« PreviousContinue »
to our times as relics and proofs of the prodigious activity and energy of this extraordinary man. This, whilst it renders any clear or complete classification impossible, yet greatly increases their value as a picture of the age. Adopting, with some modifications, the arrangement of M. Guizot, we shall first give some examples of those moral precepts which, in a strict sense, cannot be called laws, but rather counsel and advice; we shall then consider Charlemagne's penal, ecclesiastical, and social legislation.
Of the first class—moral counsels and precepts—the following will afford fair specimens:
“ It is necessary that every man should, to the best of his ability and strength, endeavour to serve God and walk in the way of his commandments, for the lord emperor cannot watch over every person with the necessary care, and keep every person in his proper place." (Capitulary of the year 802.)
“ Avarice consists in desiring the possessions of others, and in not being willing to give to others a share of what we ourselves possess. According to the apostle, it is the root of all evil. It should therefore be most carefully guarded against.” (806.)
These enactments clearly show that the idea present to the legislator's mind was that he was responsible for the personal morality and private conduct of each individual.
Similar in spirit to the foregoing are the two following :-"Let allmen practise hospitality.”
" Those who are determined to become rich are likely to make dishonourable gains." (789, 794.)
“ Let more attention be paid to the promotion of religion than to the decoration of churches; for although it is a good thing that churches should be beautiful edifices, yet virtue forms their best crown and ornament. It seems to - us that the building of handsome churches pertains rather to the old dispensation, while the improvement of the character and life is the more peculiar work of the New Testament and the Christian dispensation." (Capitulary of the year 811.)
“ There are certain persons so superstitious that they appeal to sorcerers and conjurers, and are particular about the days and times, and hang amulets and spells about their necks.
. We do not know what Scriptural warrant they have for acting thus.” “Whatever a man does, let him do it in the name of the Lord.” (814.)
Such exhortations as these are very frequent. Many similar will appear under the head of ecclesiastical legislation. While they show the sound vigorous sense of the emperor and his councillors, they yet indicate clearly enough how very confused and imperfect were their ideas of the province of the legislator, and the limits within which he can act.
We pass on to a consideration of the penal legislation of Charlemagne. Against this a charge of cruelty has been brought. The only part of it which lies open to this reproach con
sists of the laws by which death is denounced as the penalty to those Saxons who refuse to receive baptism, or who relapse into idolatry after it. That these enactments were of a cr
cruel, and almost of a ferocious character, it would be vain to deny. They ought properly to be considered, however, not as the legislation of a monarch for his own subjects, but that of a commander at the head of an army dictating terms to a defeated enemy. The enactment in question formed part, not of his civil, but of his martial law; and the capital punishments which they denounced were only military executions in another form. We may therefore omit all reference to these capitula, as not coming within the scope of the present chapter.
The other parts of his penal laws are not characterized by any undue severity, but rather by an aversion to inflict death. He appears to have revised the various discordant codes of laws to which reference was previously made, to have reduced them to something like uniformity, and in general to have mitigated their severity.* Charlemagne was especially anxious to diminish the extreme rigour of the punishments inflicted upon the serfs and slaves, and to protect them from the capricious cruelty of their masters. Of this the three
* In this part of Charlemagne's conduct the reader may trace another point of parallel between his proceedings and those of Napoleon at a later period. The latter digested the conflicting laws of France, fusing them into his one “ Code Napoléon;" a peaceful trophy of his genius, more durable, perhaps, than his military fame.
following enactments will afford proof :-"Let no lord take away his land from any vassal without just cause, and at the mere impulse of anger.” " Whoever holds a fief under us must take as much care as he can, that by God's help none of his slaves shall perish from hunger. And let him not sell the produce of his soil till he has first of all provided for their sustenance.” “A man suborned a slave, and induced him to kill his two young masters, aged, the one nine, the other eleven, and then killed the slave himself and threw him into a ditch. Adjudged that the man should pay a wehrgeld for the boy of nine, a double wehrgeld for the boy of eleven, a treble wehrgeld for the slave, and inoreover undergo our ban."
This adjudication is instructive, not only as illustrating the atrocious crimes of the the determination of the emperor to repress them, and to protect the life even of a slave, but as bringing before us the principle common to all the laws of his time and race, of levying a pecuniary fine upon the offender rather than inflicting a bodily punishment. As this is one of the most important and characteristic features in the penal laws of the Teutonic nations, it may be well to describe it somewhat fully.
We learn from Tacitus, that in these tribes offences against the community, such as treason or cowardice, were punished with death ; the offender being generally thrown into a morass,
and a hurdle being placed upon him.* When the offence, however, was committed against an individual or a family, a fine of horses or cattle was imposed, part of which went to the person injured, or, if he were killed, to his family, and part to the magistrate. The amount of the fine varied with the circumstances of the case, and was assessed in proportion to the rank of the culprit and of the injured party, the nature of the injury, the place where it was committed, as well as the relation in which the parties stood to one another. The utmost ingenuity was displayed in determining the amount of fine which the various combinations of circumstances required. The injury done to a woman was to be compensated by a fine twice the amount of that inflicted for the same injury done to a man. The Anglo-Saxon code fixed the wehrgeld of a king at 30,000 thrismas, of a prince at 15,000, of a bishop or alderman at 8,000, of a sheriff at 4,000, of a ceorle at 266.6 The Salic code, which formed the basis of the legislation of Charlemagne, imposed a fine of 600 solidi for the murder of a noble of the first rank, 300 for that of a noble of the second rank, and 200 for an ordinary Frank. But
* The remains of these malefactors are sometimes found in the marshes of Germany at the present day.
+ The deodand formerly levied by the coroner seems a relic of this. The word “damages," as used for the pecuniary fine levied by a court of justice, has probably the same origin. Our phrase, “What is he worth?". meaning, How much money has he? is conjectured to originate from the wehrt or money value of the individual in the eye of the law.
* The solidus was of the nominal value of 78.8£d., equal to £4. 28. 11d. of our present money. The nominal value of the thrisma was 8dd.