The Rule of Laws, page 16
Farther north, where the Latin influence was lighter, the Frankish king, Clovis, ordered a code which incorporated the laws drafted under Aetius several decades earlier along with prescriptions and procedural rules made by his predecessors.5 The prologue to this code, known as the Lex Salica, declares that with the aid of God the Franks had decided to establish peace and prevent litigation, so that they might surpass their neighbours in the quality of their justice as well as the force of their arms. The first clause orders penalties for anyone who fails to appear when summoned to court, possibly copying the first law of the Roman Twelve Tables. But there the resemblance ends, and the code continues with the compensation payments typical of tribal dynamics. There is a long list of penalties for different types of theft, beginning with pigs and other animals, followed by provisions on injuries, killing, sexual misconduct, false accusations, marriage arrangements, and slavery. It reads very much as a record of customs, which it probably was, and reflects the practices of a feuding society, one without a strong state, where offences were matters of private wrong.
There is no evidence that any of these codes had a direct impact on the resolution of disputes. Written in Latin, they were more like gestures to Rome, markers of civilization, and attempts to create a common identity among the new coalitions of tribal groups than practical instruments designed to assist judges resolving conflicts.
DESPITE THEIR ATTEMPTS at lawmaking, the new rulers were still ‘barbarians’ in the eyes of the eastern Roman emperors, who made periodic attempts to recover their lost western territories. Justinian sent his armies to win back the Italian Peninsula in the 530s, initiating a series of bloody conflicts that continued for three decades. He was only briefly successful, and the rump of his remaining armies was defeated by another wave of Germanic invaders, the Lombards, who swept into northern Italy in 568. Hoping to restore Rome’s imperial greatness, Justinian also set dozens of scribes to work on three new legal texts. His Codex Justinianus (Code of Justinian) brought Theodosius’s work up to date by incorporating new laws and edicts; the Institutiones Justinian (Institutes of Justinian), based on the jurist Gaius’s second-century text, served as an elementary textbook; and the monumental, confusingly named Digesta (Digest) collected together hundreds of jurists’ opinions.6 With some fanfare, Justinian proclaimed in 533 that these three books, together known as his Corpus Iuris Civilis (Body of civil law), contained all of Roman law and would remain valid for all time, throughout the whole of his empire. But most of the west was already in the hands of barbarian kings, who ignored it, and the Greekspeaking Byzantine lawyers could not easily understand the legal Latin. Although they made a monumental translation effort in the tenth century, there is little evidence that the Corpus Iuris made any impact on legal practices of the time.
What had been the western Roman Empire was now dominated by three major powers: the Franks, based in Gaul; the Lombards, in northern Italy; and the Visigoths, who maintained a kingdom in Spain until 711, when the ascendant Umayyads sailed across the Mediterranean to absorb Andalusia into their caliphate. But the Germanic intruders generally remained a minority within their new lands and for the most part maintained Roman systems of administration. These were well suited to the centralized governments they were now trying to establish. In the Latin-speaking south, both Ostrogoth and Visigoth leaders could claim they were reestablishing Roman rule. Here, Roman legal ideas, practices, and institutions were well entrenched. The church had also established courts, in which judges still followed the Roman civil law and its procedures.7 The popes gradually expanded their influence, eventually converting the Visigoths and Lombards from their Arian Christian ‘heresy’.8
Farther north, relations of vengeance probably continued for some time among the Frankish elite. But Clovis had been persuaded by the bishop of Rheims to convene councils to debate matters of policy, and his successors ordered their scribes to draft legal codes for their new subjects as they extended their dominions to the east. These codes aspired to reflect local customs. The kings heard the most important legal cases, but Roman systems of taxation had largely broken down, and with them the capacity for extensive centralized administration. Urban councils and local landowners therefore took responsibility for settling most conflicts.9 Notaries continued to use Roman legal forms to record important transactions, including sales and gifts of land, divorces, adoptions, and disputes over labour, keeping alive parts of the Roman legal tradition.10 But judges mostly decided individual cases on their own merits, settling appropriate amounts of compensation according to established traditions and using oaths and ordeals, themselves recognized in the laws, to determine guilt and innocence.11
If they wanted to introduce new practices, the Frankish kings now issued edicts, known as capitularies. Some of these confirmed decisions made by councils of bishops; others were rules for the whole population, to be read out at local assemblies. The majority simply contained instructions to administrators. These repeatedly ordered officials to enact justice properly and avoid bribery. As for Clovis’s code, the Lex Salica, it may not have been of great practical use, but it remained important to the Frankish kings, who added further clauses to it over the next two centuries. Some dealt with new topics, such as disputes over social status, land transactions by the church, slave manumission, sureties, and debt. Pippin III brought them together into a code with a hundred clauses in 763, although it was still rather haphazard. Charlemagne ordered yet another revision when he took the throne a few years later. In a decree of 802, Charlemagne also demanded that his judges base their judgements on the written law, rather than on their personal opinions. But almost simultaneously he produced another version of the Lex Salica, which largely reverted to Clovis’s text. His scribes updated the language but not the currency for compensation payments, which were now wildly out of date. They ignored the additions of later kings, in fact reintroducing contradictions and inconsistencies that intervening versions had removed.12 So, although Charlemagne cared that his judges should heed his decrees, govern honestly, and in his name, they could not apply his laws in any detail.
Why did Charlemagne and his successors, the Carolingian kings, think it worthwhile to put all this time and so many resources into lawmaking? After successful campaigns against the Visigoths and Burgundians in 774, Charlemagne moved on to Italy and deposed the Lombard kings. He was then able to negotiate with Pope Leo III to recognize him as emperor. Disillusioned with imperial plots in the east and concerned about attempts on his own life, the pope crowned Charlemagne Roman emperor in 800. Now Charlemagne needed to adopt an appearance of imperial dignity. He did not have the administrative apparatus to reproduce Roman systems of government, with its Senate, officials, judges, and courts, but he could make laws. The Lex Salica might have started as a list of penalties and tribal customs, but a Latin text could be presented as something grander, the work of an authoritative king. It demonstrated that the ruler was governing properly, as the Roman emperors had done before him. Lawmaking, as one scholar has put it, was an exercise in image-building.13
TO THE NORTH, in the British Isles, the Romans’ influence had petered out more completely with the retreat of their armies in 410. Subsequent waves of migration from continental Europe changed the composition and organization of the local populations, and Anglo-Saxons now vied for power with Britons, Celts, and Picts. Most people belonged to tribes, among whom there were traditions of revenge, compensation, and blood money. It was only in the mid-sixth century that more stable patterns of settlement and landholding emerged. By the end of that century, small kingdoms had formed in Kent, Wessex, and Mercia, and when the Kentish king, Aethelberht, married a Christian Frankish princess, Pope Gregory sent the Benedictine prior Augustine on an evangelizing mission to Britain. In Canterbury in 597, the monk persuaded Aethelberht to adopt Christianity and then embarked on a massive project of conversion.
Possibly under Augustine’s influence, Aethelberht also created a set of laws, the earliest document known to have been written in English.14 The ninety clauses of this code specify compensation payments for ‘affronts’, both material harm and insults to a freeman’s honour, such as sleeping with a high-status woman from his household. The laws recognized status, specifying certain privileges for the king and his men, granting various protections to the churchmen, and distinguishing freemen from slaves. Aethelberht added a few clauses on religious misconduct, recognizing his duty to protect the new church as well as his people. But the code was little more than a list of monetary equivalents for different injuries. In this way it was not entirely dissimilar from Clovis’s code, reflecting practices of compensation that must have been common among the Kentish tribes. In practical terms, these laws might have made it easier for the king to persuade vengeful people to make peace. He was also making a claim about his authority. Like other Anglo-Saxon kings, Aethelberht was little more than a grand freeman. But he could summon assemblies, where he discussed warfare and other important issues with his nobles and bishops and sought approval for new decrees.15 His laws defined what mattered among the Kentish freemen, most importantly the levels of compensation they could honourably accept, so that they could live together in peace.
Gradually, the kings began to control more areas of public life, defining more crimes and developing more complex legal procedures. The codes produced for the later Kentish kings Hlothhere and Eadric describe the ways in which Kentish people could buy property in London. The laws of King Wihtred, written at the end of the seventh century, include provisions to protect church property and rules on sexual misconduct, fasting, devil-worship, and stealing, as well as directions on how oaths and accusations should be made and tested. The early English kings must have been aware of the lawmaking activities of their counterparts to the south: King Ine of Wessex made a substantial code in seventy-six clauses at around the same time. These imposed penalties on anyone who tried to wreak revenge without seeking justice in court. Ine’s code stood until King Alfred ordered another two centuries later.
Although largely occupied by his campaigns against the Vikings, Alfred took a keen interest in the government of his kingdom. In his coronation oath, he promised to maintain peace, to forbid robbery and other injustices, and ‘to be just and merciful in his own judgements’.16 Probably on the advice of his bishops, he ordered a substantial new legal code. The long introduction cites the Ten Commandments, the biblical Book of Exodus, and the Acts of the Apostles. Moses, of course, had made laws to confirm the independence and religious commitment of his people, and Alfred believed he was doing the same for his kingdom. And, like his Germanic counterparts, Alfred used prestigious Roman forms for his laws, but they reflected existing traditions. All the kings confirmed the tribal order at the heart of their new kingdoms by making explicit important practices of compensation. But Alfred went further, not just invoking the laws of the Bible but also recording a number of the judgements made by his councils.
One rule in Alfred’s laws directs that if a man is walking along with a spear over his shoulder and turns carelessly, injuring a passerby, he has to pay compensation more or less depending on the angle of the spear. This passage must reflect a real case, given the specificity of the law—that it only applies to an accident involving a spear, and only if it is carried over the shoulder. But it must have been included among the laws because it expressed an important principle about accidental injuries and the level of carelessness that might be implied by something as ordinary as the angle of a spear. Like the authors of the Frankish and Lombard laws, and those of Hammurabi over two thousand years earlier, Alfred’s lawmakers used real cases to express general principles and adopted the casuistic form to make rules that could be widely applied. His laws combined rules based on custom with records of real cases, which gave the laws a somewhat haphazard form. But, written in the Anglo-Saxon vernacular, they were relatively accessible to the local populations.17
Like other Anglo-Saxon kings, Alfred was fully aware of his duty to maintain the order ordained by God. Kings had to uphold minimum standards of Christian observance if they were to avoid plagues and overcome their enemies. It was their duty to ensure peace, and this primarily meant controlling theft. Alfred’s code did not forbid violence per se, but it did try to limit the possibilities for vengeance by restricting when it was permitted and who its targets could be. It also insisted that everyone had a duty to denounce thieves and help recover stolen property. Alfred’s son Edward the Elder made another code at the beginning of the tenth century, which dealt primarily with legal procedures, warranties, and witnesses. His successor, Aethelstan, ordered no fewer than six codes on the advice of his bishops. The new laws covered witchcraft, ordeals, commerce, coinage, attendance at assemblies, responsibilities concerning slaves and servants, the duties of the reeves (government officials), warranties, sanctuary, and the obligation on everyone to pursue thieves. The provisions reflected the expanding reach of royal government.
In 927, having successfully led his armies to the north of the island, Aethelstan declared that he was ‘King of Britain’.18 His successors followed suit. Aethelred (r. 978–1013) asked Wulfstan II, Archbishop of York, to draft a new set of laws for his whole kingdom.19 The bishop brought together a number of earlier codes and, not surprisingly, wrapped them in highly moralizing language, emphasizing the Christian penance that any murderer had to undertake for this gravest of sins. He also introduced new restrictions on revenge: priests were fair game, but monks were not. In the early eleventh century, the Danish invader Cnut, who ruled England from 1016 to 1035 (as well as Denmark and Norway), also turned to Wulfstan, asking him to draft a new set of laws for his kingdom. English laws were now supposed to apply to all who lived east of the Welsh borders and south of the Tees.
WHILE THE ANGLO-SAXON kings were writing laws for an English kingdom, another story was unfolding on the Italian Peninsula.20 When the Lombards defeated the remaining Byzantine forces in 568, the emperors’ hopes of a reunified Roman imperium finally faded and the Germanic Lombards introduced their own customs. Like the Franks and Visigoths to the north and west, the Lombards formed distinct tribes. Compensation for killings and injuries loomed large among the issues faced by their mediators. King Rothari issued the Edictum Rothari (Edict of Rothari), effectively a legal code, in 643, setting out long lists of compensation payments. Starting with treason, treachery, and desertion, it then catalogued different types of personal injury. Its 388 clauses stipulated complex processes of oath-taking to establish guilt and innocence. Rothari may have hoped his laws would impress his army and strengthen its loyalty as it embarked on a major campaign into Liguria. But he was also trying to limit the powers of rival lords and, in an explicit attempt to deter blood feuds, he increased the level of compensation payments. Like the Franks, Rothari employed Latin-speaking scribes, but they littered their text with Germanic terms for which they could evidently find no Latin equivalents.
As in the Visigothic and Burgundian territories, the new rulers expected that Roman citizens would continue to rely upon Roman laws. But the administrative classes had been devastated by the turmoil of the previous decades, and intricate Roman rules and practices must soon have seemed irrelevant. The southern part of the Italian Peninsula, as well as the area around the cities of Ravenna and Rome, remained beyond the control of the Lombards, and people in these areas maintained contact with Byzantium for some time. Scholars imported copies of Justinian’s Corpus Iuris and circulated his Institutiones among their students. But Roman law was extravagantly complicated. Years of study were needed before any scholar could understand the more esoteric juristic opinions, let alone get to the point where they could apply them effectively. Even in this region, Roman legal influence gradually faded.
Meanwhile, successive Lombard kings issued supplements and additions to Rothari’s Edict. Many of their laws read like records of court cases, which they may have been. Like the Frankish and Anglo-Saxon laws, they were not always consistent. Despite the example of Justinian’s texts, the kings did not think it important to employ scholars to tease out and systematize the principles underlying their laws. Notaries in Lombard towns did keep alive something of the Roman legal tradition. When they drafted charters to record important transactions, such as the manumission of slaves, sales of land, leases, and marriages, they insisted on precise words and phrases, which might have served to give their documents authority in legal disputes. Roman legal forms, in this way, continued to shape social relations. But even these practices may have disappeared had it not been for a series of chance events that led to the ‘rediscovery’ of Roman law.
The Lombard kings chose Pavia as their capital, and Charlemagne moved into its palace after his armies swept across the Alps to rout the Lombards in 774.21 He also founded a school in which notaries could train. Some notaries were already intervening in legal disputes, consulted about the correctness and interpretation of written documents, and some litigants had begun to ask them to act as judges in more complex cases. By the middle of the ninth century, the Carolingian emperors were appointing notaries to act as their iudices sacri palatii, judges of the sacred palace. To consider the most serious cases, they would gather in groups of sixteen, sometimes up to thirty, particularly when monastic property was at stake.
Following the fall of the Carolingian rulers, Pope John XII crowned the Saxon king Otto I as emperor, in 951. The new emperor did not try to change the Lombard laws in any significant way, but he did not care much for Roman bureaucratic practices. He favoured the custom of trial by battle, which reduced legal argument to a trial of physical skill. He also moved his capital away from Pavia. The judges now lost their royal patronage, but they did not give up their work. They began to travel around northern Italy, where they were asked to hear cases in different towns, and they commissioned a collection of local Lombard laws, the Liber Legis Langobardorum (Book of the Law of the Lombards), which they could carry with them. They scribbled notes and comments in their pocket editions, which included scattered references to Roman principles. As the judges continued their work, they trained students and debated among themselves about what the law was and should be. In all likelihood inspired by the work of the Roman jurists, they discussed which laws should apply to all people and which concerned men rather than boys, or freemen but not slaves. They argued about whether they had to stick to the literal words of a Lombard law or could look for underlying principles to expand its reach. Like the Roman jurists, some now claimed they could extend rules by using hypothetical examples and general principles, which they extracted by comparing the words in different laws. In other words, the judges saw the law as a system with a logic of its own. Some even argued that where there were gaps in the laws they could apply Roman laws and principles directly. They sought out copies of Justinian’s Institutiones to construct a commentary on the Lombard laws and completed this work, their Expositio (Exposition), in the late eleventh century.
