Part 4

{15} The expression _mittat eum in tertia manu_ has been interpreted in various ways; it means apparently either that the possessor is to place the article in question in the hands of a third disinterested party who is to hold it until the case has been tried, or that he is to refer the claimant to the "third party"; that is, the man from whom he obtained it.

{16} A much-discussed phrase, which has been used to show that the Salic law belongs to a period after the Frankish control had extended beyond the Loire. The word in the text (_ligere_) has also been taken to mean the river Leye, but this is not generally accepted. The Carbonaria (German, _Kohlenwald_) was a large forest in what is now Belgium.

{17} The form of statement is rather confusing, but the process is fairly clear. The burden of proof lies on the man in whose possession the stolen article is found, and he must clear himself by producing the man from whom he got it. This shifts the responsibility to the latter, who in turn must produce the man from whom he obtained it, and so on back until the person is reached who obtained the article illegally, and so is not likely to obey the summons to appear in court. Then the last man in the chain before the thief proves his innocence of bad faith by showing that he bought the article publicly and so obtained it in good faith, and that he had served notice on the delinquent in the present process. Inasmuch as legal sales were held publicly before witnesses, it is fairly certain in this way that the guilt will be located. The man in whose possession it was found then restores the article to its owner, and receives back the price he paid for it from the man from whom he got it; and this repayment is repeated in each case until the thief is reached; the man who dealt with him has a legal action for recovery of the price against the thief, while the owner has also an action for the recovery of damages.

L. _The Given Pledge._

1. If a free man or a letus{18} has given pledge [that is, made a solemn promise at the court] to another, then he to whom the pledge was given shall go to the house of the other within forty nights,{19} or whatever period was set, with witnesses or with such as can estimate the price.{20} And if the delinquent will not redeem the pledge given, he shall be held liable for 15 solidi above the amount for which he had given pledge.

2. If still he will not pay, the complainant shall summon him to the _mallus_, and thus he shall proceed to have him constrained by law: "I ask thee, _thunginus_, to constrain by law this my debtor who has given me a pledge and is in my debt." And he shall state how much the debt is. Then the _thunginus_ shall say: "I constrain this man by law, in accordance with the Salic law." Then he to whom the pledge was given shall give notice that the delinquent can neither pay nor give pledge of payment to any other until he has fulfilled what he promised him [the creditor]. And straightway on that day before the sun sets he shall go with witnesses to the house of the debtor and ask him to pay the debt. If he will not, let the sun set upon him.{21} Then when the sun has set, 120 denarii, which make 3 solidi, are added to the amount owed. And this thing is to be done three times in three weeks, and if on the third summons he will not pay all this, then 360 denarii, which make 9 solidi, are to be added to the debt, that is, 3 solidi for every summons and setting of the sun.

The next two sections are now generally regarded as a later addition--_i.e._, the first two are supposed to belong to an early period, while the last two belong to the period when the _grafio_, the royal representative, had acquired executive functions within the county. If this is so, then sections 3 and 4 have replaced certain older sections which must have completed the process described in sections 1 and 2; there must have been a further stage in which the delinquent was finally forced to pay, perhaps the process described in title LVI, by which a delinquent can be outlawed if he is still contumacious.

3. If anyone refuses to redeem his promise within the lawful term, then he to whom he gave the pledge shall go to the _grafio_ of the county within which the debtor lives, and shall lay hold on the staff and say: "_Grafio_, this man has given pledge to me and I have given lawful notice of his indebtedness and have sued him before the _mallus_ in accordance with the Salic law. I pledge myself and my fortune that you may safely and lawfully lay hands on his property." And he declares for what cause and to what amount the pledge had been given. Then the _grafio_ shall take with him seven suitable _rachinburgii_{22} and go to the house of him who gave the pledge and say: "You, who are here present, pay this man of your own free will that for which you gave him pledge. Choose two men, whomsoever you will, who together with these _rachinburgii_ shall assess from your goods the amount you ought to pay. And so shall you make good what you owe according to legal value." But if he, being present, will not heed, or if he is absent, then the _rachinburgii_ shall take from his goods a value equal to the amount which he owes, and of that amount two parts shall go to him who brought suit, and the third part the _grafio_ shall take for himself as _fredus_,{23} if the _fredus_ for this case has not already been paid.

4. If the _grafio_ has been appealed to and legal hindrance or his master's [the king's] business has not detained him, and he neither goes himself nor sends a representative, he shall be punished with death or he may redeem himself with his possessions.

{18} The term _letus_ is used of a class of population whose position was between that of the free man and that of the slave; a similar class is found among nearly all the Germanic tribes. They were perhaps descendants of conquered peoples that had been incorporated into the tribe; they did not own land, but cultivated the land of others on terms of a fixed rental in produce and services. Thus while not free, their position was above that of the slaves, since they might acquire possessions and profits above the rent paid, while the earnings of the slave belonged in theory entirely to the master.

{19} The regular interval between the meetings of the hundred-court or _mallus_.

{20} The use of appraisers, referred to here and elsewhere, indicates that fines and debts were paid regularly in kind, and that money was still an unfamiliar convenience.

{21} That is, the delinquent is to be given the full legal day, and when that has passed with the setting of the sun, the penalty is incurred. It is interesting to notice the same feature in the law of the XII Tables, which was apparently merely the primitive tribal law of the early Romans reduced to written form. There, in the first table, the description of a public court process ends with the sentence: "Sol occasus suprema tempestas esto"--sunset is to be the latest hour [of the legal day].

{22} _Rachinburgii_ is the name generally used in the law for the board of judges, seven in number, who are chosen at every hundred-court to render the judgment (see title LVI). Here, however, the term is used for appraisers who apparently are not connected with the _rachinburgii_ of the hundred-court.

{23} The _fredus_ is that portion of the fine which goes to the state, apparently as compensation for executing the sentence. It furnished a part at once of the royal revenues and of the salary of the _grafio_, since half went to him and half to the royal treasury.

LII. _Property that has been Loaned._

If one has loaned anything of his goods to another, and that person will not restore it to him, he shall sue for it in this way: He shall go with witnesses to the house of him to whom he loaned his property and serve this notice on him: "Since you will not restore to me my goods which I have loaned to you, you may keep them until the following night, in accordance with the Salic law."{24} And if still he will not restore them, let the sun set on him.{25} If he still will not restore them, the owner is to give him a space of seven nights, and at the end of these seven nights he shall serve notice as before that he may keep them till the following night, in accordance with the Salic law. If then he will not restore them, at the end of another seven nights he is to go with witnesses again and ask him to pay what he owes. If he will not pay, let the sun set on him. But when the sun has set on him three times, for each time 120 denarii (which make 3 solidi) are to be added to the original amount of the debt. And if still he will neither pay nor give pledge of payment, he is to be held liable to him who loaned him the goods for 600 denarii (which make 15 solidi) above the original debt and above the 9 solidi which accrued through the three summons.

{24} This is to give the man legal and public notice and to allow him a full day's time in which to obey. The guilt is incurred, therefore, at sunset of the following day.

{25} See title L, note 21.

LIV. _The Slain Grafio._

1. If anyone kills a _grafio_{26} he shall pay 24,000 denarii, which make 600 solidi.

2. If anyone kills a _sacebaro_,{27} or an _obgrafio_ who is a king's slave, he shall pay 12,000 denarii, which make 300 solidi.

{26} For the position of the _grafio_, see introduction. His _wergeld_ is seen to be the same as that of the freeman in the king's service, and may indeed be regarded as a special instance of the general case of a man employed in the royal service.

{27} The _sacebaro_ and the _obgrafio_ are apparently subordinate officials of the _grafio_. They were probably not infrequently unfree persons, as they are here.

LVI. _He who refuses to come to Court._

If anyone refuses to come to court or to do what the _rachinburgii_ have commanded, that is, to give pledge for payment, or for the ordeal, or for anything which the law requires, then the complainant is to summon him to the presence of the king. And twelve witnesses, being sworn in turn by threes, shall say: [the first three] that they were present when the _rachinburgius_ condemned him to undergo ordeal or to give pledge for payment, and that he had not obeyed. The second three are to swear that they were present on the day when the _rachinburgii_ [again] condemned him to clear himself by ordeal or by paying the fine; that is, that, forty nights from the first day, the sun set on him in the _mallberg_{28} again, and that he would in no way obey the law. Then the complainant is to summon him before the king, in fourteen nights [after the last _mallus_], and three witnesses are to swear that they were present when he summoned him and the sun set on him. If he will not come, then these nine witnesses, having sworn, are to say what we have said above. Likewise, if he will not come [to the king's court] on that day, let the sun set on him, and there shall be three witnesses who were present when the sun set.{29} If the complainant has done all these things, and he who was summoned refuses to come to any court, the king shall put him outside of his protection [_i.e._, outlaw him]. Then the criminal and all his goods are liable. And whoever shall feed him or give him hospitality, even if it be his own wife, shall be held liable for 600 denarii, which make 15 solidi, until he shall have paid all that has been imposed on him.

{28} _Mallberg_ or _malloberg_ is the place where the _mallus_ or public court is held, and is here used as equivalent to the court.

{29} The process described from the end of the first sentence to this point is supposed to have taken place before the summons to the king's court mentioned in that first sentence; this is shown by the statement that there are to be twelve witnesses at the king's court, these twelve witnesses appearing in the passage as follows: three each for the two public trials in the _mallus_, three for the summons to the king's court fourteen days after the second trial, and three for the first session of the king's court; these delays having been granted and the delinquent not appearing at the second session of the royal court, he is there finally outlawed.

5. Selections from the History of the Franks, by Gregory of Tours.

M. G. S. S. 4to, rerum mer., I.

By the end of the fifth century, the Roman government in the west had practically come to an end and most of the territory was occupied by German tribes. The confederated tribes living along the middle and lower Rhine began to be called Franks about 200 A.D. For the next two centuries, the Roman garrisons had great difficulty in keeping them out of northern Gaul. With the weakening and final withdrawal of these garrisons in the beginning of the fifth century, the Franks spread over northern Gaul and by about 450 had occupied the land as far south as the river Somme. Under Chlodovech the confederated tribes, which still had their own kings, were united under his single rule, and the other inhabitants of Gaul--Romans, Alamanni, West Goths, and Burgundians--were absorbed or reduced to dependence. The work of Chlodovech was carried on by his sons and grandsons with the conquest of the Burgundians, Thuringians, Bavarians, etc. Then came the civil wars among the descendants of Chlodovech which prevented further advance until the rise of the house of Karl the Great.

There are few documents or chronicles for the history of the Franks during the fifth to the seventh centuries. The only connected account is that of Gregory, bishop of Tours from 573 to 594. His position made him one of the most influential men of his time and he was well acquainted with the contemporary events which he narrates. The earlier part of his work is, of course, less reliable, because he depended upon tradition.

II, 9. It is not known who was the first king of the Franks.... We read in the lists of consuls that Theodomer, king of the Franks, son of a certain Richemer, and his mother Ascyla were slain by the sword. They say also that afterward Chlogio, a brave and illustrious man of that race, was king of the Franks and had his seat at Dispargum, on the boundary of the Thuringians. In the region [about Tours], as far south as the Loire, dwelt the Romans; beyond the Loire the Goths held sway, while the Burgundians, who followed the heresy of Arius, dwelt across the Rhône, on which is situated the city of Lyon. Chlogio sent spies to the city of Cambrai{30} to spy out the situation and report to him. Then he seized the city and dwelt there a short time, occupying the land as far as the Somme. Some assert that king Merovech, whose son was Childerich,{31} belonged to the line of Chlogio....

27. After the death of Childerich his son Chlodovech ruled in his stead [481]. In the fifth year of his reign, Syagrius, son of Ægidius, was ruling in Soissons as king of the Romans,{32} where the said Ægidius had held sway. Now Chlodovech and his relative Ragnachar advanced against Syagrius and challenged him to battle; and the latter eagerly accepted the challenge. But in the course of the conflict Syagrius, seeing that his army was defeated, turned and fled from the field, seeking safety with king Alaric at Toulouse.{33} Then Chlodovech sent to Alaric, ordering him to surrender Syagrius, on pain of being himself attacked; and Alaric, fearing to incur the wrath of the Franks, as is the habit of the Goths, gave over Syagrius bound to the messengers of Chlodovech. Then Chlodovech had him thrown into prison, and, after seizing his kingdom, had him secretly slain....

28. Now Gundevech, of the line of the persecuting king, Athanaric, was king of the Burgundians.{34} He had four sons, Gundobad, Godegisel, Chilperic, and Godomar. Gundobad slew his brother Chilperic, and drowned Chilperic's wife by tying a stone about her neck and throwing her into the water. He also condemned Chilperic's two daughters to exile; of these the older was Chrona, who became a nun, and the younger was Chlothilde.... Chlodovech sent an embassy to Gundobad demanding the hand of Chlothilde in marriage, and Gundobad, fearing to refuse him, surrendered her to the messengers of Chlodovech, who bore her straightway to the king....

30. The queen [Chlothilde] continually urged Chlodovech to abandon his idols and accept the true God. She was not successful, however, until finally, when he was waging war on the Alamanni,{35} he was compelled by necessity to accept that which he had formerly refused. For in the course of the battle, when the two armies were engaged in fierce struggle, it happened that the army of Chlodovech was on the verge of utter rout, and seeing this the king raised his eyes to heaven, and cried: "Jesus Christ, thou whom Chlothilde doth call the son of the living God, who dost comfort those in travail and give victory to those that believe in thee, I now devoutly beseech thy aid, and I promise if thou dost give me victory over these mine enemies and if I find thou hast the power which thy believers say thou hast shown, that I will believe in thee and be baptized in thy name. For I have called on my own gods and they have failed to help me; therefore I believe they have no power, since they do not come to the aid of their worshippers. I call now upon thee; I desire to believe in thee, that I be not destroyed by mine enemies." And as soon as he had cried thus, the Alamanni turned and fled. And when they saw that their king was slain they surrendered to Chlodovech, saying: "Let not thy people perish further, we beseech thee, for we are thine."

31. ... Then the king demanded that he should be the first to be baptized by the bishop. So the new Constantine advanced to the font, to be cleansed from the old leprosy of his sin, and from the sordid stains of his past life, in the water of baptism. As he approached the font, the saint of God addressed him in these fitting words: "Bow thy head, Sigambrian;{36} adore what thou hast burned, burn what thou hast adored." ... Then the king having professed his belief in omnipotent God the Trinity, was baptized in the name of the Father, Son, and Holy Spirit, and was anointed with the holy oil with the sign of the cross of Christ. And more than 3,000 of his army were baptized also....

32. The brothers Gundobad and Godegisel were at this time ruling the land about the Rhône and the Saône and the province of Marseilles. They, as well as their people, were Arian. And when war was on the point of breaking out between them, Godegisel, who had heard of the conquests of Chlodovech, sent to him secretly, saying: "If you will give me aid in overthrowing my brother, so that I may kill him in battle or drive him from the kingdom, I will pay you such yearly tribute as you shall demand." Chlodovech accepted the conditions gladly and promised to send aid to Godegisel whenever he should require it. At the time appointed, Chlodovech advanced with his army against Gundobad. When Gundobad, ignorant of the treachery of Godegisel, learned of the approach of Chlodovech, he sent to his brother, saying: "Come to my aid, for the Franks are coming against me to seize my kingdom. Let us unite to withstand this enemy, lest if we remain divided, each of us should suffer the fate of the other nations." And Godegisel replied that he would bring his army to the aid of his brother. Thus the three armies advancing at the same time, came together at Dijon, and Godegisel and Chlodovech joined forces and defeated Gundobad. Gundobad, seeing the treachery of his brother, which he had not before suspected, turned and fled along the bank of the Rhône until he came to Avignon....

35. Now when Alaric, king of the Goths, saw that Chlodovech was conquering many nations, he sent to him and said: "If it please my brother, let us unite our interests under the protection of God." And Chlodovech, agreeing, came to him, and they met on an island in the Loire, near the town of Amboise in the vicinity of Tours. There they held a conference, and ate and drank together, and separated in peace, having exchanged vows of friendship. But already many of the Gauls [under Alaric] were greatly desirous of being under Frankish rule.

37. Then Chlodovech said to his followers: "It causes me great grief that these Arians{37} should hold a part of Gaul. Let us go with the aid of God and reduce them to subjection." And since this was pleasing to all his followers, he advanced with his army toward Poitiers.... And Chlodovech came up with Alaric, king of the Goths, at Vouillé, about ten miles from Poitiers.... There the Goths fled, according to their custom, and Chlodovech gained a great victory with the aid of God. And Chloderic, the son of Sigibert the Lame, aided him in this battle.