The double Service

CHAP. 18: The double Service

IT was a fundamental principle of the monarchy, that whosoever was subject to the military power of another person, was subject also to his civil jurisdiction.

Thus the capitulary* of Lewis the Debonnaire in 815 AD, makes the military power of the count, and his civil jurisdiction over the freemen, keep always an equal pace.

Thus the placita of the count who carried the freemen against the enemy, were called the placita of the freemen; from whence undoubtedly came this maxim, that the questio= ns relating to liberty could be decided only in the count placita, and not in those of his officers. Thus the count never led the vassals belonging to the= bishops or to the abbots against the enemy, because they were not subject to this civil jurisdiction.

Thus he never commanded the rear-vassals belong ing to the king’s vassals. Thus the glossary** of the English laws informs us, that those to whom the Saxons gave the name of Coples, = were by the Normans called Counts, or companions, because they shared the justiciary fines wit= h the King. Thus we see, that at all times the duty of a vassal=E2=80=A1=E2=80=A1 towards his= lord, was to bear arms and to try his peers in his court.

One of the reasons which produced this c= onnexion between the judiciary right and that of leading the forces against= the enemy, was because the person who led them exacted at the same time th= e payment of the fiscal duties, which consisted in some carriage services d= ue by the freemen, and in general in certain judiciary profits, of which we= shall treat hereafter.

The lords had the right of administring = justice in their fief, by the same principle as the counts had it in their = counties. And indeed the counties in the several variations that happened a= t different times, always followed the variations of the fiefs; both were g= overned by the same plan, and by the same principles. In a word, the counts= in their counties were lords, and the lords in their seignories were count= s.

It has been a mistake to consider the co= unts as civil officers, and the dukes as military commanders. Both were equ= ally civil=E2=88=A5 = and military officers: the whole difference consisted in the duke=E2=80=99s= having several counts under him, though there were counts who had no duke = over them, as we learn from Fredegarius*

It will be imagined perhaps that the gov= ernment of the Franks must have been very severe at that time, since the sa= me officers were invested with a military and civil power, nay, even with a= fiscal authority, over the subjects; which in the Edition: current; Page: [393] preceding books I have= observed to be distinguishing marks of despotism.

But we must not believe that the counts = pronounced judgment by themselves, and administered justice in the same man= ner as the bashaws in Turky; in order to judge affairs, they assembled a ki= nd of assizes, where the principal men appeared.

To the end we may thoroughly understand = what relates to the judicial proceedings, in the formulas, in the laws of t= he barbarians, and in the capitularies, it is proper to observe that the fu= nctions of the count, of the Grafio or fiscal j= udge, and the Centenarius, were the same; that = the judges, the Rathimburgers, and the sheriffs= , were the same persons under different names. These were the counts assist= ants, and were generally seven in number; and as he was obliged to have twe= lve persons to judge=E2= =80=A0, he filled up the number with the principal men=E2=80=A1.

But whoever had the jurisdiction, the ki= ng, the count, the Grafio, the Centenarius, the lords, or the clergy, they never tried causes = alone; and this usage, which derived its origin from the forests of Germany= , was still continued even after the fiefs had assumed a new form.

With regard to the fiscal power, its nat= ure was such, that the count could hardly abuse it. The rights of the princ= e in respect to the freemen, were so simple, that they consisted only, as w= e have already observed, in certain carriages which were=E2=88=A5 demanded of them on some pub= lic occasions. And Edition: c= urrent; Page: [394] as for the judiciary rights, there were laws which pre= vented* misdemeanour= s.

CHAP. 29: Compositions among the barbarous Nations.

SINCE it is impossible to have any tolerable notion of our

We can only know the political law of a nation if we know their laws and manners.

Tacitus says that the Germans knew only 2 capital crimes:

1. They hanged traitors
2. Drowned cowards

These were the only public crimes among those people. When a man had injured another, th= e relations of the person injured took share in the quarrel, and the offenc= e was cancelled by a satisfaction.

This satisfaction was made to the person= offended when capable of receiving it: or to the relations if they had bee= n injured in common, or if by the decease of the party injured, the satisfa= ction had devolved to them.

In the manner mentioned by Tacitus, thes= e 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 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 a loose to their re= venge, till they had obtained satisfaction.

Even this law was moderated; a regulation was made that the person whose life was sought after should be u= nmolested in his own house, as also in going and coming from church, and fr= om the court where causes were tried.*

The compilers of the Salic law cite an ancient usag= e 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 relations h= ad consented to his being re-admitted.

As before that time strict order= s were issued to every one, even to the offenders own wife, not to give him a morsel of bread, or to receive him under their roof; such a person was in respect to others, and others in respect to him, in a state of n= ature, 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 whi= ch the party injured was to receive. All those barbarian laws are in this r= espect most admirably exact; the several cases are minutely distinguished, the circumstan= ces are weighed, the law substitutes itself in the place of the person inju= red, and insists upon the same satisfaction as he himself would have demand= ed in cold blood.

By the establishing of those laws, the G= erman nations quitted that state of nature, in which they seemed to have lived in Tacitus’ time.

Rotharis declares in the law of the Lombards, t= hat he had increased the compositions anciently accustomed for wounds, to the end that the wounded person being fully satisfied, all enmities should c= ease.

As the Lombards, from a very poor people, were grown rich= by the conquest of Italy, the ancient compositions were become frivolous, = and reconcilements prevented. I do not question but this was the motive, wh= ich obliged the other chiefs of the conquering nations, to make the differe= nt codes of laws now extant.

The principal composition was that which= the murderer paid to the relations of the deceased. The difference of conditions prod= uced a difference in the compositions: 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 kill= ing 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 amo= ng rude and boisterous nations.

This we are made sensible of by the law = of the=E2=80=A1 Bava= rians: it gives the names of the Bavarian families who received a double co= mposition, because they were the first=E2=88=A5 after the Agilolfings. 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 du= ke 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 relations.

All these compositions were valued in mo= ney. But as those people, especially when they lived in Germany, had very l= ittle specie, they might pay it in cattle, corn, moveables, arms, dogs, hawks, lands, &am= p;c. 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 v= ery little money.

These laws were therefore employed in ex= actly determinating 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, th= at a person who had taken revenge after having received satisfaction, was g= uilty of an heinous crime. This contained a public as well as a private off= ence: it was a contempt of the law of itself; a crime which the legislators= =E2=80=A0 never fail= ed to punish.

There was another crime, which above all= others was considered as dangerous, when=E2=80=A1 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 Edition: current; Page: [398] receive satisfaction= .

We find in the different codes of the laws of the Barbarians, that the le= gislators were peremptory=E2=88=A5 on this article. In effect, a person who refused to receive = satisfaction, wanted to preserve his right of prosecution; he who refused t= o 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 peo= ple were invited but not compelled to compositions.

I have just now made mention of a text o= f the Salic law, in which the legislator left the party offended at liberty= to receive or refuse satisfaction; it is the law=C2=A7 by which a person who had stript a dead= body, was expelled society; till the relations upon receiving satisfaction= , petitioned for his being re-admitted. It was owing to the respect they ha= d for sacred things, that the compilers of the Salic laws did not meddle wi= th the ancient usage.

It would have been absolutely unjust to = grant a composition to the relations of a robber killed in the fact, or to = the relations of a woman who had be repudiated for the crime of adultery. T= he law* of the Bavar= ians allowed no composition in the like case, but punished the relations wh= o sought revenge.

It is no rare thing to meet with composi= tions for involuntary actions in the codes of the laws of the Barbarians.

The law of the Lombards is generally very prudent; it=E2=80=A0 ordained, that in those cases the= composition should be according to the person=E2=80=99s generosity; and that the relations should no longer be permitted to pursue their revenge.

Clotharius the second made a very wise d= ecree: he forbade=E2=80= =A0 the person robbed to receive any clandestine composition, and without an order from the judge. We shall presently see the motive of this law.