CHAP. XIX.: Of Compositions among the barbarous Nations.

SINCE it is impossible to have any tolerable notion of our political law, unless we are thoroughly acquainted with the laws and manners of the German nations, I shall therefore pause here a while, in order to enquire into those manners and laws.

It appears by Tacitus, that the Germans knew only two capital crimes; they hanged traitors, and drowned cowards; these were the only public crimes among those people. When a man Suscipere tam inimicitias, seu patris seu propinqui, quam amicitias necesse est: nec implacabiles durant; luitur enim etiam homicidium certo armentorum ac pecorum numero, recipitque satisfactionem universa domus. Tacit. de morib. Germ. ^†1019 had injured another, the relations of the person injured took share in the quarrel, and the offence was cancelled by a satisfaction. This satisfaction was made to the person offended when capable of receiving it: or to the relations if they had been injured in common, or if by the decease of the party injured, the satisfaction had devolved to them.

In the manner mentioned by Tacitus, these satisfactions were made by the mutual agreement of the parties; hence in the codes of the barbarous nations these satisfactions are called compositions.

The law See this law in the 2d title on murders; and Vulemar’s addition on robberies. ^†1020 of the Frisians is the only one I find that has left the people in that situation, in which every family at variance was in some measure in the state of nature, and in which being unrestrained either by a political or civil law, they might give a loose

to their revenge, till they had obtained satisfaction. Even this law was moderated; a regulation was made that the person whose life was sought after should be unmolested in his own house, as also in going and coming from church, and from the court where causes were tried. Additio sapientum, tit. i. sect. 1. ^†1021

The compilers of the Salic law cite Salic tit. lviii. sect. 1. tit. xvii. sect 3. ^†1022 an ancient usage of the Franks, by which a person who had dug a corpse out of the ground, in order to strip it, should be banished from society, till the relations had consented to his being re-admitted. And as before that time strict orders were issued to every one, even to the offender’s own wife, not to give him a morsel of bread, or to receive him under their roof; such a person was in respect to others, and others in respect to him, in a state of nature, till an end was put to this state by a composition.

This excepted, we find that the sages of the different barbarous nations thought of determining by themselves, what would have been too long and too dangerous to expect from the mutual agreement of the parties. They took care to fix the value of the composition which the party injured was to receive. All those barbarian laws are in this respect most admirably exact; the several cases are minutely The Salic laws are admirable in this respect, see especially the titles 2, 3, 4, 5, 6, and 7, which related to the stealing of cattle. ^†1023 distinguished, the circumstances are weighed, the law substitutes itself in the place of the person injured, and insists upon the same satisfaction as he himself would have demanded in cold blood.

By the establishing of those laws, the German nations quitted that state of nature, in which they seemed to have lived in Tacitus’s time.

Rotharis declares in the law of Book i. tit. 7. sect. 15. ^†1024 the Lombards,

that he had increased the compositions anciently accustomed for wounds, to the end that the wounded person being fully satisfied, all enmities should cease. And indeed, as the Lombards, from a very poor people, were grown rich by the conquest of Italy, the ancient compositions were become frivolous, and reconcilements prevented. I do not question but this was the motive, which obliged the other chiefs of the conquering nations, to make the different codes of laws now extant.

The principal composition was that which the murderer paid to the relations of the deceased. The difference of See the law of the Angli, tit. i. sect 1, 2, & 4, ibid. tit. v. sect vi. the law of the Bavarians, tit. i. chap 8. & 9. and the law of the Frisians, tit. xv. ^†1025 conditions produced a difference in the compositions: Thus in the law of the Angli, there was a composition of six hundred sous for the murder of an adeling, two hundred for that of a freeman, and thirty for killing a bondman. The largeness therefore of the composition for the life of a man, was one of his chief privileges; for besides the distinction it made of his person, it likewise established a greater security in his favour among rude and boisterous nations.

This we are made sensible of by the law of the Tit. ii. chap. 20. ^†1026 Bavarians: it gives the names of the Bavarian families who received a double composition, because they were the first Hozidra, Hozza, Sagena, Habilingua, Aniena. Ibid. ^†1027 after the Agilolfings. The Agilolfings were of the ducal race, and it was customary with this nation to choose a duke out of that family; these had a quadruple composition. The composition for a duke exceeded by a third, that which had been established for the Agilolfings: “Because he is a duke, says the law, a greater honour is paid to him than to his relations.”

All these compositions were valued in money. But as those people, especially when they lived in Germany, had very little specie, they might pay it in cattle, corn, moveables, arms, dogs, hawks Thus the law of Ina valued life by a certain sum of money, or by a certain portion of land. Leges Inæ regis, titulo de villico regio de priscis Anglorum legibus, Cambridge, 1644. ^†1028, lands, &c. The law itself See the law of the Saxons, which makes this same regulation for several people, chap. 18. See also the law of the Ripuarians, tit. 36. sect. 11. the law of the Bavarians, tit. 1. sect. 10, and 11. Si aurum non babet, donet aliam pecuniam, mancipia, terram, &c. ^†1029 frequently determined the value of those things; which explains how it was possible for them to have such a number of pecuniary punishments with so very little money.

These laws were therefore employed in exactly determining the difference of wrongs, injuries, and crimes; to the end that every one might know how far he had been injured or offended, the reparation he was to receive, and especially that he was to receive no more.

In this light it is easy to conceive, that a person who had taken revenge after having received satisfaction, was guilty of an heinous crime. This contained a public as well as a private offence: it was a contempt of the law of itself; a crime which the legislators See the law of the Lombards, book i. tit. 25. sect. 21. ibid. book i. tit. 9. sect. 8 and 34. ibid. sect. 38, and the capitulary of Charlemaign in the year 802. chap. 32. containing an instruction given to those whom he sent into the provinces. ^†1030 never failed to punish.

There was another crime, which above all others was considered as dangerous, when See in Gregory of Tours, book vii. chap. 47. the detail of a process, wherein a party loses half the composition that had been adjudged to him, for having done justice to himself, instead of receiving satisfaction, whatever injury he might have afterwards received. ^†1031 those people lost something of their spirit of independence, and when the kings endeavoured to establish a better civil administration: this was the refusing to give or to

receive satisfaction. We find in the different codes of the laws of the Barbarians, that the legislators were peremptory See the law of the Saxons. chap. 3 and 4. the law of the Lombards, book i. tit. 37. sect. 1 and 2. and the law of the Alemans, tit. 45. sect 1 and 2. This last law gave leave to the party injured to right himself upon the spot, and in the first transport of passion. See also the capitularies of Charlemaign in the year 779. chap. 22. in the year 802. chap. 32. and also that of the year 805. chap. 5. ^†1032 on this article. In effect, a person who refused to receive satisfaction, wanted to preserve his right of prosecution; he who refused to give it left the right of prosecution to the person injured; and this is what the sages had reformed in the institutions of the Germans, whereby people were invited but not compelled to compositions.

I have just now made mention of a text of the Salic law, in which the legislator left the party offended at liberty to receive or refuse satisfaction; it is the law The compilers of the law of the Ripuariaus seem to have softened this. See the 85th title of those laws. ^†1033 by which a person who had stript a dead body, was expelled society; till the relations upon receiving satisfaction, petitioned for his being re-admitted. It was owing to the respect they had for sacred things, that the compilers of the Salic laws did not meddle with the ancient usage.

It would have been absolutely unjust to grant a composition to the relations of a robber killed in the fact, or to the relations of a woman who had be repudiated for the crime of adultery. The law See the decree of Taffillon, de popularibus legibus, art. 3, 4, 10, 16, 19. the law of the Angli. tit. 7. sect. 4. ^†1034 of the Bavarians allowed no composition in the like case, but punished the relations who sought revenge.

It is no rare thing to meet with compositions for involuntary actions in the codes of the laws of the Barbarians. The law of the Lombards is generally very prudent; it Book i. tit. ix. sect. 4. ^†1035 ordained, that in those cases the composition should be according to the person’s generosity;

and that the relations should no longer be permitted to pursue their revenge.

Clotharius the second made a very wise decree: he forbade Pactus pro tenore pacis inter Childebertum & Clotarium, anno 593. & decretio Clotarii 2. regis, circa annum 595. chap. 11. ^†1036 the person robbed to receive any clandestine composition, and without an order from the judge. We shall presently see the motive of this law.