Early Germanic Laws in Europe
- Early Germanic Laws in Europe
Of those Germanic laws of the early middle ages which are known as leges barbarorum, we here deal with the principal examples other than Frankish, see:
- Leges Wisigothorum,
- Lex Burgundionum,
- Pactus Alamannorum and Lex Alamannorum,
- Lex Bajuvariorum,
- Lex Saxonum,
- Lex Frisionum,
- Lex Angliorum et Werinorum, hoc est, Thuringorum, and
- Leges Langobardorum.
All these laws may in general be described as codes of procedure and tariffs of compositions. They present somewhat similar features with the Salic law, but often differ from it in the date of compilation, the amount of fines, the number and nature of the crimes, the number, rank, duties and titles of the officers, &c. For the Salic law and other Frankish laws, see Salic Law, and for the edict of Theodoric I., which was applicable to the Ostrogoths and Romans, see Roman Law.
For the whole body of the Germanic laws see P. Canciani, Barbarorum leges antiquae (Venice, 1781-1789); F. Walter, Corpus juris germanici antiqui (Berlin, 1824); Monumenta Germaniae historica, Leges. For further information on the codes in general, see H.M. Zöpfl, Deutsche Rechtsgeschichte (4th ed., Heidelberg, 1871-1876); J.E.O. Stobbe, Geschichte der deutschen Rechtsquellen (Brunswick, 1860-1864); Paul Viollet, Histoire du droit civil français (2nd ed., Paris, 1893); H. Brunner, Deutsche Rechtsgeschichte (2nd ed., Leipzig, 1906).
Karl Zeumer’s edition of these laws in the 4to series of the Mon. Germ. Hist. throws new light on all questions relating to their date and composition. It is now certain that the earliest written code of the Visigoths dates back to King Euric (466-485). Besides his own constitutions, Euric included in this collection 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 this code fragments of chapters cclxxvi. to cccxxxvi.1 have been discovered in a palimpsest MS. in the Bibliothèque Nationale at Paris (Latin coll., No. 12161), a fact which proves 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 Visigoths of Spain until the reign of Leovigild (568-586), who made a new one, 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. The new laws made by the kings were declared to be applicable to all the 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 I. (586-601) to orthodoxy effaced the religious differences among his subjects, and all subjects, qua Christians, had to submit to the canons of the councils, which were made obligatory by the kings. After this change had been accepted, Recceswinth (649-672) made a new code, which was applicable to Visigoths and Romans alike. This code, known as the Liber judiciorum, is divided into 12 books, which are subdivided into tituli and chapters (aerae). It comprises 324 constitutions taken from Leovigild’s collection, a few of the laws of Reccared and Sisebut, 99 laws of Chindaswinth (642-653), and 87 of Recceswinth. A recension of this code of Recceswinth was made in 681 by King Erwig (680-687), and is known as the Lex Wisigothorum renovata; and, finally, some additamenta were made by Egica (687-702). In Zeumer’s edition of the Leges Wisigothorum the versions of Recceswinth and Erwig, where they differ from each other, are shown in parallel columns, and the laws later than Erwig are denoted by the sign “nov.”
For further information see the preface to Zeumer’s edition; H. Brunner, Deutsche Rechtsgeschichte (2nd ed., Leipzig, 1906); Ureña y Smenyaud, La Legislacion Gotico-hispana (Madrid, 1905).
This code was compiled by King Gundobald (474-516), very probably after his defeat by Clovis in 500. Some additamenta were subsequently introduced either by Gundobald himself or by his son Sigismund. This law bears the title of Liber Constitutionum, which shows that it emanated from the king; it is also known as the Lex Gundobada or Lex Gombata. It was used for cases between Burgundians, but 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 MSS., the Liber Papiani or simply Papianus. The barbarian 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 (sworn witnesses). The vehement protest made in the 9th century by Agobard, bishop of Lyons, 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.
The text of the Lex Burgundionum has been published by F. Bluhme in the Mon. Germ. hist., Leges, iii. 525; by Karl Binding in the Fontes rerum Bernensium (vol. i., 1880); by J.E. Valentin Smith (Paris, 1889 seq.); and by von Salis (1892) in the 4to series of the Mon. Germ. hist. Cf. R. Dareste, “La Loi Gombette,” in the Journal des savants (July 1891).
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 from the persistent recurrence of the expression “et sic convenit” was most probably drawn up by an official commission. The reference to affranchisement in ecclesia shows that it was composed at a period subsequent to the conversion of the Alamanni to Christianity. There is no doubt that the text dates back to the reign of 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 MS., which states that the law had its origin in an agreement between the great Alamannic lords and Duke Landfrid, who ruled the duchy from 709 to 730.
The two texts have been published by J. Merkel in the Mon. Germ. hist., Leges, iii., and by Karl Lehmann in the 4to series of the same collection.
We possess an important law of the Bavarians, whose duchy was situated in the region east of the Lech, and was an outpost of Germany against the Huns, known later as Avars. 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 vassals of the Frankish kings. Immediately after the revolt of Bavaria in 743 the Bavarian duke Odilo was forced to submit to Pippin and Carloman, the sons of Charles Martel, and to 776 recognize the Frankish suzerainty. About the same period, too, the church of Bavaria was 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 743 and 749.
There is an edition of the Lex Bajuvariorum by J. Merkel in the Mon. Germ. hist., Leges, iii. 183, and another was undertaken by E. von Schwind for the 4to series of the same collection. Cf. von Schwind’s article in the Neues Archiv, vol. xxxi.
Germany comprised two other duchies, Saxony and Frisia, of each of which we possess a text of law. The Lex Saxonum has come down to us in two MSS. 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.
This 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.
There are no MSS. of the document extant; our knowledge of it is based upon B.J. Herold’s edition (Originum ac Germanicarum antiquitatum libri, Basel, 1557), which has been reproduced by Karl von Richthofen in the Mon. Germ. hist., Leges, iii. 631.
Lex Angliorum el 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 Sorabi, and the Warni and Angli either coalesced with the Thuringi or sought an asylum in the north of 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 Ripuarians. 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 the law originated in south Holland is entirely without foundation.
We possess a fair amount of information on the origin of the last barbarian code, the laws of the Lombards. The first part, consisting of 388 chapters, is known as the Edictus Langobardorum, and was promulgated by King Rothar 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; Grimoald (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 singulis 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 forms—that given in a Monte Cassino MS. and known as the Lombarda Casinensis, and the Lombarda Vulgata.
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 antiquarum 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 historique de droit français et étranger (1900, p. 143). (1)
The century which ends in 700 sees some additions made to the Kentish laws by Hlothær and Eadric, and some others made by Wihtræd; there the Kentish series ends. It also sees in the dooms of Ine the beginning of written law in Wessex. It also sees the beginning of written law among the Lombards; in 643 Rothari published his edict; it is accounted to be one of the best statements of ancient German usages. A little later the Swabians have their Lex Alamannorum,61 and the Bavarians their Lex Baiuwariorum. It is only in the Karolingian age that written law appears among the northern and eastern folks of Germany, the Frisians, the Saxons, the Angli and Warni of Thuringia, the Franks of Hamaland.63 To a much later time must we regretfully look for the oldest monuments of Scandinavian law. Only two of our “heptarchic” kingdoms leave us law, Kent and Wessex, though we have reason to believe that Offa the Mercian (ob. 796) legislated. Even Northumbria, Bede’s Northumbria, which was a bright spot in a dark world, bequeaths no dooms.
The impulse of Roman example soon wore out. When once a race has got its Lex, its aspirations seem to be satisfied. About the year 900 Alfred speaks as though Offa (circ. 800), Ine (circ. 700), Æthelbert (circ. 600) had left him little to do. Rarely upon the mainland was there any authoritative revision of the ancient Leges, though transcribers sometimes modified them to suit changed times, and by so doing have perplexed the task of modern historians. Only among the Lombards, who from the first, despite their savagery, seem to show something that is like a genius for law, was there steadily progressive legislation. Grimwald (668), Liutprand (713–35), Ratchis (746) and Aistulf (755) added to the edict of Rothari. Not by abandoning, but by developing their own ancient rules, the Lombards were training themselves to be the interpreters and in some sort the heirs of the Roman prudentes. 
Early Germanic Customary Law
Armed with a foundation of Roman law, the reader of medieval Latin legal texts can turn to secular law. In the early Middle Ages the Germanic kingdoms compiled books of the customary law of the folk. The early Germanic kings created two separate legal systems for their Roman and German subjects. In its most primitive form, Germanic law was personal and transcended territorial boundaries. Roman law, like modern legal systems, was territorial. By the end of the seventh century, European law no longer recognized a distinction between Romans and Germans, and single legal systems emerged in the kingdoms of Europe[.
Germanic law was forged and tempered by Roman law, and process of assimilation began very early. The first compilations of law made by the Germanic tribes that overran the Western provinces of the Roman Empire drew heavily upon Roman law, which influenced the shape and contents of these compilations of customary law. The vocabulary and doctrines of Roman law can be found in almost every compilation of Germanic law.
Germanic Law had several significant elements that influenced later European legal systems:
1. An adversarial procedural system: The Ordeal (see below)
2. The importance of the oath in procedure: Compurgation
3. Law was personal, not territorial. Led to many customary codes in kingdoms and principalities.
During the sixth and seventh centuries, the Visigoths, Ostrogoths, Burgundians, Salian Franks, [Salian Frankish Law Complete]Frisians, Saxons, Lombards, and other tribes committed their unwritten law to written codes. Although the rulers who commanded that these compilations be made were not legislating in the modern sense of the word, they were not bereft of any sense of law-making. A decision of the royal Burgundian court was incorporated into the Burgundian Code stipulating that “the judgment attain the authority of perpetual law:”
Quotiens huiusmodi causae consurgunt, de quibus nihil praecedentium legum statuta iusserunt, ita ambiguitatem rei oportet absolvi, ut emissum iudicium perpetuae legis robur accipiat, et specialis causa generalem teneat aequitatem. [How many times do cases arise in which the statutes of previous laws do not resolve the ambiguity of the case? Therefore receive a rendered opinion of the court that will have the status of perpetual law so that a special case may hold general equity].
The idea that a judgment of a court could set a precedent was a concept of Roman law, and, not surprisingly, this section of the Code is replete with Romanisms: “legum statuta,” “iudicium,” and “perpetuae legis robor.” Although the text might, at first glance, seem to articulate a theory of legislation, such an interpretation would be seriously misleading. The author of the text has incorporated Roman law terminology with little understanding of technical concepts. “Statuta legum” is a redundancy that no Roman lawyer would have committed. “Emissum iudicium,” in this case the “rendered opinion of the court,” might attain the “authority of perpetual law,” but a classical Roman lawyer would have formulated his language and thought very differently. A Roman jurist would not have created new law from a court decision, but from an imperial rescript (a response to a legal question) or from an imperial constitution. 
The two methods of proof used in early Germanic law were compurgation and ordeal. In compurgation the accused swore to his own innocence together with a group of “oath-helpers.” Two typical kinds of ordeal-in their Christianized form are described in the following liturgical ordeal formulas.
Notes and References
- Encyclopedia Britannica (11th Edition)
- Sir Frederick Pollock, The History of English Law before the Time of Edward I (1895)
- Kenneth Pennington