The church laboured likewise for the suppression of a great many barbarous practices, and for the amelioration of the criminal and civil legislation. Although containing certain principles of liberty, the laws were absurd, and fruitful of injustice; the most stupid ordeals, the judicial combat, and the unsupported oaths of a specified number of men, were esteemed the only means of arriving at the discovery of truth. The church strove to have more rational and legitimate means substituted. I have already spoken of the difference observable between the laws of the Visigoths, derived principally from the councils of Toledo, and the other barbarian laws. It is impossible to compare them, without being struck with the immense superiority of the ideas of the church on the subject of legislation and the administration of justice, in all that relates to the investigation of truth and of what is befitting to man. Doubtless most of these ideas were borrowed from the Roman legislation; but if the church had not preserved and asserted them, and done its utmost to propagate them, they would certainly have perished. For example, the employment of the oath in process is wisely regulated in the law of the Visigoths.
'Let the judge, in order fully to understand the cause, first interrogate the witnesses, and then examine the writings, so that the truth may be discovered with more certainty, and the oath not too lightly administered. A determination according to truth and justice requires that the writings on both sides be carefully examined, and that the necessity for the oath, kept in suspense over the heads of the parties, come upon them unexpectedly. Let the oath be administered only in causes in which the judge shall not succeed in discovering any writing, any proof, or any certain clue to the truth.'—(For. Jud. 1. ii. tit. i. 1. 21.)
In criminal matters, the relation of the punishments to the offences is determined according to philosophical and moral notions, of singular justness. The efforts of an enlightened legislator struggling against the violence and irreflectiveness of the barbarian manners, are clearly distinguishable. The enactments under the title or head of 'Cœde et morte hominum'—['Of the slaying and death of men'], compared to those of a correspondent nature in use amongst other nations, is a very remarkable example of these characteristics. In other codes, it is almost exclusively the damage which is held to constitute the crime, and the penalty is comprised in that tangible reparation which results from a principle of composition. But here the crime is reduced to its moral and true element, intention. The different shades of criminality, the purely involuntary homicide, accidental homicide, justifiable homicide, and homicide with or without premeditation, are distinguished and defined almost as well as in our codes, and the punishments vary on a very equitable scale. The legislator has rendered justice more indiscriminate; he has attempted, if not to abolish, at least to lessen, that diversity in the legal value of men established by the other barbarian laws. The only distinction he has maintained is that of the free man and the slave. With regard to free men, the punishment is not varied either according to the national origin, or according to the rank of the defunct, but simply according to the different degrees of moral culpability in the murderer. With regard to slaves, not venturing to completely deprive masters of the right of life and death, attempts are at all events made to restrain it, by making it subject to a public and regular process. The text of the law deserves to be cited.
'If no malefactor or accomplice in a crime ought to remain unpunished, how much more ought he to be put down who commits murder wickedly and trivially! Thus, as masters in their pride frequently put their slaves to death without any fault on their parts, it is expedient to utterly abrogate this license, and to ordain that this law shall be for ever observed by all. No master or mistress shall be allowed to inflict death, without public judgment, upon any of their slaves, male or female, or upon any person dependent upon them. If a slave or any other servant commits a crime which may subject him to capital punishment, his master or his accuser shall immediately make it known to the judge of the place where the action has been committed, or the count, or the duke. After investigation into the matter, if the crime is proved, let the guilty undergo, either through the judge or his own master, the sentence of death he has deserved; provided that, if the judge will not put the criminal to death, he shall draw up in writing a capital sentence against him, and then it shall be in the discretion of the master to slay him or to spare his life. At the same time, if the slave, by a fatal audacity, offering resistance to his master, has struck him, or attempted to strike him, with a weapon, a stone, or any other thing, and if the master, endeavouring to defend himself, has slain the slave in his anger, he shall not be at all held amenable to the penalties of homicide. But it shall be necessary to prove that the fact has thus happened, and that by the testimony or oath of the male or female slaves who were present, and by the oath of the perpetrator himself. Whoever, from pure wickedness, by his own hand, or by that of another, shall kill his slave without public judgment, shall be declared infamous, and incapable of appearing as a witness, condemned to pass the rest of his life in exile and penitence, and his possessions fall to his next of kin, to whom the law accords the inheritance.'—(For. Jud. 1. vi. tit. v. 1. 12.)
In the institutions of the church there was an article which has been hitherto very little noticed—namely, its penitential system. The study of this system is rendered much more interesting at the present day, since it is almost completely in accordance with the ideas of modern philosophy as to the principles and objects of the penal law. If we investigate the nature of the punishments used by the church, of the public penances which were its principal mode of inflicting chastisement, we shall find that their main design was to excite repentance in the mind of the criminal, and moral terror by the example in the beholders. There was also another idea mixed up with it—that of expiation. In a general point of view, I do not know if it be possible to separate the idea of expiation from that of punishment, and if there be not in every punishment a hidden and imperative demand for the expiation of the wrong committed, independently of the design of leading the guilty to repentance, and of scaring those who might be tempted to fall into crime. But putting aside this question, it is quite clear that repentance and example were the objects proposed by the church in its penitential system. Are these not also the objects of truly philosophic legislation? Have not the most enlightened jurists of the last age, and of our own days, advocated reform in the European penal legislation, upon the allegation of these very principles? Look at their works—look at those of Bentham, for example—and you will be surprised at the numerous resemblances you will find between the penal modes proposed by them and those employed by the church. They most certainly did not borrow them from her, nor could she have foreseen that her example might be one day adduced in aid of plans propounded by the least devout of philosophers.
By all sorts of methods the church likewise strove to repress the tendency of society to violence and continual wars. Every one is aware that it was by 'the truce of God,' and numerous measures of the same nature, that the church struggled against the employment of force, and devoted itself to introduce into society a greater degree of order and mildness. These facts are so well known, that I am spared the trouble of entering into any detail. [Footnote 9]
[Footnote 9: As many readers of this edition may not be such perfect masters of these facts as M. Guizot's auditory, it may be permitted the translator to mention, that the first volume of Robertson's History of Charles V. will be found the best expositor of these and other references which may not be familiar to the reader.]
Such are the principal points which I have to bring forward regarding the relations of the church with the people. We have now considered it under the three aspects which I first announced, and gained a knowledge of it both within and without, both in its internal constitution, and in its twofold outward position. It now remains to apply our knowledge to decide, by means of induction and conjecture, its general influence upon European civilisation. This is a labour almost accomplished, or at least much advanced, as the simple announcement of the predominant facts and principles in the church reveals and explains its influence; the results have in some sort already passed before us with the causes. However, in summing them up, we are led, I think, to two general conclusions.