were chosen in the tribal assemblies to dispense justice throughout the
pagi (cf. the French pays, inhabited by paysans or ‘peasants’), the
country districts which the Romans believed to be the units of German
administration, where they gave their judgments with the concurrence
of a large body of assessors.^3 However imaginative Tacitus’s descrip-
tion, it seems likely that the character of medieval law-courts was set by
the introduction into barbarian assemblies—it must have been under the
influence of the Church—of the Roman feeling for correct procedure.
The judicial power of the Roman magistrate and German communal
authority fused together in the ‘cities’ (civitates) of Frankish Gaul, from
which there begin to survive records (noticiae) of pleas in the municipal
courts (curiae). But true cities were few in the lands the Franks invaded.
It was into tribal territories that were introduced the officials known
as defensores civitatum, whose declared purpose was to ‘defend’ the
interests of the lesser landholders. By the fifth century the choice of these
magistrates was in the hands of local notables, including bishops and
clergy.^4
The cases that were recorded (the ones on which a consistent law
could build) concerned property, because the record preserved the right.
A collection of legal forms made in the eighth century still includes ‘a
judicial contest or complaint’ (contestaciuncula seu plancturia) about
property in ‘the pagusand town’ of Clermont, which was heard by ‘that
illustrious man the defensor’ along with ‘the worthy men who conduct
the public courts’.^5 At Bourges also, the registration of the willing of
land to a monastery before the defensor‘or the public court’ (vel curia
publica) was worth preserving amongst ‘the municipal acts’. The
making of gifts or testaments ‘according to the custom of the Romans’
involved the entering of the deeds in the town books. There is reference
at Bourges and elsewhere to ‘professors’ and notaries who recite the
deeds and write them down for subscription by the defensorand the
whole court. Decisions—that the books be opened and deeds read—are
recorded as pronounced by the defensorand the body of the court.^6 A
principalis—a nobleman or chieftain—may act along with them, as at
Angers ‘in the fourth year of the reign of our lord King Childebert
[514–15]’.^7
The first courts 11(^3) Tacitus, De Origine et Situ Germanorum, ed. J. G. C. Anderson (Oxford UP, 1938), 7–8
(c. 13).
(^4) Code, 1.55; A. H. M. Jones, The Later Roman Empire, 3 vols. (Oxford: Blackwell, 1964),
i. 479–84, ii. 727.
(^5) Formulae Merowingici et Karolini Aevi, ed. K. Zeumer, MGH Legum Sectio 5 (Hanover,
1886), 28; cf. ibid.4.[line] 5 , 29. 15 , 151.10, 169. 34 , 202–3, 209.
(^6) Ibid., 29, 97. 15 , 137. 4 , and for the ‘professor’, 98. 10 and 209. 2 ; on gestae, the judicial
‘acts’ by which real property was transferred, see F. C. von Savigny, Geschichte des Romischen
Rechts, 2nd edn., 6 vols. (Heidelberg, 1834–50), i. 107–14.
(^7) Formulae, 4. 5 , and cf. 136. 25 ; for principalesand the ordo curiae, see Jones, The Later