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THE DECLINE AND FALL
was obliged to follow the tribunal of the defendant, who may always plead a judicial presumption of right or innocence. A more ample latitude was allowed, if every citizen, in the presence of the judge, might declare the law under which he desired to live and the national society to which he chose to belong. Such an indulgence would abolish the partial distinctions of victory, and the Roman provincials might patiently acquiesce in the hardships of their condition; since it depended on themselves to assume the privilege, if they dared to assert the character, of free and warlike Barbarians.[1]
Pecuniary fines for homicide When justice inexorably requires the death of a murderer, each private citizen is fortified by the assurance that the laws, the magistrate, and the whole community are the guardians of his personal safety. But in the loose society of the Germans revenge was always honourable, and often meritorious; the independent warrior chastised, or vindicated, with his own hand, the injuries which he had offered, or received; and he had only to dread the resentment of the sons, and kinsmen, of the enemy whom he had sacrificed to his selfish or angry passions. The magistrate, conscious of his weakness, interposed, not to punish, but to reconcile; and he was satisfied if he could persuade, or compel, the contending parties to pay, and to accept, the moderate fine which had been ascertained as the price of blood.[2] The fierce spirit of the Franks would have opposed a more rigorous sentence; the same fierceness despised these ineffectual restraints; and, when their simple manners had been corrupted by the wealth of Gaul, the public peace was continually violated by acts of hasty or deliberate guilt. In every just government, the same penalty is inflicted, or at least is imposed, for the- ↑ This liberty of choice has been aptly deduced (Esprit des Loix, l. xxviii. 2) from a constitution of Lothaire I. (Leg. Langobard, l. ii. tit. lvii. in Codex Lindebrog. p. 664), though the example is too recent and partial. From a various reading in the Salic law (tit. xliv. not. xlv.) [tit. xli. (xliv. ed. Herold.), col. 244-51, ed. Hessels] the Abbé de Mably (tom. i. p. 290-293) has conjectured that, at first a Barbarian only, and afterwards any man (consequently a Roman), might live according to the law of the Franks. I am sorry to offend this ingenious conjecture by observing that the stricter sense (Barbarum) is expressed in the reformed copy of Charlemagne, which is confirmed by the Royal and Wolfenbuttle Mss. The looser interpretation (hominem) is authorized only by the Ms. of Fulda from whence Heroldus published his edition [A.D. 1557]. See the four original texts of the Salic law, in tom. iv. p. 147, 173, 196, 220. [Out of numerous editions of the Lex Salica in the present century, it is enough to mention here that of J. H. Hessels (1880).]
- ↑ In the heroic times of Greece, the guilt of murder was expiated by a pecuniary satisfaction to the family of the deceased (Feithius, Antiquitat. Homeric. l. ii. c. 8). Heineccius, in his preface to the Elements of Germanic Law, favourably suggests that at Rome and Athens homicide was only punished with exile. It is true; but exile was a capital punishment for a citizen of Rome or Athens.
