CALAGUAS

Primitive Customs

MARTINEZ

NOVENO The Law of the Germans

The Roman Law
UNTALAN

The Feudal Law

 The German Barbarians
and the Feudal System
Chapter 14: The German Law Speakers
Chapter 15: Charlemagne
Chapter 14: The German Law Speakers
- The Germans - Law Speakers Lose Their Jobs
A. Who
B. Background of Laws A. Roman background
C. Penalties
D. Public Trial B. German Invasion and Migration
E. German Lawmen
C. The Effect on the Roman Empire
F. Litigation
G. Religion D. Barbarians
H. Torts
I. Property E. How
J. Wills and Succession
K. Commercial F. Loss of Democratic Legislative Base
L. Marriage and Morality
The Germans: Who
- The Germans are people who loved to fight.

- A Germanic hero would be carried to Valhalla by beautiful maidens for eternal

fighting, beer, and more fighting.

- To the Romans then, Germany offered nothing but deformity where the
inclemency of the seasons never relents, where land presents a dreary
region, without form or culture, and without an allurement to make life
supportable.

- Germany was so unpleasant that it produced strong stock, because only the
strong could survive.
The Germans: Background of Laws
- The assembly of the people was called the Ting or Thing. They were the
protectors of the rights of the individuals. The sessions of the Thing were held
in open air and were attended by all the free males.

- The Thing participated in the decisions of government and clan policy, and
also in the trial of lawsuits.

- In Things they also choose their princes and chiefs; they are elected to act as
magistrates. Assistants are also appointed from the body of the people to the
number of 100 (100 people:1 assistant). These officers give advice and
strengthen the hand of justice.
The Germans: Penalties
- pains and penalties are proportioned to the nature of the crime.

- ex. treason and desertion, the sentence is to be hanged on a tree; those

guilty of unnatural practices (like cowards) were hurdled under bogs and fens.

- The Germans made it a point that their punishments exposed the crimes
which affect the state to the notoriety of the public.

- Those guilty of crimes which are inferior in nature pay by mulets of horses or
of cattles. Part of the fine goes to the king or the community, and part to the
person injured or to his family.
The Germans: Public Trials
- The Germans loved public trials. They even have their own saga about it
called the Saga of the Burnt Njal. This Saga was written down in the 13th
century but reflected conditions of the 12th century. As mentioned, it was a
saga of interminable or endless litigation and legal wrangling.

- One of the characters was named The Fiddle Mord who was a great taker up
of suits, and so great a lawyer that no judgements were thought lawful unless
he had a hand in them.

- Another character was Njal, from whom the saga was named after. Njal was a
wealthy, handsome, and more importantly for our topic, a great lawyer who
was unmatched.
The Germans: German Lawmen
- From the example of these 2 characters, a primitive kind of jurists among the
Germans came about. They were called lawmen or law speakers and
from what they were called, they handed down the law by word of mouth.
They acted as advisers and recited the rules of law in public. They also
supervised trial procedures at clan assemblies, and also advised the chiefs.
The Germans: Litigation
(1) Disputant would plead their own case

(2) Law speakers would then speak publicly and state what they ought to say
about the case

(3) The public will either reject (murmur) or accept (brandishing their javelins)
The Germans: Religion
- Religion was not as prominent in Germanic Law as compared to say the
Greeks. Having said this, they still had their Nordic Gods whom they looked
up to for justice.

- There was Thor, the War God, he was considered as a judge. Legend has it
he brought down justice under The Great Ask Tree, Yggdrasil.

- Another god who some of the German tribes worshipped was Forsete or
Forseti. He was another god of justice who dealt out justice in a more elegant
manner, sitting in a handsome castle called Glitner, which had a silver roof
supported by golden columns.
The Germans: Torts
- The law that these gods of justice as well as what the law speakers recited
were chiefly primitive tort law. Really an eye-for-an-eye judgements
were the principal law. What was interesting with the german tribes were
despite being branded as primitive and barbaric they nevertheless had
arrived at a group stage of enforcement. It was not merely a right but a duty of
the family and clan to avenge an injury inflicted upon one of its members.
Even more, they distinguished intended from accidental killing. In case the
killing was accidental, the culprit could generally buy off vengence through the
payment of a Wergild.
The Germans: Property
- The ancient germans were primitive in the sense that they originally did not
recognize real property. They were in fact, pastoral and believed that the
earth belonged to no man. Plots were allotted to members but these
allotments were changed annually. The crops were the property of those who
cultivated them and that was just about the extent of their concept of property.

- To understand why this was how they saw things with regard to property, we
go back to their religion. The Germans believed that their gods lived in
Valhalla and were not in any way identified with a homestead. Juxtaposed
with the Greeks, who believed that their family gods were attached to the
family hearth, which in turn was attached to the soil.
The Germans: Wills and Succession
- Despite having such a sense of real property, the germans had some sort of
system of wills and succession.

- Kings were known to divide their realms among their sons by a method which
could be described as testamentary.

- By custom and law, property was passed on to the son. If there were no sons,
then the property would go to the brothers of the deceased. If there were no
brothers, then the property would go to his uncle. This was a system that was
very agnatic.
The Germans: Commerce
- There was little commerce amongst the germans and their tribes, thus there
was also little no commercial law to begin with. The first alien traders were
greeted with suspicion and were given no privileges. Eventually, this
developed when an alien trader would be able to trade peacefully but not
without the protection of some eminent patron, who was a german. The
patron was sometimes rewarded with a cut in the profits.

- Commerce further evolved when contact with the enlightened people of the
Roman Empire was made. The Romans thought them the benefits of
commerce and the necessity for controlling it.
The Germans: Morality and Marriage
- Morality was very high with the Germans. Marriage was sacred, and
monogamy was the almost invariable rule, save the for the upper class who
partook in polygamy.

- As a rule within the Ancient German society, only virgins would marry.
They also did not set limits on population and were not in favor of killing
babies. Doing any activity related to the two were accounted as a crime.
The Germans: Morality and Marriage
- As part of their marriage ceremony, dowry is passed from the husband to the
wife in the presence of her parents. This indicated that the Germanic
marriage originated in purchase. The gifts exchanged were also very
practical. Popular gifts then were cattles, horses, articles of war, or articles of
agriculture. The exchange of gifts to them, constituted the entire marriage
ceremony
The Germans: Morality and Marriage
- As part of their marriage ceremony, dowry is passed from the husband to the
wife in the presence of her parents. This indicated that the Germanic
marriage originated in purchase. The gifts exchanged were also very
practical. Popular gifts then were cattles, horses, articles of war, or articles of
agriculture. The exchange of gifts to them, constituted the entire marriage
ceremony
The Law Speakers Lose Their Jobs:
Roman Background
- Emperor Augustus grew weary of the ever growing decadence of the Roman
people. As we know, even the Great Roman Empire fell, and this part of
history was part of its fall. What really triggered this fall were the Romans
themselves as they grew relaxed and, for lack of a better term, soft. Life was
too full and too pleasant to make military life attractive for most Roman
gentlemen, except for an occasional political purpose.
The Law Speakers Lose Their Jobs:
Roman Background

- As the Roman military lost its attractiveness to the Roman gentlemen, large
numbers of Germans were brought into the legions as to keep a military. And
this was one of the beginning points of how the Germans assimilated with the
Romans. Eventually, and naturally, these German legionnaires settled down
in Roman territories. Others opted to return to their own people but of course
took with them what they had learned from the Great Roman Empire and its
enlightened people. And so with the new knowledge these people brought
home, the Germans began their education and civilization.
The Law Speakers Lose Their Jobs:
Roman Background
- This intensively progressed when at about A.D. 300 to 700, the Germanic
tribes started to invade and flood the parts of the softened Roman Empire,
particularly the provinces.
The Law Speakers Lose Their Jobs:
German Invasion
- It should be noted that not all German invasions were violent. Some were
simple and peaceful migration. In fact, the earliest migrations of the Germans
were actually encouraged by the Romans. As mentioned before they were
commissioned to be part of the legions, and others took whole tribes
(visigoths) into their service as foederati (confederates). This was actually in
the 4th century, the Roman Emperor allowed the Goths to enter the Roman
Empire after being badly defeated by the Huns. But it was not until the 5th
century when the tidal waves of migration really began. Eventually Rome
would be sacked by (1) the Visigoths under Alaric in 410, and (2) the Vandals
under Generic in 455.
The Law Speakers Lose Their Jobs:
Reason for Migration
- The Germans were actually not completely bent on invading and migrating
Rome. This was not entirely voluntary. What pushed then to migrate was the
pressure that they were under from the rear, particularly the Slavic and the
Asiatic hordes, including the Huns. The Huns, under Atilla, were a legitimate
threat to the whole of Europe at one point in time.
The Law Speakers Lose Their Jobs:
Effect to the Roman Empire
- Many people attribute the dark age of Roman Empire, and its fall to the
German migration. The word vandalism was even coined after a German
tribe and was coined in relation to their participation in the fall of the Roman
Empire. Let it be noted however that the Romans themselves ravaged, and
pillaged on occasion.
The Law Speakers Lose Their Jobs:
Effect to the Roman Empire
- The effect of the German migration and flooding the Roman Empire, was of
course confusion and gradual deterioration. Eventually a lot of people forgot
how to read and write. The people were in disorder, and to mitigate that, the
Germanic kings tried to restore order but to no avail. The Germanic kings
were apparently not up for the job and worse, they were almost always at war
with each other.

- These Germanic kings actually fathered Feudalism yet they did not have the
background and experience to enable them to take advantage of the tools of
government and of administration which they found at hand.
The Law Speakers Lose Their Jobs:
Barbarians
- They were barbarians but they were not savages. The
Germans were a people of morals and ethics. They were vigorous and alert,
not soft and corrupt like the Romanized provincials. Although they knew little
of the refinements of life, they nevertheless had dignity, character, and
understanding of the simple virtues, which has long since become rare in the
decadent of the Roman Empire.
The Law Speakers Lose Their Jobs:
Barbarians
- The ruling people are the Germans who are
Imagine this:
barbarians and their constituents were cultured
Latinized people.

- It was impossible to keep the Germanic Law pure as there were two
separate systems of law. The Germanic law and the Roman law. Compared
to the Roman law which was developed and comprehensive, Germanic law
was meager and rough.
The Law Speakers Lose Their Jobs:
Barbarians
- The Germans realized that in order for their laws to survive, they would need
to reduce them into writing. Remember the Germans loved public speaking,
so this was obviously already a red flag against the law speakers.

- Additionally, these Germans did not really know how to write, so who do you
think codified their laws? It was in fact their subordinates, the Romans jurists
and the priests of the Christian Church; people who were not versed with the
Germanic laws. At this time the Church had developed a law of its own and it
was chiefly based on a Roman law and the canon or papal law. And thus,
instinctively these codifiers filled in the gaps with their own interpretations and
ideas.
The Law Speakers Lose Their Jobs:
Barbarians
- To add to his, the Romanized Germanic codes were not comprehensive
compendiums of law. The Leges Barbarorum, which was the codified
Germanic Law contained mostly criminal, torts, and some procedural laws.
Aside from that it was empty.
The Law Speakers Lose Their Jobs:
Barbarians
- The German Kings at this time also realized that the mixture of both legal
systems were for the best. However, this just made it worse for the German
law speakers as not only were public speaking more and more becoming
obsolete, the purity of Germanic law was also being mixed and even flooded
with Roman laws and ideas. The Kings were also administering over a far
more complex society than what they were used to with all these written laws.
Needless to say they had no complete control and all things considered this
lead to the rapid decline of law speakers.
The Law Speakers Lose Their Jobs:
Lost of Democratic Legislative Base
- The Roman system went from the democratic lawmaking processes of old to
a monarchical system. The Church also adopted absolutism in creating its
own government. Hence, when these two systems influenced the Germanic
states, the same became more and more absolute. Just as the Romans, the
Germanic law gradually lost its democratic legislative and also became
monarchical. New laws came about through Kings and sometimes through
the approval of a council.
The Law Speakers Lose Their Jobs:
Lost of Democratic Legislative Base
- So much was the influence and the hold of the Roman monarchical system to
the Germans at this point that even the first German to rule Rome did not use
the title King but instead petitioned to the Emperor at Constantinople to be
granted a title under the Empire. His successor, Theodoric, also considered
himself as a vassal of the Emperor. He preferred the title Patrician and
maintained a Roman form of government with senators as agents and
advisers. He
did everything as to associate his kingdom with
the Roman Identity.
Chapter 14: The German Law Speakers

While the Germans may have been the ones who invaded
and migrated the Roman Empire, it was still the ideas and
principles of the Roman Empire that persisted.
 CHAPTER 15:
CHARLEMAGNE
The Birth of a New Era
Pipin the Short was the father of Charles the Great aka Charlemagne

During this time, Kings were only titular in nature.

It was the Mayor of the Palace who wielded power

Pipin sent a message to the Pope asking if he should be crowned King because he was the one who
wielded power.

Pope agreed because it would benefit the Church

The Franks

Independent and was patronizing toward the Papacy

During this time, there were 2 factions. One from the West and one from the East

Charlemagne helped the church and was crowned the Emperor and Augustus
Charles the Great
Was a great military man and an excellent leader

Capital was at Aachen, Germany

Promoted literature even although he himself did not write

Consisted of what is now called Germany, Belgium, Holland, Switzerland and

half of Italiy
Charles the Great
Promoted religion but was not an example himself

Conscientiously devoted himself to the development of the law

His conglomerate was made up of many nationalities and the laws were a mess
of tribal and provincial law
Rule of Law
His first decrees were capitularies which was enacted with the consent of his
council

From this, Germanic assemblies were made which consisted of barons and
Charlemagne himself.

Democracy wanted to be achieved in theory but in reality, autocratic

Aula Regis
A council made by Charlemagne

Also known as the Royal Court

Head of the judicial system and created precedents which was followed by the
provincial courts
Influence of the Church
During the whole tenure of Charlemagne, the Church had great influence on him.

Civil ordinances were accompanied by religious decrees

Secular capitularies were sent to the Barons and were required to be read in church

missi or imperial envoys were sent out to make sure rules were followed
Personal Law
Instead of law being territorial in nature, for the Germans, it was personal in
nature

A Lombard was subject to Lombard law and a Frank would follow Frankish law

Men were required to declare tribal nationality so as to know what personal laws
were followed
Disputes
When two people of different tribes had a conflict, the law of the dominant
interest would apply

Guardian between ward, the ward`s personal law will apply

In estate, the dominant law was that of the deceased

Charlemagne and the
Feudal System
Feudalism and its Reputation
Romantic writers have given a lovely glow to the age of feudalism

Far more comfortable, even for the few at the top of the social heap

Use of scents hide the smells of the human body

Use of spices to hid the smells and taste of spoiled food

Cold and drafty castles and verminous and without sanitation

Rough and uncomfortable furniture

Lack of medicines

Whatever meager comforts and pleasures the barons and their ladies and an occasional cleric may have had the masses
lived in a miserable state

Little comfort; a few rights, and little law to protect them

Laws of Chance
Serf slave to the soil and dependent on the will of the lord of the manor in which
you toiled

Semi-independent farmer still largely relying upon the grace of the man in the
castle

Small Craftsman or Artisan dependent almost entirely on the tolerance of the

big boss

Priest some independence in the manor

Pet Retainers soldier in the service of a lord

Lord of the Manor and Boss of the works

Nature of the Feudal System
No Nationalism no territorial kingdoms
King of the Franks but no King of France; King of the Lombards but no King of Lombardy

No nationality for the princes and barons who held land under a superior ruler
Feudalism ignored boundaries

A Fief could be under several princes or several kings

Owing allegiance to all; Chief Lord (first loyalty)

Serfs and Villagers soon lost their identity

Identified with the manors to which they were more or less permanently attached (Saxons, Lombards or Franks)
Origins of Feudalism
Arose from fear; Germanic invasion brought fear to the roman provinces

Loose form of government made life uncertain and living dangerous

Weak would commend themselves tot the strong for protection

Franks and Germanic people already had a social system vassalage and
homage and the relationship of lord and man

Made it easier for feudalism to develop

Probable that roots are from the ancient Roman institutions

Feudal System Relationships
Clients attach themselves to the powerful clans to secure protection; in return they
give their loyalty and various kinds of service in exchange

Patrocinium attaching oneself to some prominent or powerful citizen

Precarium one deeds ones lands to a patron and receive back the use of the
property for life

Heirs were dependent on the future grace of the patron

Future grace of the patron only extended for ones own life (personal)

Two above mentioned systems were widely used in Gaul

Feudal System Relationships
Man and Lord

Terms for Land

Benefice grant of land in exchange for military service

Established by Charlemagne

Primogeniture most efficient method of satisfying the conditions of the ownership of a benefice

Fief or Fee or Feud

Enfeoffment process of granting tenure

Feud wages given for property

Fee still in our legal language

When you own a land outright, you have a fee simple

 Growth of Feudalism
Grew quickly through the distribution of patronage by conquering chiefs

Confiscate lands which the had taken and parcel them out among their most faithful or valuable
retainers

In reward for services and to assure their continued allegiance

These retainers would then in turn distribute their lands to lesser lords

Lesser lords would again distribute their lands to lower-ranking lords

Ultimately, individual pieces of land were held by the working tenants

Life became more tempestuous and harder

Most family lands were deeded to higher lords in exchange for benefices, military service or being promised against protection

Spread throughout Europe but differed somewhat in each country

How the System Worked
System of Feudalism
Enfeoffment were in exchange of feudal duties

Vassal

Obliged to follow his lord to battle and to bring with him such men as his status in life and the conditions
of his fief warranted

Obliged to surrender his horse to his lord if the latter had lost his mount

Obliged to fight beside him and to join his lord in captivity

Army is always available to the great lords; quick to assemble and always in
condition one of the terms of vassalage
Classes of People in the Feudal System
Knights and Squires

Serf farming of the land

Middle Class merchants, tradesmen and artisans

Men of the Church religious duties; also clerical functions (only they could read
or write)
Manor Courts
Civil and criminal jurisdiction over his lands and over his vassals

Held court as he wished (Manor Courts)

Tenants were required to attend these courts

As members of juries and to try their peers

Responsible for most of the great confusion of law

Each manor lord was a law unto himself (Feudal System)

Liege Lord and his Fiefs
Each successor took his title to a fief
Invested in a ritual which included a reaffirmation of the duties

As well as the rights, which went with the land

If a fief descended to a female

Liege Lord had the right to select her husband

He could also select the new husband of the widow of his liege man

Had wardship over infant heirs

Could manage a fief during his wards minority
Liege Lord and his Fiefs
Relief

Grant from a succeeding tenant (equal to one years income from the fief)

Aid

Grant by the tenants to defray the expenses of knighting the lords oldest son, or of marrying off his daughter, or of ransoming him if he
were captured in battle

Droit De Seigneur (Right of the Lord)

Right of the first night

Right to spend the first night with the bride of any vassal

Little evidence as to its existense

Merely an excuse for levying a fine upon the bridegroom with which he might buy back the first night
System of Feudalism
Disinherited all children but the eldest male (real property)

Solidifying the feudal system of land tenure

Contrasting tendency toward easier distribution of personal property

Came about through the influence of the Church

Marriage ceremony includes a promise by the bridegroom to endow his wife

Right of dower and similar rights (giving the widow an interest in her deceased husbands property)

Some special rights were awarded to children (real property)

The Decline of Feudalism
Break-up of Charlemagnes empire
Not necessary to reconcile the diverse nationalities as the feudal
system developed and created a number of semi-independent
states and baronies who were self-governing

Feudal Law
Grew to such a state that the few manual written about it served
to codify it almost completely

Along side the Feudal Law and other fields not covered by it
Customary law
It became class law.

The law of the nobles were almost wholly feudal law while the
peasants were subject to local law of each manor.

There was a separate law for merchants brought about of

commercial and trade customs developed by the merchants
themselves.

Artisans also had guilds and corporations in which they

developed their own customs.
Though it may be odd to call law produced by such
decisions as customary, the judges applied what they
found to be custom, and if not, they made their own
rulings which became customary after theyd been
followed several times.

Judges made efforts to determine*However, no matter

existing customs by
how well a custom
consultation of informed persons,fitted
general inquiries,it or
that definition,
consultation of higher courts. was invalid if it was
deemed mala or
Natural Law

The principle that a custom must be reasonable and conform to natural law was introduced by the Church.

People had lost the basic sovereignty as characterized by old Germanic and Roman law.

Clan assemblies were dissolved as bodies would sanction new legal customs, therefore, a new form of sanction
arose either through the Church or the King, who was considered an agent of God.

Hence, if the custom was reasonable, such sanction was presumed.

Sanctions were necessary for otherwise many more mistakes of either ignorance or malice might have been
done.
Customary law developed along side the feudal law.

Remnants of personal law were destroyed by the growth of the these laws as everyone
was subject to both.

Tribes had lost their essential identity and mixed with each other thereby blurring tribal
distinctions

Common Religion further eliminated these distinctions

Clan system
Disappeared except for remnants which persisted in courts.

No more assemblies to try cases, but there were lay judges in the courts who inherited the judicial functions of
assemblies.

Judges
Lay judges did not determine issues in a trial.

A presiding judge stated the issues and which law would be applied and gave judgement.

But it had to be assented to by the lay judges in order to become a collective judgement and be effective.
This system is rooted in old clan practice.

Clan trials required the assent of the assembled people to a judgement given by a chief or presiding officer.

A forerunner of the modern jury system.

Some other features were adopted from the Germanic system of justice:

German courts sessions were held in open air.

Sessions were usually held sunrise to sunset and no judgement rendered after sunset was valid.

Trials did not last 1 day

This was inherited from Romans and Germans

However, rules of law remained primitive:

Compurgation of oaths was still an institution.

Ordeal by various methods.

Trials or Decisions by combat.

In the middle ages, trial by ordeal involved a deep faith in the willingness of God to
Ordeal by hot irons:

The iron was heated in a fire and a priest sanctified a proceeding by saying Mass over it and sprinkled with Holy
Water.

The litigant was to take communion and a priest would recite a prayer whereupon he/she had to carry the iron for
about 9ft.

Then his/her hand was covered under a seal for 3 days, and if festered blood were found where the iron had
been GUILTY!!!;

Or God preserved the feet of the innocent from injury he/she trod on sharp hot plowshares or seized a stone
from a pot of boiling water.
Judgement of the Cold Water

If you were thrown into the water and it rejected you

GUILTY!!!.

The theory was that had received you in baptism and therefore, would now reject you if you were guilty.

Trial by morsel

A chunk of cheese and a piece of bread were put into a victims mouth and God was asked to keep him/her from
swallowing them if he was guilty of the charged.
Feudal landholding came to be dischargeable by payment of money.

Lords sought the comforts there were to obtain while their ladies will pressed the Lords to give them more money.

The liege lord was more willing to take cash than render service.

This resulted in the weakening of the military structure of feudal society and increased the
employment of professional soldiers.

The invention of firearms ended knights, knighted cavalry thus eliminated the need of a
specialized force.
The growth of towns was a bigger factor that destroyed feudalism.

Villages grew.

Artisans and traders developed trade.

They banded together to form guilds and unions in which they acquired money and political strength.

However, they could not buy in the way of privilege or release from stricture of feudal society they finally
achieved by economic pressure.

New ideas of law and the legal system came to Europre by way of renaissance of Roman law which
accelerated the deterioration and eventual elimination of feudal laws and institutions.

It could not withstand the strengthened middle class and intellectual class.