GERMANIC LAW

the law of the various Germanic peoples from the time of their initial contact with the Romans until the change from tribal to national territorial law. This change occurred at different times with different peoples. Thus some of the characteristics of Scandinavian legal collections of the 12th century are similar to those in the Visigothic laws of the 6th century. Knowledge of the early Germanic period is derived mainly from the observations of tribal life contained in Julius Caesar's Gallic War and Tacitus' Germania. The first written collections of Germanic law are the so-called Leges Barbarorum, which date from the 5th century until the 9th century. They are written in Latin and show Roman influence by their use of the technical terms of Roman law. The Anglo-Saxon laws and the laws of the North Germanic group, on the other hand, are in the vernacular and owe their written form largely to the advent of Christianity. For all of the Germanic peoples, law (West German, reht and wa; High German, wizzd; North German, lagh, from which the English word law is derived) was basically not something laid down by a central authority, such as the king, but rather the custom of a particular nation (tribe). It was essentially unwritten, being derived from popular practices, and was not sharply distinguished from morality; it was personal in the sense that it applied only to those who belonged to the nation. Thus each man followed his own law, a notion appropriate to a nomadic people who originally did not live in a clearly defined territory. When, after the fall of the Roman Empire in the West, Germanic tribes took over former Roman provinces, they did not attempt to apply their laws to their Roman subjects, for whom Roman law remained applicable. Thus the earliest Germanic code, that of Euric, king of the Visigoths in Spain and southwestern Gaul in the late 5th century, applied exclusively to Visigoths. The Lex Romana Visigothorum, or Breviary of Alaric, was issued in AD 506 for their Roman subjects. It was a compilation of vulgar lawRoman law adapted to fit the social and economic conditions of the late Roman Empireand was later the main source of Roman law in the Frankish kingdom. Only in the 7th century was Visigothic law applied to Visigoths and Romans alike, the two peoples by then having substantially fused. The Lex Burgundiorum and the Lex Romana Burgundiorum of the same period had similar functions, while the Edictum Rothari (643) applied to Lombards only. The Leges Barbarorum, then, were not legislation in the modern sense but rather the records of customs that were first collected and then declared as law. The prologue to the Salic Law (the law of the West, or Salic, Franks) recounted how four chosen men collected the original practices in particular cases, having first discussed them with the presidents of the local popular assemblies. The Leges Barbarorum did not seek to set out all of the main rules of law as modern codes do. They were not concerned with what everyone took for granted but concentrated on matters that, perhaps as a result of migration or conquest, had become doubtful and needed authoritative exposition. They dealt with specific situations rather than general rules and focused particularly on court procedure, monetary compensation for acts of violence, and succession on death. The initiative for declaring law usually came from the king, but the resulting laws normally required approval by the popular assemblies. Because of this collaboration between king and people, a compilation was sometimes referred to as an agreement, or pactus. The Visigothic laws were an exception; they always appear to have been formulated by the king and chief landowners without popular participation. Gradually, first the Lombard and then the Frankish kings overcame their people's aversion to central government and began to legislate unilaterally. The Lombards, who invaded Italy in 568, had no single code of custom, but their kings issued edicts from the mid-7th century onward. In the Frankish kingdom the Merovingian kings called their legislation edicta or praecepta, but the succeeding Carolingians characterized them as capitularia; i.e., royal ordinances divided into articles (capitula). These included modifications of the leges of the Franks or other nations in the Frankish kingdom, administrative orders to officials, and independent legislation. Like the Roman emperors before them, Charlemagne and his successors claimed the power to make laws for all their subjects, irrespective of nation, and without the consent of any assembly. The validity of the law depended solely on the oral act of the king who promulgated it. the law of the various Germanic peoples from the time of their initial contact with the Romans until the change from tribal law to national territorial law sometime in the Middle Ages. Germanic law is the law of peoples of ancient Germanic stock in what is now Germany, Scandinavia, northern France, and northern Italy. It covers the period from the rise of the earliest Germanic tribes that moved into former Roman provinces after the fall of the Roman Empire to the period when the oral laws of individual Germanic tribes developed into national and codified territorial laws. This development occurred at different periods in different tribes. Germanic law, unlike Roman law, consisted essentially of tribal custom and not of legal codes promulgated by a central government. The custom of a particular tribe or nation evolved from popular practices, was unwritten, and was applicable only to the individuals belonging to that particular tribe. The law was not attached to the territory but rather to the tribe, and so when a nomadic tribe moved it took its laws with it rather than subjecting itself to the laws of the territory to which it moved. Germanic peoples were divided into tribes, which were made up of clans, with a king at the head of the government. The king was assisted by the tribal assembly and by his council. Property law did not clearly distinguish between legal title and physical control. Land originally belonged to each family collectively, but gradually family ownership developed into private ownership by the family head, although for a long time he could sell or part with land only with the consent of the heirs. Property descended on his death to the nearest descendants, usually male. Later, as the importance of Christianity grew, ecclesiastical law, derived from Roman law, gained in importance. The church sought to legislate matters such as marriage and succession, which had previously been the subject only of secular tribal law. Also, by the 12th century a mercantile law had developed to meet the needs of traders; this was general and not dependent on nationality or domicile. Gradually local law began to decline in importance. In France, Germanic law predominated in the north, while the south remained predominantly subject to Roman law. A central form of government was imposed by the Normans after their conquest of England in 1066, and the common law that developed there was largely similar to Germanic law, being based on custom. The Scandinavian countries and Iceland, more isolated from Roman tradition, developed their own distinctive form of law based on custom passed down by word of mouth until the 12th century, when they began to be put into writing. The codified laws were more progressive, abolishing private vengeance and vesting the power to prosecute for criminal offenses in the monarch rather than in the individual. Additional reading For sources, see A General Survey of Events, Sources, Persons, and Movements in Continental Legal History (1912, reprinted 1968); for an exhaustive survey, see Karl von Amira, Germanisches Recht, 4th ed. edited by Karl August Eckhardt, vol. 1, Rechtsdenkmler (1960); for discussion, see R. Buchner, Die Rechtsquellen, published as a supplement to W. Wattenbach and W. Levison, Deutschlands Geschichtsquellen im Mittelalter: Vorzeit und Karolinger, vol. 2 (1953); and Edward Jenks, Law and Politics in the Middle Ages: With a Synoptic Table of Sources, 2nd ed. (1913, reprinted 1970). For substantive law, see Heinrich Brunner, Deutsche Rechtsgeschichte, 2nd ed., vol. 1 (1906, reprinted 1961), the classic treatment; H. Conrad, Deutsche Rechtsgeschichte: Ein Lehrbuch, vol. 1, Frhzeit und Mittel- alter, 2nd ed. (1962, reprinted 1982); and C. von Schwerin, Grundzge der deutschen Rechtsgeschichte, 4th ed. prepared by Hans Thieme (1950). For very early law, see Marco Scovazzi, Le origini del diritto germanico: fonti, preistoria, diritto pubblico (1957).For Visigothic and Burgundian law, see E.A. Thompson, The Barbarian Kingdoms in Gaul and Spain, Nottingham Mediaeval Studies, 7:333 (1963); and P.D. King, Law and Society in the Visigothic Kingdom (1972). For Anglo-Saxon law, see F.W. Maitland, The Laws of the Anglo-Saxons, The Collected Papers of Frederic William Maitland, ed. by H.A.L. Fisher, vol. 3, pp. 447473 (1911, reprinted 1981); and H.G. Richardson and G.O. Sayles, Law and Legislation from Aethelberht to Magna Carta (1966). For north Germanic law, see L.B. Orfield, The Growth of Scandinavian Law (1953).