Montesquieu

As it is impos­si­ble to go very far into our poli­ti­cal law without per­fect know­ledge of the laws and ways of the Germanic peo­ples, I shall pause a moment to inquire into those ways and those laws.

It appears from Tacitus that the Germans reco­gni­zed only two capi­tal cri­mes : they han­ged trai­tors, and drow­ned cowards ; these were the only cri­mes that were public. When a man had done ano­ther man some harm, the family of the offen­ded or inju­red per­son ente­red into the quar­rel, and the wrath was appea­sed by a satis­fac­tion.1 This satis­fac­tion was for the offen­ded party, if he could accept it, and the family, if the offense or injury was com­mon to them, or if by the death of the per­son offen­ded or inju­red the satis­fac­tion devol­ved to them.

The way Tacitus talks about them, these satis­fac­tions came about by mutual agree­ment bet­ween the par­ties ; in the codes of the bar­ba­rian peo­ples, these satis­fac­tions are cal­led com­po­si­tions.

I find only the law of the Frisians that has left the peo­ple in this situa­tion where each enemy family was, so to speak, in the state of nature, and where, without being res­trai­ned by any poli­ti­cal or civil law, it could at its whim exer­cise its ven­geance until it had been satis­fied.2 This law was itself tem­pe­red : they made it so that the per­son whose life was being deman­ded should have peace in his house, peace going to and coming from church and from the place where court was held.3

The com­pi­lers of the Salic laws cite an ancient prac­tice of the Franks4 by which someone who had exhu­med a corpse in order to strip it was bani­shed from the society of men until the family consen­ted to let him return ; and since until that time eve­ryone, even his wife, was pro­hi­bi­ted from giving him bread or taking him into their house : such a man was with res­pect to the others, and the others with res­pect to him, in the state of nature, until that state had cea­sed through com­po­si­tion.

With that excep­tion, we see that it occur­red to the wise men of the various bar­ba­rian nations to do by them­sel­ves what it was too long and dan­ge­rous to await from the mutual conven­tion of the par­ties. They took care to set a just price on the com­po­si­tion that should be recei­ved by the vic­tim of some harm or injury. All these bar­ba­rian laws show on this sub­ject an admi­ra­ble pre­ci­sion : they shrewdly dis­tin­guish5 the cases, they weigh the cir­cum­stan­ces ; the law puts itself in the place of the per­son offen­ded, and demands for him the satis­fac­tion which in a moment of calm he would him­self have deman­ded.

It was by the esta­blish­ment of these laws that the German peo­ples emer­ged from that state of nature where it seems they still were in the time of Tacitus.

Rhotaris decla­red in the law of the Lombards6 that he had increa­sed the com­po­si­tions of the ancient cus­tom for wounds, so that, the woun­ded man being satis­fied, the enmi­ties could cease ; indeed the Lombards, a poor peo­ple, having enri­ched them­sel­ves by the conquest of Italy, the ancient com­po­si­tions were beco­ming worth­less, and reconci­lia­tions were no lon­ger made. I do not doubt that this consi­de­ra­tion obli­ged the other chiefs of conque­ring nations to make the various codes of laws we have today.

The prin­ci­pal com­po­si­tion was that which the mur­de­rer was to pay to the dead per­son’s family. A dif­fe­rence in sta­tions cal­led for a dif­fe­rence in the com­po­si­tions7 : thus, in the law of the Angles, the com­po­si­tion came to six hun­dred sous for the death of an athe­ling,8 two hun­dred for that of a free man, and thirty for a serf. The amount of the com­po­si­tion fixed on the head of a man thus cons­ti­tu­ted one of his great pre­ro­ga­ti­ves ; for in addi­tion to the dis­tinc­tion it lent to his per­son, it esta­bli­shed, among vio­lent nations, a grea­ter secu­rity for him.

The law of the Bavarians9 makes us see this clearly : it gives the names of the Bavarian fami­lies who recei­ved twice the com­po­si­tion because they were the first ones after the Agilolfingi.10 The Agilofingi were of the ducal lineage, and the duke was cho­sen from among them ; they had four times the com­po­si­tion. The com­po­si­tion for the duke sur­pas­sed by a third the one fixed for the Agilofingi : “because he is a duke,” says the law, “we give him a grea­ter honor than to his family.”

All these com­po­si­tions had a set price in sil­ver. But as these peo­ples, espe­cially for as long as they remai­ned in Germania, vir­tually had none, they could pay in live­stock, grain, fur­ni­shings, wea­pons, dogs, hun­ting birds, lands, etc.11 Often the law even set the value of these things12 : which explains how, with so lit­tle sil­ver, there were so many pecu­niary penal­ties among them.

These laws thus strove to define with pre­ci­sion the dif­fe­rence of wrongs, inju­ries, and cri­mes, so every man could know exactly to what point he was har­med or offen­ded, so he could know exactly the repa­ra­tion he should receive, and espe­cially that he was not to receive more.

From this point of view, we can unders­tand that the man who took ven­geance after recei­ving satis­fac­tion was com­mit­ting a grave crime. That crime entai­led no less a public offense than a pri­vate offense : it was dis­dain for the law itself. This is the crime which the legis­la­tors did not fail to punish.13

There was ano­ther crime which was regar­ded as espe­cially dan­ge­rous when these peo­ples lost in civil govern­ment some­thing of their spi­rit of inde­pen­dence, and the kings strove to bring bet­ter poli­ti­cal order to the state : that crime was being unwilling to make, or unwilling to accept, satis­fac­tion.14 We see in various bar­ba­rian codes of laws that the legis­la­tors made it man­da­tory.15 In effect, the man who refu­sed to receive satis­fac­tion meant to pre­serve his right to ven­geance ; he who refu­sed to make it was lea­ving his right of ven­geance to the man offen­ded : and that is what the wise men had refor­med in the ins­ti­tu­tions of the Germans, which encou­ra­ged com­po­si­tion but did not impose it.

I have just men­tio­ned a text in the Salic law where the legis­la­tor left it to the free­dom of the offen­ded party to accept the satis­fac­tion or not ; this is the law that denied human inter­course to the man who had strip­ped a corpse until such time as the family, by accep­ting the satis­fac­tion, had asked that he be allo­wed to live among men.16 Out of res­pect for things sacred, those who drew up the Salic laws did not touch the ancient prac­tice.

It would have been unjust to grant a com­po­si­tion to the family of a rob­ber killed in the act of stea­ling, or to the family of a wife who had been sent away after a sepa­ra­tion for the crime of adul­tery. The law of the Bavarians gran­ted no com­po­si­tion in such cases, and puni­shed fami­lies that pur­sued ven­geance for them.17

It is not rare to find in the Bavarian law codes com­po­si­tions for invo­lun­tary acts. The law of the Lombards is almost always rea­so­na­ble ; it would in this case have him com­pose accor­ding to his gene­ro­sity, and the family no lon­ger be able to pur­sue ven­geance.

Clotaire II made a very wise decree : he for­bade the man who had been rob­bed from recei­ving his com­po­si­tion secretly and without the judge’s order.18 We shall pre­sently see the rea­son for this law.

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. Tacitus, De moribus Germanorum.

See this law, tit. 2, on murders, and the addition of Wulemar on thefts.

Additio sapientum, tit. 1, §1.

Lex Salica, tit. 58, §1 ; tit. 17, §3.

The Salic laws are admirable in this respect. See especially titles 2, 3, 4, 5, 6, and 7, which regard thefts of animals.

Book I, tit. 7, §15.

See Lex Angliorum, tit. 1, §1, 2, 4 ; Ibid., tit. 5, §6 ; Lex Baiuwariorum, tit. 1, ch. viii–ix, and Lex Frisionum, tit. 15.

[A prince or lord in old England.]

Tit. 2, ch. xx.

Hozidra, Ozza, Sagana, Habilingua, Anniena, ibid.

Thus the law of Ina valued life at a certain sum of money or a certain portion of land. Leges Inæ Regis, titulo de Villico Regio, de priscis Anglorum Legibus, Cambridge, 1644.

See law of the Saxons, which sets this sum even for several peoples, ch. xviii. See also law of the Ripuarians, tit. 36, §11, law of the Bavarians, tit. 1, §10–11. Si aurum non habet, donet alium pecuniam, mancipia, terram, etc.

See Leges Langobardoroum, book I, tit. 25, §21 ; ibid., book I, tit. 9, §8, and 34 ; ibid., §38, and capitulary of Charlemagne, year 802, ch. xxxii, containing an instruction given to those whom he sent into the provinces.

See in Gregory of Tours, book VII, ch. xlvii, the detail of a trial where one party loses half the composition he had been awarded for having taken his own justice, instead of accepting the satisfaction, whatever excess it had since suffered.

See law of the Saxons, ch. iii ; §4, Leges Langobardoroum, book I, tit. 37, §1–2 ; and law of the Germans, tit. 45, §1–2. This last law allowed taking one’s own justice at once and in the first impulse. See also the capitularies of Charlemagne, year 779, ch. xxii, year 802, ch. xxxii, and the same, year 805, ch. v.

The compilers of the laws of the Ripuarians seem to have modified this : see tit. 85 of those laws.

See decree of Tassillon, De popularibus legibus, art. 3, 4, 10, 16, 19, law of the Angles, tit. 7, §4.

Pactus pro tenore pacis inter Childebertum and Clotarium, anno 593 and Decretio Clotarii II. Regis circa annum 595, ch. xi.