LEGAL SYSTEM

When the Romans conquered they allowed the religious and social institutions of the country to remain as they were, but they made the inhabitants, in so far as they thought them worthy of it, subject to the Roman law. When the Empire was divided into East and West, there was no division of laws. The final publication of the whole body of legal institutions was made by an emperor who never set foot on any really Roman ground. However when the Germans conquered, the people had to submit to military and political control, but they were bound to be judged by their own law. If, for example, Franks conquered Visigoths, they might force the Visigoth to serve in the Frankish army and they might tax him for the expense of government; but if he came into their court, he had a right to be tried by the law of his fathers.

When the Germans conquered the Romans, they found a legal system, written down in ponderous volumes. They found a class of learned men whose life was to explain this law and to apply it in the courts. In the cities into which they were now led, there were many necessities of business and social life for which their own law had no provision. So that there was more occasion than ever for them to carry out the old principle of toleration. In fact, we have reason to believe that they took very great pains to become acquainted with the law of Rome, for we have the "Leges Romanae." selections from that law evidently prepared for the use of German judges.

Their own legal system was unwritten, living simple lives, they had never needed anything but the simplest forms of law, and these were handed down by word of mouth from one generation to another.

Within about two or three generations of coming into contact with Romans, the law of each one of the Germanic nations was written down by Roman scholars and in the Latin language. These laws have come down to us the most important of the German laws are the Lex Salica, the law of the Salian Franks, the Lex Ripuariorum, Lex Wisigothorum, Lex Burgundionum, Lex Saxonum and Lex Frisionum, and the Edicts of the Lombard kings. Taken together they are often called the "Leges Barbarorum," in distinction from the Lex Romana.

The Leges Barbarorum differ very much from each other in extent and in content. In an edition in which the Lex Salica occupies fifty printed pages, the Lex Frisionum occupies twenty-five, the Lez Saxonum ten, while the Edicts of the Lombard kings occupy one hundred and sixty, and the Lex Wisigothorum two hundred and fifty. From this it will be seen that those nations which lived farthest from the Roman influence were least impressed with the importance of giving to their law a complete and systematic codification.

A similar distinction is seen in the folk-law, The Edicts of the Lombard kings, especially in the earlier period of the conquest, make hardly any mention of Romans or their law, while the Edictum Theodorici, prepared by Theodoric, king of the Ostrogoths, contains only principles borrowed from the Roman law. In other cases, as with the Burgundians and Visigoths, the laws relating to one people are carefully distinguished from those relating to the other. In the far northern laws of the Frisians and Saxons, little if any trace of Roman influence can be seen.

The Germanic law system originates with ("personality of law,") the legal right of the individual as heir of all that had been deemed right by custom, as distinguished from ("territoriality of law") the state being the source and protection of the law. Their legal process was strong in the sense of the individual right, the person accused was regarded as attacked in his honor and bound to reinstate himself. The accuser was not called upon to prove the crime by what we should call evidence, but the accused must clear himself of the charge.

The accused person would declare himself innocent by an oath and get a certain number of other persons to swear, not that they knew him to be innocent of this particular act, but that they believed him to be telling the truth. They need have no knowledge whatever as to the facts in the given case. This is the famous institution of the "compurgators." The number of the compurgators was generally from seven to eleven, but the number varied according to some curious principles, which we must now examine.

Proof at law rested in the first place upon the value of the given word, confirmed by an oath, but the value of a man's word at law depended partly upon his value in the community, and partly upon the value of the man to whom he was opposed. For instance, in the Frisian law, if a noble was accused of the murder of another noble, he needed eleven compurgators of his own rank to free him; if accused of murdering a freeman, he needed but seven compurgators; and if the alleged victim was a serf, he needed only three. In the same way, if a freeman was charged with the murder of a noble, he needed seventeen compurgators of his own rank; if charged with the murder of another freeman, eleven; and if said to have murdered a serf, only five. Again, a serf, to free himself from the charge of murder in the case of a nobleman, needed thirty-five compurgators; in the case of a freeman, twenty-three; and in the case of another serf, twelve.

The whole idea rested upon the theory that a man would rather confess himself in the wrong than incur the divine vengeance for broken faith. This same divine agency in discovering truth in human affairs is seen in two other forms of legal evidence, which seem to us, if possible, still more singular, in the ordeal and in the wager of battle.

The most common forms of the ordeal were those by lot, by plunging the arm into hot water or into fire, carrying hot iron, standing with outstretched arms until one of the parties to the case falls exhausted, or eating of the consecrated host, in the expectation that God would, by some special act of vengeance, punish the wretch who should dare perform this sacred rite with a lie upon his lips.

In an age when men were chiefly occupied in warfare it was natural that this should have been a favorite method of deciding any difference of opinion, and should come to be looked upon as the actual expression of the divine will. It may seem incredible to us that there should be any real connection between the strength of a man and the justice of his cause. The cases recorded, in which the person appealing to one of these ordeals and actually escaping the natural consequences of the act, for instance, of actually plunging the hand into boiling water without injury, are very rare. The same may be said of the wager of battle.There can be little doubt that the ideas underlying these peculiar legal forms have their roots far back in the heathen times, and were then carried over.

One fundamental idea, was that a man's life had been given a value in money, called his "Wergeld" (man-money), and varied considerably among the different tribes. It rested perhaps originally upon the amount of land owned by the given man, but that had been forgotten, and it depended upon the rank of the man in society. The wergeld, like all other values, was reckoned in shillings (solidi), an amount which we cannot estimate with any great certainty; but we may form some idea of how much a man was worth from the fact that in the law of the Alemanni a first-rate cow was worth one solidus and two-thirds, while the wergeld of a freeman was two hundred solidi. According to the Salic law the ordinary Frankish freeman was worth two hundred, and the ordinary Roman landholder one hundred; but if these were in the special service of the king (trustis), their wergeld was tripled. The Frisian noble was worth eighty shillings; the freeman, fifty-thee shillings and one penny; and the serf (litus), twenty-seven less one penny.

Lesser offences were formerly. no doubt, settled on the eye-for-an-eye principle; but in process of time a given value had come to be fixed upon each offence, and. the effort of the law was to induce men to make use of these fines instead of claiming the ancient right of retaliation. The most singular nicety in this regard is seen in the Frisian law, one of those in which the original German character had been most carefully preserved.

In the Frisian law, if a man's nose were cut off, he received twenty shillings; if it were only pierced through, fifteen. An eyebrow was worth two shillings; a canine tooth, three; a molar, four. A hand cost almost as much as the full wergeld; a thumb, thirteen and a third shillings; the fore finger, seven; the middle finger, six and two-thirds; the ring finger, eight; the little finger, six. If several wounds were made with one blow, they were measured, and the longest one was paid for according to its length, but just how much we are not told. Evidently this latter provision was not definite enough to suit the needs of justice, for in the later "additions of the wise men we find that in this ease of several wounds made by one blow, the wounded man must first swear that such was the case, and then each wound was to be paid for as follows: if it was as long as the first joint of the forefinger, one shilling; if as long as the first two joints, two shillings; if as long as the first two and half of the third, three shillings; and if the full length of the forefinger, four shillings. Then another shilling was added for the length of the space between the forefinger and the thumb; another, for the lower thumb-joint, making six; but if the wound was as long as the whole span, from the tip of the forefinger to the tip of the thumb, the price jumped suddenly to twenty-four shillings; and if it was longer only by the difference between this span and that of the thumb and the middle finger, the price rose to thirty-six. Evidently the good men who made these changes, lived at a time when strong efforts were being made to tame these wild men of the northern marshes, by making the punishment for wrong more severe than it had been.

As the Frankish arms finally prevailed over all the rest, so the Salic law came to be dominant over all the other Germanic laws of the continent. But it did not drive them out. It respected them, added to them, and tried to make them conform to its public necessities; but in all the private dealings of man with man, the conquered tribes were at liberty to go on as they had been living. When, after the conquest of the Saxons by Charlemagne, the Frankish count was sent into the Saxon country to administer law, it was Saxon law that he had to administer. Indeed, Charlemagne went so far as to have the laws of these conquered countries reduced to written form, and thus helped to preserve them to us.

The result was, that these old systems continued pretty much as they had been, and formed the basis of legal action during the whole of the Middle Ages. From very early times men believed that these methods of getting at the truth were not the best and who did what they could to persuade the people to give up the right of appeal to arms, and have their disputes settled according to recognized principles of law, by the regular officers of justice. Especially the Church was generally to be found on the side of order and decency, as against the rude and violent methods of a barbarous people. As time goes on, we see evident traces of clerical and royal interference with these precious privileges, and they show a remarkable power for adapting themselves to changing circumstances, and it was not until late in the Middle Ages that the newly discovered and newly studied Roman law succeeded in driving them out of most of the continental countries. Even then the struggle was a long and bitter one. It was only because the whole idea of government on the continent had changed so much from the early liberty of the Germans to the monarchical notions of later times that the victory of the Roman law was possible. Where that change had not taken place, especially in England, the old laws, very much modified of course, but still much the same in spirit, remained.

The following is a curious case of the use of the lot as a mean. Of determining the divine judgment :-
Lex Fris. tit. xiv. De homine in turba occiso.

If any man be slain in a sedition or riot, and the homicide cannot be discovered on account of the multitude of those present, he who seeks the composition may charge seven men with the murder, and each of these must purify himself from the charge by an oath with eleven compurgators (" sua duodecima manu"). Then they are to be led to the church, and lots are to be placed on the altar, or, if it does not happen to be near a church, on the relics of saints. And the lots are to be as follows: two sticks, cut from a rod, which they call "tenos," are placed on the altar, one of them marked with a cross, the other without a mark, and both wrapped in clean wool. A priest, if one be present, or if not, an innocent boy, takes one of the sticks from the altar, and meanwhile God is called upon to show by some evident sign whether those seven who swore about the murder swore truly. If the stick with the cross on it is taken, they are innocent; but if the other be taken, then each one of the seven must make his own lot, i.e. a "tenum" of rod, and mark it with his own sign, so that he and the rest may recognize it, and then wrap it in clean wool and lay it on the altar or the relics. Then a priest, or as before, an innocent boy, shall take up each one of the lots by itself and ask to whom it belongs. He whose lot happens to be the last shall pay the composition, the rest whose lots were taken up first are free.

If, however, he (the priest or the boy) shall at the first drawing have drawn the lot marked with the cross, the seven, as has been said, are innocent; but he, if he chooses, may charge others with the murder, and whoever is charged must clear himself by an oath with eleven compurgators (" sua duodecima manu'), and this shall be sufficient for the accuser; nor can he compel any one further to the lot.

The following is a formula for the use of those who are to conduct the ordeal of the red-hot iron :
After the charge has been legally made and three days have been spent in fasting and prayer, the priest, clothed in the sacred vestments, excepting the chasuble, shall take with tongs a piece of iron which has been placed before the altar, and, chanting the hymn of the three youths, "Benedicite opera omnia," shall carry it to the fire and shall say this prayer above the place, that the fire may be for the fulfilment of justice: -

"Bless, O Lord God, this place, that we here may have holiness purity, bravery, and victory, virtue, humility, goodness, leniency, an fulness of law, and obedience to God the Father and the Son and the Holy Spirit."
After this the iron shall be placed in the fire and holy water sprinkled upon it, and while it is heating let the mess be celebrated Then when the priest has taken the Eucharist, let him call upon the man who is to be tried and cause him to communicate. Then the priest shall sprinkle holy water upon the iron and say: "May the blessing of God the Father, and of the Son, and of the Holy Spirit descend upon this iron, that it may rightly declare the judgment of God." Then the accused shall carry the iron a space of nine feet. His hand shall be bound up for three days under seal, and if any foul matter shall be found in the mark of the iron, he shall be declared guilty, but if it comes out clean, praise be to God.

The following is the process of judgment with the Psalter, used in a trial for theft :-
Let one piece of wood be prepared, with a head to it, and laid in the Psalter at the verse, "Thou art just, O Lord, and thy judgment is right." Then let the Psalter be closed and strongly tied, with the head of the stick projecting from it. Then let another piece of wood be made with a hole in it, in which the head of the first piece is to be placed so that the Psalter will hang and turn freely in it. Then let two persons hold stick with the Psalter hanging between them, and let the suspected person stand before them. One of those who hold the Psalter shall say to the other three times, "He has this thing"; and the other shall three times answer, "He has it not." Then the priest shall say, "May He deign to make this clear to us, by whose judgment all things in heaven and earth are governed. Thou art just, O Lord, and thy judgment is right. Turn away the iniquity of my enemies, and in thy truth scatter them."

Prayer :-
Almighty and everlasting God, who hast created all things out of nothing, and who hast made man from the dust of the earth, we beseech thee by the intercession of Mary the most blessed mother of God, that thou wilt make trial concerning this thing of which we are uncertain, so that, if this man be guiltless, this book which we hold in our hands may turn with the course of the sun; but, if he be guilty that it may turn in the opposite direction.

Perhaps the most striking and singular case of this profound conviction of the justice of the wager of battle is seen in a story told by the Saxon chronicler, Widukind, writing in the tenth century

"Then a contest arose over a difference on the law, some maintaing that grandchildren whose fathers were dead, were not entitled to receive an equal share of the grandfather's property with the uncles. Then the king (Otto I.) called a general assembly of the people at the palace of Stela, and it was decided to leave the question to the judgment of referees. But the king, following better counsel and being unwilling that men of rank and elders of the people should be so dishonorably treated, commanded that the case should be settled by wager of battle. In this test the party which favored the equality of the grand children with the uncles won the battle, and it was declared law forever that the grandchildren should divide the inheritance with the uncles on equal terms. " - Widukind, Saxon Chronicle, 938.