The History of the Decline and Fall of the Roman Empire - Edward Gibbon [1172]
[Footnote 76: See, in the sixth volume of the works of Heineccius, the Elementa Juris Germanici, l. ii. p. 2, No. 261, 262, 280 - 283. Yet some vestiges of these pecuniary compositions for murder have been traced in Germany as late as the sixteenth century.]
The civil and military professions, which had been separated by Constantine, were again united by the Barbarians. The harsh sound of the Teutonic appellations was mollified into the Latin titles of Duke, of Count, or of Praefect; and the same officer assumed, within his district, the command of the troops, and the administration of justice. ^77 But the fierce and illiterate chieftain was seldom qualified to discharge the duties of a judge, which required all the faculties of a philosophic mind, laboriously cultivated by experience and study; and his rude ignorance was compelled to embrace some simple, and visible, methods of ascertaining the cause of justice. In every religion, the Deity has been invoked to confirm the truth, or to punish the falsehood of human testimony; but this powerful instrument was misapplied and abused by the simplicity of the German legislators. The party accused might justify his innocence, by producing before their tribunal a number of friendly witnesses, who solemnly declared their belief, or assurance, that he was not guilty. According to the weight of the charge, this legal number of compurgators was multiplied; seventy-two voices were required to absolve an incendiary or assassin: and when the chastity of a queen of France was suspected, three hundred gallant nobles swore, without hesitation, that the infant prince had been actually begotten by her deceased husband. ^78 The sin and scandal of manifest and frequent perjuries engaged the magistrates to remove these dangerous temptations; and to supply the defects of human testimony by the famous experiments of fire and water. These extraordinary trials were so capriciously contrived, that, in some cases, guilt, and innocence in others, could not be proved without the interposition of a miracle. Such miracles were really provided by fraud and credulity; the most intricate causes were determined by this easy and infallible method, and the turbulent Barbarians, who might have disdained the sentence of the magistrate, submissively acquiesced in the judgment of God. ^79
[Footnote 77: The whole subject of the Germanic judges, and their jurisdiction, is copiously treated by Heineccius, (Element. Jur. Germ. l. iii. No. 1 - 72.) I cannot find any proof that, under the Merovingian race, the scabini, or assessors, were chosen by the people.
Note: The question of the scabini is treated at considerable length by Savigny. He questions the existence of the scabini anterior to Charlemagne. Before this time the decision was by an open court of the freemen, the boni Romische Recht, vol. i. p. 195. et seq. - M.]
[Footnote 78: Gregor. Turon. l. viii. c. 9, in tom. ii. p. 316. Montesquieu observes, (Esprit des Loix. l. xxviii. c. 13,) that the Salic law did not admit these negative proofs so universally established in the Barbaric codes. Yet this obscure concubine (Fredegundis,) who became the wife of the grandson of Clovis, must have followed the Salic law.]
[Footnote 79: Muratori, in the Antiquities of Italy, has given two Dissertations (xxxvii. xxxix.) on the judgments of God. It was expected that fire would not burn the innocent; and that the pure element of water would not allow the guilty to sink into its bosom.]
But the trials by single combat gradually obtained superior credit and authority, among a warlike people, who could not believe that a brave man deserved to suffer, or that a coward deserved to live. ^80 Both in civil and criminal proceedings, the plaintiff, or accuser, the defendant, or even the witness, were exposed to mortal challenge from the antagonist who was destitute of legal proofs; and it was incumbent on them either to desert their cause, or