A Source Book for Mediæval History: Selected Documents illustrating the History of Europe in the Middle AgeThatcher, Oliver J. (Oliver Joseph)
History
A Source Book for Mediæval History: Selected Documents illustrating the History of Europe in the Middle Age
Thatcher, Oliver J. (Oliver Joseph)
Europe -- History -- 476-1492 -- Sources; Middle Ages -- Sources
3. A large part of the procedure takes place out of court, and is
conducted by the individuals concerned. So in title I, 3, the plaintiff
summons the defendant in person; in title L, 2, the creditor tries to
collect the amount fixed by the court; in title XLVII the whole process
of tracing and recovering stolen property, except the last stage, is
conducted out of court. This also is a common feature of Germanic law;
the objection, common among uncivilized peoples, to the state's
interference with private affairs of the individual operates here to
restrict the function of the law to the simple decision of the case.
4. All the German laws provide for the payment of the _wergeld_. The
origin of this is doubtless to be found in the underlying conception of
primitive law referred to in paragraph 2. The purpose being to put an
end to private revenge, which would mean continual private war, the law
prescribes the amount to be paid to the kindred of the slain man, and
they must on receipt of that give up the blood-feud. (See no. 1, ch. 21,
and note.) In many of the codes different values are assigned to
different classes of people, as here in title XLI.
The public institutions of the Franks are referred to in the law only
incidentally, the law being concerned, as has been said, mainly with
private matters, and taking for granted a knowledge of public law.
Following is a brief statement of the form of government, administration
of justice, etc. The state ruled by the king of the Salic Franks was
composed of several small tribes, originally independent (see no. 1,
notes 1 and 9), but now incorporated into a single state. The kingdom
was divided into counties, some of which correspond to the former
independent tribes, and some to old Roman political divisions. The
county was governed by a representative of the king, an official who is
called in the Salic law by the German title _grafio_ (modern German
"Graf"), and in later documents by the Latin title _comes_ (count). The
judicial system was based on the division of the county known as the
hundred (see no. 1, note 1), the assembly of the freemen of the hundred
being the regular public court. It was presided over by the
"hundred-man," in the Salic law called either _centenarius_, which means
simply hundred-man, or _thunginus_, a word of uncertain meaning. The
function of the _grafio_, the representative of the king in the county,
was mainly executive; he was appealed to only when every other means of
forcing the delinquent to obey the law or the decision of the court had
failed, but he has no part in the trial of cases. See title L, 3, for an
instance of the function of the _grafio_.
I. _Legal Summons._{10}
1. If anyone is summoned to the court and does not come, he shall pay
600 denarii, which make 15 solidi.{11}
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