Germanic law barbarian early period - laws of the barbarians - leges barbarorum

 

 Germanic law, Old

 

Several Latin law codes of the Germanic peoples written in the Early Middle Ages after the Fall of the Western Roman Empire (also known as leges barbarorum "laws of the barbarians") 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."[1] 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.[2] 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 (7th century). 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.[3]

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.

 

 

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 (tribal assembly). Lighter offenses were regulated with damages (paid in livestock), paid in part to the victim (or their family) and in part to the king.[4]'

 The death penalty was reserved for two kinds of capital offenses: military treason or desertion was punished by hanging, and corporal infamy [5] (rape) 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.[6]

Minor legal disputes were settled on a day-to-day basis by elected chiefs assisted by elected officials.[7]

 

 

 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 (OE freo man, OHG frīhals), and those who are laymen, or bondmen (ON þræll). Accordingly, descent (nativitate) was determining who would attend the various things (house-things, local things, regional things and inter-regional or royal 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 (in castes) 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 (adalmen, eaorls, ceorls and freemen) was the king overseeing the laws, rights and privileges. Under the king came the highborn nobility (OE æþelu, OS aðali, Germ Adel) and the middle nobility (OE eorl, OS/OHG eorl, ON jarl). The lower nobility were the ordinary freemen (OE ċeorl, Frankish baro, Burgundian leudis). Under these ceorls (peasants or freemen) came the serfs - as in 'laymen'. Skilled serfs permitted to leave their homesteads were often called 'leysing' or 'free-men' (OE læt, freolæta, MDu laet, vrilaet, ON leysíngr). Otherwise common laymen were addressed as 'tjod' (OE þēow, OHG diut, OMG deut, ON þjod, Goth þius). 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 (Laws of Æthelberht of Kent), 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.[8]

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 (rape, adultery, promiscuity), religious crimes (incest) or crimes against the king (treason, rebellion). Alamannic law also foresees the death penalty for plotting to assassinate the duke, and for military treason (assisting enemies or causing rebellion in the army), 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 (descent, caste) of the victim. In Anglo-Saxon law, the regular freeman is known as a two-hynde man ("a man worth 200"), and noblemen are either six-hynde man (threefold weregeld) or twelve-hynde man (sixfold weregeld). 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 (as opposed to deaths by accident or in combat), which is fined by ninefold weregeld. The Anglo-Saxon Norðleoda laga ("North-people's law") is unique in setting an explicit amount for a king's weregeld, at 30,000 tremisses, explaining that 15,000 tremisses is for the man (the same amount as for an atheling or an archbishop) 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. 

 

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

 

 

Customary legal systems

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