19. Of Compositions among the barbarous Nations. Since it is impossible to gain any insight into our political law unless we are thoroughly acquainted with the laws and manners of the German nations, I shall, therefore, pause here awhile, in order to inquire into those manners and laws.

　　It appears by Tacitus that the Germans knew only two capital crimes; they hanged traitors, and drowned cowards; these were the only public crimes among that people. When a man had injured another, the relatives of the person injured took share in the quarrel, and the offence was cancelled by a satisfaction.131 This satisfaction was made to the person offended, when capable of receiving it; or to the relatives if they had been injured in common, or if by the decease of the party aggrieved or injured the satisfaction had devolved to them.

　　In the manner mentioned by Tacitus, these 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 Frisians132 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 freedom to their revenge till they had obtained satisfaction. Even this law was moderated; a regulation was made133 that the person whose life was sought after should be unmolested in his own house, as also in going and coming from church and the court where causes were tried. The compilers of the Salic law134 cite an ancient usage 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 relatives had consented to his being re-admitted. And as before that time strict orders were issued to every one, even to the offender's own wife, not to give him a morsel of bread, or to receive him under their roofs, such a person was in respect to others, and others in respect to him, in a state of savagery 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 which the party wronged or injured was to receive. All those barbarian laws are in this respect most admirably exact; the several cases are minutely distinguished,135 the circumstances are weighed, the law substitutes itself in the place of the person injured and insists upon the same satisfaction as he himself would have demanded in cold blood.

　　By the establishing of those laws, the German nations quitted that state of nature in which they seemed to have lived in Tacitus' time.

　　Rotharis declares, in the law of the Lombards,136 that he had increased the compositions allowed by ancient custom for wounds, to the end that, the wounded person being fully satisfied, all enmities should cease. And indeed as the Lombards, from a very poor people had grown rich by the conquest of Italy, the ancient compositions had become frivolous, and reconcilements prevented. I do not question but this was the motive which obliged the other chiefs of the conquering nations to make the different codes of laws now extant.

　　The principal composition was that which the murderer paid to the relatives of the deceased. The difference of conditions produced a difference in the compositions.137 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 killing 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 among rude and boisterous nations.

　　This we are made sensible of by the law of the Bavarians:138 it gives the names of the Bavarian families who received a double composition, because they were the first after the Agilolfings.139 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 duke 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 relatives."

　　All these compositions were valued in money. But as those people, especially when they lived in Germany, had very little specie, they might pay it in cattle, corn, movables, arms, dogs, hawks, lands, &c.140 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 very little money.141

　　These laws were therefore employed in exactly determining 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 that a person who had taken revenge after having received satisfaction was guilty of a heinous crime. This contained a public as well as a private offence; it was a contempt of the law of itself; a crime which the legislators never failed to punish.142

　　There was another crime which above all others was considered as dangerous, when 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 receive satisfaction.143 We find in the different codes of the laws of the Barbarians that the legislators were peremptory on this article.144 In effect, a person who refused to receive satisfaction wanted to preserve his right of prosecution; he who refused to 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 people were incited but not compelled to compositions.

　　I have just now made mention of a text of the Salic law, in which the legislator left the party offended at liberty to receive or to refuse satisfaction; it is the law by which a person who had stripped a dead body was expelled from society till the relatives upon receiving satisfaction petitioned for his being re-admitted.145 It was owing to the respect they had for sacred things that the compilers of the Salic laws did not meddle with the ancient usage.

　　It would have been absolutely unjust to grant a composition to the relatives of a robber killed in the act, or to the relatives of a woman who had been repudiated for the crime of adultery. The law of the Bavarians allowed no compositions in the like cases, but punished the relatives who sought revenge.146

　　It is no rare thing to meet with compositions for involuntary actions in the codes of the laws of the Barbarians. The law of the Lombards is generally very prudent; it ordained147 that in those cases the compositions should be according to the person's generosity; and that the relatives should no longer be permitted to pursue their revenge.

　　Clotharius II made a very wise decree; he forbad the person robbed to receive any clandestine composition, and without an order from the judge.148 We shall presently see the motive of this law.

　　20. Of what was afterwards called the Jurisdiction of the Lords. Besides the composition which they were obliged to pay to the relatives for murders or injuries, they were also under a necessity of paying a certain duty which the codes of the barbarian laws called fredum.149 I intend to treat of it at large; and in order to give an idea of it, I begin with defining it as a recompense for the protection granted against the right of vengeance. Even to this day, fred in the Swedish language signifies peace.

　　The administration of justice among those rude and unpolished nations was nothing more than granting to the person who had committed an offence a protection against the vengeance of the party offended, and obliging the latter to accept of the satisfaction due to him: insomuch that among the Germans, contrary to the practice of all other nations, justice was administered in order to protect the criminal against the party injured.

　　The codes of the Barbarian laws have given us the cases in which the freda might be demanded. When the relatives could not prosecute, they allowed of no fredum; and indeed, when there was no prosecution there could be no composition for a protection against it. Thus, in the law of the Lombards,150 if a person happened to kill a freeman by accident, he paid the value of the man killed, without the fredum; because, as he had killed him involuntarily, it was not the case in which the relatives were allowed the right of prosecution. Thus in the law of the Ripuarians,151 when a person was killed with a piece of wood, or with any instrument made by man, the instrument or the wood were deemed culpable, and the relatives seized upon them for their own use, but were not allowed to demand the fredum.

　　In like manner, when a beast happened to kill a man, the same law established a composition without the fredum, because the relatives of the deceased were not offended.152

　　In fine, it was ordained by the Salic law,153 that a child who had committed a fault before the age of twelve should pay the composition without the fredum: as he was not yet able to bear arms, he could not be in the case in which the party injured, or his relatives, had a right to demand satisfaction.

　　It was the criminal that paid the fredum for the peace and security of which he had been deprived by his crime, and which he might recover by protection. But a child did not lose this security; he was not a man, and consequently could not be expelled from human society.

　　This fredum was a local right in favour of the person who was judge of the district.154 Yet the law of the Ripuarians155 forbade him to demand it himself: it ordained that the party who had gained the cause should receive it and carry it to the exchequer, to the end that there might be a lasting peace, says the law among the Ripuarians.

　　The greatness of the fredum was proportioned to the degree of protection: thus the fredum for the king's protection was greater than what was granted for the protection of the count, or of the other judges.156

　　Here I see the origin of the jurisdiction of the lords. The fiefs comprised very large territories, as appears from a vast number of records. I have already proved that the kings raised no taxes on the lands belonging to the division of the Franks; much less could they reserve to themselves any duties on the fiefs. Those who obtained them had in this respect a full and perfect enjoyment, reaping every possible emolument from them. And as one of the most considerable emoluments was the justiciary profits （freda）,157 which were received according to the usage of the Franks, it followed thence that the person seized of the fief was also seized of the jurisdiction, the exercise of which consisted of the compositions made to the relatives, and of the profits accruing to the lord; it was nothing more than ordering the payment of the compositions of the law, and demanding the legal fines. We find by the formularies containing confirmation of the perpetuity of a fief in favour of a feudal lord,158 or of the privileges of fiefs in favour of churches,159 that the fiefs were possessed of this right. This appears also from an infinite number of charters160 mentioning a prohibition to the king's judges or officers of entering upon the territory in order to exercise any act of judicature whatsoever, or to demand any judiciary emolument. When the king's judges could no longer make any demand in a district, they never entered it; and those to whom this district was left performed the same functions as had been exercised before by the judges.

　　The king's judges are forbidden also to oblige the parties to give security for their appearing before them; it belonged therefore to the person who had received the territory in fief to demand this security. They mention also that the king's commissaries shall not insist upon being accommodated with a lodging; in effect, they no longer exercised any function in those districts.

　　The administration therefore of justice, both in the old and new fiefs, was a right inherent in the very fief itself, a lucrative right which constituted a part of it. For this reason it had been considered at all times in this light; whence this maxim arose, that jurisdictions are patrimonial in France.

　　Some have thought that the jurisdictions derived their origin from the manumissions made by the kings and lords in favour of their bondmen. But the German nations, and those descended from them, are not the only people who manumitted their bondmen, and yet they are the only people that established patrimonial jurisdictions. Besides, we find by the formularies of Marculfus161 that there were freemen dependent on these jurisdictions in the earliest times: the bondmen were therefore subject to the jurisdiction, because they were upon the territory; and they did not give rise to the fiefs for having been annexed to the fief.

　　Others have taken a shorter cut; the lords, say they （and this is all they say）, usurped the jurisdictions. But are the nations descended from Germany the only people in the world that usurped the rights of princes? We are sufficiently informed by history that several other nations have encroached upon their sovereigns, and yet we find no other instance of what we call the jurisdiction of the lords. The origin of it is therefore to be traced in the usages and customs of the Germans.

　　Whoever has the curiosity to look into Loyseau162 will be surprised at the manner in which this author supposes the lords to have proceeded in order to form and usurp their different jurisdictions. They must have been the most artful people in the world; they must have robbed and plundered, not after the manner of a military nation, but as the country justices and the attornies rob one another. Those brave warriors must be said to have formed a general system of politics throughout all the provinces of the kingdom, and in so many other countries in Europe; Loyseau makes them reason as he himself reasoned in his closet.

　　Once more; if the jurisdiction was not a dependence of the fief, how come we everywhere to find that the service of the fief was to attend the king or the lord, both in their courts and in the army?163

　　21. Of the Territorial Jurisdiction of the Churches. The churches acquired very considerable property. We find that our kings gave them great seigniories, that is, great fiefs; and we find jurisdictions established at the same time in the demesnes of those churches. Whence could so extraordinary a privilege derive its origin? it must certainly have been in the nature of the grant. The church land had this privilege because it had not been taken from it. A seigniory was given to the church; and it was allowed to enjoy the same privileges as if it had been granted to a vassal, it was also subjected to the same service as it would have paid to the state if it had been given to a layman, according to what we have already observed.

　　The churches had therefore the right of demanding the payment of compositions in their territory, and of insisting upon the fredum; and as those rights necessarily implied that of hindering the king's officers from entering upon the territory to demand these freda and to exercise acts of judicature, the right which ecclesiastics had of administering justice in their own territory was called immunity, in the style of the formularies, of the charters, and of the capitularies.164

　　The law of the Ripuarians165 forbids the freedom of the churches166 to hold the assembly for administering justice in any other place than in the church where they were manumitted.167 The churches had therefore jurisdictions even over freemen, and held their placita in the earliest times of the monarchy.

　　I find in the Lives of the Saints168 that Clovis gave to a certain holy person power over a district of six leagues, and exempted it from all manner of jurisdiction. This, I believe, is a falsity, but it is a falsity of a very ancient date; both the truth and the fiction contained in that life are in relation to the customs and laws of those times, and it is these customs and laws we are investigating.169

　　Clotharius II orders the bishops or the nobility who are possessed of estates in distant parts, to choose upon the very spot those who are to administer justice, or to receive the judiciary emoluments.170

　　The same prince regulates the judiciary power between the ecclesiastic courts and his officers.171 The Capitulary of Charlemagne in the year 802 prescribes to the bishops and abbots the qualifications necessary for their officers of justice. Another capitulary of the same prince inhibits the royal officers172 to exercise any jurisdiction over those who are employed in cultivating church lands, except they entered into that state by fraud, and to exempt themselves from contributing to the public charges.173 The bishops assembled at Rheims made a declaration that the vassals belonging to the respective churches are within their im-munity.174 The Capitulary of Charlemagne in the year 806 ordains that the churches should have both criminal and civil jurisdiction over those who live upon their lands.175 In fine, as the capitulary of Charles the Bald176 distinguishes between the king's jurisdiction, that of the lords, and that of the church, I shall say nothing further upon this subject.
关键字:英文版论法的精神
生词表: