. In their native forests, as we learn from Tacitus, all the German tribes had such assemblies, where all