Early Germanic Laws

GERMANIC LAWS, EARLY. After the foundation of the great kingdoms of the Teutonic tribes on the soil of Roman civilization, the necessity for a written codification of the inherited tribal laws arose. This necessity evidently arose out of permanent intercourse with a native population which had been living under different laws. Thus the Visigoths, Burgundians and Salic Franks had already, at the turn of the fifth and sixth centuries, codified their law. One and a half centuries later the Lombards did the same. The Teutonic tribes, living in the interior, owe their codifi cation to the influence of the Frankish suzerainty; the Ripuarians, Alemans and Bavarians to the Merovingians; the Chamavic Franks, Saxonians, Thuringians and Frisians to Charlemagne. For the edict of Theodoric I. see ROMAN LAW.

The leges germanorum are codifications of the valid criminal law and the law of procedure, but do not offer an exhaustive regu lation of these and are not, on the other hand, solely confined to them. In substance they consist partly of already existing custom ary law and also partly of new statutory laws. Whether it is possi ble to distinguish among such varied forms, contained within a lex, the different strata of text is a question not definitely settled. It was thought, but has not as yet been proved, from the tradition of the Salic Law that it was originally composed of primitive tariffs of composition, to which, later, constitutions were added with the intention of creating a new law. Moreover such constitutions (capitularia) are preserved to us partly as amendments (novellae) to older leges and partly as special laws. The capitularies of Charlemagne and of his son Louis were of particular importance in the development of the law. All leges and capitularia are in Latin, but in most cases there is also an admixture of Germanic legal terminology. We possess fragments of the Lex Salica and of the Carolingian capitulary in an old High-German translation.

For the whole body of the Germanic laws see P. Canciani, Barbarorum leges antiquae (Venice, 1781-1789) ; F. Walter, Cor pus juris germanici antiqui (Berlin, 1824) ; Monumenta Ger manise historica, Leges. For further information on the codes in general see J. E. O. Stobbe, Geschichte der deutschen Rechts quellen (Brunswick, 1860-1864) ; Paul Viollet, Histoire du droit civil f rancais (2nd ed., Paris, 1893) ; H. Brunner, Deutsche Rechtsgeschichte (2nd ed. Leipzig, 1906) ; Brunner-Heymann, Grundzffige der deutschen Rechtsgeschichte (7th ed., Leipzig, 1925).

Leges Visigothorum.

It is now certain that the earliest writ ten code of the Visigoths dates back to King Euric (466-485). Of this code, fragments of chapters cclxxvi. to cccxxxvi. have been discovered in a palimpsest ms. in the Bibliotheque Nationale at Paris (Latin coll., No. 12161). The lacunae in these frag ments have been filled in by aid of the law of the Bavarians, where the chief provisions are reproduced. Euric's code was used for all cases between Goths, and between them and Romans; in cases between Romans, Roman law was used.

Euric's code remained in force among the Visigoths of Spain until the reign of Leovigild (568-586), who made a new one, im proving upon that of his predecessor. This work is lost, and we have no direct knowledge of any fragment of it. In the 3rd codi fication, however, many provisions have been taken from the 2nd, and these are designated by the word "antiqua" ; by means of these "antiqua" we can 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, Recessvind (649-672) made a new code, which was applicable to Visigoths and Romans alike. This code, known as the Liber judiciorum, comprises 324 constitutions taken from Leovigild's collection, a few of the laws of Reccared and Sisebut, 99 laws of Chindasvind (642-653), and 87 of Recess vind. A recension of this code of Recessvind was made in 681 by King Ervig (68o-687) and is known as the Lex Visigothorum re novata; and finally some additamenta were made by Egica (687 702). The texts of the Leges Visigothorum have been published by K. Zeumer in the 4o series of the Mon. Germ. hist. Cf. Zeumer's articles in the Neues Archiv., vols. xxiii., xxiv. and xxvi.; H. Brunner, Deutsche Rechtsgeschichte (2nd ed., Leipzig, 1906) ; Urena y Smenjaud, La Legislation Gotico-hispana (Madrid, 1905) ; E. de Hinojosa, Das germanische Element im spanischen Rechte (Zeitschri f t der Savigny-Sti f tung, vol. 31) .

Lex Burgundionum.

This code was compiled by King Gundobad (474-516), very probably after his defeat by Clovis in 50o. Some additamenta were subsequently introduced either by Gundobad 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 applic able to cases between Burgundians and Romans. The law of the Burgundians shows strong traces of Roman influence. It recog nizes 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 cen tury by Agobard, Bishop of Lyons, against the Lex Gundobada shows that it was still in use at that period. So late as the loth and even the II th 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, 525; by Karl Binding in the Fontes rerum Bernensium (vol. i., 188o) ; 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) ; K. Zeumer in the Neues Archiv., vol. xxv. ; Petot, "Un nouveau manuscr. de la loi Gom bette, Nouv. Rev. hist. de Droit, 1913.

Leges Langobardorum.

We possess a fair amount of in f ormation on the origin of the laws of the Lombards. The first part, consisting of 388 chapters, is known as the Edictus Lango bardorum, 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 docu ment presents Germanic law in its purity. Rothari's edict was aug mented by his successors: Grimoald (668) added nine chapters; Liutprand (713-735), fifteen volumes, containing a great num ber of ecclesiastical enactments; Ratchis (746), eight chapters; and Aistulf (i55), thirteen chapters. After the union of the Lom bards to the Frankish kingdom, the capitularies made for the entire kingdom were applied to Italy. There were also special capitu laries for Italy, called Capitula Italica, some of which were appended to the edict of Rothari.

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 loth century a collection was made of the capitularies in use in Italy, and this was known as the Capitulare Langobard orum. Then appeared, under the influence of the school of law at Pavia, the Liber legis Langobardorum also called Liber Papiensis (beginning of i ith century) and the Lombarda (end of iith cen tury) 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. Boritius in the Mon. Germ. hist., Leges, iv. Bluhme also gives the rubrics of the Lombarda, 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 (185o) ; A. Boritius, Die Kapitularien im Langobardenreich (1864) ; Schupfer, Manuale di storia del diritto italiano (2nd ed. 1895) ; Solmi, Diritto longobardo e diritto nordico (1898) ; C. Kjer, Edictus Rotari (Copenhagen, 1898), C. Kjer, Dansk og langbardisk Arveret (1901) ; J. Ficker, Das langobardische and die skandinavischen Rechte (Mitteilungen des Instituts fur oesterreichische Geschicht sforschung, vol. xxii.) ; Cf. R. Dareste, in the Nouvelle Revue historique de droit francais et etranger (190o, p. Pactus Alamannorum and Lex Alamannorum.—Of the laws of the Alamanni 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 re currence of the expression "et sic convenit" was most probably drawn up by an official commission. The reference to af franchise ment 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 7th century. The later text, known as the Lex Alamannorum, dates from a period when Ala mannia recognized the theoretical suzerainty of the Frankish kings but was ruled by national dukes and may be placed between the years 717 and 719.

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. Cf. Heinrich Brunner, "Ober das Alter der Lex Alamannorum" (Berliner Sitzungsberichte, 1885) ; Karl Lehmann, in the Neues Archiv., vol. x. ; Bruno Krusch, Die Lex Bajuvariorum, mit zwei Anhangen : Lex Alamannorum and Lex Ribuaria (1924) ; Franz Beyerle, in the Savigny-Zeitschrift f iir Rechtsgeschichte, vol. xxxv.; Bruno Krusch, Neue Forschungen uber die drei oberdeutschen Leges : Bajuvariorum, Alamannorum and Ribuariorum (1927).

Lex Baiuvariorum.

The law of the Bavarians has, in some parts, been taken directly from the Visigothic law of Euric and from the Lex Alamannorum and the Lex Salica. The Bavarian law, therefore, is later than that of the Alamanni. It dates, prob ably, from a period when the Frankish authority was very strong in Bavaria when the dukes were vassals of the Frankish kings. The date of compilation may be placed between 74o and 748.

The text of the Lex Baiuvariorum has been published by J. Merkel in the Mon. Germ. hist., Leges, iii. 183 ; by E. von Schwind (1927) in the 4to series of the same collection, and by Konrad Beyerle (Munchen, 1926). Cf. von Schwind's articles in the Neues Archiv. vol. xxxi., xxxiii. and xxxvii. ; H. Brunner, Ober ein verschollenes merowingisches Konigsgesetz des. 7. Jahrhunderts (Berliner Sitzungsberichte, 1901) ; V. Kralik, Die deutschen Bestandteile der Lex Baiuwariorum (Neues Archiv. vol. xxxvii.) ; Bruno Krusch, Die Lex Bajuvariorum, Textgeschichte, Hand schriftenkritik and Entstehung (1924) ; Franz Beyerle, in the Savigny-Zeitschrift f iir Rechtsgeschichte, vol. xlv., Ernst Hey mann, Zur Textkritik der Lex Bajuwariorum (Kelir-Festschrift, 1925); Bruno Krusch, Neue Forschungen uber die drei oberdeut schen Leges (1927) ; Karl August Eckhardt, Die Lex Baiuva riorum, eine textkritische Studie (1927).

Lex Saxonum.

The Lex Saxonum has come down to us in two mss. and two old editions (those of B. J. Herold and du Til let). The law contains ancient customary enactments of Saxony, and, in the form in which it has reached us, is later than the con quest of Saxony by Charlemagne. It is preceded by two capitu laries of Charlemagne for Saxony—the Capitulatio de partibus Saxoniae, 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, of the 28th of October 797, in which Charlemagne shows less brutality and pronounces simple compositions for misdeeds which formerly entailed death. The Lex Saxonicum apparently dates from 802, since it contains provisions which are in the Capitulare legi Ribu ariae additum of that year. The law established the ancient cus toms, 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. There is an edition of the leges Saxonum by Karl v. Richthofen in the Mon. Germ. hist., Leges, and another by Cl. von Schwerin in the 8vo series of the same collection (1918). Cf. von Schwerin, in the Savigny-Zeitschrift fur Rechtsgeschichte, vol. xxxiii. ; Martin Lintzel, in the Savigny-Zeitschrift f iir Rechts geschichte, vol. xlvii.

Lex Thuringorum.

A collection of laws has come down to us, in one ms. and one old edition, bearing, in the ms., the name Lex Thuringorum and in the edition the name Lex Angliorum et IVerinorum, hoc est Thuringorum. In early times there dwelt, south of the river Unstrut, the Angli, who gave their name to the pages Engilin or Englide, and to the east, between the Saale and the Elster, the Warni (Werini or Varini) whose name is seen in W erino f eld. Cf. Hoops, Reallexikon, i, 86, iv., 483. 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 8o3, 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, and another by Cl. v. Schwerin in the 8vo series of the same collection (1918).

Lex Frisionum.—This consists of a medley of documents of the most heterogeneous character. Some of its enactments are apparently 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 Sun day. 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 and by de Geer (1866). Cf. Patteta, La Lex Frisionum (1892) ; Hugo Jaekel, in the Neues Archie., vol. xxxii. ; Siegfried Rietschel, Das V olksrecht der Friesen (Gierke-Festschrift, 191 I) ; Philipp Heck, Die Entstehung der Lex Frisionum (19 2 7) (C. Pr.; K. A. EcK.)