Chapter XI: Section X: Social Classes and Cities in Germany 545-612 (1)

289. Otto III forbids the unfree classes to attempt to
free themselves, _ca._ 1000 545
290. Henry I frees a serf, 926 546
291. Henry III frees a female serf, 1050 547
292. Recovery of fugitive serfs, 1224 548
293. Rank of children born of mixed marriages, 1282 549
294. Frederick II confers nobility, _ca._ 1240 549
295. Charles IV confers nobility on a "doctor of
both laws," 1360 550
296. Law of the family of the bishop of Worms, 1023 551
297. Charter of the ministerials of the archbishop of
Cologne, 1154 563
298. The bishop of Hamburg grants a charter to
colonists, 1106 572
299. Privilege of Frederick I for the Jews, 1157 573
300. The bishop of Speyer grants a charter to the Jews, 1084 577
301. Lothar II grants a market to the monastery of Prüm, 861 579
302. Otto I grants a market to the archbishop of Hamburg, 965 580
303. Otto III grants a market to count Berthold, 999 581
304. Merchants cannot be compelled to come to a market, 1236 581
305. Market courts to be independent of local courts, 1218 582
306. Otto I grants jurisdiction over a town to the abbots
of New Corvey, 940 582
307. The ban-mile, 1237 583
308. Citizens of Cologne expel their archbishop, 1074 584
309. People of Cologne rebel against their archbishop, 1074 585
310. Confirmation of the "immediateness" of the citizens of
Speyer, 1267 586
311. Summons to an imperial city to attend a diet, 1338 587
312. Grant of municipal freedom to a town, 1201 587
313. Extension of the corporate limits of the city of
Brunswick, 1269 588
314. Decision of the diet about city councils in
cathedral towns, 1218 589
315. Frederick II forbids municipal freedom, 1231-32 590
316. Breslau adopts the charter of Magdeburg, 1261 592
317. The Schoeffen of Magdeburg give decisions for
Culm, 1338 602
318. Establishment of the Rhine league, 1254 604
319. Peace established by the Rhine league, 1254 606
320. Agreement between Hamburg and Lübeck, _ca._ 1230 609
321. Agreement between Hamburg and Lübeck, 1241 610
322. Lübeck, Rostock, and Wismar proscribe pirates, 1259 610
323. Decrees of the Hanseatic league, 1260-64 611
324. Decrees of the Hanseatic league, 1265 612
325. Henry II grants Cologne merchants privileges in
London, 1157 612
Bibliography 613
Glossary 615

A SOURCE BOOK FOR MEDIÆVAL HISTORY

I. THE GERMANS AND THE EMPIRE TO 1073

The documents in this section are intended to illustrate the history of the Germans from the period before the migrations to the beginning of the struggle between the empire and the papacy, 1073. The historical development of this period resulted in the formation of the Holy Roman Empire, as the form of government for western Europe. The civilization of the Middle Age was in the main the result of the union of Roman and German elements. This union was brought about by the invasion of the Roman empire by the tribes of German blood that lay along and back of the frontier of the empire. It is important, therefore, to understand the character of the German race and institutions, which are illustrated by nos. 1 to 4. The leaders and organizers of the Germans after the settlement were the Franks, who under the Merovingian and Carolingian lines of rulers united the German tribes and bound them together in one great state. This movement is shown in nos. 5 to 14. In this development the life of Karl the Great (nos. 7 to 14) is of especial importance, because of the permanent result of much of his work, particularly his organization of the government (nos. 7 to 9), and his founding of the empire by the union of Italy and Germany (nos. 8, 13, and 14). The dissolution of his vast empire, resulting in the formation of France as a separate state, and in the appearance of the feudal states, is shown in nos. 15 to 22. In the rest of the documents the history of Germany and Italy, the real members of the empire, is followed. Of this the important features are: the continued connection of Germany with Italy (nos. 23 and 29), resulting in the restoration of the empire by Otto I; the feudal organization of Germany (nos. 24, 25, and 27); and the increase of the German territory toward the east (nos. 26, 28, 32). This brings the history down to the accession of Henry IV, with whom begins the long conflict between the empire and papacy which is treated in section III.

1. Selections from the Germania of Tacitus, _ca._ 100 A.D.

The _Germania_ of the Roman historian Tacitus (54-119 A.D.) is a treatise on the manners, customs, and institutions of the Germans of his time. It is one of the most valuable sources of knowledge of the condition of the Germans before the migrations. These sources are mainly of two kinds: the accounts of contemporary writers, chiefly Roman authors; and the documentary sources of the period of the tribal kingdoms, particularly the tribal laws, such as the laws of the Salic Franks (see no. 4), Burgundians, Anglo-Saxons, etc. It will be evident to the student that the sources of both kinds fall short of realizing the needs of historical trustworthiness: the first kind, because the Roman authors were describing institutions and customs which they knew only superficially or from a prejudiced point of view; the second, because the laws and documents of the tribal period reflect a stage of development which had changed considerably from the primitive stage. Conclusions in regard to the conditions of the Germans in the early period are based on the careful criticism of each single document and on a comparison of each with all the others. Some indication of this method is suggested in the notes to nos. 1 and 4. Even at best the results are subject to uncertainty. The _Germania_ of Tacitus is the clearest and most complete of the sources of the first type, but it is not free from obscurity. Since there are numerous editions of it, we have not thought it necessary to refer to any particular one.

5. The land [inhabited by the Germans] varies somewhat in character from one part to another, but in general it is covered with forests and swamps, and is more rainy on the side toward Gaul and bleaker toward Noricum and Pannonia. It is moderately fertile, but not suited to the growing of fruit trees; it supports great numbers of cattle, of small size, however.

6. Iron is not abundant, as appears from the character of the weapons of the inhabitants; for they rarely use swords or the larger spears; instead they carry darts with small, narrow heads, which they call _frameæ_. But these are so sharp and so easily handled that they are used in fighting equally well at a distance and at close quarters.... The number of warriors is definitely fixed, one hundred coming from each district, and the warriors are known by that name [_i.e._, hundred]; so that what was originally a number has come to be a name and a title.{1}

7. Kings are chosen for their noble birth;{2} military leaders for their valor. But the authority of the king is not absolute, and the war-leaders command rather by example than by orders, winning the respect and the obedience of their troops by being always in the front of the battle.... These troops are not made up of bodies of men chosen indiscriminately, but are arranged by families and kindreds, which is an added incentive for bravery in battle. So, also, the cries of the women and the wailing of children, who are taken along to battle, encourage the men to resistance.

8. It is said that on more than one occasion broken and fleeing ranks have been turned back to the fight by the prayers of the women, who fear captivity above everything else.... They believe that women are specially gifted by the gods, and do not disdain to take council with them and heed their advice.

11. [In the assemblies of the tribe,] minor affairs are discussed by the chiefs, but the whole tribe decides questions of general importance. These things, however, are generally first discussed by the chiefs before being referred to the tribe. They meet, except in the case of a sudden emergency, at certain fixed times, at the new or the full moon, for they regard these as auspicious days for undertakings. They reckon the time by nights, instead of by days, as we do.... One evil result arising from their liberty is the fact that they never all come together at the time set, but consume two or three days in assembling. When the assembly is ready, they sit down, all under arms. Silence is proclaimed by the priest, who has here the authority to enforce it. The king or the leader speaks first, and then others in order, as age, or rank, or reputation in war, or eloquence may give them the right. The speakers depend rather upon persuasion than upon commands. If the speech is displeasing to the multitude, they reject it with murmurs; if it is pleasing, they applaud by clashing their weapons together, which is the kind of applause most highly esteemed.{3}

12. Criminals are also tried at these assemblies, and the sentence of death may be decreed. They have different kinds of punishments for different crimes; traitors and deserters are hanged on trees, cowards and base criminals are sunk in the swamps or bogs, under wicker hurdles.... There are penalties also for the lighter crimes, for which the offenders are fined in horses or cattle. Part of the fine goes to the king or the state, and part to the person injured or to his relatives. In this assembly they also choose leaders to administer the law in the districts and villages of the tribe, each of them being assigned a hundred companions from the tribe to act as counsellors and supporters.{4}

13. They go armed all the time, but no one is permitted to wear arms until he has satisfied the tribe of his fitness to do so. Then, at the general assembly, the youth is given a shield and a sword by his chief or his father or one of his relatives. This is the token of manhood, as the receiving of the toga is with us. Youths are sometimes given the position of chiefs because of their noble rank or the merits of their ancestors; they are attached to more mature and experienced chiefs, and think it no shame to be ranked as companions. The companions have different ranks in the company, according to the opinion of the chief; there is a great rivalry among the companions for first place with the chief, as there is among the chiefs for the possession of the largest and bravest band of followers. It is a source of dignity and of power to be surrounded by a large body of young warriors, who sustain the rank of the chief in peace and defend him in war. The fame of such a chief and his band is not confined to their own tribe, but is known among foreign peoples; they are sought out and honored with gifts in order to secure their alliance, for the reputation of such a band may decide a whole war.

14. In battle it is shameful for the chief to allow any one of his followers to excel him in courage, and for the followers not to equal their chief in deeds of valor. But the greatest shame of all, and one that renders a man forever infamous, is to return alive from the fight in which his chief has fallen. It is a sacred obligation of the followers to defend and protect their chief and add to his fame by their bravery, for the chief fights for victory and the companions for the chief. If their own tribe is at peace, young noble chiefs take part in the wars of other tribes, because they despise the peaceful life. Moreover, glory is to be gained only among perils, and a chief can maintain a band only by war, for the companions expect to receive their war-horse and arms from the leader, ... and the means of liberality are best obtained from the booty of war.{5}

16. The Germans do not dwell in cities, and do not build their houses close together. They dwell apart and separate, where a spring or patch of level ground or a grove may attract them. Their villages are not built compactly, as ours are, but each house is surrounded by a clear space.

21. It is a matter of duty with them to take up the enmities of their parents or kinsmen, as well as the friendships, but these feuds are not irreconcilable; the slaying of a man may be atoned for by the payment of a fixed number of cattle, and the kindred of the slain man all share in the price of atonement. This practice of compounding manslaughter is of advantage to the public weal, for such feuds may become very dangerous among a free people.{6}

26. The arable lands, according to the number of cultivators, are occupied in turn by all the members of the community, and are divided among them according to the quality [of the lands].{7} The extent of the land gives ample opportunity for division; the arable fields are changed every year, and there is plenty of land left over.{8}

The following section is condensed from chapters 27 to 46.

27-46.{9} Such is the account I have received of the origin and the customs of the Germans as a whole; we must now undertake a discussion of the separate tribes. The divine Julius [Cæsar] says in his book that the Gauls had once been a more powerful and prosperous people than the Germans. So it is not impossible that they may have at some time even invaded Germany. For the Helvetians once dwelt in Germany between the Hercynian forest and the Rhine and Main rivers, while the Boii inhabited lands still farther within Germany, as is shown by the name Boihaem [Bohemia] which still clings to their former place, now inhabited by another people. The Treveri and the Nervii lay claim to German origin, as if to repudiate connection with the indolent Gauls. The inhabitants of the Rhine bank, the Vangiones, Treboci, and Nemetes, are undoubtedly of German blood; and the Ubii also, although they have become a Roman colony and have taken the name of Agrippenses from their founder. Of all the tribes along the lower Rhine the chief are the Batavi, who dwell mainly on an island in the mouth of the Rhine. They were a portion of the Chatti, but left their homes as the result of a domestic quarrel and entered the Roman empire. They still retain, however, their old honor and dignity as allies, not being subject to taxation or to any public duties except that of war. Beyond the Agri Decumates are the Chatti, whose territory borders on the Hercynian forest. Next to the Chatti, descending the Rhine, are the Usipii and Tencteri; their neighbors, it is said, were formerly the Bructeri, who have been driven out and their place taken by the Angrivarii and Chamavi. Back of the Angrivarii and the Chamavi [to the south] are the Dulgubnii and Chasuarii; in front [to the north] are the Frisii, who are divided into two parts, the greater and lesser Frisii. They dwell along the shores of the ocean north of the Rhine. Next are the Chauci, and on the boundaries of the Chauci and the Chatti [to the east], the Cherusci. The Cimbri dwell in the same region, on the shores of the ocean.

We come next to the Suebi. They are not a single tribe, as the Chauci or Tencteri, for example; they include a great many tribes, each one with its own name, but all called in common Suebi. The Semnones claim to be the most ancient and the noblest of the Suebi. They inhabit a hundred districts and consider themselves, because of their number, the most important tribe of the Suebi. On the other hand, the Lombards are known for the small number of their members, but they are secure from conquest by their more powerful neighbors by reason of their courage and their experience in war. Then come the Reudigni, Aviones, Angli, Warini, Eudoses, Suardones, and Nuitones. Then, following along the Danube, the Hermunduri; then the Naristi, Marcomanni, and Quadi. The Marcomanni drove the Boii out of their land, which they now inhabit. Back of these tribes lie the Marsigni, Cotini, Osi, and Buri. The Marsigni and the Buri have the same language and worship as the Suebi; but the fact that the Cotini speak a Gallic language and the Osi a Pannonian would indicate that they are not German tribes. A continuous mountain range divides Suebia in this region; beyond it lie many races, of whom the greatest is that of the Lugii, a name applied to several tribes, the Harii, Helveconæ, Manimi, Elisii, Nahanarvali. Beyond the Lugii are the Gutones. The tribes of the Suiones inhabit a land situated in the midst of the ocean [Scandinavia], and are famous for their fleets. Beyond the Suiones is that dreary ocean which is believed to encircle the whole world. On the right [east] shore of the Suebian Sea [the Baltic] dwell the Aestii, a people that have the same customs and manners as the Suebi, but speak a language more like that of the inhabitants of Britain. The land of the Suiones is continued by that of the Sithones. This is the end of Suebia. I am uncertain whether to assign the Peucini, Veneti, and Fenni to the German or Sarmatian race, although the Peucini, called by some Bastarnæ, have the same language, worship, and sort of houses as the Germans.

{1} In the tribal laws and other documents of the tribal period a district called the "hundred" actually appears as the division of the county (see no. 4, introductory note). Tacitus uses the term here as a division of the tribe, but the original tribe in several instances appears as a county of the larger tribal kingdom, among the Franks and Anglo-Saxons, at least. The origin of the hundred as a territorial district suggested in this passage by Tacitus is probably the correct one: the whole tribe was divided for military purposes into companies of about one hundred men; then when the tribe settled on the land which had been conquered, the lands were distributed to the hundreds, and the districts thus formed came to bear that name.

{2} The existence of a noble class, _i.e._, a number of families having higher social rank and special consideration and privileges, is vouched for by all the sources. The origin of the class and the extent of the privileges which they enjoyed in this primitive time are uncertain. The king was chosen usually from one noble family, but not by strict heredity.

{3} The general assembly was composed of all the freemen of the tribe. All public business, that is, affairs in which the whole tribe was concerned, was conducted here, including the making of war and peace, the election of the king and chief officials, etc. It would appear from what Tacitus says that the assembly had jurisdiction in the graver offenses and in cases of appeal from the hundred-court.

{4} These leaders were probably the officials who presided over the hundred-court, the assembly of the freemen of the hundred, which was the regular court of justice. We find such an official mentioned in several of the tribal laws; in the Salic and the Alamannian law he is called the "centenarius," and in the Anglo-Saxon laws the "hundredes-ealdor." The hundred companions of the official mentioned by Tacitus were probably the whole body of the freemen of the hundred. They attended the hundred-court and had a share in rendering the decision.

{5} The chief with his band of followers is found in many primitive warlike societies. The various traditions of the German tribes are full of references to this institution. Famous warriors would gather about them a band of young men eager for reputation and experience. These bands would form the élite of the army when the whole tribe went to war, but would also conduct warlike enterprises on their own account. The viking raids of the Northmen were instances of this practice. It not infrequently happened that the success of private bands would lead the whole tribe to follow and settle on the land which they had begun to conquer, as in the traditional account of the conquest of Britain by the Angles and Saxons.

{6} The obligation of following up the blood-feud is a common feature of primitive society. It forms the basis of many of the popular tales and traditions of the German people. The law attempted to make the kindred of the slain man give up the feud in return for the payment of a fixed sum by the slayer of his kin, but the attempt was not always successful. The sum paid is known as the _wergeld_ and is mentioned in all the tribal laws (see no. 4, title XLI and note).

{7} The form of land-holding among the early Germans has been the subject of much study and investigation. Chapters 16 and 26 of Tacitus have been discussed and commented on at great length by many scholars and no absolute agreement has been reached in regard to the interpretation of them. The above translation is as literal and untechnical as we could make it, but it is not free from objection. It would seem to mean that the land of the tribe was held by small groups or communities dwelling in little farming villages and cultivating the land assigned them. The land in the time of Tacitus was probably owned in common by the community and apportioned equally among the householders for the purpose of cultivation, and then redistributed at regular periods, once a year according to Tacitus.

{8} In order to understand the conditions of German life as described by Tacitus, the student would do well to pick out, bring together, and classify all that he says in different places about the important features of their life: (1) the king, his election, powers, etc.; (2) the assemblies, their composition, procedure, authority; (3) the officials; (4) manners and customs.

{9} The chapters devoted to the enumeration and description of the separate tribes have been summarized, the purpose being to show the location and the names of the tribes in the time of Tacitus; the student should compare these with the situation as shown by a map of Europe at the time of the migrations. Note that very few of these names appear at the time of the migrations; this is because most of the tribes had lost their identity before that time, being united into larger groups, or absorbed by other peoples, as by the Huns, Romans, etc. Of the tribes mentioned before the Suebi, most were later united into the confederations of the Franks, Alamanni, and Saxons; thus the Chatti, Chamavi, Chasuarii, etc., are found among the Franks; the Tencteri, Usipii among the Alamanni; the Chauci, Cherusci, Angrivarii among the Saxons. The Frisii remained in the same region and were finally added to the Frankish kingdom by Karl Martel; their name still exists in the Friesland of modern Holland. The Ubii were settled by M. Agrippa on land near Cologne, the Roman town Colonia Agrippina. The Agri Decumates or "tithe lands" were the territory contained within the triangle formed by the upper Rhine, the upper Danube, and a line of fortifications, called the _Limes_. This advanced frontier was established by Trajan (98-117). The territory received its name from the fact that the colonists who settled there paid a tithe or tenth of the produce to the state as rent. Under the name Suebi, Tacitus classes a great many tribes, some of whom are not even of German race. The real nature of the Suevic Confederation is a matter of great uncertainty. Some of the tribes mentioned by Tacitus under this head appear later; the Semnones are conjectured to be the tribe later known as the Suevi, who joined the Vandals in their raid and remained in northern Spain until conquered by the West Goths; the Lombards remained a separate tribe and moved south into Pannonia and then into Italy; a portion of the Angli joined the Saxons in their invasion of England; the rest were apparently united with the Warini in the Thuringian kingdom, the principal tribe of which was the Hermunduri; the Marcomanni and the Quadi, perhaps with some other tribes, composed the later Bavarians; the Lugii, or Lygians, are mentioned by later Roman writers as among the Germans who threatened the Danube frontier, but the name disappeared after that; the Gutones are the Goths; the Suiones and Sithones are Scandinavian Germans; the Peucini are the same as the Bastarnae, who were given lands on the Danube by Emperor Probus (276-282); the Veneti are the Wends, a Slavic tribe; the Fenni, the modern Finns.

2. Procopius, Vandal War. (Greek.)

Procopius, in Corpus Scriptorum Historiæ Byzantinæ.

This and the following number are taken from the writings of Procopius, a Roman official and historian who lived about 500 to 560 A.D., and had a personal share in the wars of Justinian against the East Goths and Vandals. The earlier parts of his histories are drawn largely from tradition.

I, 2. During the reign of Honorius [395-423] in the west the barbarians began to overrun the empire.... The invaders were mainly of the Gothic race, the greatest and most important tribes being the East Goths, the Vandals, the West Goths, and the Gepidæ.... These tribes have different names, but in all other respects they resemble one another very closely; they all have light complexions, yellow hair, large bodies, and handsome faces; they obey the same laws and have the same religion, the Arian; and they all speak the same language, Gothic. I am of the opinion, therefore, that they were originally one people and have separated into tribes under different leaders. They formerly dwelt beyond the Danube; then the Gepidæ occupied the land about Sirmium on both sides of that river, where they still dwell.

The first to move were the West Goths. This tribe entered into an alliance with the Romans, but later, since such an alliance could not be permanent, they revolted under Alaric. Starting from Thrace, they made a raid through all of Europe, attacking both emperors.

[Alaric sacks Rome.] Soon after, Alaric died, and the West Goths, under Athaulf, passed on into Gaul.

3. Under the pressure of famine, the Vandals, who formerly dwelt on the shores of the Mæotic Gulf [Sea of Azof], moved on toward the Rhine, attacking the Franks. With them went the Alani.... [Crossing the Rhine into Gaul] they proceeded down into Spain, the most western province of the Roman empire, and settled there under their king, Godegisel, Honorius having made an agreement with him by which the Vandals were to be allowed to settle in Spain on condition that they should not plunder the land.

At that time the greatest Roman generals were Boniface and Aëtius, who were political rivals.... Boniface sent secretly to Spain and made an agreement with Gunderich and Geiserich, the sons and successors of Godegisel, whereby they were to bring the Vandals into Africa, and the three were to divide the rule of Africa among themselves, mutually supporting one another in case of attacks from outside. Accordingly the Vandals crossed the strait at Gades and entered Africa, while the West Goths moved forward from Gaul into Spain after them. [Gunderich dies, leaving Geiserich sole ruler of the Vandals; Geiserich quarrels with Boniface and drives him out of Africa, ruling the whole territory with his Vandals.]

5. Geiserich now got together a large fleet and attacked Italy, capturing Rome and the palace of the emperor. The usurper Maximus was slain by the populace and his body torn to pieces. Geiserich took back to Carthage Eudoxia, the empress, and her two daughters, Eudocia and Placidia, carrying off also an immense booty in gold and silver. The imperial palace was plundered of all its treasures, as was also the temple of Jupiter Capitolinus, including a large part of the roof, which was made of bronze, heavily plated with gold....

3. Procopius, Gothic War. (Greek.)

Procopius, in Corpus Script. Hist. Byz.; Muratori, Scriptores, I, i, 247 f.

I, 1. While Zeno [474-491] was emperor in Byzantium, the west was ruled by Augustus, whom the Romans called Augustulus, because of his youth. The actual government was in the hands of his father Orestes, a most able man. Some time before this, as a result of the reverses which they had suffered at the hands of Attila and Alaric, the Romans had taken the Sciri, Alani, and other German tribes into the empire as allies. The renown of Roman arms had long since vanished, and the barbarians were coming into Italy in ever-increasing numbers, where they were actual masters under the false name of allies (_federati_). They continually seized more and more power, until finally they demanded a third of all the lands of Italy. When Orestes refused to grant this they slew him. Then one of the imperial officers, Odovaker, also a barbarian, promised to secure this for them if they would recognize him as ruler. In spite of the power which he thus acquired, Odovaker did not attack the emperor [Romulus Augustulus], but only forced him to retire to private life. He then gave the barbarians the third of the lands which they had demanded, thus binding them more closely to him, and ruled over Italy unopposed for ten years.

About this time the East Goths, who had been allowed to settle in Thrace, rose against the emperor under their king, Theoderich. He had been brought up at Byzantium, where he had been given the rank of a patrician, and had even held the title of consul. The emperor Zeno, a master in diplomacy, persuaded Theoderich to invade Italy and attack Odovaker, with the chance of winning the whole west for himself and the East Goths.... Theoderich seized on this opportunity eagerly, and the whole tribe set out for Italy, taking along with them in wagons their women and children and all their movables.... Odovaker hastened with an army to oppose this invasion, but was defeated in several battles, and finally shut up in Ravenna.... After the siege had lasted for about three years both parties were willing to come to terms, the Goths being weary of the long siege and the soldiers of Odovaker being on the verge of starvation. So, through the efforts of the bishop of Ravenna, a treaty was made according to which Theoderich and Odovaker were to rule the city jointly. This treaty was kept for a short time, but finally Theoderich treacherously seized Odovaker at a banquet to which he had invited him, and had him put to death. He then won over to him all his enemies, and from that time on ruled over Goths and Italians unopposed. Theoderich never assumed the name or dignity of emperor, being content to be known as king, as the barbarians call their rulers. In fact, however, the subjects bore the same relation to him as to an emperor. He dispensed justice with a strong hand, and rigidly enforced the law and kept peace. In his time the land was protected from the attacks of neighboring barbarians, and his might and his wisdom were famous far and wide. He allowed his subjects neither to suffer nor to commit wrongs; his own followers were given only the lands which Odovaker had taken for his supporters. Thus Theoderich, although he bore the title of a tyrant, was in fact a righteous emperor.... He loved the Goths and the Italians equally, recognizing no difference between them, contrary as this may seem to human nature.... After a reign of thirty-seven years, he died lamented by all his people.

4. The Salic Law.

In the period before the migrations, each of the German tribes had its primitive code of laws. This law was not put in writing, but was held in memory; it was not based on abstract reasons of right and justice, but grew up out of practice and custom. The migrations and the development of tribal kingdoms on Roman soil brought about important changes in the public and private life of the Germans, partly the result of changed conditions, partly the direct influence of Roman manners and institutions. One result was that the old unwritten customary laws were codified and published in written form. These codes, called the _Leges Barbarorum_, or laws of the barbarians, form an important historical source, for of course they reflect the new conditions in which the Germans found themselves after their settlement. Some of them show the influence of Roman law and institutions in a marked degree; others are more purely Germanic. They were in most cases written in Latin, although the Angles and Saxons in England published their early codes in Old English or Anglo-Saxon. One of the oldest and at the same time one of the most purely German in character is the law of the Salic Franks, called in Latin, _Lex Salica_; it was probably written about the year 500, in the reign of Chlodovech (481-511). In the most authentic form it contains sixty-five chapters, or "titles," most of which are composed of several sections. The title usually has a heading, as: XVII. _De vulneribus_ (Concerning wounds).

The parts translated are intended to illustrate: (1) the character of the tribal laws in general, and (2) certain important institutions and customs of the Franks. Certain features of the Salic law are common to nearly all of the German laws; these are suggested here for the convenience of the reader.

1. The code contains mainly private law. Most of the law is taken up with a scale of fines and compensations for injury, damage, and theft, as in the case of injuries, titles XVII and XXII. This is characteristic of most of the German codes; they are concerned with private and not with public or administrative law.

2. The law makes minute specification of injuries. Note that the different injuries are carefully described and particular fines given for each, as in titles XVII and XXIX. This feature is found in most of the codes and is characteristic of a primitive stage of legal conception and a barbarous state of society. The important function of primitive law is the settlement of differences between individuals to prevent personal reprisals, so the various injuries that are apt to occur are specified and provided with special fines.

3. A large part of the procedure takes place out of court, and is conducted by the individuals concerned. So in title I, 3, the plaintiff summons the defendant in person; in title L, 2, the creditor tries to collect the amount fixed by the court; in title XLVII the whole process of tracing and recovering stolen property, except the last stage, is conducted out of court. This also is a common feature of Germanic law; the objection, common among uncivilized peoples, to the state's interference with private affairs of the individual operates here to restrict the function of the law to the simple decision of the case.

4. All the German laws provide for the payment of the _wergeld_. The origin of this is doubtless to be found in the underlying conception of primitive law referred to in paragraph 2. The purpose being to put an end to private revenge, which would mean continual private war, the law prescribes the amount to be paid to the kindred of the slain man, and they must on receipt of that give up the blood-feud. (See no. 1, ch. 21, and note.) In many of the codes different values are assigned to different classes of people, as here in title XLI.

The public institutions of the Franks are referred to in the law only incidentally, the law being concerned, as has been said, mainly with private matters, and taking for granted a knowledge of public law. Following is a brief statement of the form of government, administration of justice, etc. The state ruled by the king of the Salic Franks was composed of several small tribes, originally independent (see no. 1, notes 1 and 9), but now incorporated into a single state. The kingdom was divided into counties, some of which correspond to the former independent tribes, and some to old Roman political divisions. The county was governed by a representative of the king, an official who is called in the Salic law by the German title _grafio_ (modern German "Graf"), and in later documents by the Latin title _comes_ (count). The judicial system was based on the division of the county known as the hundred (see no. 1, note 1), the assembly of the freemen of the hundred being the regular public court. It was presided over by the "hundred-man," in the Salic law called either _centenarius_, which means simply hundred-man, or _thunginus_, a word of uncertain meaning. The function of the _grafio_, the representative of the king in the county, was mainly executive; he was appealed to only when every other means of forcing the delinquent to obey the law or the decision of the court had failed, but he has no part in the trial of cases. See title L, 3, for an instance of the function of the _grafio_.

I. _Legal Summons._{10}

1. If anyone is summoned to the court and does not come, he shall pay 600 denarii, which make 15 solidi.{11}

3. When anyone summons another to court, he shall go with witnesses to the house of that person, and if he is not present the summoner shall serve notice on his wife or his family that he is legally summoned.

{10} This title illustrates what is said in the introduction about the process out of court. The person who has a cause for legal action against another, goes himself to the house of his antagonist and summons him before witnesses. The law steps in, however, and forces the one who is summoned to come to court under penalty. See also title LVI.

{11} The monetary system of the Salic law was taken from the Romans. The basis was the gold solidus of Constantine, 1/72 of a pound of gold. The small coin was the silver denarius, forty of which made a solidus. This system was adopted as a monetary reform by Chlodovech, and the statement of the sum in terms of both coins is probably due to the newness of the system at the time of the appearance of the law.

XVII. _Wounds._

1. If anyone is convicted of trying to kill another, even though he fails, he shall pay 2,500 denarii, which make 63 (62-1/2) solidi.

2. If anyone is convicted of shooting a poisoned arrow at another, even though he misses him, he shall pay 2,500 denarii, which make 63 solidi.

3. If anyone wounds another in the head, so that the brain appears and the three bones which lie above the brain are uncovered, he shall pay 1,200 denarii, which make 30 solidi.

4. If anyone wounds another between the ribs or in the abdomen, so that the wound can be seen and extends to the vitals, he shall pay 1,200 denarii, which make 30 solidi, besides 5 solidi for the healing.

5. If anyone wounds another so that the blood falls to the ground, he shall pay 600 denarii, which make 15 solidi.

6. If a freeman strikes another freeman with a club, so that the blood does not flow, he shall pay 120 denarii, which make 3 solidi, for each blow, up to three.

7. If the blood does flow, he shall pay as much for each blow as if he had wounded him with a sword.

8. If anyone strikes another with the closed fist, he shall pay 360 denarii, which make 9 solidi; that is, 3 solidi for each blow up to three.

9. If anyone is convicted of trying to rob another on the highroad, even though he fails, he shall pay 2,500 denarii, which make 63 solidi.

XXIX. _Injuries._

1. If anyone destroys the hand or the foot of another, or cuts out his eye, or cuts off his nose, he shall pay 4,000 denarii, which make 100 solidi.

2. If the injured hand hangs loose and useless, he shall pay 2,500 denarii, which make 63 (62-1/2) solidi.

3. If anyone cuts off the thumb or the great toe of another, he shall pay 2,000 denarii, which make 50 solidi.

4. If the thumb or the toe hangs useless, he shall pay 1,200 denarii, which make 30 solidi.

5. If he cuts off the second finger, by which the bowstring is drawn, he shall pay 1,400 denarii, which make 35 solidi.

6. If he cuts off the rest of the fingers (that is, the other three) at one blow, he shall pay 50 solidi.

7. If he cuts off two of them, he shall pay 35 solidi.

8. If he cuts off one of them, he shall pay 30 solidi.

XLI. _Manslaughter._{12}

1. If anyone is convicted of killing a free Frank or a barbarian living by the Salic law, he shall pay 8,000 denarii, which make 200 solidi.

2. If he has put the body in a well, or under water, or has covered it with branches or other things for the purpose of hiding it, he shall pay 24,000 denarii, which make 600 solidi.{13}

3. If anyone kills a man in the king's trust, or a free woman, he shall pay 24,000 denarii, which make 600 solidi.

4. If he kills a Roman who was a table-companion of the king, he shall pay 12,000 denarii, which make 300 solidi.

6. If the slain man was a Roman landowner, and not a table-companion of the king, he who slew him shall pay 4,000 denarii, which make 100 solidi.

7. If anyone kills a Roman _tributarius_, he shall pay 63 solidi.

{12} The fine for slaying a man is the _wergeld_ referred to in the introduction. It was paid to the kin of the slain man by the slayer or his kin. The _wergeld_ has different values for different classes; note the classes in the Salic law, particularly the position of the persons in the royal service, the importance of which must have been of comparatively recent origin, and the position of the Roman population. The freeman of the Frankish tribe has a _wergeld_ of 200 solidi, the free woman three times that, 600 solidi; the Roman _possessor_, or free landowner, 100 solidi; the Roman _tributarius_, who cultivated the land of another at a fixed rent, and was regarded as less than a freeman, 62-1/2 solidi. If the freeman was in the king's trust, that is, in the service of the king and probably bound to him by a special oath (these men are also called _antrustiones_; see nos. 180 and 189), his _wergeld_ was three times that of the ordinary freeman, 600 solidi; that of the Roman who was a table-companion of the king, a relation similar to that of the man in the king's trust, was also tripled, 300 solidi.

{13} The fact of concealment is the distinguishing mark between murder and manslaughter.

XLV. _The Man who Removes from One Village to Another._{14}

1. If anyone desires to enter a village, with the consent of one or more of the inhabitants of that village, and a single one objects, he shall not be allowed to settle there.

3. But if anyone settles in another village and remains there twelve months without any one of the inhabitants objecting, he shall be allowed to remain in peace like his neighbors.

{14} This title throws some light on the original character of the village community. The village was in origin probably a group of kindred, and new-comers were admitted only by the consent of all the householders. Moreover, as much of the land was still held in common by the village--the wood, pasture, and meadow--the admission of a new member concerned all the householders.

XLVII. _The Tracing of Stolen Goods._

If one has recognized a slave, or a horse, or an ox, or anything of his own in the possession of another, he is to "send him to the third hand."{15} And he in whose hands the thing was recognized is to swear [to his own innocence]; and if both parties [_i.e._, the rightful owner and the man in whose possession it was found] dwell on this side of the Loire and the Carbonaria,{16} a term of forty days shall be set within which all are to be summoned who have had any part in the affair, who have sold or exchanged or perhaps given in payment the article. That is, each one is to summon the man from whom he got it. And if anyone of these has been summoned and legal hindrance has not kept him away, and he does not come within the appointed term, then the one who had dealings with this delinquent is to bring three witnesses to the fact that he had summoned him and three more to the fact that he had obtained the property from him legally and in good faith; if he does this he is clear of suspicion of theft. But he who would not come and against whom the witnesses have borne testimony, shall be held to be the thief of the man who recognized his own, and he [the thief] shall return the price to the man who dealt with him and shall pay the lawful compensation to the man who recognized his own.{17} All these things are to be done in that court to which he is answerable in whose hands the stolen thing was first recognized and with whom the process started. But if he in whose hands it was recognized dwells beyond the Loire or the Carbonaria the time allowed shall be eighty days.

{15} The expression _mittat eum in tertia manu_ has been interpreted in various ways; it means apparently either that the possessor is to place the article in question in the hands of a third disinterested party who is to hold it until the case has been tried, or that he is to refer the claimant to the "third party"; that is, the man from whom he obtained it.

{16} A much-discussed phrase, which has been used to show that the Salic law belongs to a period after the Frankish control had extended beyond the Loire. The word in the text (_ligere_) has also been taken to mean the river Leye, but this is not generally accepted. The Carbonaria (German, _Kohlenwald_) was a large forest in what is now Belgium.

{17} The form of statement is rather confusing, but the process is fairly clear. The burden of proof lies on the man in whose possession the stolen article is found, and he must clear himself by producing the man from whom he got it. This shifts the responsibility to the latter, who in turn must produce the man from whom he obtained it, and so on back until the person is reached who obtained the article illegally, and so is not likely to obey the summons to appear in court. Then the last man in the chain before the thief proves his innocence of bad faith by showing that he bought the article publicly and so obtained it in good faith, and that he had served notice on the delinquent in the present process. Inasmuch as legal sales were held publicly before witnesses, it is fairly certain in this way that the guilt will be located. The man in whose possession it was found then restores the article to its owner, and receives back the price he paid for it from the man from whom he got it; and this repayment is repeated in each case until the thief is reached; the man who dealt with him has a legal action for recovery of the price against the thief, while the owner has also an action for the recovery of damages.

L. _The Given Pledge._

1. If a free man or a letus{18} has given pledge [that is, made a solemn promise at the court] to another, then he to whom the pledge was given shall go to the house of the other within forty nights,{19} or whatever period was set, with witnesses or with such as can estimate the price.{20} And if the delinquent will not redeem the pledge given, he shall be held liable for 15 solidi above the amount for which he had given pledge.

2. If still he will not pay, the complainant shall summon him to the _mallus_, and thus he shall proceed to have him constrained by law: "I ask thee, _thunginus_, to constrain by law this my debtor who has given me a pledge and is in my debt." And he shall state how much the debt is. Then the _thunginus_ shall say: "I constrain this man by law, in accordance with the Salic law." Then he to whom the pledge was given shall give notice that the delinquent can neither pay nor give pledge of payment to any other until he has fulfilled what he promised him [the creditor]. And straightway on that day before the sun sets he shall go with witnesses to the house of the debtor and ask him to pay the debt. If he will not, let the sun set upon him.{21} Then when the sun has set, 120 denarii, which make 3 solidi, are added to the amount owed. And this thing is to be done three times in three weeks, and if on the third summons he will not pay all this, then 360 denarii, which make 9 solidi, are to be added to the debt, that is, 3 solidi for every summons and setting of the sun.

The next two sections are now generally regarded as a later addition--_i.e._, the first two are supposed to belong to an early period, while the last two belong to the period when the _grafio_, the royal representative, had acquired executive functions within the county. If this is so, then sections 3 and 4 have replaced certain older sections which must have completed the process described in sections 1 and 2; there must have been a further stage in which the delinquent was finally forced to pay, perhaps the process described in title LVI, by which a delinquent can be outlawed if he is still contumacious.

3. If anyone refuses to redeem his promise within the lawful term, then he to whom he gave the pledge shall go to the _grafio_ of the county within which the debtor lives, and shall lay hold on the staff and say: "_Grafio_, this man has given pledge to me and I have given lawful notice of his indebtedness and have sued him before the _mallus_ in accordance with the Salic law. I pledge myself and my fortune that you may safely and lawfully lay hands on his property." And he declares for what cause and to what amount the pledge had been given. Then the _grafio_ shall take with him seven suitable _rachinburgii_{22} and go to the house of him who gave the pledge and say: "You, who are here present, pay this man of your own free will that for which you gave him pledge. Choose two men, whomsoever you will, who together with these _rachinburgii_ shall assess from your goods the amount you ought to pay. And so shall you make good what you owe according to legal value." But if he, being present, will not heed, or if he is absent, then the _rachinburgii_ shall take from his goods a value equal to the amount which he owes, and of that amount two parts shall go to him who brought suit, and the third part the _grafio_ shall take for himself as _fredus_,{23} if the _fredus_ for this case has not already been paid.

4. If the _grafio_ has been appealed to and legal hindrance or his master's [the king's] business has not detained him, and he neither goes himself nor sends a representative, he shall be punished with death or he may redeem himself with his possessions.

{18} The term _letus_ is used of a class of population whose position was between that of the free man and that of the slave; a similar class is found among nearly all the Germanic tribes. They were perhaps descendants of conquered peoples that had been incorporated into the tribe; they did not own land, but cultivated the land of others on terms of a fixed rental in produce and services. Thus while not free, their position was above that of the slaves, since they might acquire possessions and profits above the rent paid, while the earnings of the slave belonged in theory entirely to the master.

{19} The regular interval between the meetings of the hundred-court or _mallus_.

{20} The use of appraisers, referred to here and elsewhere, indicates that fines and debts were paid regularly in kind, and that money was still an unfamiliar convenience.