RAPTUS ULTRA RHENUM: EARLY NINTH-CENTURY SAXON LA WS ON ABDUCTION AND RAPE*

by Marianne Elsakkers - Utrecht

In this article the meaning of the word raptus in late eighth-century and early ninth-century Old Saxon law will be explored using con• temporary codifications of Germanie law from the same area.

Saxony was a relatively late addition to Charlemagne's empire. The subjugation of the Saxons was practically synchronous with their christianization, because when the Saxon leader Widukind finally capitulated in 785, he also agreed to be baptized. Neither the political changes nor the change in religion took root immediately. Throughout the ninth century there were repeated uprisings and revolts, and the Saxons had frequent relapses into paganism. The Leges Saxonum that have come down to us consist of two capi• tularies and a law code, all three of which date from Charlemagne's reign. It is important, however, to note that capitularies are decrees issued by the Frankish ruler, whereas the Lex Saxonum is a codifica• tion of Germanic law, one of the leges barbarorum. The leges bar• harorum are written codifications of older Germanic Iaw, even though the laws may have been modified, expanded, deleted etc. in the course of their codification. As Reuter says: "Legal texts are indispensable sourees, but their gaps, their silences and their tendency to ana• chronism and fossilisation make them very difficult to interpret" (Reuter 1991: 4). Although their historicity may be questioned, the leges barbarorum are nevertheless fascinating - albeit incomplete - evidence of early Germanic life.

* This article is dedicated to my friends at the Law Library of the University of Utrecht, especially the caretaker of the legal history collection (JB-RGS), Marianne Roelofs. I would also like to thank prof. dr. N. E. Algra and dr. Jan van der Hoek for their very helpful commentson an earlier version of this article. 28

THE FIRST SAXON CAPlTULARY The Capitulatio de partibus Saxoniae or 'First Saxon Capitulary',l which was probably issued in 782 or 785, is concerned with establish• ing the authority of the Frankish king and his bishops in Saxony, i.e. Charles the Great's most recent territorial acquisition.2 It is a catalog of dos and don'ts full of death penalties, the kind of legislation one as• sociates with martiallaw. The capitulary contains 34 articles or capi• tula on secular and religious matters. The secular regulations inc1ude articles on treason (10, 11), debts (25, 27), contracting illegal mar• riages (20), impeding justice (26), killing a lord, lady (13) or count (30), raping a lord's daughter (12), harboring criminals (24), disturbing the peace (29), the right to decree a bannus for feuding or other crimes (31), oath-swearing (32), perjury (33), and administering justice (34).3 The last capitulum forbids the Saxons to gather together or assemble (34) unless the king's missus or messenger gives them permission tOt There are also articles in which the affairs of Church and state are intertwined, e.g. the artic1e on treason (10) which equates 'a plot with pagans against Christians' with treason against the king,4 article 32 which states that oath-swearing must be done in church, or article 34 which orders the sacerdotes to see to it that 'things do not happen otherwise'.5

1 Also called: Capitula haec de partibus Saxoniae constituta sunt or 'Capitulary conceming the regions of Saxony'. The text was edited by Boretius (1893), p. 68-70 (no. 26), Eckhardt, p. 2-11 gives a German translation, and King, p. 205 ff. gives an English one. 2 The early date of this capitulary (782 or 785) shows us that Charlemagne was 'ready and waiting' to incorporate Saxony into his empire. The capitulary was either promulgated before Widukind surrendered in 785, or immediately after his sur• render. Boretius gives the date 775-790, King gives the dates '7827' (p. 205), and Reuter (p. 67) says: "issued by Charles probably in 785, after the submission of the Saxons." 3 The numbers between parentheses refer to the articles in the First Capitulary. 4 Si quis cum paganis consilium adversus christianos inierit vel cum illis in ad• versitate christianorum perdurare voluerit. morte moriatur; et quicumque hoc idem fraude contra regum vel gentium christianorum consenserit. morte moriatur (Bore• tius, p. 69); 'If anyone forms a plot with pagans against Christians or wishes to re• main with them, in hostility to Christians, he is to be put to death; and whoever con• sents to this same action, in treachery against the king or the people of the Chris• tians, is to be put to death' (King, p. 208). 5 Et hoc a sacerdotibus consideretur. ne aliter faciat (Boretius, p. 70; King, p. 208).