Читать книгу A Source Book of Mediæval History - Various - Страница 19

When the Visigoths, Lombards, and other Germanic peoples settled within the bounds of the Roman Empire they had no such thing as written law. They had laws, and a goodly number of them, but these laws were handed down from generation to generation orally, having never been enacted by a legislative body or decreed by a monarch in the way that laws are generally made among the civilized peoples of to-day. In other words, early Germanic law consisted simply of an accumulation of the immemorial custom of the tribe. When, for example, a certain penalty had been paid on several occasions by persons who had committed a particular crime, men came naturally to regard that penalty as the one regularly to be paid by any one proved guilty of the same offense; so that what was at first only habit gradually became hardened into law—unwritten indeed, but none the less binding. The law thus made up, moreover, was personal rather than territorial like that of the Romans and like ours to-day. That is, the same laws did not apply to all the people throughout any particular country or region. If a man were born a Visigoth he would be subject to Visigothic law throughout life, no matter where he might go to live. So the Burgundian would always have the right to be judged by Burgundian law, and the Lombard by the Lombard law. Obviously, in regions where several peoples dwelt side by side, as in large portions of Gaul, Spain, and northern Italy, there was no small amount of confusion and the courts had to be conducted in a good many different ways.

After the Germans had been for some time in contact with the Romans they began to be considerably influenced by the customs and ways of doing things which they found among the more civilized people. They tried to master the Latin language, though, on the whole, they succeeded only so well as to create the new "Romance" tongues which we know as French, Spanish, Portuguese, and Italian. They adopted the Roman religion, i.e., Christianity. And, among the most important things of all, they took up the Roman idea of having their law written out rather than in the uncertain shape of mere tradition. In this work of putting the old customary law in written form the way was led by the Salian branch of the Franks. Just when the Salic code was drawn up is not known, but the work was certainly done at some time during the reign of Clovis, probably about the year 496. The portions of this code which are given below will serve to show the general character of all the early Germanic systems of law—Visigothic, Lombard, Burgundian, and Frisian, as well as Frankish; for among them all there was much uniformity in principles, though considerable variation in matters of detail. Like the rest, the Salic law was fragmentary. The codes were not intended to embrace the entire law of the tribe, but simply to bring together in convenient form those portions which were most difficult to remember and which were most useful for ready reference. In the Salic code, for instance, we find a large amount of criminal law and of the law of procedure, but only a few touches of the law of property, or indeed of civil law of any sort. There is practically nothing in the way of public or administrative law. Many things are not mentioned which we should expect to find treated and, on the other hand, some things are there which we should not look for ordinarily in a code of law. The greater portion is taken up with an enumeration of penalties for various crimes and wrongful acts. These are often detailed so minutely as to be rather amusing from our modern point of view. Yet every one of the sixty-five chapters of the code has its significance and from the whole law can be gleaned an immense amount of information concerning the manner of life which prevailed in early Frankish Gaul. For the Merovingian period in general the Salic law is our most valuable documentary source of knowledge, just as for the same epoch the Ecclesiastical History of Gregory of Tours is our most important narrative source.

Source—Text in Heinrich Geffcken, Lex Salica ["The Salic Law"], Leipzig, 1898; also Heinrich Gottfried Gengler, Germanische Rechtsdenkmäler ["Monuments of German Law"], Erlangen, 1875, pp. 267–303. Adapted from translation in Ernest F. Henderson, Select Historical Documents of the Middle Ages (London, 1896), pp. 176–189.

I.

1. If any one be summoned before the mallus[59] by the king's law, and do not come, he shall be sentenced to 600 denarii, which make 15 solidi.[60]

2. But he who summons another, and does not come himself, if a lawful impediment have not delayed him, shall be Summonses to the meetings of the local courts sentenced to 15 solidi, to be paid to him whom he summoned.

3. And he who summons another shall go with witnesses to the home of that man, and, if he be not at home, shall enjoin the wife, or any one of the family, to make known to him that he has been summoned to court.

4. But if he be occupied in the king's service he cannot summon him.

5. And if he shall be inside the hundred attending to his own affairs, he can summon him in the manner just explained.

XI.

1. If any freeman steal, outside of a house, something worth 2 denarii, he shall be sentenced to 600 denarii, which make 15 solidi.

2. But if he steal, outside of a house, something worth 40 Theft by a slave denarii, and it be proved on him, he shall be sentenced, besides the amount and the fines for delay, to 1,400 denarii, which make 35 solidi.

3. If a freeman break into a house and steal something worth 2 denarii, and it be proved on him, he shall be sentenced to 15 solidi.

4. But if he shall have stolen something worth more than 5 denarii, and it be proved on him, he shall be sentenced, besides the value of the object and the fines for delay, to 1,400 denarii, which make 35 solidi.

5. But if he shall have broken, or tampered with, the lock, and thus have entered the house and stolen anything from it, he shall be sentenced, besides the value of the object and the fines for delay, to 1,800 denarii, which make 45 solidi.

6. And if he shall have taken nothing, or have escaped by flight, he shall, for the housebreaking alone, be sentenced to 1,200 denarii, which make 30 solidi.

XII.

1. If a slave steal, outside of a house, something worth 2 Theft by a freeman denarii, besides paying the value of the object and the fines for delay, he shall be stretched out and receive 120 blows.

2. But if he steal something worth 40 denarii, he shall pay 6 solidi. The lord of the slave who committed the theft shall restore to the plaintiff the value of the object and the fines for delay.

XIV.

1. If any one shall have assaulted and robbed a freeman, and it be proved on him, he shall be sentenced to 2,500 denarii, which Robbery with assault make 63 solidi.

2. If a Roman shall have robbed a Salian Frank, the above law shall be observed.

3. But if a Frank shall have robbed a Roman, he shall be sentenced to 35 solidi.

XV.

1. If any one shall set fire to a house in which people were sleeping, as many freemen as were in it can make complaint The crime of incendiarism before the mallus; and if any one shall have been burned in it, the incendiary shall be sentenced to 2,500 denarii, which make 63 solidi.[61]

XVII.

1. If any one shall have sought to kill another person, and the blow shall have missed, he on whom it was proved shall be sentenced to 2,500 denarii, which make 63 solidi.

2. If any person shall have sought to shoot another with a Various deeds of violence poisoned arrow, and the arrow has glanced aside, and it shall be proved on him, he shall be sentenced to 2,500 denarii, which make 63 solidi.

5. If any one shall have struck a man so that blood falls to the floor, and it be proved on him, he shall be sentenced to 600 denarii, which make 15 solidi.

6. But if a freeman strike a freeman with his fist so that blood does not flow, he shall be sentenced for each blow—up to 3 blows—to 120 denarii, which make 3 solidi.[62]

XIX.

1. If any one shall have given herbs to another, so that he die, he shall be sentenced to 200 solidi, or shall surely be given Use of poison or witchcraft over to fire.

2. If any person shall have bewitched another, and he who was thus treated shall escape, the author of the crime, having been proved guilty of it, shall be sentenced to 2,500 denarii, which make 63 solidi.

XXX.

6. If any man shall have brought it up against another that Punishment for slander he has thrown away his shield, and shall not have been able to prove it, he shall be sentenced to 120 denarii, which make 3 solidi.[63]

7. If any man shall have called another "gossip" or "perjurer," and shall not have been able to prove it, he shall be sentenced to 600 denarii, which make 15 solidi.

XXXIV.

1. If any man shall have cut 3 staves by which a fence is bound or held together, or shall have stolen or cut the heads of 3 stakes, he shall be sentenced to 600 denarii, which make 15 solidi.

2. If any one shall have drawn a harrow through another's field of grain after the seed has sprouted, or shall have gone The offense of trespass through it with a wagon where there was no road, he shall be sentenced to 120 denarii, which make 3 solidi.

3. If any one shall have gone, where there is no road or path, through another's field after the grain has grown tall, he shall be sentenced to 600 denarii, which make 15 solidi.

XLI.

1. If any one shall have killed a free Frank, or a barbarian living under the Salic law, and it shall have been proved on him, he shall be sentenced to 8,000 denarii.

2. But if he shall have thrown him into a well or into the Punishments for homicide water, or shall have covered him with branches or anything else, to conceal him, he shall be sentenced to 24,000 denarii, which make 600 solidi.

3. If any one shall have slain a man who is in the service of the king, he shall be sentenced to 24,000 denarii, which make 600 solidi.[64]

4. But if he shall have put him in the water, or in a well, and covered him with anything to conceal him, he shall be sentenced to 72,000 denarii, which make 1,000 solidi.

5. If any one shall have slain a Roman who eats in the king's palace, and it shall have been proved on him, he shall be sentenced to 12,000 denarii, which make 300 solidi.[65]

6. But if the Roman shall not have been a landed proprietor and table companion of the king, he who killed him shall be sentenced to 4,000 denarii, which make 100 solidi.

7. If he shall have killed a Roman who was obliged to pay tribute, he shall be sentenced to 63 solidi.

9. If any one shall have thrown a freeman into a well, and he has escaped alive, he [the criminal] shall be sentenced to 4,000 denarii, which make 100 solidi.

XLV.

1. If any one desires to migrate to another village, and if one or more who live in that village do not wish to receive him—even Right of migration if there be only one who objects—he shall not have the right to move there.

3. But if any one shall have moved there, and within 12 months no one has given him warning, he shall remain as secure as the other neighbors.

L.

1. If any freeman or leet[66] shall have made to another a promise to pay, then he to whom the promise was made shall, within 40 Enforcement of debt days, or within such time as was agreed upon when he made the promise, go to the house of that man with witnesses, or with appraisers. And if he [the debtor] be unwilling to make the promised payment, he shall be sentenced to 15 solidi above the debt which he had promised.

LIX.

1. If any man die and leave no sons, the father and mother shall inherit, if they survive.

Rights of inheritance 2. If the father and mother do not survive, and he leave brothers or sisters, they shall inherit.

3. But if there are none, the sisters of the father shall inherit.

4. But if there are no sisters of the father, the sisters of the mother shall claim the inheritance.

5. If there are none of these, the nearest relatives on the father's side shall succeed to the inheritance.

6. Of Salic land no portion of the inheritance shall go to a woman; but the whole inheritance of the land shall belong to the male sex.[67]

LXII.

1. If any one's father shall have been slain, the sons shall have half the compounding money [wergeld]; and the other half, the Payment of wergeld nearest relatives, as well on the mother's as on the father's side, shall divide among themselves.[68]

2. But if there are no relatives, paternal or maternal, that portion shall go to the fisc.[69]