Germanic law

Early Germanic law

Several Latin law codes of the Germanic peoples written in the Early Middle Ages (also known as leges barbarorum "laws of the barbarians") survive, dating to between the 5th and 9th centuries. They are influenced by Roman law, ecclesiastical law, and earlier tribal customs.

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. When justice is oral, the judicial act is personal and subjective. Power, whose origins were at once magical, divine and military, as Michel Rouche has pointed out, was 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. Garmanic law made no provisions for the public welfare, the res publica of Romans

The principal examples are:

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 most well-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 race, whether Roman, Salian or Ripuarian Frank, 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 (506), the Lex Romana Curiensis and the Lex Romana Burgundionum.

Visigothic law codes

Main article: Lex Visigothorum.
It is certain that the earliest written code of the Visigoths dates to Euric (471). Besides his own constitutions, Euric included in this collection the unwritten constitutions of his predecessors Theodoric I (419-451), Thorismund (451-453), and Theodoric II (453-466), 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 (Latin coll, No. 12161), 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 instance 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.

Euric's code remained in force among the Visigothic Kingdom of Hispania (the Iberian Peninsula) until the reign of Liuvigild (568-586), 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 (586-601) 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.

After this change had been accepted, Reccasuinth (649-672) made a new Visigothic Code, applicable to Visigoths and Romans alike. This code is known as the Liber judiciorum or the Forum Iudicum. 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 (aerae). It comprises 324 constitutions taken from Leovigild's collection, a few of the laws of Reccared and Sisebur, 99 laws of Chindasuinth (642-653), and 87 of Reccasuinth. A recension of this code of Reccasuinth was made in 681 by King Erwig (680-687), and is known as the Lex Wisigothorum renovate; and, finally, some additamenta were made by Ergica (687-702).

Lex Burgundionum

Main article: Lex Burgundionum.
This code was compiled by King Gundobad (474-516), very probably after his defeat by Clovis I in 500. Some additamenta were subsequently introduced, either by Gundobad himself or by his son Sigismund. This law bears the title of Liber Constitutionum, indicating that it emanated from the king; it is also known as the Lex Gundobada or Lex Gombata. It was used for cases between Burgundians, and was also applicable to cases between Burgundians and Romans. For cases between Romans, however, Gundobald compiled the Lex Romana Burgundionum, called sometimes, through a misreading of the manuscript, the Liber Papiani, or simply Papianus.

The laws of the Burgundians show 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 (sworn witnesses). The vehement protest made in the 9th century by Agobard, bishop of Lyon, against the Lex Gundobada shows that it was still in use at that period. So late as the 10th and even the 11th centuries we find the law of the Burgundians invoked as personal law in Cluny charters, but doubtless these passages refer to accretions of local customs, rather than to actual paragraphs of the ancient code.

Pactus Alamannorum and Lex Alamannorum

Main article: 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

Main article: Edictum Rothari.
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 the 22nd of 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 (668) added nine chapters; Liutprand (713-735), fifteen volumes, containing a great number of ecclesiastical enactments; Ratchis (746), eight chapters; and Aistulf (755), 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 sin agnus causis (829-832). 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 (beginning of 11th century), and the Lombarda (end of 11th century) in two form that given in a Monte Cassino manuscript and known as the Lombarda Casinensis, and the Lombarda Vulgala.

There are editions of the Edictus, the Concordia, and the Liber Papiensis by F. Bluhme and A. Boretius in the Mon. Germ. hist., Leges, iv. Bluhme also gives the rubrics of the Lombardae, which were published by F. Lindenberg in his Codex legum anhiquarum in 1613. For further information on the laws of the Lombards see J. Merkel, Geschichte des Langobardenrechts (1850); A. Boretius, Die Kapitularien im Langobardenreich (1864); and C. Kier, Edictus Rotari (Copenhagen, 1898). Cf. R. Dareste in the Nouvelle Revue hisborique de droit franais eb itranger (1900, p. 143).

Lex Bajuvariorum

We possess an important law of the Bavarians, whose duchy was situated in the region east of the river Lech. Parts of this law have been taken directly from the Visigothic law of Euric and from the law of the Alamanni. The Bavarian law, therefore, is later than that of the Alamanni. It dates unquestionably from a period when the Frankish authority was very strong in Bavaria, when the dukes were subjects of the Frankish kings. The law's compilation is most commonly dated between 744 and 748, by the following argument; Immediately after the revolt of Bavaria in 743 the Bavarian Duke Odilo (d. 748) was forced to submit to Pippin the Younger and Carloman, the sons of Charles Martel, and to recognize Frankish suzerainty. A little earlier, in 739, the church of Bavaria had been organized by St. Boniface, and the country divided into several bishoprics; and we find frequent references to these bishops (in the plural) in the law of the Bavarians. On the other hand, we know that the law is anterior to the reign of Duke Tassilo III (749-788). The date of compilation must, therefore, be placed between 744 and 748. Against this argument, however, it is very likely that Odilo recognized Frankish authority before 743; he took refuge at Charles Martel's court that year and married one of Martel's daughters. His "revolt" may have been in support of the claims of Pippin and Carloman's half-brother Grifo, not opposition to Frankish rule per se. Also, it is not clear that the Lex Baiuvariorum refers to multiple bishops in the duchy at the same time; when a bishop is accused of a crime, for instance, he is to be tried by the duke, and not by a council of fellow bishops as canon law would have required. So it is possible that the Bavarian law was compiled earlier, perhaps between 735 (the year of Odilo's succession) and 739.

Lex Frisionum

Main article: Lex Frisionum.
The Lex Frisionum of the duchy of Frisia consists of a medley of documents of the most heterogeneous character. Some of its enactments are purely pagan, thus one paragraph allows the mother to kill her new-born child, and another prescribes the immolation to the gods of the defiler of their temple; others are purely Christian, such as those which prohibit incestuous marriages and working on Sunday. The law abounds in contradictions and repetitions, and the compositions are calculated in different moneys. From this it would appear that the documents were merely materials collected from various sources and possibly with a view to the compilation of a homogeneous law. These materials were apparently brought together at the beginning of the 9th century, at a time of intense legislative activity at the court of Charlemagne.

Lex Saxonum

The Lex Saxonum has come down to us in two manuscripts and two old editions (those of B. J. Herold and du Tillet), and the text has been edited by Karl von Richthofen in the Mon. Germ. hist., Leges, v. The law contains ancient customary enactments of Saxony, and, in the form in which it has reached us, is later than the conquest of Saxony by Charlemagne. It is preceded by two capitularies of Charlemagne for Saxony, the Capitulatio de partibus Saxoniae (A. Boretius i. 68), which dates undoubtedly from 782, and is characterized by great severity, death being the penalty for every offence against the Christian religion; and the Capitulare Saxonicum (A. Boretius i. 71), of the 28th of October 797, in which Charlemagne shows less brutality and pronounces simple compositions for misdeeds which formerly entailed death. The Lex Saxonum apparently dates from 803, since it contains provisions which are in the Capitulare legi Ribuariae additum of that year. The law established the ancient customs, at the same time eliminating anything that was contrary to the spirit of Christianity; it proclaimed the peace of the churches, whose possessions it guaranteed and whose right of asylum it recognized.

Lex Angliorum et Werinorum, hoc est, Thuringorum

In early times there dwelt in Thuringia, south of the river Unstrut, the Angli, who gave their name to the pagus Engili, and to the east, between the Saale and the Elster, the Warni (Werini, or Varini), whose name is seen in Werenofeld. In the 9th century, however, this region (then called Werenofeld) was occupied by the Suebi, and the Warni and Angli either coalesced with the Thuringi or sought an asylum in the north of what is now Germany. A collection of laws has come down to us bearing the name of these two peoples, the Lex Angliorum et Werinorum, hoc est, Thuringorum. This text is a collection of local customs arranged in the same order as the law of the Ripuarian Franks. Parts of it are based on the Capitulare legi Ribuariae additum of 803, and it seems to have been drawn up in the same conditions and circumstances as the law of the Saxons. There is an edition of this code by Karl von Richthofen in the Mon. Germ, hist., Leges, v. 103. The old opinion that this law originated in the southern Netherlands is entirely without foundation.

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