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CHAPTER IV.

FRANCE AND COUNTRIES GOVERNED BY THE CODE CIVIL.(α)

WIT

ITHOUT entering into the vexed question of the date of the Lex Salica, or as to whether or not it contains traces of Roman influence, as has been suggested by M. Tardif and Dr. H. Brunner, it may be stated that it is generally accepted that this celebrated law is one of the oldest legal monuments of the Frankish race.

The nature of early Teutonic legislation is too well known to need discussion. As was the case with most of the Anglo-Saxon laws, the Lex Salica was a regulation of self-redress, and was mainly a tariff. If such and such an injury is done, the wrong-doer pays so much. The master of a slave was the owner of a thing, and if injury was caused by his property to another he had to make good the damage, or pay a sum as fixed by law. It was the same whether the wrong was done by a slave or an animal (cap. xxvii. 4; xxxvii. 8). According to the strict wording of this enactment, the slave pays, but it is the master who bears the burdens, and is bound to repair the wrong (Lex Salica emendata, xlii. 14).

The instances given in the Lex Salica are numerous, and

(a) Whilst engaged in examining authorities for the early French law, I communicated with Professor Henri Beaune of Lyons, who was good enough to give me much valuable information. As a result of my enquiries he contributed two Articles to "la Revue catholique des institutions et du droit," which appeared in September and October, 1897. These articles introduced to me many texts with which I was hitherto unacquainted, and I beg to make my acknowledgments to Professor Beaune for much of the contents of the early part of this chapter, especially the part relating to the law of the Middle Ages, which is little more than a translation of parts of Professor Beaune's second article.

it is sufficient to give examples. (a) Dominus vero servi, qui furtum facit, capitale et dilaturam requirenti restituat (L. Sal. xxvii. 4). Si vero furaverit quod valet xl. denarios, aut castretur, aut ccxl. denarios qui faciunt solidos vi. reddat (cap. xiii. 2).

The master can, however, to some extent, free himself by delivery of the slave to the injured party, and if he does so, the compensation is diminished by a half (cap. xxxv. 5). It was possible, therefore, that the owner of a slave would suffer a smaller loss if he paid the compensation than if he delivered him up.

In the Capita extravagantia of the Lex Salica, published by Pardessus, a new system appears (sec. 28). According to the Lex Salica, a slave who murdered another was divided between the two masters, but according to the Capita extravagantia, the owner of the murderer must pay to the owner of the murdered slave the value and 15 solidi. The same rule is also applied to workmen (operarii, artifices), for whom the employer is liable (Beaune, p. 230).

The Lex Ripuaria (which was the law of the folk inhabiting that part of Belgium and France lying between the Meuse and the Ourthe, and extending to Cologne) is in the main the same as the Lex Salica. The master of a slave who causes a fire pays a fine of thirty-six sous d'or and the damage, unless he can prove his innocence with six witnesses on oath (Lex Rip., tit. xvii. 2; xviii. 4; xix. 3; xx. 1).

In a Capitulary of Charles the Bald, extracted from the Lex Langobardorum (cap. ii. 12), a slave who has damaged crops is beaten, but his master pays triple damages.

The liability imposed by the Lex Salica was heavy, and the Church had endeavoured to evade it, but the Pact between Clothaire and Childebert, and the Decretio of the latter lay down the rule as absolute, and admit of no exception (cap. vii. of Third Capitulary of 819. Guétat., “Hist. du Droit français," p. 132; Beaune, p. 231).

(a) Other instances are given by Dr. Beaune, pp. 227-29.

In the Lex Romana Burgundionum, prepared for his Roman subjects by Gundobald, king of the Burgundians, we have a barbarian code, with a large infusion of Roman law. One point of importance appears in this Lex, it appears to some extent to adopt the theory of culpa of the Roman Law. The master, it is true, is, as a rule, liable for his slaves' acts, but not in quite the absolute manner of the Lex Salica. Where a runaway slave wounds his pursuer (tit. vi.), or commits a theft (tit. xxi.), his master is not liable, for he is no longer under his control. So, too, if a slave cuts trees in the woods of another, as his master cannot follow him into the forest, he is exonerated, but the slave is beaten (tit. xxviii.). So, too, the master is freed where the injury is the result of accident (tit. xviii.). The rule of liability to which the foregoing are exceptions is seen in such cases as where a master puts his slave to work at material entrusted to him by a customer and the material is damaged, the master must make satisfaction or hand the slave over (tit. xxi. 2). In case the slave is killed, the master is not thereby exonerated from his liability, he must still make compensation for the wrong (tit. iv. 2).

The Lex Antiqua Visigothorum contemplates the possibility of the slave making compensation himself. Si vero servus hoc sine jussu domini fecerat, omne dampnum aut ipse aut ejus dominus reddat" (L. Visig. lib. viii., tit. iii. 10). This law also recognises the right of noxal surrender (lib. viii., tit. iii. 6). Of all these early laws the Lex Burgundionum appears to be the only one in which the responsibility of the master is in any way connected with any subjective liability, in all the others he is liable because injury has been committed by his property.

With the fall of the Frankish empire legislation of every kind is at an end, the midnight of the Dark Ages is unbroken by rays of legislative light.

The Lex Salica, however, survived, though with what force one hesitates to say, possibly under the form of local customs; both it and the Lex Burgundionum appear at the

commencement of the Middle Ages. The former is cited at a Council of Limoges in 1031; it is in force in the Tyrol in 1166, and in Luxemburg in 1192 (Beaune, p. 331).

In the twelfth century comes the first great revival of Roman Law, and the consequence is naturally to substitute the Justinianian law more and more for the bastard law of the Breviarium Alarici, under which the country of the " pays du droit écrit" had been governed. When, however, the liability of the master owing to his being in fault first appears it is difficult to say.

The charters of the twelfth century, when they contain regulations on the question we are examining, show little advance on the old barbaric laws (e.g., Bourges, 1181, and Amiens, 1190. Beaune, pp. 333, 334). Le très ancien Contumier of Normandy (1200-1220), and the Customs of Tourraine-Anjou (1246), are silent on the subject.

In the south the influence of Roman law was spreading, and soon Orleans became a centre of the sphere. This influence is shown in two works-Le livre de Jostice et de Plet, compiled after 1259, and Les Etablissements de Saint Louis of 1273. Le Conseil à un ami, written by Pierre de Fontaines between 1254 and 1259, "selonc les ús et costumes de Vermandois et d'autres corz laies," contains a mixture of laws taken from the Code of Justinian.

The author of Le livre de Jostice et de Plet devotes a chapter to the translation of the Lex Aquilia, and lays down the rule that a person having a lunatic under his charge is liable for any injury he may do, because he has not carefully looked after him (L. i. cap. xxi. 5). The father and master are liable for injuries caused by their infant sons or servants to things left in their charge. The same rule is given in Le Conseil à un ami in the chapter on Taverniers et Hosteliers, which the author has taken from the Digest, the reasons being those of the Roman law (xx. 9. Beaune, p. 336).

In examining the liability for the delict of private war, Prof. Beaune gives instances of an interesting variation in

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the answers given by three famous authors of the Middle Ages. This delict was punished by a fine of 60 pounds to the sovereign. If a knight leads a body of men, according to Le livre de Jostice et de Plet, he alone is liable, “et garantist toz ceus que le maine" (L. xviii., cap. xxiv., sec. 35). Les Establissements de Saint Louis are in accord with this if the leader is a bers or knight, if not, each man pays the full fine (L. ii. cap. xxxviii.). Beaumanoir, in La Coutume de Beauvoisis, lays down an even more stringent rule. The leader, he says, is always liable whether a knight or not; if a knight he pays 60 pounds for every man with him, because he has abused his authority; if not, he pays 60 pounds only (cap. xxx., secs. 58, 59; cap. xxxiv., sec. 42). The Swabenspiegel," in accordance with the German medieval law, says that each is liable (Edit. Matile, p. xlii. Beaune, p. 338).

Elsewhere Beaumanoir enumerating the persons for whom a man must answer says they are Cex qui sunt en se mainburnie et ceux de sa mesnie qui sont à son pain et à son pot, ou à son loier," and his liability for the latter is because "Il doit avoir tel mesnie qui ne face pas," injuries—i.e., because he must make a careful choice (cap. xliii. 41; xxxiv. 5. Beaune, p. 339). The customs of Montpelier (1204), seem to contain similar views (Giraud, vol. i. 63).

The Roman law was not accepted in France without a struggle, and though in committing to writing local customs much Roman law was incorporated, and the classification of the Roman law of obligation, for example, was adopted in Le Style du Châtelet (Viollet, p. 603), yet writers such as Beaumanoir were at pains to assert that they were following and recording local customs even when they were copying from the Code or the Digest.

In 1304 Philip IV. forbids advocates to quote Roman law against customs and royal proclamations, and when Parliament ratified the privileges granted to the Universities, it was always with the reservation sans reconnaître force de loi au droit romain dans le royaume (Beaune, p. 341).