Tribal Germanic institutions
Germanic law recognized a distinction between free and unfree persons. Only the former had legal capacity, and they were subdivided into nobles and ordinary freemen. The nobles enjoyed a larger share in land distribution, were preferentially chosen for public office, and were protected by a larger monetary compensation if they were injured. Certain west Germanic tribes recognized an intermediate status of half-free persons, who could enter into legal transactions and marry but had no political rights.
Basically, a Germanic tribe was a league of clans. Its main institutions of government were the king, his council, and the tribal assembly (mallus, witan, mot, ding, or thing). The king was military leader, chief priest, and president of the assembly, and he was assisted in the routine business of government by his council of elders and higher nobles. The assembly was composed of all free members of the tribe grouped into clans. It elected kings, declared war, outlawed freemen, and generally controlled the membership of the tribe by its supervision of the manumission of slaves, the emancipation of minors, and the adoption of strangers.
The dominant social institution was the “sib” (sippe), a term that meant both a clan—the extended family composed of all those related by blood, however remotely, and subject to a clan chief—and also a household or narrow family, whose members were under the mund (guardianship) of the family head. A boy remained in his father’s mund until he was emancipated on attaining physical maturity; a girl remained until she married, when she passed into the mund of her husband. Marriage commonly took the form of the sale of the bride to her groom for a price, which developed into a fund held by the husband for the wife’s benefit. A husband could divorce his wife at will but risked being penalized financially.
The main notion in the law of property was gewere, or the power exercised by the owner, which did not clearly distinguish between legal title and physical control. Various forms of limited ownership were recognized. Land was treated differently from movables; originally it had belonged to each family collectively. Family ownership gradually developed into the private ownership of the family head, but for a long time he could alienate land only with the consent of the nearest heirs. Land transfer required much formality, and among the west Germanic peoples a glove or spear was handed over as a symbol of the transfer of gewere.
At the death of the family head, his property passed to his descendants in the nearest degree of proximity, with a preference for males. (The declaration in the Salic Law that daughters could not inherit land was used by 16th-century French lawyers as additional support for the long-standing practice of excluding women or their descendants from succeeding to the crown.) In the absence of descendants, several leges provided that property deriving from the father’s side should return to that side and property from the mother’s side to her side. The order of succession could not be altered by will.
When trade was still conducted on a cash or barter basis, there was little need for formal contract law. A family could obligate itself to another either by pledging a thing as security (wadium, gage) or by surrendering a hostage (gijzel, born).
Later, a debt was guaranteed by a formal oath accompanied by the surrendering of a staff to the creditor (effestucatio). Contractual obligation was then constituted either by oath (enforced by an action for perjury) or by delivery of a thing (enforced by an action for theft).
Offenses against the community, such as treason, secret killing, and secret theft, were punished by outlawry, which was pronounced by the tribal assembly. The convicted person could then be killed by anyone. Offenses against individuals, including open killing and open robbery, became the subject of a blood feud if the criminal and victim belonged to different family groups. Peace could be bought by the payment of compensation, known as wergild in homicide cases and bot in others. Payment was voluntary at first; only later did it become obligatory. Even in the 7th century, Visigothic law still allowed retaliation in kind for all injuries except those to the head. The leges contained elaborate tariffs of compensation for different kinds of injury, the amount varying according to the social status of the victim. Private feuds were eventually restricted by the growth of royal authority in the Frankish period and the notion of the king’s peace, the breach of which was punishable by the king’s court.
When parties appeared before a court and stated their cases, the court decided on an acceptable method of proof, which could be by oath of the parties, supported by compurgatores (literally “oath-helpers”), the number required depending on the gravity of the case, by ordeal, or by battle. A successful claimant had to enforce judgment himself on the person or property of the defendant.
Rise of feudal and monarchial states
With the disintegration of the Frankish kingdom in the late 9th century, government became highly decentralized. Already the pattern of landholding, which determined the more important legal relationships, had begun to take on the characteristics of feudalism. Before the end of the Roman Empire much of the land had been concentrated in the hands of magnates, secular and ecclesiastical. But, unlike their predecessors under the Romans, the holders of secular land in the Germanic states became largely independent of the central government. By the 9th century, many lords had become strong enough to challenge the power of the Carolingian kings of the Frankish Empire and to make the inhabitants of their own areas their vassals. These vassals held their land from the lords as tenants of a so-called feud, or fee. Each feudal lord held a court for his tenants in which he applied the same law to all of the tenants, irrespective of their racial or national origin. Thus the old Germanic personal principle was abandoned in favour of the territorial principle, or the application of the custom of the region. This type of feudal law usually was based partly on Germanic law and partly on the Roman law of the Lex Romana Visigothorum, adapted in the interests of the feudal lords.
During the same period the Roman Catholic Church became the main unifying force in western Europe and began to claim jurisdiction over many matters that earlier had been considered secular rather than ecclesiastical. Church courts had existed since the Roman Empire, and their power in matters of faith was recognized by the secular authorities. The personal law of the church as an institution was always Roman, and indeed the law of the Ripuarian Franks on the Rhine expressly declared that “the church lives by Roman law.” The canon law applied in the church courts was largely influenced by Roman law and contained very few Germanic elements. As the power of the church grew, the church courts applied this law to matters that had previously been dealt with by the secular courts, such as marriage, adultery, wills, and succession. In many countries these matters remained withdrawn from Germanic law and subject to church law even after the Reformation.
Merchants also found that the old Germanic customary law was inadequate to cope with the problems created by the rapid growth of commerce that had occurred by the 12th century. A special commercial law, based mainly on Roman law as developed by the Mediterranean seaborne traders, was developed to settle disputes between merchants, without regard to their nationality or place of residence.
These developments reduced the range of cases that were subject to the jurisdiction of the local county courts. In Germany some of the earlier codifications of customary law were forgotten, partly because the local judges were unable to understand the Latin in which they were written and partly because the rules that they contained were unsuited to the new social and economic conditions. The local courts applied an unwritten customary law based on the dominant tribal law of the area, and it was this that formed the basis of such codifications as the Sachsenspiegel (“Mirror of the Saxons”) in the 13th century.
In France the legal development in the north differed from that in the south. The regional customs in the north were made up of Germanic and Roman law, the Carolingian capitularies, and canon law, but Germanic elements predominated. In the south, the so-called pays de droit écrit (“land of written law”), where Gallo-Romans had been far more numerous than Franks, the custom of each district was based mainly on the vulgar law of the Lex Romana Visigothorum. In Italy this law existed side by side with Lombard law. In the 7th and 8th centuries that law was subjected to a relatively sophisticated codification, whose form showed Roman influence.
In England the Norman conquerors continued the movement toward legal unity begun by the Anglo-Saxons by imposing on the country a centralized form of government more powerful than any on the Continent. In the 12th century Henry II made the king’s court a permanent court of professional judges with jurisdiction over many matters that earlier had been dealt with by other courts. The common law developed by this court was largely Germanic law.
Peter G. Stein Mary Ann Glendon