added, in the time of Justinian, Nestorians, Eutychians, Apollinarians. The books of all these sects were to be burned; yet the formidable number of these heretics made, no doubt, the general execution of these laws impossible. But the Justinian code, having defined heretics as all who do not believe the Catholic faith, declares such heretics, as well as pagans, Jews, and Samaritans, incapable of holding civil or military offices, except in the lowest ranks of the latter; they could attain to no civic dignity which was held in honour, as that of the defensors, though such as were burthensome might be imposed even on Jews.1 The assemblies of all heretics were forbidden, their books were to be collected or burned, their rites, baptisms, and ordinations prohibited.* Children of heretical parents might embrace orthodoxy; the males the parent could not disinherit, to the females he was bound to give an adequate dowry. The testimony of Manicheans, of Samaritans, and pagans could not be received; apostates to any of these sects and religions lost all their former privileges, and were liable to all penalties."

II. The Barbaric Laws differed from those of the empire in this important point. The Roman juris- Barbaric prudence issued entirely from the will of the codes. Emperor. The ancient laws, whether of the Republic or of his imperial predecessors, received their final sanction, as comprehended within his code: the answers of the great lawyers, the accredited legal maxims, obtained their

h There was an exception for the Goths in the service of the Empire. i Cod. i. ix. 5. * Cod. i. 5, 21. m Cod. i. 5, 21. n Cod. i. 7. • All the barbarian codes are in Latin, but German words are perpetually introduced for offices and usages purely Teutonic.-Wergelda, Rachimburg. See Eichhorn, Staats und Rechtsgeschichte, i. p. 232. See curious extract from Lombard Law on manumission, p. 331. The collection which I have chiefly used is the latest, that of Canciani, Leges Barbarorum, Venice, 1781.

P Many Christians, even of honourable birth, according to Salvian, fled from the cruel oppressions of the Roman law, no doubt the fiscal part, and took refuge VOL. I.

among the heathen barbarians. "Inter hæc vastantur pauperes, viduæ gemunt, orphani proculcantur, in tantum ut multi eorum et non obscuris natalibus editi et liberaliter instituti ad hostes fugiunt, ne persecutionis publicæ afflictione moriantur, quærentes scilicet apud barbaros Romanum humanum, quia apud Romanos barbaram inhumanitatem ferre non possunt. Et quamvis ab his, ad quos confugiunt, discrepent ritu, discrepent linguâ, ipso etiam, ut ita dicam, corporum atque induviarum barbaricarum fætore dissentiant, malunt tamen in barbaris pati cultum dissimilem, quam in Romanis injustitiam sævientem."De Gub. Dei, lib. v.

2 c

Laws of Theodoric and Athalaric.

г

perpetuity, and became the permanent statutes of the realm through the same authority. The barbaric were national codes, framed and enacted by the King, with the advice and with the consent of the great council of his nobles, the flower and representative of the nation. They were the laws of the people as well as of the King. As by degrees the bishops became nobles, as they were summoned or took their place in the great council, their influence becomes more distinct and manifest: they are joint legislators with the King and the nobles, and their superior intelligence, as the only lettered class, gives them great opportunity of modifying, in the interest of religion or in their own, the statutes of the rising kingdoms. This, however, was of a later period. The earliest of these codes, the Edict of Theodoric, is so entirely Roman, that it can scarcely be called barbaric jurisprudence. It is Roman in its general provisions, in its language, in its penalties; it is Roman in the supreme and imperial power of legislation assumed by the King: there is, in fact, no Ostrogothic code. The silence as to ecclesiastical matters in the edicts of Theodoric and Athalaric arise from the peculiar position of Theodoric, an Arian sovereign in the midst of Catholicism dominant in Rome and throughout Italy. But there is a singular illustration of the theory of ecclesiastical power, as vested in the temporal sovereign. The Arian Athalaric, the son of Theodoric, at the request of the Pope himself, issues a strong edict against simony, which by his command is affixed, with a decree of the Senate to the same effect, before the porch of St. Peter's. The points in which the Ostrogothic edict departs from the

"Hoc decretum est apud Regem et principes ejus, et apud cunctum populum Christianum, qui infra regnum Merovingorum consistunt." Præf. ad Leg. Ripuar. The Salic law is that of the Gens Francorum inclyta, among whose praises it is that they had subdued those Romans, who burned or slew the martyrs, while the Franks adorn their reliques with gold and precious stones.-Præf. ad Leg. Salic.

The first instance of this is in the preface to the code of Alaric. "Utili

tates populi nostri propitiâ divinitate tractantes, hoc quoque quod in legibus videbatur iniquum meliori deliberatione corrigimus, ut omnis legum Romanarum et antiqui juris obscuritas, adhibitis sacerdotibus et nobilibus viris, in lucem intelligentiæ melioris deducta resplendeat."

There are some provisions favourable to the church borrowed from the Roman law. The church inherited all the property of clergy dying intestate. -xxvii.; apud Canciani, i. p. 15.

Roman law are: I. The stronger difference drawn between the crimes of the nobles and of the inferior classes. Already the Teutonic principle of estimating all crimes at a certain pecuniary amount, according to the social rank of the injured person, the wehrgelt, is beginning to appear, as well as its consequence, that he who could not pay by money must pay by his life. False witness is punished with death in the poor, by a fine in the rich; the incendiary is burned alive if a slave or serf, if free he has only to replace the amount of damage ;" should he be insolvent, he is condemmed to beating and exile. Wizards, if of honourable birth, were punished with exile; if of humbler descent, with death; while a freeborn adulteress was sentenced to death, in a vile and vulgar woman the crime was venial. In seduction, the seducer was obliged to marry the woman; if married, to endow her with a third of his estate; if ignoble, he suffered death. II. The edict, in the severity of its punishments, exceeds the Roman law, especially, as might be expected among the Goths, in all crimes relating to the violation of chastity. Capital punishments were multiplied, and capital punishments almost unknown to the Roman law. The author of sedition in the city or the camp was to be burned alive. The male adulterer was to be burned, the female capitally punished." Death was enacted against pagans, soothsayers, low-born wizards; against destroyers of tombs, against kidnappers of free men, against forgery, against the judge who sentenced contrary to law; against robbery of churches, or forcibly dragging persons thence, death."

Not only were adulterers capitally punished, but whoever lent his house for the perpetration of the crime, or persuaded the woman to its perpetration. Rape of a freewoman or virgin was death, which extended to all who were aiding or abetting. Parents neglecting to prosecute for rape on a girl under age were condemned to exile. The consenting female suffered death.d

The law of divorce, however, remained Roman: it admitted the same causes, and was limited by the same restrictions. The Edict of Athalaric against concubinage reduced the children of the free-born concubine to slavery. The slave-concubine was in the power of the matron, who might inflict any punishment short of bloodshed. Polygamy was expressly forbidden.1

Clergy co

The Lombard laws are issued by King Rotharis," with the advice of his nobles.h The Burgundian, in their whole character, are intermediate between the Roman and Barbaric jurisprudence. The bishops first appear as co-legislators among the Visigoths already in France. Alaric the Visigoth adopts the abridgment of the legislators. Roman law, by the advice of his priests as well as of his nobles. But it is in Spain, after the Visigoths had cast off their Arianism, that the bishops more manifestly influence the whole character of the legislation. The synods of Toledo were not merely national councils, but parliaments of the realm. After the ecclesiastical affairs had been transacted, the bishops and nobles met together, and with the royal sanction enacted laws." The people gave their assent. The King himself is subject to the Visigothic law. The unlawful usurper of the Crown is subject to ecclesiastical as well as to civil penalties, to excommunication as well as to death. Even ecclesiastics consenting to such treason are to be involved in the interdict. These ecclesiastical lawgivers, while they arm themselves with great powers for the public good, claim no immunity. Bishops are liable to fines for disregard of judges' orders." The clergy are amenable to the same penalty for contumacy as the laity. But great powers are given to the bishops to restrain unjust judges, even the counts. The terrible

laws against heresy, and the atrocious juridical persecutions of the Jews, already designate Spain as the throne and centre of merciless bigotry.

The Salic law proclaims itself that of the noble nation of the Franks, lately converted to the Catholic faith, and even while yet barbarians untainted

Salic law.

with heresy. In a later sentence it boasts that it has enshrined in gold and precious stones the reliques of those martyrs whom the Romans burned with fire, slew with the sword, or cast to the wild beasts. But it is the law of the King and the nobles: the bishops are not named, perhaps because as yet the higher clergy were still of Roman descent.

Still, however, the Teutonic kings and Teutonic legislators at first perhaps in their character of conquerors, assumed supreme dominion over the Church as well as over the State, and the subject bishops bowed before the irresistible authority. St. Remigius violated a canon of the Church on the ordination of a presbyter at the command of Clovis. Among the successors of Clovis no bishop was appointed without the sanction of the Crown." Theodoric, son of Clovis, commanded the elevation of St. Nicetius to the see of Treves. The royal power was shown in the shameless sale of bishoprics." The nomination or the assent of the clergy and the people was implied in the theory of the election, but often overborne by the awe of the royal authority. The Council of Orleans, which condemned the sale of bishoprics, fully acknowledged the supremacy of the royal will. A few years later a Council at Paris endeavoured to throw off the yoke. It declared the election to be in the clergy and the people. It disclaimed the royal mandate, and condemned the bishop