Tribal Law

The earliest known legal orders prevailing among the peoples of northern and western Europe were mainly tribal in character. Every tribe or "stem" (Stamm) had its own law: the Franks, Alemanns, Frisians, Visigoths, Ostrogoths, Burgundians, Lombards, East Saxons, Vandals, Suevi, and other peoples that were eventually combined in the Frankish Empire, embracing much of what later became Germany, France, and northern Italy; the Angles, West Saxons, Jutes, Celts, Britons, and other peoples of what later became England; the Danes, Norwegians, and other Norsemen of Scandinavia and later of Normandy, Sicily, and elsewhere; and many others, from Picts and Scots to Magyars and Slavs.

At the head of the tribes and of the local and feudal communities stood royal and ecclesiastical authorities. In the course of time the larger territorial and religious units represented by these higher

authorities became more and more important. Kings continued to be called kings of a people -- Rex Francorum ("King of the Franks"), Rex Anglorum ("King of the Angles") -- until the twelfth century, but similar terms were also used to refer to vaguely defined political territories, such as Francia and Anglia. Also the church, though ultimately subject to emperors, and to kings within their respective domains, was recognized as a wider spiritual community which, though wholly without organizational unity, transcended all secular boundaries. Nevertheless, prior to the latter half of the eleventh century royal and ecclesiastical authorities did not attempt to alter in any fundamental way the essentially tribal and local and feudal character of the legal orders of Europe. This may seem less strange if it is understood that the economy of Europe at the time was

52- also almost wholly local, consisting chiefly of agriculture and cattleraising, with subsidiary hunting; population was sparse, and there were virtually no towns with more than a few thousand people; commerce played only a small role, and communications were very rudimentary. What is strange from an economic or geopolitical point of view is not the weakness of central royal and ecclesiastical law, but the strength of central royal and ecclesiastical authority.

It was the central royal authority, inspired by ecclesiastical counselors, which was responsible for issuing the written collections (or "codes," as they later came to be called) of tribal and local laws that provide a great deal of what is known today about the folklaw of that period.

With the final disintegration of the Western Roman Empire in the fifth century, what little there had been of the great fabric of Roman law in the Germanic kingdoms diminished and in many places virtually disappeared.

The earliest of the surviving leges barbarorum ("laws of the barbarians"), as they are called by historians to distinguish them from leges Romanae, was the law of the Salic Franks, the Lex Salica, issued by the Merovingian king Clovis shortly after his conversion to Christianity in 496. 5_It starts by listing monetary sanctions to be paid by a defendant to a plaintiff for failure to respond to the plaintiff's summons to appear in the local court. It also lists monetary sanctions to be paid by wrongdoers to injured parties for various kinds of offenses, including homicides, assaults, thefts.

of the local assembly (the hundred court) instead of resolving their dispute by vendetta, or else to provide a basis of negotiations between the household of the victim and that of the offender. Sometimes, however, they did not have even that effect. The injured party, in the words of one of the Anglo_Saxon laws, might either "buy off the spear or bear it." The prevalence of private warfare was connected with the great difficulty of bringing a person accused of wrongdoing to trial or getting witnesses to testify or enforcing a judgment.

The earliest of the Anglo-Saxon legal compilations was the Laws of Ethelbert, promulgated about 600 A.D. Ethelbert, ruler of Kent, had married a Christian and, according to tradition, had been converted to Christianity by Pope Gregory's emissary, the monk Augustine, in 597. Ethelbert's laws are remarkable for the extraordinarily detailed schedules of tariffs established for various injuries: so much for the loss of a leg, so much for an eye, so much if the victim was a slave, so much if he was a freeman, so much if he was a priest. The four front teeth were worth six shillings each, the teeth next to them four, the other teeth one; thumbs, thumbnails, forefingers, middle fingers, ring fingers, little fingers, and their respective fingernails were all distinguished, and a separate price, called a bot, was set for each. Similar distinctions were made among ears whose hearing was destroyed, ears cut off, ears pierced, and ears lacerated; among bones laid bare, bones damaged, bones broken, skulls broken, shoulders disabled, chins broken, collar bones broken, arms broken, thighs broken, and ribs broken; and among bruises outside the clothing, bruises under the clothing, and bruises which did not show black. 6_

If the act of the defendant caused death, the price to be paid to the kin of the deceased was called wer (or wergeld).

Somewhat more sophisticated than the Laws of Ethelbert was the socalled Edict of the Lombard chieftain, or king, Rothari, written down in 643, seventy-five years after the Lombards had moved from what is now Hungary and Yugoslavia to what is now northern Italy. Of the 363 articles in the edict almost 140 deal with penal measures. For the murder of a free man or free woman by a free person, compensation of 1200 shillings (solidi) was required, whereas the price for the death of a household servant was only 50 solidi, and for a slave 20. (Murder of a free person by an unfree person was "compensated" by death.) Various prices were stated for hitting someone on the head, cutting off someone's hair, breaking various named parts of the skull, gouging out the eyes, cutting off a nose, breaking a nose, boxing an ear, breaking arms (with distinction made between simple and compound fractures), cutting off

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arms, fingers, toes. The little finger of a free man was worth 16 solidi, that of the half_free four, and that of a slave only two. 7,

The institution of fixed monetary sanctions payable by the kin of the wrongdoer to the kin of the victim was a prominent feature of the law of all the peoples of Europe prior to the twelfth century, and indeed of every Indo-European people at some stage of its development, including the peoples of India, Israel, Greece, and Rome. It is also an important part of the law of many contemporary primitive societies. 8_

It is, in many respects, a very sensible system. The threat of heavy financial burdens upon the wrongdoer and his kin is probably a more effective deterrent of crime than the threat of capital punishment or corporal mutilation (which succeeded pecuniary sanctions in Europe in the twelfth and thirteenth centuries), and at least equally as effective as the modern sanction of imprisonment; and it is surely less expensive for society.

Yet the system cannot be satisfactorily explained on utilitarian grounds alone, at least insofar as the Germanic peoples of Europe are concerned. It was part of a whole ideology, a whole world view, and that world view helps to explain not only its sensible features but also those which may not have been so sensible -- for example, the marked differentiation of payments for the slaying of persons belonging to different classes, the enormous size of the payments in many cases, the liability of kindred for wrongdoing regardless of their fault, and the fixed tariffs for injuries regardless of the actual cost to the victim.

In functional terms, the institution of monetary sanctions for crime, payable by the kindred of the wrongdoer to the kindred of the victim, is to be judged, not primarily by the extent to which it served to deter or to punish or to compensate for crime, but primarily by the extent to which it served to forestall interfamily vendettas and, more particularly, by the extent to which it facilitated negotiation and mediation between hostile families. Ideologically, however, both the institution of the blood feud and the institution of monetary compensation as a replacement of the blood feud are to be explained, in Germanic societies, by the high value placed upon honor as a means of winning glory (lof, "praise") in a world dominated by warring gods and by a hostile and arbitrary fate (wyrd). Honor, for Germanic man, meant "getting even"; only by getting even could he conquer the forces of darkness that surrounded his life. 9The fixed schedules of payments provided a standard for evening accounts.

Lof was gained when a person took what others defended, as it was lost when others took what he or she defended. Therefore bot was, in its origins, essentially punitive and only secondarily compensatory. It was

-55- the retribution imposed by one household or kin group upon another. The challenge to lof was particularly great in cases of homicide, because the dead could never recover their own lost honor; the duty rested entirely with their kimen, whose first instinct was to resort to vengeance. Originally, the life or limb of the assailant himself, or of another member of his household, was demanded (in biblical terms "an eye for an eye, a tooth for a tooth"), or if the offense had been caused by a nonhuman agent such as a beast or a tree, the offending agent itself might be required to be forfeited (so_called noxal surrender). The substitution of fixed rates of payment gave dignity to a settlement short of violence, while not altering the basic raison d'etre of the remedy, which was the redemption of the honor of the household and the kin.

Bot and wer were thus related to mund, which was the protection extended by the household to persons and groups associated with it, and to frith, which was the peace of the household. The king's mund and frith were like any other man's, only better. The laws of Ethelbert, for example, provided that the king's mundbyrd, that is, the penalty for violating the king's mund, should be fifty shillings and a ceorl's (commoner's) mundbyrd should be six shillings. 10Mund was violated, and bot or wer was to be paid, when, for example, an outsider slept with a serving maid of the household or slew someone on the premises of the household. Closely related to bot and wer and mund and frith were three other Germanic legal institutions: the surety (borh), the pledge (wed), and the hostage. 11A kinsman might act as a surety for a man who agreed to pay wer but could not pay the full amount at once; or the debtor might give a valuable object in pledge; or he might send a hostage to live and work in the enemy household until the price was paid. All these legal devices reflected both the solidarity of the household and the substitution of tribute for vengeance in interhousehold or interclan strife.

In addition to the settlement of disputes by blood feud and by interhousehold or interclan negotiations, the Germanic peoples from earliest times held public assemblies (moots) to hear and decide disputes. However, jurisdiction in most types of cases depended on the consent of the parties. Even if they consented to appear, they might not remain throughout, and even if they remained, the moot generally could not compel them to submit to its decision. Thus the procedure of the moot had to assume, and to help create, a sufficient degree of trust between the parties to permit the system to operate, just as the procedure for interhousehold or interclan negotiations, with its reliance upon sureties, pledges, and hostages, had to assume, and to help create, such a degree of trust. Yet it is clear that both the trial before the assembly and the negotiations between the households or clans were apt to be intensely hostile in character. "The two sides faced each other with implacable hos- 56-

tility, determined to make no concessions and to forgive and forget nothing." ¹²

The polar relationship between vengeance (blood feud) and pacification (composition of blood feud) in Germanic folklaw is an example of the intense dialectic of mistrust and trust which exists in many contemporary kinship societies. Claude Levi-Strauss has written that "observers have often been struck by the impossibility for natives of conceiving a neutral relationship, or more exactly, no relationship. We have the feeling -- which, moreover, is illusory -- that the absence of definite kinship gives rise to such a state in our consciousness. But the supposition that this might be the case in primitive thought does not stand up to examination. Every family relatonship defines a certain group of rights and duties, while the lack of family relationship... defines enmity." LeviStrauss quotes the following passage from Marcel Mauss: "'Throughout a considerable period, and in a large number of societies, men met in a curious frame of mind, with exaggerated fear and an equally exaggerated generosity which appear stupid in no one's eyes but our own... There is either complete trust or complete mistrust. One lays down one's arms, renounces magic, and gives everything away, from casual hospitality to one's daughter or one's property.'" ¹³

In Germanic, society, the "trust-mistrust" syndrome was closely related to the overriding belief in an arbitrary fate, and this belief, in turn, was reflected above all in the use of the ordeal as a principal method of legal proof. The two main types of ordeal were those of fire and water, the former for persons of higher rank, the latter for the common people. Originally, these were invocations of the gods of fire and water, respectively. Those tried by fire were passed blindfolded or barefooted over hot glowing plowshares, or they carried burning irons in their hands, and if their burns healed properly they were exonerated. The ordeal of water was performed either in cold water or in hot water. In cold water, the suspect was adjudged guilty if his body was borne up by the water contrary to the course of nature, showing that the water did not accept him. In hot water he was adjudged innocent if after putting his bare arms and legs into scalding water he came out unhurt. A later, more subtle ordeal, used chiefly by the clergy, was that of the morsel: an ounce of bread or cheese was eaten, with the adjuration, "Close, O Lord, this man's stomach so that he cannot swallow this bread (cheese) if he has sworn unjustly." If he could not swallow or keep down the bread or cheese, he was guilty. Such primitive lie detectors may have worked quite well. In any event, there was a considerable resistance to the abolition of ordeals in the thirteenth

century.

The ordeal was a characteristic example, in Peter Brown's words, of the "mingling of the sacred and the profane," a "blurring of the border­

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line between the objective and the subjective in human experience." It relied on a sacred and dramatic rite to determine the judgment of God; yet it was "mercifully slow" and "allowed room for maneuver and the evolution of a situation." The outcome was usually subject to interpretation by consensus of the community. Thus small face_to_face groups, largely nonliterate, could deal with problems of violence, deceit, or witchcraft in a manner consistent both with belief in the s upernatural and with practical communal needs. 14

The system of trial by ordeal was combined with, and sometimes replaced by, trial by ritual oaths ("compurgation"). First came the foreoaths. For example, a party claiming bot for the theft of cattle would swear: "By the Lord, before whom this relic is holy, so I prosecute with full folkright, without fraud and without deceit, and without any guile, as was stolen from me the cattle [designating them] that I claim, and that I have attached with [the defendant]."

The opposing party would then swear a denial of this claim. For example: "By the Lord, I was not at rede nor at deed, neither counselor nor doer, where were unlawfully led away [the complainant's] cattle." Or, "As I cattle have, so did it come of my own property, and so it by folright my own is, and my rearing." ¹⁵

These oaths opened the lawsuit. The moot would then decide which party should be allowed to give the oath of proof. On the appointed day both parties would appear, and the party allowed to give the oath would swear to a set formula. To complete his oath, however, he would have to have a number of compurgators, or oath helpers, swear to supporting formulas. The number of required oath helpers depended on their wer and on the offense being tried. They might swear, for example: "By the Lord, the oath is clean and unperjured [the complainant or the defendant] has sworn." ¹⁶

All the fore-oaths, denials, final oaths, and supporting oaths had to be repeated flawlessly, "without slip or trip," if they were to succeed. All were cast in poetic form, with abundant use of alliteration. For example, an oath used in suits affirming title to land reads as follows: "So I hold it as he held it, who held it as saleable, and I will own it -- and never resign it -- neither plot nor plough land -- nor turf nor toft -- nor furrow nor foot length -- nor land nor leasow -- nor fresh nor marsh -- nor rough ground nor room -- nor wold nor fold -- land nor strand -- wod nor water." ¹⁷

The formality of proof and its dramatic character were connected with the fact that the law was almost entirely oral. "So long as law is unwritten," Maitland states, "it must be dramatized and acted. Justice must assume a picturesque garb or she will not be seen." Maitland's remark echoes that of the nineteenth-century German historian and linguist Jakob Grimm, who speaks of the "sensuous element" in Germanic law, as contrasted with the more abstract or conceptual element which is

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prominent in more "mature" legal systems. ^f_The expression of legal rules in poetic images helped to stamp them on the memory. Among common phrases were "unbidden and unbought, so I with my eyes saw and with my ears heard," "foulness or fraud," "house and home," "right and righteous," "from hence or thence." The law was contained in a multitude of proverbs. The earliest Irish law was expressed in the form of poetry.

The dramatic and poetic qualities of Germanic law were associated with the plasticity of its substance. "Men were especially prone to express provisions relating to time and space in such a naive and inexact way as left room for chance in particular cases. It is often declared that something shall be the rule as far as a cock walks or flies, a cat springs, or a stone or hammer is thrown, or as one can reach with a sickle. A law shall endure so long as the wind blows from the clouds and the world stands... or so much land shall be acquired as can be ridden round in a certain time on horse or ass, turned over with the plow, or covered with hides." 19This "naive and inexact" manner of expression was well suited to the needs of peoples who had not yet acquired a scientific outlook with its subject-object dualism. For the peoples of Europe in the Germanic era, life was much less compartmentalized than it later became, much more a matter of total involvement; hence poetic and symbolic speech, which is closely associated with the whole being and with the unconscious, was more appropriate than prosaic and literal language, especially on solemn occasions involving the law.

Some examples of the symbolic and ceremonial character of Germanic law are the transfer of land by the handing over of twig and turf or hat and glove or by the touching of the altar cloth or the bell rope; the leaving of the house key upon the bier of her dead husband by a widow who wished to free herself from liability for his debts; the use of the staff in legal transactions (for instance, its delivery in a contract of pledge); the handclasp as the usual confirmation of pledges of faith and of contracts; and the use of various ceremonials in seating oneself when taking possession of land or of an office. ²⁰

The dramatic and poetic elements of Germanic law-its mimetic elements -- elevated legal speech above ordinary speech and thereby put a distance between law and ordinary life. Of course it is necessary in all societies that law be separated from the daily routine by ritual, by ceremony, and by belief reflected in ritual and ceremony -- the belief in the power of certain words put in certain ways to bring about certain effects denominated as "legal." This kind of magic is necessary if law is to work. Yet each age has its own magic, reflecting its particular concept of ultimate reality. The Germanic concept postulated an essentially arbitrary fate at the center of life, and Germanic legal magic reflected that concept.

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The Germanic trial was a symbolic continuation of the blood feud. The parties hurled oaths at eac h other instead of blows. The outcome of the ordeal, like the outcome of battle itself, was the decision of fate, of wyrd. As James Gordley has put it, "The ceaseless conflict of households bent on gaining lof at the expense of each other was a cosmological principle in which all forces of nature joined." 21- Ultimately the arbitrary force of wyrd was decisive. In the words of an Anglo_Saxon poem:

Good against evil; youth against age;

Life against death; light against darkness;

Army against army; foe against foe;

Hostile with hostile shall always fight

Contending for land and avenging wrongs A wise man must ponder this world's strife. ²²

The same word, dom (doom) -- judgment -- was used to refer to a decree of wyrd and to the outcome of a trial. In the words of Beowulf:

Often Fate saves an undoomed man, if his courage is good. ²³

This was the heroic side of Germanic law: it was foe against foe locked in a deadly struggle for honor, yet each prepared to accept wyrd's decree, however bitter it might be.

But there was another side, the community of comradeship and trust represented within the household itself. And this community carried over to the whole tribe or folk. The moot acted like a household. It had its peace, its frith (in modern German, Friede). It assembled not only to decide disputes but also to give advice and to consult and discuss problems in an amicable way. It was concerned with establishing justice (riht; in modern English, "right"; in modern German, Recht). The wise men, the witan ("knowing ones," "witnesses"), gave their opinions in an effort to hold the assembly of households together. Also the tribe, the folk, sought to protect itself by acting collectively against wrongdoers: the judicial outcry -- called in Anglo-Saxon law the "scream" or the "hue and cry" ("out! out!") -- was the signal for all to join in the pursuit of the offender. A corollary of this was the characteristic penalty of outlawry in the case of the most serious offenses; theoretically, at least, none were permitted to communicate with the outlaw and he died from starvation and exposure.

The symbolism of mund and frith -- protection and peace -- which characterized the household and the folkmoot was at the same time the symbolism of surety, pledge, and hostage: it was the symbolism of the oath and of the dramatic performing of handshakes and other ceremonial acts of peace. By swearing oaths that placed them under the

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protection of the gods, and later of God, the parties acquired the degree of trust necessary to enable them to submit, when they did, to compurgation and the ordeals or to accept sureties, pledges, and hostages for bot and wer. They could not violate their oaths without threatening the very basis of household and tribal life, which was itself founded on oaths.

The importance of the household within the tribe should not obscure the growing importance also of bonds of lordship and bonds of territorial community. From earliest times there was a hereditary aristocracy, and in time lordship by service became as important as lordship by blood. "Loyalty to a lord had been a consistent theme of epic poetry," writes H. R. Loyn. "From the reign of Alfred [871-900]" -- and, it should be added, among the Franks at least from the reign of Charlemagne a century earlier -- "it became the cardinal moving spirit in the moulding of society. You shall fight for your kinsman when he is attacked except against your lord: that we do not permit, said a law of Alfred. Under his successors the lordless man was treated as more and more of an anomaly. Society was held together by bonds of loyalty from man to lord and from lord who was also a thegn [the royal servant in the localities] to king." ²⁴ Just as bonds of lordship led up to the king as great lord, so the bonds of territorial community led up to the king as ruler of the whole land. Yet as Loyn says, "There was no conflict between kindred power and secular lordship," ²⁵ and similarly there was no conflict between kindred power and territorial community. The household of the lord was similar to households within the tribal community, and the household of the king as ruler of the whole land was also similar to households within the tribal community. All were caught up in the paradigm of wyrd and lof, mund and frith, bot and wer, borh and wed; all were founded on oaths of mutual protection and service. All were part of a legal order which resolved conflict by the "binary opposites" (in Levi-Strauss's phrase) of feud or composition of feud, proof being by ordeal or by compurgation. ²⁶ Other characteristic institutions of this legal order were judicial outcry when an offense was discovered (in Latin, clamor, from which is derived the legal word "claim"; in Anglo-Saxon, hcream, from which is derived the word "scream"); outlawry, involving forfeiture of all goods and liability to be killed by anyone with impunity; and noxal surrender, that is, surrender to the victim of the object or slave by which the offense had been committed.

Legal historians have given to this type of law the name Archaic Law. In its main outlines, it was characteristic not only of the Germanic peoples in the period prior to the late eleventh century but also of all Indo-European peoples, from Kent to Kashmir, at one time or another in their development. Of course, there were a great many local differences from place to place and a great many changes over time; nevertheless, there was a common legal style. 27_

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