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126

THE DECLINE AND FALL

gundians.^[1] Under the empire of Charlemagne, murder was universally punished with death; and the use of capital punishments has been liberally multiplied in the jurisprudence of modern Europe.^[2]

Judgments of God The civil and military professions, which had been separated by Constantine, were again united by the Barbarians. The harsh sound of the Teutonic appellations was mollified into the Latin titles of Duke, of Count, or of Præfect;^[3] and the same officer assumed, within his district, the command of the troops and the administration of justice.^[4] But the fierce and illiterate chieftain was seldom qualified to discharge the duties of a judge, which require all the faculties of a philosophic mind, laboriously cultivated by experience and study; and his rude ignorance was compelled to embrace some simple and visible methods of ascertaining the cause of justice. In every religion, the Deity has been invoked to confirm the truth, or to punish the falsehood, of human testimony; but this powerful instrument was misapplied and abused by the simplicity of the German legislators. The party accused might justify his innocence by pro-

↑ See the Burgundian laws (tit. ii. in tom. iv. p. 257), the Code of the Visigoths (l. vi. tit. v. in tom. iv. p. 384), and the constitution of Childebert, not of Paris, but most evidently of Austrasia (in tom. iv. p. 112). Their premature severity was sometimes rash, and excessive. Childebert condemned not only murderers but robbers; quomodo sine lege involavit, sine lege moriatur; and even the negligent judge was involved in the same sentence. The Visigoths abandoned an unsuccessful surgeon to the family of his deceased patient, ut quod de eo facere voluerint habeant potestatem (l. xi. tit. i. in tom. iv. p. 435).
↑ See, in the sixth volume of the works of Heineccius, the Elementa Juris Germanici, l. ii. p. ii. No. 261, 262, 280-283. Yet some vestiges of these pecuniary compositions for murder have been traced in Germany as late as the sixteenth century.
↑ [The count appears as the king's official representative, opposed to the duke who is the native lord of the Gau. The Teutonic name of the Count was garafio, or gerefa (German graf, English reeve); no satisfactory derivation of the name has yet been found, and it was not common to all the German peoples. Thus among the Lombards we do not find reeves, but gastalds. The opposition which we meet in England between the reeve and ealdorman, in the Lombard kingdom between the gastald and duke, is not found among the Merovingian Franks. In the Frank kingdom the duke disappears (except in the case of Bavaria) and the count has undivided authority over the Gau. The dukes whom we do find in Merovingian history have a totally different origin from that of the Lombard dukes. Several provinces (Gaue) were sometimes temporarily united to form a single government, under a royal officer, to whom the title dux was given, and to whom the counts of the provinces were subordinate. For the title praefectus see below, note 121.]
↑ The whole subject of the Germanic judges and their jurisdiction is copiously treated by Heineccius (Element. Jur. Germ. l. iii. No. 1-72). I cannot find any proof that, under the Merovingian race, the scabini, or assessors, were chosen by the people. [The name does not appear till Carolingian times.]

[1] See the Burgundian laws (tit. ii. in tom. iv. p. 257), the Code of the Visigoths (l. vi. tit. v. in tom. iv. p. 384), and the constitution of Childebert, not of Paris, but most evidently of Austrasia (in tom. iv. p. 112). Their premature severity was sometimes rash, and excessive. Childebert condemned not only murderers but robbers; quomodo sine lege involavit, sine lege moriatur; and even the negligent judge was involved in the same sentence. The Visigoths abandoned an unsuccessful surgeon to the family of his deceased patient, ut quod de eo facere voluerint habeant potestatem (l. xi. tit. i. in tom. iv. p. 435).

[2] See, in the sixth volume of the works of Heineccius, the Elementa Juris Germanici, l. ii. p. ii. No. 261, 262, 280-283. Yet some vestiges of these pecuniary compositions for murder have been traced in Germany as late as the sixteenth century.

[3] [The count appears as the king's official representative, opposed to the duke who is the native lord of the Gau. The Teutonic name of the Count was garafio, or gerefa (German graf, English reeve); no satisfactory derivation of the name has yet been found, and it was not common to all the German peoples. Thus among the Lombards we do not find reeves, but gastalds. The opposition which we meet in England between the reeve and ealdorman, in the Lombard kingdom between the gastald and duke, is not found among the Merovingian Franks. In the Frank kingdom the duke disappears (except in the case of Bavaria) and the count has undivided authority over the Gau. The dukes whom we do find in Merovingian history have a totally different origin from that of the Lombard dukes. Several provinces (Gaue) were sometimes temporarily united to form a single government, under a royal officer, to whom the title dux was given, and to whom the counts of the provinces were subordinate. For the title praefectus see below, note 121.]

[4] The whole subject of the Germanic judges and their jurisdiction is copiously treated by Heineccius (Element. Jur. Germ. l. iii. No. 1-72). I cannot find any proof that, under the Merovingian race, the scabini, or assessors, were chosen by the people. [The name does not appear till Carolingian times.]

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