Mithology
Tacitus, in his Germania wrote: "In their ancient songs, their only way of remembering or recording the past, they celebrate an earth-born god, Tuisco, and his son Mannus, as the origin of their race, as their founders. To Mannus they assign three sons, from whose names, they say, the coast tribes are called Ingævones; those of the interior, Herminones; all the rest, Istævones".
Ancient Germanic law
Germanic law is held in the memory of designated individuals who act as judges in confrontations and met out justice according to customary rote, based on careful memorization of precedent. Oral law suffice as long as the warband is not settled in one place. Germanic law make no provisions for the public welfare, the res publica of Romans.
In Germanic Europe in the Early Middle Ages, every man is tried according to the laws of his own race, whether Roman, Salian or Ripuarian Frank, Burgundian, Visigoth, Bavarian etc. A number of separate laws are drawn up specifically to deal with cases between ethnic Romans. These laws differ from the normal ones that cover cases between Germanic peoples, or between Germanic people and Romans.
Criminal cases are put before the thing (tribal assembly). Lighter offenses are regulated with damages (paid in livestock), paid in part to the victim (or their family) and in part to the king. Minor legal disputes were settled on a day-to-day basis by elected chiefs assisted by elected officials.
The Germanic laws are designed for a clearly stratified society fixated on casts determined by descent or kinship. Legal status, and therefore freedom, is based on a person's cast, discriminating between royals and two or three successive casts of nobility, where the lower were reconned as peasants or freemen (OE freo man, OHG frīhals), and those who are laymen, or bondmen (ON þræll). Accordingly descent (nativitate) is determining who would attend the various things (house-things, local things, regional things and inter-regional or royal things). Thus the bondmen were ipso facto represented by their family-heads - the local nobility - on the regional things of the nobles. The same differentiation (in casts) are defining who could convey and inherit property. In regulation of tribal feuds and weregeld a similar discrimination is seen.
The most extreme punishment for crimes considered irredeemable is outlawry, i.e. the declaration of the guilty party as beyond the protection of the law. Death penalty is foreseen only for very rare cases, such as sexual crimes (rape, promiscuity), religious crimes (incest) or crimes against the king (treason). For example military treason or desertion is punished by hanging and corporal infamy (rape) by throwing the condemned into a bog.
Unlike Roman law, Germanic law mentions cruentation as a means to prove guilt or innocence.
Weregild
The Germanic law system is in principle based on compensation rather than revenge. Any injury must be compensated according to the damage done, regardless of motive or intent. Even for capital crimes like murder, the compensation is a weregeld, a fixed amount depending on the sex and social status of the victim.
The word weregild is composed of were, meaning "man", and geld, meaning "payment or fee", as in Danegeld. Geld or Jeld was the Old English and Old Frisian word for money. The same concept outside Germanic culture is known as blood money.
Weregild (also spelled wergild, wergeld, weregeld, etc.), also known as "man price", is a value placed on every being and piece of property in Germanic law. If property is stolen, or someone is injured or killed, the guilty person would have to pay weregild as restitution to the victim's family or to the owner of the property.
Weregild payment is an important legal mechanism in early Germanic society; the other common form of legal reparation is blood revenge. The payment is typically made to the family or to the clan. No distinction was made between murder and manslaughter
The size of the weregild was largely conditional upon the social rank of the victim. There used to be somewhat of a "basis" fee for a standard "free man" that could then be multiplied according to the social rank of the victim and the circumstances of the crime.
In the Migration period the standard weregeld for a freeman appears to have been 200 solidi, an amount reflected as the basic fee due for the death of a churl (or ceorl).Sometimes 110 if he owned at least one hide of land, and 80 if he was landless. A nobleman was worth 1,200. The weregeld for a king, at 30,000, composed of 15,000 for the man, paid to the royal family, and 15,000 for the kingship, paid to the people. An archbishop is likewise valued at 15,000.
Thralls and slaves legally command no weregild, but it is commonplace to make a nominal payment in the case of a thrall and the value of the slave in such a case. As thralls are considered the property of their lord, crimes committed by thralls must be compensated by their headmasters just like damage caused by animals. Technically this amount cannot be called a weregild, because it is more akin to a reimbursement to the owner for lost or damaged property.
Trial by combat
Trial by combat (also wager of battle, trial by battle or judicial duel) is a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fight in single combat; the winner of the fight is proclaimed to be right.
Unlike trial by ordeal in general, which is known to many cultures worldwide, the trial by combat is known primarily from the customs of the Germanic peoples. It is in use among the ancient Burgundians, Ripuarian Franks, Alamans, Lombards, and Swedes. But it is unknown in Anglo-Saxon law and Roman.
Germanic tribal law prescribe different particulars, such as equipment and rules of combat. For example a trial by combat in the event of two families disputing the boundary between their lands. A handful of earth taken from the disputed piece of land is put between the contestants and they are required to touch it with their swords, each swearing that their claim is lawful. The losing party besides forfeiting their claim to the land is required to pay a fine.
Sometimes is prescribed combat between witnesses of each side rather than between the accuser and the accused, and the Ordeal of the Cross in cases involving clerics.
In another example two combatants must "share the sun", i.e. align themselves perpendicular to the Sun so that neither has an advantage.
The judicial duel as an important function to establish guilt or innocence in cases of insult, injury or theft. The combatants are armed with sword and shield and may wear linen and leather clothing, but their head and feet must be bare and their hands only protected by light gloves. The accuser is to await the accused at the designated place of combat. If the accused does not appear after being summoned three times, the accuser may execute two cuts and two stabs against the wind, and his matter will be treated as if he had won the fight.
While commoners were required to present their case to a judge before duelling, members of the nobility did have the right to challenge each other for duels without the involvement of the judicative, so that duels of this kind were separate from the judicial duel.
The wager of battle is not always available to the defendant in an appeal of murder. If the defendant is taken in the mainour (that is, in the act of committing his crime), if he attempt to escape from prison, or if there is such strong evidence of guilt that there could be no effective denial, the defendant could not challenge. Similarly, if the plaintiff is a woman, above 60 years of age, a minor, or if he were lame or blind, he could decline the challenge, and the case would be determined by a jury, or could have champions named to fight in their stead. Hired champions is technically illegal but common In criminal cases, an "approver" was often chosen from the accomplices of the accused or from a prison to do the fighting for the crown. Approvers sometimes were given their freedom after winning five trials but sometimes were hanged anyway.
If the actual battle took place, it would occur in judicial lists, 60 feet (18 m) square, following the taking of oaths against witchcraft and sorcery. If the defendant is defeated and still alive, he is to be hanged on the spot. However, if he defeated his opponent, or if he is able to fend off his opponent from sunrise to sunset, he would go free. If the plaintiff gave up the fight and, he is to be declared infamous, deprived of the privileges of a freeman, and is liable for damages to his successful opponent. Fighting continue until one party was dead or disabled. The last man standing win his case.
In practice, a person facing trial by combat is assisted by a second, often referred to as a squire. The role of the squire is to attend the battle and to arrange the particulars of the ceremony with the opposing squire. Over time, squires would meet and resolve the disputes during negotiations over combat.
Early trials by combat allowed a variety of weapons, particularly for noble. Later, commoners were given war hammers, cudgels, or quarterstaves with sharp iron tips. The duelling ground was typically sixty feet square. Commoners are allowed a rectangular leather shield and could be armed with a suit of leather armour, bare to the knees and elbows and covered by a red surcoat of a light type of silk called sendal. The litigants appeared in person. The combat begin before noon and be concluded before sunset.
Trial by ordeal
Trial by ordeal is an ancient judicial practice by which the guilt or innocence of the accused is determined by subjecting them to an unpleasant, usually dangerous experience. Classically, the test is one of life or death and the proof of innocence is survival. In some cases, the accused is considered innocent if they escaped injury or if their injuries healed.
Types of ordeals
Ordeal of fire
Ordeal of fire typically require that the accused walk a certain distance, usually 9 feet (2.7 metres) over red-hot ploughshares or holding a red-hot iron. Innocence is sometimes establish by a complete lack of injury, but it is more common for the wound to be bandaged and re-examined three days later by a priest, who would pronounce that gods had intervened to heal it, or that it is merely festering—in which case the suspect would be exiled or executed.
Another form of the ordeal require that an accused remove a stone from a pot of boiling water, oil, or lead.
Two examples of such an ordeal include the accused having to pass through fire, or having molten metal poured on his chest.. The most simple form of such ordeals required the accused to take an oath, and after that he had drink a potion of sulphur
Ordeal of water
The ordeal of hot water requires the accused to dip his hand in a kettle of boiling water and retrieve a stone. The water had to be about boiling, and the depth from which the stone had to be retrieved is up to the wrist for one accusation and up to the elbow for three. Afterwards, the hand is bound and examined after three days to see whether it is healing or festering.
Ordeal of cold water
A man accused of sorcery is submerged in a stream and acquitted if he survive. A man accused of poaching is submerged in a barrel three times and to be considered innocent if he float, and guilty if he sunk.
Another example is cast accused into a river with a millstone tied to his neck, and when he fall into the waters if he is supported on the surface by a divine miracle, and the waters do not suck him down since the weight of crime do not press upon him.
Trial by cauldron is an ancient custom used against both freedmen and slaves in cases of theft, false witness and contempt of court, where the accused is made to plunge his right hand into a boiling cauldron and pull out a ring.
The use of the ordeal is very sensitive to status and reputation in the community. The laws distinguish between “men of good repute” who are able to clear themselves by their own oath, “untrustworthy men” who required compurgators, and untrustworthy men who cannot find compurgators who must go to the ordeal.
Compurgation is the most usual method of proof, and the ordeal is used in cases where there is some presumption of guilt against the accused or when the accused is bound to fail in compurgation. A distinction is made between those accused fama publica (by public outcry) and those accused on the basis of specific facts. Those accused fama publica are able to exculpate themselves by means of compurgation, whereas those accused on the basis of specific facts and those who are thought to have bad character are made to undergo the ordeal.
Ordeal of the cross
The ordeal of the cross is introduced by the church in an attempt to discourage judicial duels among the Germanic peoples. As with judicial duels, and unlike most other ordeals, the accuser have to undergo the ordeal together with the accused. They stand on either side of a cross and stretch out their hands horizontally. The one to first lower his arms lose.
Ordeal of ingestion
An accused is given dry bread and cheese blessed by a priest. If he choked on the food, he is considered guilty. This will be transformed into the ordeal of the Eucharist (trial by sacrament): the accused take the Eucharist after a solemn oath professing his innocence. It is believed that if the oath had been false, the person would die within the same year.
A woman suspected of adultery should be make to swallow "the bitter water that causeth the curse" by the priest in order to determine her guilt. The accused would be condemd only if 'her belly shall swell (clear proof of pregnancy ) and her thigh shall rot (venereal disease )'.
Ordeal of poison
A defendant who vomit up the posion is innocent. A defendant who become ill or died is considered guilty.
The Mass is unofficially used as a form of poison ordeal: a suspected party is forced to take the Eucharist on the grounds that, if he is guilty, he would be eternally damned, and hence his willingness to take the test would give an indication of his guilt.
Other ordeal methods
An ordeal tradition involves the accused walking under a piece of turf. If the turf falls on the accused's head, the accused person is pronounced guilty.
Kniesetzung
Is the Old Germanic expression for a custom in Germanic law, by which adoption was formally expressed by setting the fosterchild on the knees of the foster-father.
Tacitus, in his Germania wrote: "In their ancient songs, their only way of remembering or recording the past, they celebrate an earth-born god, Tuisco, and his son Mannus, as the origin of their race, as their founders. To Mannus they assign three sons, from whose names, they say, the coast tribes are called Ingævones; those of the interior, Herminones; all the rest, Istævones".
Ancient Germanic law
Germanic law is held in the memory of designated individuals who act as judges in confrontations and met out justice according to customary rote, based on careful memorization of precedent. Oral law suffice as long as the warband is not settled in one place. Germanic law make no provisions for the public welfare, the res publica of Romans.
In Germanic Europe in the Early Middle Ages, every man is tried according to the laws of his own race, whether Roman, Salian or Ripuarian Frank, Burgundian, Visigoth, Bavarian etc. A number of separate laws are drawn up specifically to deal with cases between ethnic Romans. These laws differ from the normal ones that cover cases between Germanic peoples, or between Germanic people and Romans.
Criminal cases are put before the thing (tribal assembly). Lighter offenses are regulated with damages (paid in livestock), paid in part to the victim (or their family) and in part to the king. Minor legal disputes were settled on a day-to-day basis by elected chiefs assisted by elected officials.
The Germanic laws are designed for a clearly stratified society fixated on casts determined by descent or kinship. Legal status, and therefore freedom, is based on a person's cast, discriminating between royals and two or three successive casts of nobility, where the lower were reconned as peasants or freemen (OE freo man, OHG frīhals), and those who are laymen, or bondmen (ON þræll). Accordingly descent (nativitate) is determining who would attend the various things (house-things, local things, regional things and inter-regional or royal things). Thus the bondmen were ipso facto represented by their family-heads - the local nobility - on the regional things of the nobles. The same differentiation (in casts) are defining who could convey and inherit property. In regulation of tribal feuds and weregeld a similar discrimination is seen.
The most extreme punishment for crimes considered irredeemable is outlawry, i.e. the declaration of the guilty party as beyond the protection of the law. Death penalty is foreseen only for very rare cases, such as sexual crimes (rape, promiscuity), religious crimes (incest) or crimes against the king (treason). For example military treason or desertion is punished by hanging and corporal infamy (rape) by throwing the condemned into a bog.
Unlike Roman law, Germanic law mentions cruentation as a means to prove guilt or innocence.
Weregild
The Germanic law system is in principle based on compensation rather than revenge. Any injury must be compensated according to the damage done, regardless of motive or intent. Even for capital crimes like murder, the compensation is a weregeld, a fixed amount depending on the sex and social status of the victim.
The word weregild is composed of were, meaning "man", and geld, meaning "payment or fee", as in Danegeld. Geld or Jeld was the Old English and Old Frisian word for money. The same concept outside Germanic culture is known as blood money.
Weregild (also spelled wergild, wergeld, weregeld, etc.), also known as "man price", is a value placed on every being and piece of property in Germanic law. If property is stolen, or someone is injured or killed, the guilty person would have to pay weregild as restitution to the victim's family or to the owner of the property.
Weregild payment is an important legal mechanism in early Germanic society; the other common form of legal reparation is blood revenge. The payment is typically made to the family or to the clan. No distinction was made between murder and manslaughter
The size of the weregild was largely conditional upon the social rank of the victim. There used to be somewhat of a "basis" fee for a standard "free man" that could then be multiplied according to the social rank of the victim and the circumstances of the crime.
In the Migration period the standard weregeld for a freeman appears to have been 200 solidi, an amount reflected as the basic fee due for the death of a churl (or ceorl).Sometimes 110 if he owned at least one hide of land, and 80 if he was landless. A nobleman was worth 1,200. The weregeld for a king, at 30,000, composed of 15,000 for the man, paid to the royal family, and 15,000 for the kingship, paid to the people. An archbishop is likewise valued at 15,000.
Thralls and slaves legally command no weregild, but it is commonplace to make a nominal payment in the case of a thrall and the value of the slave in such a case. As thralls are considered the property of their lord, crimes committed by thralls must be compensated by their headmasters just like damage caused by animals. Technically this amount cannot be called a weregild, because it is more akin to a reimbursement to the owner for lost or damaged property.
Trial by combat
Trial by combat (also wager of battle, trial by battle or judicial duel) is a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fight in single combat; the winner of the fight is proclaimed to be right.
Unlike trial by ordeal in general, which is known to many cultures worldwide, the trial by combat is known primarily from the customs of the Germanic peoples. It is in use among the ancient Burgundians, Ripuarian Franks, Alamans, Lombards, and Swedes. But it is unknown in Anglo-Saxon law and Roman.
Germanic tribal law prescribe different particulars, such as equipment and rules of combat. For example a trial by combat in the event of two families disputing the boundary between their lands. A handful of earth taken from the disputed piece of land is put between the contestants and they are required to touch it with their swords, each swearing that their claim is lawful. The losing party besides forfeiting their claim to the land is required to pay a fine.
Sometimes is prescribed combat between witnesses of each side rather than between the accuser and the accused, and the Ordeal of the Cross in cases involving clerics.
In another example two combatants must "share the sun", i.e. align themselves perpendicular to the Sun so that neither has an advantage.
The judicial duel as an important function to establish guilt or innocence in cases of insult, injury or theft. The combatants are armed with sword and shield and may wear linen and leather clothing, but their head and feet must be bare and their hands only protected by light gloves. The accuser is to await the accused at the designated place of combat. If the accused does not appear after being summoned three times, the accuser may execute two cuts and two stabs against the wind, and his matter will be treated as if he had won the fight.
While commoners were required to present their case to a judge before duelling, members of the nobility did have the right to challenge each other for duels without the involvement of the judicative, so that duels of this kind were separate from the judicial duel.
The wager of battle is not always available to the defendant in an appeal of murder. If the defendant is taken in the mainour (that is, in the act of committing his crime), if he attempt to escape from prison, or if there is such strong evidence of guilt that there could be no effective denial, the defendant could not challenge. Similarly, if the plaintiff is a woman, above 60 years of age, a minor, or if he were lame or blind, he could decline the challenge, and the case would be determined by a jury, or could have champions named to fight in their stead. Hired champions is technically illegal but common In criminal cases, an "approver" was often chosen from the accomplices of the accused or from a prison to do the fighting for the crown. Approvers sometimes were given their freedom after winning five trials but sometimes were hanged anyway.
If the actual battle took place, it would occur in judicial lists, 60 feet (18 m) square, following the taking of oaths against witchcraft and sorcery. If the defendant is defeated and still alive, he is to be hanged on the spot. However, if he defeated his opponent, or if he is able to fend off his opponent from sunrise to sunset, he would go free. If the plaintiff gave up the fight and, he is to be declared infamous, deprived of the privileges of a freeman, and is liable for damages to his successful opponent. Fighting continue until one party was dead or disabled. The last man standing win his case.
In practice, a person facing trial by combat is assisted by a second, often referred to as a squire. The role of the squire is to attend the battle and to arrange the particulars of the ceremony with the opposing squire. Over time, squires would meet and resolve the disputes during negotiations over combat.
Early trials by combat allowed a variety of weapons, particularly for noble. Later, commoners were given war hammers, cudgels, or quarterstaves with sharp iron tips. The duelling ground was typically sixty feet square. Commoners are allowed a rectangular leather shield and could be armed with a suit of leather armour, bare to the knees and elbows and covered by a red surcoat of a light type of silk called sendal. The litigants appeared in person. The combat begin before noon and be concluded before sunset.
Trial by ordeal
Trial by ordeal is an ancient judicial practice by which the guilt or innocence of the accused is determined by subjecting them to an unpleasant, usually dangerous experience. Classically, the test is one of life or death and the proof of innocence is survival. In some cases, the accused is considered innocent if they escaped injury or if their injuries healed.
Types of ordeals
Ordeal of fire
Ordeal of fire typically require that the accused walk a certain distance, usually 9 feet (2.7 metres) over red-hot ploughshares or holding a red-hot iron. Innocence is sometimes establish by a complete lack of injury, but it is more common for the wound to be bandaged and re-examined three days later by a priest, who would pronounce that gods had intervened to heal it, or that it is merely festering—in which case the suspect would be exiled or executed.
Another form of the ordeal require that an accused remove a stone from a pot of boiling water, oil, or lead.
Two examples of such an ordeal include the accused having to pass through fire, or having molten metal poured on his chest.. The most simple form of such ordeals required the accused to take an oath, and after that he had drink a potion of sulphur
Ordeal of water
The ordeal of hot water requires the accused to dip his hand in a kettle of boiling water and retrieve a stone. The water had to be about boiling, and the depth from which the stone had to be retrieved is up to the wrist for one accusation and up to the elbow for three. Afterwards, the hand is bound and examined after three days to see whether it is healing or festering.
Ordeal of cold water
A man accused of sorcery is submerged in a stream and acquitted if he survive. A man accused of poaching is submerged in a barrel three times and to be considered innocent if he float, and guilty if he sunk.
Another example is cast accused into a river with a millstone tied to his neck, and when he fall into the waters if he is supported on the surface by a divine miracle, and the waters do not suck him down since the weight of crime do not press upon him.
Trial by cauldron is an ancient custom used against both freedmen and slaves in cases of theft, false witness and contempt of court, where the accused is made to plunge his right hand into a boiling cauldron and pull out a ring.
The use of the ordeal is very sensitive to status and reputation in the community. The laws distinguish between “men of good repute” who are able to clear themselves by their own oath, “untrustworthy men” who required compurgators, and untrustworthy men who cannot find compurgators who must go to the ordeal.
Compurgation is the most usual method of proof, and the ordeal is used in cases where there is some presumption of guilt against the accused or when the accused is bound to fail in compurgation. A distinction is made between those accused fama publica (by public outcry) and those accused on the basis of specific facts. Those accused fama publica are able to exculpate themselves by means of compurgation, whereas those accused on the basis of specific facts and those who are thought to have bad character are made to undergo the ordeal.
Ordeal of the cross
The ordeal of the cross is introduced by the church in an attempt to discourage judicial duels among the Germanic peoples. As with judicial duels, and unlike most other ordeals, the accuser have to undergo the ordeal together with the accused. They stand on either side of a cross and stretch out their hands horizontally. The one to first lower his arms lose.
Ordeal of ingestion
An accused is given dry bread and cheese blessed by a priest. If he choked on the food, he is considered guilty. This will be transformed into the ordeal of the Eucharist (trial by sacrament): the accused take the Eucharist after a solemn oath professing his innocence. It is believed that if the oath had been false, the person would die within the same year.
A woman suspected of adultery should be make to swallow "the bitter water that causeth the curse" by the priest in order to determine her guilt. The accused would be condemd only if 'her belly shall swell (clear proof of pregnancy ) and her thigh shall rot (venereal disease )'.
Ordeal of poison
A defendant who vomit up the posion is innocent. A defendant who become ill or died is considered guilty.
The Mass is unofficially used as a form of poison ordeal: a suspected party is forced to take the Eucharist on the grounds that, if he is guilty, he would be eternally damned, and hence his willingness to take the test would give an indication of his guilt.
Other ordeal methods
An ordeal tradition involves the accused walking under a piece of turf. If the turf falls on the accused's head, the accused person is pronounced guilty.
Kniesetzung
Is the Old Germanic expression for a custom in Germanic law, by which adoption was formally expressed by setting the fosterchild on the knees of the foster-father.