better part. Sometimes, however, the prepossession of the national spirit, if I may so express myself, has still deceived him, and of this I will cite a single example. He says at the end of the chapter upon the municipal system under the Visigoths :

"The text of the Code orders that at Rome, in order to pronounce upon a criminal accusation against a senator, five senators be appointed by lot: the Interpretation renders this rule general, and requires five of the principal citizens of the same rank as the accused, that is to say, decurions or plebeian, according to the condition of the accused himself. . . . May we not here conjecture the influence of the German Scabini ?””

Thus M. de Savigny supposes that, according to the Interpretation of the Breviarium, the judges drawn by lot, in criminal matters, were, under the Visigoths in the sixth century, to be of the same condition as the accused, that every man was to be judged by his peers; for it is thus that they commonly digest the principle of the institution of the jury, according to German manners. Here is the Latin sentence upon which this induction is founded.

"Cum pro objecto crimine, aliquis audiendus est, quinque nobilissimi viri judices, de reliquis sibi similibus, missis sortibus eligantur."

That is to say:

"If any one be cited to appear on accusation of crime, let five nobles be appointed by lot, from among co-equals, to be judges."

These words, de reliquis sibi similibus, evidently signify that the five judges shall be drawn by lot from the same class, and not from the class of the accused. There is, therefore, no trace in it of the idea that the judges must be of the same rank and condition of the accused. The words nobilissimi viri might have convinced M. de Savigny, and prevented his error: how, indeed, can they apply to plebeian judges?

Let us pass from the Visigoths to the Burgundians, and see what was the state of the Roman legislation at the same epoch, among the latter.

The preface to their law contains, as you will recollect, this sentence:

"We order that Romans be judged according to Roman

1 Vol. i., p. 265.

2 Interp. Cod. Th., xi., 1, 12.

laws, as was done by our ancestors, and that they receive in writing the form and tenor of the laws according to which they shall be judged, to the end that no person can excuse himself upon the score of ignorance."

The Burgundian Sigismond, therefore, intended to do in 517, what Alaric, the Visigoth, had done eleven years before, to collect the Roman laws for his Roman subjects.

In 1566, Cujas found in a manuscript a law work which he published under the title of Papiani Responsum, or Liber Responsorum, and which has always since borne that name. It is divided into 47 or 48 titles, and offers the following characteristics :

1st. The order and heading of the titles corresponds almost exactly with those of the barbaric law of the Burgundians; title II. de homicidiis, to title II. de homicidiis; title III. de libertatibus, to title III. de libertatibus servorum nostrorum, and so on. M. de Savigny has drawn up a comparative view of the two laws, and the correlativeness is evident. 2d. We read in title II. of this work, de homicidiis: "And as it is very clear that the Roman law has regulated nothing concerning the value of men killed, our lord has ordered that according to the quality of the slave, the murderer shall pay to his master the following sums, namely:

"This must be observed according to the order of the king." The enumeration and the composition, under the corresponding title, are the same in the law of the Burgundians.

3d. Lastly, two titles of the first supplement of this law (tit. I. and XIX.) are textually borrowed from the Papiani Responsum, published by Cujas.

It is evident that this work is no other than the law proclaimed by Sigismond to his Roman subjects, at the time that he published the law of his barbaric subjects.

Whence comes the title of this law? Why is it called

1 Vol. ii., pp. 13–16.

Papiani Responsum? Is it, in fact, a repetition of a work of Papinianus, often called Papian by the manuscripts Nothing is less probable. M. de Savigny has very ingeniously resolved this question. He conjectures that Cujas found the manuscript of the Roman law of the Burgundians at the end of a manuscript of the Breviarium of Alaric, without marking the separation of the two works; and that the Breviarium finishing by a passage of the Liber Responsorum of Papinianus, Cujas has inadvertently ascribed this passage and given this title to the work following. The examination of many manuscripts confirms this conjecture, and Cujas himself was doubtful of error.

As the Breviarium of Alaric preceded the law of the Roman Burgundians by only a few years, some people have supposed the latter to be merely an abstract of it. This is an error. Much more brief and incomplete than the Breviarium, the Papiani Responsum, since it keeps that name, has still, more than once, drawn from the sources of the Roman law, and furnishes upon this point many important indications.

It probably fell into disuse when the kingdom of the Burgundians fell under the yoke of the Franks. Everything indicates that the Breviarium of Alaric, more extensive and better satisfying to the various wants of civil life, progressively replaced it, and became the law of the Romans in all the countries of Gaul that the Burgundians, as well as the Visigoths, had possessed.

The Franks remain to be considered. When they had conquered, or almost conquered the whole of Gaul, the Breviarium, and, for some time also, the Papian, continued in vigor in the countries where they had formerly prevailed. But in the north and north-east of Gaul, in the first settlements of the Franks, the situation was different. We there find nothing of a new Roman code, no attempt to collect and digest the Roman law for the ancient inhabitants. It is certain, however, that it continued to rule them; here are the principal facts which do not admit of a doubt of this.

1st. The Salic and Ripuarian laws continually repeat that the Romans shall be judged according to the Roman law. Many decrees of the Frank kings-among others, a decree of Clotaire I., in 560, and one of Childebert II., in 595, renew this injunction, and borrow from the Roman law some of its provisions. The legislative monuments of the Franks, therefore, attest its perpetuity.

2d. A different kind of monuments, no less authentic, likewise prove it. Many of you know the formulæ, or models of forms, according to which, from the sixth to the tenth cen tury, the principal acts of civil life, wills, bequests, enfranchisements, sales, &c., were drawn up. The principal collection of formulæ is that published by Marculf the monk, towards the end, as it seems, of the eighth century. Many men of learning-Mabillon, Bignon, Sirmond, and Lindenbrog-have recovered others of them from old manuscripts. A large number of these formule reproduced, in the same terms, the ancient forms of Roman law concerning the enfranchisement of slaves, bequests, testaments, prescriptions, &c., and thus prove that it was still of habitual application.

3d. All the monuments of this epoch, in the countries occupied by the Franks, are full of the names of the Roman municipal system-duumvirs, advocates, curia, and curial, and present these institutions as always in vigor.

4th. Many civil acts, in fact, exist, testaments, bequests, sales, &c., which passed according to the Roman law in the curia, and were so inscribed upon the registers.

5th. Lastly, the chroniclers of the time often speak of men versed in the knowledge of the Roman law, and who make an attentive study of it. In the sixth century, the Auvergnat Andarchius "was very learned in the works of Virgil, the books of the Theodosian law, and in the art of calculation.” At the end of the seventh century, Saint Bonet, bishop of Clermont, "was imbued with the principles of the grammarians, and learned in the decrees of Theodosius."" Saint Didier, bishop of Cahors, from 629 to 654, "applied himself," says his life in manuscript, "to the study of the Roman laws."

Of a surety there were then no erudits; there was then no Académie des Inscriptions, and people did not study the Roman law for mere curiosity. There can, then, be no reason for doubting that among the Franks, as well as among the Burgundians and Visigoths, it continued in vigor, particu larly in the civil legislation and in the municipal system. Those among you who would seek the proofs in detail, the original texts upon which the results which I have just stated are founded, will find a large number of them in the work of

1 Greg. of Tours, 1. 4, c. 47.

2 Acta sanc Juana, c. 1, No. 3.

M. de Savigny (vol. i., p. 267-273; vol. ii., p. 100—118), and still more in the Histoire du Régime Municipal de France, published by M. Raynouard-a work replete with curious researches, researches so complete upon certain questions that, in truth, one might almost tax them with superfluity.

You see the fact which I proposed to bring forward is indubitable. Monuments of all kinds show it, doubtless in unequal degrees among different nations, but everywhere real and permanent. Its importance is great, because it proclaimed to Gaul a social state entirely different from that in which it had hitherto lived. It was hardly more than five centuries since it had fallen beneath the power of the Romans, and already scarcely a trace of the ancient Gaulish society remained. Roman civilization had the terrible power of extirpating the national laws, manners, language, and religion-of fully assimilating its conquests to itself. All absolute expressions are exaggerated; still, in considering things in general at the sixth century, we may say, everything in Gaul was Roman. The contrary fact accompanies barbaric conquest: the Germans leave to the conquered population their laws, local institutions, language, and religion. An invincible unity followed in the steps of the Romans: here, on the contrary, diversity was established by the consent and aid of the conquerors. We have seen that the empire of personality and individual independence, the characteristic of modern civilization, was of German origin; we here find its influence; the idea of personality presided in laws as in actions; the individuality of peoples, while subject to the same political domination, was proclaimed like that of man. Centuries must pass before the notion of territory can overcome that of race, before personal legislation can become real, and before a new national unity can result from the slow and laborious fusion of the various elements.

This granted, and the perpetuity of Roman legislation being established, still do not let this word deceive you : there is in it a great deal that is illusory; because it has been seen that the Roman law continued, because the same names and forms have been met with, it has been concluded that the principles, that the spirit of the laws had also remained the same: the Roman law of the tenth century has been spoken of as that of the Empire. This is erroneous language; when Alaric and Sigismond ordered a new collection of the Roman laws for the use of their Roman subjects, they did