The barbaric codes, as well as the edict of Theodoric," retained the high Teutonic reverence for the sanctity of marriage. In the Burgundian law, adultery was punishable by death. In all cases it rendered the woman infamous. A widow guilty of incontinency could not marry again at least could not receive dower. In the Visigothic code the adulteress and her paramour were given up to the injured husband, to be punished according to his will: he might put them to death. The law of divorce under the Burgundian law was Roman, excepting that the woman who divorced her husband without cause, according to an old German usage as to infamous persons, was smothered in mud. Among the Visigoths, divorce was forbidden, excepting for adultery. Incest, by the Visigothic law, was extended to the sixth degree of relationship. Rape was punished by confiscation of property, or failing that, by reduction to slavery." This code contained a severe statute against public prostitutes, rendering them liable to whipping. Incontinence in priests was corrected by penance; the woman was to be whipped. The former statute was in that stern tone towards unchastity which in the Goths Salvian contrasts with the impurity of Roman manners." The later laws seem gradually to soften off into mulets or compositions for these as for other crimes.

But among the yet un-Romanised Saxons, down to the days of St. Boniface, the maiden who has dishonoured her father's house, or the adulteress, is compelled to hang herself, is burned, and her paramour hung over the blazing pile; or she is scourged or cut to pieces with knives by all the women of the village till she is dead.

8 See above.

Tit. lxviii. and lii.

i Leges Visigoth. iii. iv. 14 et seq. k Necetur in luto, xxxiv. 1. "Ignavos et imbelles et corpore infames cœno .c palude, injectâ super crate, mergunt.' -Tacit. Germ. c. xii.

m Tit. iii. vi. Unnatural crimes were punished by castration. By the Bavarian law, whoever took away a nun to marry her committed adultery. "Scimus illum crimini obnoxium esse qui alienam sponsam rapit, quanto magis ille obnoxius est crimini qui Christi usurpavit sponsam."-xii. 1.

niii. iv. 17. "Esse inter Gothos non

licet scortatorem Gothum, soli inter eos præjudicio nationis ac nominis permittuntur impuri esse Romani."-Salvian. de Gub. Dei, vii. Lahuërou, however, observes: "Voyez quelle énorme disproportion la loi met entre les obligations et les devoirs des deux époux ! Le mari peut être infidèle autant de fois et à tel degré qu'il le voudra, sans que la femme ait le droit de s'en plaindre." The German woman was in fact, though in a less degree than the Roman, the property of her husband.-Lahuërou, Institutions Carlovingiennes, p. 38.

A.D. 743. Bonifac. Epist. ad Ethelbal. Reg. Merciæ.

B. In the barbaric as in the Roman code, the law of property might seem enacted with the special Law of proview of securing to the Church wealth which perty.

could not but be constantly accumulating, and could never diminish. Every freeman might leave his property to the Church. No duke or count had a right to interfere. The heir who ventured to reclaim such dedicated property was liable to the judgment of God and to excommunication, recognised in more than one code. The freeman might retain to himself and so enjoy the usufruct during his own life, and leave his heirs beggars. The proofs of such donations were all to the advantage of the Church. The barbaric codes left the clergy to secure the inalienability of their property by their own laws. At first, and until the Bishop began to be merged in the temporal feudatory, it was comparatively safe in its own sanctity. In the division of the conquered lands by the barbarians, the Church estates remained sacred. The new converts could not show their sincerity better than by their prodigality to the Church. Clovis and his first successors, ignorant of the value of their new acquisitions, awarded large tracts of land with a word. St. Remigius received a great number of lands to be distributed among the destitute churches. Their successors complained of this thoughtless prodigality. Already they had discovered that the royal revenues had been transferred to the Church. The whole Teutonic law, which appointed certain compensations for certain crimes, would have suggested, had suggestion been necessary, the commutation system of the Church. God, like the free man or the King, might be propitiated by the wehrgeld; the penance of the Christian be compensated by a pecuniary mulet. Already Queen Fredegunde satisfies the conscience of two hesitating murderers whom she would employ to assassinate her brother-in-law, King Sigebert, by the promise of large alms to the Church, in order to secure them from hell or purgatory. So rapidly and alarmingly was the Church in France becoming rich, that King Chilperic ecclesias sunt translatæ."-Greg. Tur.

? Lex Alemann. et Lex Burgund., in initio. "Ecce, aiebat Rex, panper remansit fiscus noster, et divitiæ nostræ ad

VOL. I.

vi. 46.

Gesta Francorum. Planck, ii. 199.

2 D

passed a law annulling all testaments in which the Church was constituted heir; but Gunthran, not long after, repealed the sacrilegious statute, and these murderous and adulterous and barbarous kings and nobles were again enabled to die in peace, confident in the remission of their sins by the sacrifice of some portion of their plunder (the larger the offering the more secure) on the altar of God."

But the barbarous times which bestowed so lavishly were by no means disposed superstitiously to respect the property of the Church. It was often but late in life that the access of devotion came on, while through all the former part, either by right of conquest, by terror, or by bribery, the barbarian had not scrupled to seize back the consecrated land. Even kings were obliged to ratify and solemnise their own grants by synods or by national assemblies. The deepening of the imprecations uttered by these synods against robbers of the Church shows their necessity. They began to be guarded by all the terror of superstition; wild legends everywhere spread of the awful and miraculous punishments which had fallen on such offenders." In a few centuries the deliverer of Europe from the Mahommedan yoke, Charles Martel, was plunged into hell, and revealed in his torments to the eyes of men, as a standing and awful witness to the inexpiable sin of sacrilege.

The property of the Church as yet enjoyed no immunity from taxation. Gradually special exemptions were granted. At length the manse of the church (a certain small farm or estate) was entirely relieved from the demands of the state. Even the claim to absolute freedom from contribution to the public expenses was of a much later period.*

All the laws acknowledged the right of alienating some portion from the rightful heir, "pro remedio animæ," or in "remissionem peccatorum." There are legal formulæ in Marculf to this effect. Some codes, however, prohibited the absolute disinheritance of the right heir for the good of the church.--Eichhorn, p. 359: compare 363 et seqq.

In a synod at Valence, King Gunthran demanded the ratification of all the gifts which he, his wife, and daughters had bestowed on the church. All

of barbarians.

Lex Lombard.
Lex Visigoth.

As

C. The criminal law of the barbaric codes tended more and more to the commutation of crime or injury criminal law for a pecuniary mulet. High treason alone, compassing the death of the King, corresponding with the enemies of the realm, or introducing them within its frontier, was generally a capital crime. Yet in the Visigothic code the capital punishment of treason could be commuted for putting out the eyes, shaving the hair, scourging, perpetual imprisonment, or exile, with confiscation and attainder, and in this case the criminal could not make over his property to the Church. Such donations were void. But of all crimes the King had power of pardon with the consent of the clergy and the great officers of his palace. The Bavarian law adds sedition in the camp to acts of treason, but even this might be forgiven by the royal mercy. to other crimes, except adultery and incest, it was Teutonic usage, not Christian humanity, which abrogated the punishment of death. In the Burgundian law homicide is still a capital crime; but gradually the life of every man below the King is assessed, according to his rank, at a certain value, and the wehrgeld may be received in atonement for his blood." Even the sacred persons of the clergy had their price, which rises in proportionate amount with their power and influence. By the Bavarian law, should any one kill a bishop lawfully chosen," a tunic of lead was to be fitted to the person of the bishop, and the commutation for his murder was as much gold as that tunic weighed if the gold was not to be had, the same value in money, slaves, houses, or land; if the offender had none of these, he was sold into slavery. Nor was it life only which was thus valued; every wound and mutilation of each particular member of the body was carefully registered in the code, and estimated according as the man was noble, freeman, slave, or in holy orders. The slave alone was still liable to capital punishment for

Lex Visigoth. vi. 1, 2.

"Et ille homo qui hæc commisit benignum imputet regem aut ducem si ei vitam concesserit."-Lex Bavar. ii. iv. 3. a Parricide alone, by the Visigothic

law, was punished by the same death as that inflicted.

b"Si quis episcopum quem constituit rex, vel populus elegit."-Lex Bavar. xi. 1.

certain offences; the Visigothic code condemned him to be burned. Torture was not only, according to Roman usage, to be applied to slaves, but even to freemen in certain cases.

The privilege of asylum within the Church is recognised in most of the barbaric codes. It is asserted in the strongest terms, and in terms impregnated with true Christian humanity, that there is no crime which may not be pardoned from the fear of God and reverence for the saints. As yet perhaps the awe of the Christian altar only arrested justice in its too hasty and vindictive march, and in these wild times gave at least a temporary respite for the innocent victim to obtain liberty that he might plead his cause against the fierce populace or the exasperated ruler, for the man of doubtful guilt to obtain a fair trial, or for the real criminal to suffer only the legal punishment for his offence. As yet the priest could not shield the heinous criminal. By the Visigothic code he was compelled to surrender the homicide. With the ruder barbarians the sanctity of holy places came in aid of the sacerdotal authority, and in those savage times no doubt the notion that it was treason against God to force even the most flagrant criminal from his altar, protected many innocent lives, and retarded the precipitancy even of justice itself. The right was constantly infringed by violent kings or rulers, but rarely without strong remonstrance from the clergy; and terrible legends were spread abroad of the awful punishments which befel the violaters of the sanctuary.*

Already, in the earliest codes, appears the abrogation of the ordinary tribunals of justice by appeal to arms, and to the judgment of God: even the Burgundian law admits the trial by battle."

For theft, by the Burgundian law, or

by scourging.-iv. 2.

d Lex Visigoth. iii. iv. 14.

e Lex Visigoth. vi. 1, 2, ii. iv. 4.

On the subject of asylum, compare the excellent dissertation of Paolo Sarpi, De jure Asylorum.-Opera, iv. p. 191.

g"Nulla sit culpa tam gravis, ut non remittatur, propter timorem Dei et reverentiam sanctorum."-Lex Bavar. vii. 3. It was an axiom of the

Roman law, "Templorum cautela non nocentibus sed læsis datur a lege."Justin. Novell. xvii. 7.

h Lex Visigoth. vi. v. 16.

iSee Greg. Tur. vii. 19; iv. 18. * Restrictions were placed on this undefined right. In a capitular of 779— "Homicidæ et cæteri rei, qui mori debent legibus, si ad ecclesiam confugerint, non excusentur, neque eis ibidem victus detur."

m Tit. xlv.