Early Germanic law
Early Germanic law was the form of law followed by the early Germanic peoples. It was an important element of early Germanic culture.
Several Latin law codes of the Germanic peoples written in the Early Middle Ages after the Fall of the Western Roman Empire survive, dating to between the 5th and 9th centuries. They are influenced by Roman law, canon law, and earlier tribal customs. Central and West European Germanic law differed from North Germanic law.
Germanic law was codified in writing under the influence of Roman law; previously it was held in the memory of designated individuals who acted as judges in confrontations and meted out justice according to customary rote, based on careful memorization of precedent. Among the Franks they were called rachimburgs. "Living libraries, they were law incarnate, unpredictable and terrifying." Power, whose origins were at once said to be magical, divine, and military, was, according to Michel Rouche, exercised jointly by the "throne-worthy" elected king and his free warrior companions. Oral law sufficed as long as the warband was not settled in one place. Germanic law made no provisions for the public welfare, the res publica of Romans.
The language of all these continental codes was Latin; the only known codes drawn up in any Germanic language were the Anglo-Saxon laws, beginning with the Laws of Æthelberht. In the 13th century customary Saxon law was codified in the vernacular as the Sachsenspiegel.
All these laws may be described in general as codes of governmental procedure and tariffs of compositions. They all present somewhat similar features with Salic law, the best-known example, but often differ from it in the date of compilation, the amounts of fines, the number and nature of the crimes, the number, rank, duties and titles of the officers, etc.
In Germanic Europe in the Early Middle Ages, every man was tried according to the laws of his own ethnicity, whether Roman, Salian or Ripuarian Frank, Frisian, Burgundian, Visigoth, Bavarian etc.
A number of separate codes were drawn up specifically to deal with cases between ethnic Romans. These codes differed from the normal ones that covered cases between Germanic peoples, or between Germanic people and Romans. The most notable of these are the Lex Romana Visigothorum or Breviary of Alaric, the Lex Romana Curiensis and the Lex Romana Burgundionum.
Tacitus
in his Germania gives an account of the legal practice of the Germanic peoples of the 1st century.Tacitus reports that criminal cases were put before the thing.
Lighter offenses were regulated with damages, paid in part to the victim and in part to the king.
The death penalty was reserved for two kinds of capital offenses: military treason or desertion was punished by hanging, and corporal infamy by throwing the condemned into a bog.
The difference in punishment is explained by the idea that "glaring iniquities" must be exposed in plain sight, while "effeminacy and pollution" should best be buried and concealed.
Minor legal disputes were settled on a day-to-day basis by elected chiefs assisted by elected officials.
Principles
The Germanic law codes are designed for a clearly stratified society fixated on castes determined by descent or kinship. Legal status, and therefore freedom, was based on a person's caste, discriminating between royals and two or three successive castes of nobility, where the lower were reckoned as peasants or freemen, and those who are laymen, or bondmen. Accordingly, descent was determining who would attend the various things. Thus the bondmen were ipso facto represented by their family-heads - the local nobility - on the regional things of the nobles. The same differentiation defined who could convey and inherit property. In regulation of tribal feuds and weregeld a similar discrimination is seen.At the head of the nobility was the king overseeing the laws, rights and privileges. Under the king came the highborn nobility and the middle nobility. The lower nobility were the ordinary freemen. Under these ceorls came the serfs - as in 'laymen'. Skilled serfs permitted to leave their homesteads were often called 'leysing' or 'free-men'. Otherwise common laymen were addressed as 'tjod'. As the Roman church gained political power in Europe this system was augmented by incorporating a separate class of clergy, where their bishops were to be considered of equal status as a nobleman.
The Germanic law system is in principle based on compensation rather than revenge. Any injury must be compensated according to the damage done, regardless of motive or intent. Even for capital crimes like murder, the compensation is a weregeld, a fixed amount depending on the sex and social status of the victim.
The practice of paying part of the damages to the king survives in the earliest Anglo-Saxon law code, under the term drihtinbeah, but seems to have been discontinued after Christianisation.
As thralls are considered the property of their lord, crimes committed by thralls must be compensated by their masters just like damage caused by animals.
The most extreme punishment for crimes considered irredeemable seems to be outlawry, i.e. the declaration of the guilty party as beyond the protection of the law.
In most instances this may have been equivalent to a death sentence in practice, but the actual death penalty seems to have been foreseen only for very rare cases, such as sexual crimes, religious crimes or crimes against the king. Alamannic law also foresees the death penalty for plotting to assassinate the duke, and for military treason, but in these cases the penalty may also be outlawry or a fine, depending on the judgement of the duke or the chieftains.
The weregeld was set at a basic amount of 200 shillings, which could be multiplied depending on the status of the victim. In Anglo-Saxon law, the regular freeman is known as a two-hynde man, and noblemen are either six-hynde man or twelve-hynde man.
In Alamannic law, the basic weregeld for a freeman is likewise 200 shillings.
Alamannic tradition is particular in doubling the fee if the victim was a woman, so that the weregeld for a free woman is 400 shillings. The weregeld for a priest is threefold, i.e. 600 shillings. Alamannic law further introduces the concept of premeditated murder, which is fined by ninefold weregeld.
The Anglo-Saxon Norðleoda laga is unique in setting an explicit amount for a king's weregeld, at 30,000 tremisses, explaining that 15,000 tremises is for the man and another 15,000 for the damage to the kingdom.
Unlike Roman law, Germanic law mentions cruentation as a means to prove guilt or innocence.
Individual law codes
The principal ancient Germanic law codes are:| law code | germanic people | issued by ruler | Year of completion / approval |
| Code of Euric | Visigoths | Euric | c. 480 |
| Lex Burgundionum | Burgundians | Gundobad | c. 500 |
| Lex Salica | Salian Franks | Clovis I | c. 500 |
| Pactus Alamannorum | Alamanni | c. 620 | |
| Lex Ripuaria | Ripuarian Franks | 630s | |
| Edictum Rothari | Lombards | Rothari | 643 |
| Lex Visigothorum | Visigoths | Recceswinth | 654 |
| Lex Alamannorum | Alamanni | 730 | |
| Lex Bajuvariorum | Bavarians | c. 745 | |
| Lex Frisionum | Frisians | Charlemagne | c. 785 |
| Lex Saxonum | Saxons | Charlemagne | 803 |
| Lex Angliorum et Werinorum, hoc est, Thuringorum | Charlemagne | 9th century |
Visigothic law codes
Compared with other barbarian tribes, the Goths had the longest time of contact with Roman civilization, from migration in 376 to trade interactions years beforehand. The Visigothic legal attitude held that laws were created as new offenses of justice arose, and that the king's laws originated from God and His justice-scriptural basis. Mercifulness and a paternal feeling were qualities of the king exhibited through the laws. The level of severity of the law was "tempered" by this mercy, specifically for the poor; it was thought that by showing paternal love in formation of law, the legislator gained the love of citizen. While the monarch's position was implicitly supreme and protected by laws, even kings were subject to royal law, for royal law was thought of as God's law. In theory, enforcement of the law was the duty of the king, and as the sovereign power he could ignore previous laws if he desired, which often led to complications. To regulate the king's power, all future kings took an oath to uphold the law. While the Visigoths' law code reflected many aspects of Roman law, over time it grew to define a new society's requirements and opinions of law's significance to a particular people.It is certain that the earliest written code of the Visigoths dates to Euric. Code of Euric, issued between 471 and 476, has been described as "the best legislative work of the fifth century". It was created to regulate the Romans and Goths living in Euric's kingdom, where Romans greatly outnumbered Goths. The code borrowed heavily from the Roman Theodosian Code from the early 5th century, and its main subjects were Visigoths living in Southern France. It contained about 350 clauses, organized by chapter headings; about 276 to 336 of these clauses remain today. Besides his own constitutions, Euric included in this collection the unwritten constitutions of his predecessors Theodoric I, Thorismund, and Theodoric II, and he arranged the whole in a logical order. Of the Code of Euric, fragments of chapters 276 to 337 have been discovered in a palimpsest manuscript in the Bibliothèque Nationale at Paris, proving that the code ran over a large area. Euric's code was used for all cases between Goths, and between them and Romans; in cases between Romans, Roman law was used.
At the insistence of Euric's son, Alaric II, an examination was made of the Roman laws in use among Romans in his dominions, and the resulting compilation was approved in 506 at an assembly at Aire, in Gascony, and is known as the Breviary of Alaric, and sometimes as the Liber Aniani, from the fact that the authentic copies bear the signature of the referendarius Anian. organized by chapter headings; about 276 to 336 of these clauses remain today. In 506 CE, Alaric II, son of Euric, assembled the council of Agde to issue the Breviary of Alaric, applying specifically to Hispano-Roman residents of the Iberian Peninsula, where Alaric had migrated the Visigoth population. Both the Code of Euric and Breviary of Alaric borrowed heavily from the Theodosian Code. Euric, for instance, forbade intermarriage between Goths and Romans, which was already expressed in the Codex Theodosianus. The Lex Romana Visigothorum remained a source of law in the area that later became southern France long after it had been superseded in the Iberian peninsula by the Lex Visigothorum.
Euric's code remained in force among the Visigothic Kingdom of Hispania until the reign of Liuvigild, who made a new one, the Codex Revisus, improving upon that of his predecessor. This work is lost, and we have no direct knowledge of any fragment of it. In the 3rd codification, however, many provisions have been taken from the 2nd, and these are designated by the word antiqua; by means of these antiqua we are enabled in a certain measure to reconstruct the work of Leovigild.
After the reign of Leovigild, the legislation of the Visigoths underwent a transformation. New laws made by the kings were declared to be applicable to all subjects in the kingdom, of whatever race; in other words, they became territorial; and this principle of territoriality was gradually extended to the ancient code. Moreover, the conversion of Reccared from Arianism to orthodox Christianity effaced the religious differences among his subjects, and all subjects, being Christians, had to submit to the canons of the councils, made obligatory by the kings.
In 643, Visigoth king Chindasuinth proposed a new Visigothic Code, the Lex Visigothorum, which replaced both the Code of Euric and the Breviary of Alaric. His son, Recceswinth, refined this code in its rough form and issued it officially in 654. This code applied equally to both Goths and Romans, presenting "a sign of a new society of Hispania developing in the seventh century, distinctly different from Gothic or Roman". The Liber Iudiciorum also marked a shift in the view of the power of law in reference to the king. It stressed that the Liber Iudiciorum alone is law, absent of any relation to any kingly authority, instead of the king being the law and the law merely an expression of his decisions. The lacunae in these fragments have been filled by the aid of the law of the Bavarians, where the chief Divisions are reintroduced, divided into 12 books, and subdivided into tituli and chapters. It comprises 324 constitutions taken from Leovigild's collection, a few of the laws of Reccared and Sisebur, 99 laws of Chindasuinth, and 87 of Reccasuinth. A recension of this code of Reccasuinth was made in 681 by King Erwig, and is known as the Lex Wisigothorum renovate; and, finally, some additamenta were made by Ergica.
The Liber Iudiciorum makes several striking differences from Roman law, especially concerning the issue of inheritance. According to the Liber Iudiciorum, if incest is committed, the children can still inherit, whereas in Roman law the children were disinherited and could not succeed. Title II of Book IV outlines the issue of inheritance under the newly united Visigothic Code: section 1, for instance, states that sons and daughters inherit equally if their parents die instate, section 4 says that all family members should inherit if no will exists to express the intentions of the deceased, and the final section expresses a global law of Recceswinth, stating that anyone left without heirs has the power to do what they want with their possessions. This statement recalls the Roman right for a person to leave his possessions to anyone in his will, except this Visigothic law emphasizes males and females equally, whereas, in Roman law, only males are allowed to make a will.
Lex Burgundionum
This is the law code of the Burgundians, probably issued by king Gundobad. It is influenced by Roman law and deals with domestic laws concerning marriage and inheritance as well as regulating weregild and other penalties. Interaction between Burgundians is treated separately from interaction between Burgundians and Gallo-Romans. The law of the Burgundians shows strong traces of Roman influence. It recognizes the will and attaches great importance to written deeds, but on the other hand sanctions the judicial duel and the cojuratores.The oldest of the 14 surviving manuscripts of the text dates to the 9th century, but the code's institution is ascribed to king Gundobad, with a possible revision by his successor Sigismund. The Lex Romana Burgundionum is a separate code, containing various laws taken from Roman sources, probably intended to apply to the Burgundians' Gallo-Roman subjects. The oldest copy of this text dates to the 7th century.
Lex Salica
The exact origins of the Franks are uncertain: they were a group of Germanic peoples that settled in the lower regions of the Rhine river. They were not a unified people at the start of the 3rd century but consisted of many tribes which were loosely connected with one another. Although they were intertwined with the Roman Empire the Franks were not a part of it. "No large body of Franks was admitted into the Empire, but individuals and small groups did cross." The Romans were seen as a lower rank in Frankish society. With larger numbers the Franks over took the region of the Rhine. Latin became the secondary language to the Germanic one of the Franks and Frankish law took precedence among the people. The Romans even embraced the "Barbarians" to the north at times, making them allies to fight off the Huns.The Franks were broken down into east and west regions. The Eastern Franks were known as the Ripuarians and those west of the Rhine were known as the Salian Franks. It was King Clovis who united the Franks under one law after defeating his rivals in 509 CE. It is during this time of unification that King Clovis developed the Salic Law.
The Lex Salica was a similar body of law to the Lex Burgundionum. It was compiled between 507 and 511 CE. The body of law deals with many different aspects of Frank society. The charges range from inheritance to murder and theft. The Salic law was used to bring order to Frank society, the main punishment for crimes being a fine with a worth designated to the type of crime. The law uses capital punishment only in cases of witchcraft and poisoning. This absence of violence is a unique feature of the Salic Law.
The code was originally brought about by the Frankish King Clovis. The code itself is a blue print for Frankish society and how the social demographics were assembled. One of the main purposes of the Salic Law is to protect a family's inheritance in the agnatic succession. This emphasis on inheritance made the Salic Law a synonym for agnatic succession, and in particular for the "fundamental law" that no woman could be king of France.
The use of fines as the main reparation made it so that those with the money to pay the fine had the ability to get away with the most heinous of crimes. "Those who commit rape shall be compelled to pay 2500 denars, which makes 63 shillings." Rape was not the only detailed violent crime. The murder of children is broken down by age and gender, and so is the murder of women.
Paying fines broke the society into economic and social demographics in that the wealthy were free to do as much as they could afford, whereas the fines themselves placed different values on the gender and ethnic demographics. This social capital is evident in the differences in the Salic Law's punishment for murder based on a woman's ability to bear children. Women who could bear children were protected by a 600 shilling fine while the fine for murdering a woman who could no longer bear children was only 200 shillings. All crimes committed against Romans had lesser fines than other social classes. In the case of inheritance, it is made very clear that all property belongs to the males in the family. This also means that all debt also belongs to the males of the family.
The Salic Law outlines a unique way of securing the payment of money owed. It is called the Chrenecruda. In cases where the debtor could not pay back a loan in full they were forced to clear out everything from their home. If the debt still could not be paid off the owner could collect dust from all four corners of the house and cross the threshold. The debtor then turned and face the house with their next of kin gathered behind them. The debtor threw the dust over their shoulder. The person that the dust fell upon was then responsible for the payment of the debt. The process continued through the family until the debt was paid. Chrenecruda helped secure loans within the Frankish society. It intertwined the loosely gathered tribes and helped to establish government authority. The process made a single person part of a whole group.
The Salic Law exists in two forms: the Pactus Legis Salicae, which is near to the original form approved by Clovis, and the Lex Salica, which is the edited form approved by Charlemagne. Both are published in the Monumenta Germaniae Historica's Leges series.
Lex Ripuaria
In the first half of the 7th century the Ripuarian Franks received the Ripuarian law, a law code applying only to them, from the dominating Salian Franks. The Salians, following the custom of the Romans before them, were mainly re-authorizing laws already in use by the Ripuarians, so that the latter could retain their local constitution.The law of the Ripuarians contains 89 chapters and falls into three heterogeneous divisions. Chapters 1-31 consist of a scale of compositions; but, although the fines are calculated, not on the unit of 15 solidi, as in the Salic Law, but on that of 18 solidi, it is clear that this part is already influenced by the Salic Law. Chapters 32-64 are taken directly from the Salic Law; the provisions follow the same arrangement; the unit of the compositions is 15 solidi; but capitularies are interpolated relating to the affranchisement and sale of immovable property. Chapters 65-89 consist of provisions of various kinds, some taken from lost capitularies and from the Salic Law, and others of unknown origin.
The compilation apparently goes back to the reign of Dagobert I
Pactus Alamannorum and Lex Alamannorum
Of the laws of the Alamanni, who dwelt between the Rhine and the Lech, and spread over Alsace and what is now Switzerland to the south of Lake Constance, we possess two different texts.The earlier text, of which five short fragments have come down to us, is known as the Pactus Alamannorum, and judging from the persistent recurrence of the expression et sic convenit, was most probably drawn up by an official commission. The reference to aifranchisement in ecciesia shows that it was composed after the conversion of the Alamanni to Christianity. There is no doubt that the text dates back at least to the reign of the Frankish king Dagobert I, i.e. to the first half of the 7th century.
The later text, known as the Lex Alamannorum, dates from a period when Alamannia was independent under national dukes, but recognized the theoretical suzerainty of the Frankish kings. There seems no reason to doubt the St. Gall manuscript, which states that the law had its origin in an agreement between the great Alamannic lords and Duke Lantfrid, who ruled the duchy from 709 to 730.
Leges Langobardorum
We possess a fair amount of information on the origin of the code of laws of the Lombards. The first part, consisting of 388 chapters, also known as the Edictus Langobardorum, and was promulgated by King Rothari at a diet held at Pavia on 22 November 643. This work, composed at one time and arranged on a systematic plan, is very remarkable. The compilers knew Roman law, but drew upon it only for their method of presentation and for their terminology; and the document presents Germanic law in its purity. Rothar's edict was augmented by his successors: Grimwald added nine chapters; Liutprand, fifteen volumes, containing a great number of ecclesiastical enactments; Ratchis, eight chapters; and Aistulf, thirteen chapters. After the union of the Lombards to the Frankish kingdom, the capitularies made for the entire kingdom were applicable to Italy. There were also special capitularies for Italy, called Capitula Italica, some of which were appended to the edict of Rothar.At an early date, compilations were formed in Italy for the use of legal practitioners and jurists. Eberhard, duke and margrave of Rhaetia and Friuli, arranged the contents of the edict with its successive additamenta into a Concordia de singulis causis. In the 10th century a collection was made of the capitularies in use in Italy, and this was known as the Capitulare Langobardorum. Then appeared, under the influence of the school of law at Pavia, the Liber legis Langobardorum, also called Liber Papiensis, and the Lombarda, in two forms, that given in a Monte Cassino manuscript and known as the Lombarda Casinensis and the Lombarda Vulgata. In some, but not all, manuscripts of the Liber Papiensis each section of the edict is accompanied by specimen pleadings setting out the cause of action: in this way it comes near to being a treatment of substantive law as opposed to a simple tariff of penalties as found in the other Leges barbarorum.
There are editions of the Edictus, the Concordia, and the Liber Papiensis by F. Bluhme and A. Boretius in the Monumenta Germaniae Historica series, Leges vol. iv. Bluhme also gives the rubrics of the Lombardae, which were published by F. Lindenberg in his Codex legum antiquarum in 1613. For further information on the laws of the Lombards see J. Merkel, Geschichte des Langobardenrechts ; A. Boretius, Die Kapitularien im Langobardenreich ; and C. Kier, Edictus Rotari. Cf. R. Dareste in the Nouvelle Revue historique de droit français et étranger.
Lombard law, as developed by the Italian jurists, was by far the most sophisticated of the early Germanic systems, and some have seen striking similarities between it and early English law. It remained living law, subject to modifications, both in the Kingdom of the Lombards that became the Carolingian Kingdom of Italy and in the Duchy of Benevento that became the Kingdom of Naples and continued to play a role in the latter as late as the 18th century. The Libri Feudorum, explaining the distinctive Lombard version of feudalism, were frequently printed together with the Corpus Juris Civilis and were considered the academic standard for feudal law, influencing other countries including Scotland.