und ander friherren. Die mitteln frien, daz zehen pfunt gelt. Der fürsten dienstman, daz fiunf mark giltet." "Freemen may give to their wives to the value of a hundred marks, I mean nobles and others entirely free. The middle free, to the value of ten pounds; the vassals of nobles, to the value of five marks." We heard a few years ago, a good deal about morganatic marriages. This was a quasi marriage, arising from the morgengabe. Where no previous ceremony had taken place, the morning gift was held to convey certain rights, though not to the extent of a legal marriage, and was resorted to where crowned heads and princes entered into a connection with a woman of lower rank. In case of unfaithfulness to the marriage vows a very summary method was adopted. The laws of king Ethelbert enact : "Gif friman with fries mannes wif geligeth his wer-gelde abicge; and other wif his agenum sceatte begete, and thom othrum et ham gebrenge." "If a freeman debauches a freeman's wife, he must be fined according to his wer-geld, and he must buy another wife with his own money, and take her home to the other man." This is assuredly a very simple and business-like way of assuaging wounded feelings, and assessing damages in a crim. con. prosecu tion. The marriage of widows was originally not permitted, and was always looked upon with something of disfavour amongst the early German races. In the Salic laws, when a man wished to marry a widow, a court or public assembly had to be called, when certain formalities were gone through, and securities given. A certain sum of money had to be paid by the intending bridegroom to the relatives of the deceased husband; the inheritance of which went first to the sister's son, then to the cousin by the mother's side, and, failing these, to the maternal uncle. Any man marrying a widow without this formality, was liable to a fine of 2,500 denarii, equal to 62 solidi, or shillings, which, as the price of an ox was about one shilling, was no trifling penalty. Females were protected from insult by regulations quite as strict as those of our own time. By the Salic laws, if a man squeezed the hand or finger of a woman he had to fine of 600 deniers, or 15 sols; if he squeezed her arm, the penalty was 1200 deniers, or 30 sols; but if he had the temerity to touch her breast, he was mulcted in 1800 deniers, or 45 sols. I may here say a word on the general principles embodied in these early laws. "They are such as might be expected from the time and place of their composition. Necessity, it has been well said, dictated them, and freedom wrote them down. They bear the stamp of a rude and free people, living by agriculture and the pasturage of cattle, ignorant of the complicated relations of civilised life, and prone to crimes of violence, rather than of licentiousness or chicanery."* These remarks apply especially to the laws of the Salian Franks, the earliest code which we possess, and in which there is a striking coincidence with the particulars we learn from Tacitus. The earliest form of punishment for offences was the lex talionis; an eye for an eye, a tooth for a tooth, the infliction on the offender of the evil he had himself committed. There are many remains of this in all the early Teutonic laws. Thus, in the Jus Aleman., ch. 168: "Der dem audern ainen zan uz sleht, dem tu man daz selbe." "Whoso strikes out the tooth of another, to him the same shall be done." So in the laws of king Alfred, No. 18: "Gif hwa othrum his eage othdó, selle his agen fore; toth fore toth, honda with honda, fet fore fet, bærning fore bærning, wund with wund, lol with lole." "If any one put * Perry, History of the Franks, p. 433, out the eye of another, let his own be given for it; tooth for tooth, hand against hand, foot for foot, burning for burning, wound against wound, stripe against stripe." As early as the time of Tacitus this rigid system of revenge had somewhat softened down. He says: "Suscipere tam inimicitias seu patris seu propinqui, quàm amicitias necesse est; nec implacabiles durant. Luitur enim homicidium certo armentorum ac pecorum numero, recipit-que satisfactionem universa domus; utiliter in publicum, quia periculosiores sunt inimicitiæ juxta libertatem." "They (the Germans) are bound to take up the feuds as well as the alliances of their fathers and relatives, but they do not remain implacable; for even homicide is compounded for by a certain payment of cattle and sheep, and the whole family receives satisfaction. This is useful in a public sense, for feuds are very dangerous towards freedom." In the course of time this commutation of punishment for a money payment became embodied into a system under the head of "Leodis," "were geld" or "bot," which forms the main staple of the Teutonic laws. In the later AngloSaxon codes, a regular catalogue is made of the various parts. of the human frame, and the price set upon each. Thus, in the laws of Alfred, if a man strikes off another's thumb, he must pay thirty shillings; for the little finger, nine shillings; for the nail thereof, only one shilling. If, however, he soars higher, and desires the luxury of smiting off his neighbour's nose, he must pay sixty shillings; but if he strikes off his shank near the knee, he must pay eighty shillings for the pleasure. This may seem at first sight incongruous and repulsive, but we shall find much to be said on the other side. The change from brutal revenge to a money compensation was a step in the direction of order and law. It repressed the thirst for blood; it prevented that worst of evils, and most inimical to peace and safety, the perpetuation of feuds. At that time no other means of punishment existed, except retaliation in kind. Imprisonment was out of the question 1; jails had no existence, and would not have been submitted to in the habits of rough freedom then prevalent. Indeed, at the present day, with all our boasted progress, we still retain much of the same spirit in an administration of the law. If Lord Tomnoddy or the Hon. Captain Fitz Humbug indulge in a midnight freak, by which the eyes and limbs of Her Majesty's peaceable subjects are endangered and brought to grief, forty shillings and costs usually sets all to rights. There is a striking difference in this respect amongst the codes of the Teutonic races in early times. Whilst in the Salic laws no other punishment is awarded for any offence but a money compensation, in the Alemannic laws, as revised by the Emperor Charlemague, money compensation is ignored except as a composition for minor offences. "Den diep sol man hahen," "The thief must be hung; is the stern and simple dictum of the law; but if the amount stolen did not exceed the value of five shillings, the thief was let off with a flogging, not exceeding in any case thirty stripes, which might be compounded for by a payment of five shillings in addition to the value of the stolen goods. Homicide, incendiarism, rape and other serious offences were punished with breaking on the wheel or beheading. In the Anglo-Saxon laws there is a curious mixture of absolute punishment and money compensation, the latter, however, having the preponderance. In the laws of King Alfred, a considerable portion of the Levitical code of punishment is incorporated into the eariler portion; e. g., "The man who slayeth another wilfully, let him be put to death." Yet in a subsequent law, in the same code, we read, "If any one with a hloth (a company of robbers) slay an unoffending twy-hynde man, let him pay wēr and wite (that is, a compen sation to the family and a fine to the king), and let every one who was of the party pay thirty shillings as "hloth-bot." Amongst the Franks and Saxons, every man literally had his price. By the Salic law the leodis or life value of an ingenuus, or free man, was two hundred solidi, or eight thousand denarii, that of a tributary Roman, forty-five solidi, or eighteen hundred denarii. Amongst the Anglo-Saxons, men were divided into classes, according to the amount of wer-geld, or money compensation, attaching to the life of each. Thus the twy-hynde, or "two hundred " man, the ordinary free man, had his life valued at two hundred shillings; a six hynde man, at six hundred; and a nobleman, or twelve-hynde man, at twelve hundred shillings. The administration of the laws, and the system of government generally, was in its origin essentially popular. Tacitus says, "De minoribus rebus principes consultant, de majoribus omnes; ita tamen ut ea quoque, quorum penes plebem arbitrium est, apud principes pertractentur." "Eliguntur in iisdem conciliis et principes, qui jura per pagos vicosque reddunt.” * This was their condition about the first century of our era. When we next get a glimpse of their condition from the Salic law, about the end of the fifth, or beginning of the sixth century, we find the same principles still prevalent. The principal court was called the Mallus, which was held in the open air at stated periods for the administration of justice. The shield and spear were the emblems of authority, where every free man had a right to be present fully armed. Amongst the Alemanni this primary assembly was called the Vogt-dink, or people's council; amongst the Anglo-Saxons, the Gemót. These assemblies were held at c. 13. * Tac., De Mor. Ger., ch. 11 and 12. + Nihil autem neque publicæ neque privatæ rei, nisi armati agunt.-Tac., Ger. |