THE FRANK MONARCHY.
Origin of The origin of law at this period can be traced to two sources: (1) The laws along their general lines, and (2) other data showing how the laws were applied.
There existed as many laws as peoples and they were divided into Roman law and Barba rian law, the customs of the Barbarians have ing been made the subject of law from the 5th century. As regards the Roman law this con sisted of a collection or adaptation of Roman texts compiled by order of the king for his Roman subjects.
In addition to these particular laws which only applied to a particular race, there existed the ordinances of the Frank kings, called °Ca pitulaires" which could be applied to the entire population, and which, consequently, constituted elements for the fusion of the two laws. The most important of these °Capitulaires° were due to Charlemagne, and show the remarkable activity displayed by this great emperor.
The documents which show the manner in which the laws were applied under the Frank monarchy consist inter alia of a series of forms intended for the use of practising lawyers which served as models for the drawing up of deeds and other legal instruments; 'xcartu laires," or registers, in which administrators of churches and convents recorded the rights of ownership of the different property in these es tablishments ; and °polyptyques,* wherein were registered in detail all the property belonging to the large landowners.
Personal From the point of view of personal status, the Frank period showed great diversity, the cause lying in the co-exist ence and fusion of the two Roman laws and the German law. It is true that the people were still composed of free men, semi-slaves and slaves proper, but the quasi-servile popu lation comprised a number of different classes.
As regards the free men, the nobility proper gradually disappeared, but a new aristocracy sprang up. The Roman nobility was replaced by the °Seniorat,* which was a class composed of influential property-holders and important state officials.
The quasi-servile population was made up of the °colons* of the Roman customs; the elites" of the Germanic institutions—a large number of enfranchised men over whom the Church exercised a patronage and a right of jurisdiction, and finally those people who had been driven by misery, hunger and debts to forego a part of their liberty. By degrees the various elements composing this semi-servile population developed into serfdom proper, a feature which will be dealt with later.
Under the influence and protection of the Church, the position of the slaves became bet tered in some respects. Although they pos sessed no personal status from a judicial stand point, they were able to contract legitimate marriages and their masters were no longer able to confiscate the meagre savings of their toil. It even came to pass that the slaves were
placed on the same footing as the °colons,• which greatly enhanced their hitherto precari ous position.
Marriage, the cornerstone of family, was in those days quite a different institution from that understood in modern times. Sold by her father to her husband, the German woman had no other choice than to bow to the inevitable, she being in no way consulted in the matter. As regards the Roman woman, although her consent was necessary so also was her father's, with the result that a trace of barter and sale still survived. Similar formalities applied to only sons.
In the 8th century any marriage contracted without the father's consent was not valid. It was at the beginning of the 9th century only that the idea of mutual consent was seriously mooted — to the advantage of both husband and wife. As regards divorce, which existed under both Roman and German law, the Church endeavored to suppress it, and so far succeeded as to substitute for it a judicial separation. °Capitulaires° of the 9th century were very i strongly opposed to divorce, but its complete disappearance never resulted.
Judicial Justice was dis pensed in the provinces by the °Count* who was also invested with administrative and financial functions. The count went from canton to canton dispensing both civil and criminal jus tice. He was assisted by urachimbourgs" or • "Rachimbourgs " were officials attached to the " Count " when the latter dispensed justice. They Were not empowered to pronounce a sentence, but merely to see that the law was properly applied, and especially to satisfy themselves that cases were duly proven.
officials appointed by him which Charlemagne replaced by techevins" (municipal magis trates) who differed from the former by their permanent character. Furthermore, all cases were heard in public, anyone had the right to attend, and, as Gregoire de Tours has shown us in an interesting chapter in one of his works, the public manifested audibly their approval or disapproval of judgments rendered. This was an old remnant of popular justice as practised under German customs.
The king, assisted by a council, personally dispensed justice wherever he went. In princi ple he was not a judge of appeals, but he could be referred to in a case of adeni de justice' (refusal of justice). He was, moreover, the supreme judge as it were, and had power to pronounce judgment in all cases pleaded before him, even in first instance. It has been said that his tribunal played the role of a school of equity, amending certain hard and fast texts of the legal code.