LEGAL MATERIALS AS A SOURCE FOR EARLY MEDIEVAL SOCIAL HISTORY by Katherine Fischer Drew The social history of the early Middle Ages, as distinct from its economic history, still remains largely to be written. Certainly there is good reason why this subject has attracted so few serious scholars: the early Middle Ages were basically a period of social transition, a transition from the well-known and well-documented social organization of the later Roman Empire, to the much less well known and much more poorly documented organization of the barbarian kingdoms and early medieval states, The idea that Europe suffered social disaster with the barbarian invasions. that the former Roman population was either wiped out or reduced to ignominious servitude, has long since been abandoned. But the process of transition during which that which was Germanic and that which was Roman gradually mingled has not been treated very fully. To a large extent this lack is due to a failure of source material since the written materials left behind by Roman writers are difficult to interpret in light of the very natural Roman prejudice against much that the Germans stood for. But recent developments in disciplines ancillary to history, notably sociology and anthropology (especially in its archeologicaI aspects), have begun to modify this condition and to provide more definite evidence for the social organi- zation of the time as well as for the kind of lives lived by the people. In general, the historian is forced to accept the work of such social scientists more or less uncritically, but he has a means of control at his disposal which, if carefully used, will serve to substantiate or to modify the hypotheses presented by the sociologists and anthropologists; nay, he may have at his disposal a body of source material that will allow him to formulate his own hypothesesfrom which the archeologists may then work. This body of source materials is contained in the law codes issued by the Germanic barbarian kings and their immediate successors in the period between the fifth and ninth centuries. These codes contain a mine of infor- mation which is both encouraging and discouraging to the social historian. The men who compiled the codes were anything but interested in presenting a comprehensive picture of Germanic society; in fact, the compilers normally took an intimate knowledge of basic social organization for granted. The codes were to serve two purposes. In the first place, the Germans always insisted that law was a personal thing and could not be made but rather ex- 33 34 RICE UNIVERSITY STUDIES isted unwritten in the collective memories of the "wise" men of the nation. However, the process ofmigration and settlement in a land where socia1 and economic organization were carefully regulated by a system of written law, and the process of settling down as a minority among a people with a much more highly sophisticated legal culture, inevitably exerted very considerable influence on the legal customs of the Germans. In fact, the unwritten customs themselves were in danger of loss unless they were committed to writing. So the early barbarian codes are an attempt to reduce to writing the time- honored customs of the people. But of course the only people in the state who possessed the skill to write down this record were scribes drawn from the Roman population. Again inevitably the very process of writing down introduced Roman legal terminology as well as Roman legal ideas into even the least developed of the Germanic codes. The second reason for codifying the laws of the various Germanic peoples was to accomplish that which was ar least in theory contrary to the legal philosophy of the Germanic nations: i.e., to "make" new laws to provide for those problems totally outside the realm of the earlier Germanic experience, problems related to the process of settlement on land which was organized in the Roman manner and among a population that was at least superficially Romanized. So at an early date in the Germanic codes, the process of legis- lation begins to appear. There is some danger, however, in using the Germanic law codes as a source for social history. The codes assume much prior knowledge and their provisions may deal with the unusual situation rather than with the usual. Nonetheless, treated with care, the Germanic codes are probably our best source for thesocial history of the early Middle Ages (i.e., the period between roughly the fifth and ninth centuries A.D.). In this comparative study of the codes the most important are the fifth- sixth-century Burgundian and Frankish compilations, the sixth-seventh- eighth-century Anglo-Saxon and Visigothic compilations, and the seventh- eighth-century Lombard, Alamannian, and Bavarian compilations.' ?'his barbarian legislation covers a tairly extensive time period and quite under- standably there is a great ditference between the Frankish legislation, for example, and that of the Visigoths-a difference that may be accounted for by the differing lengths of trme the two people had had an established state and had been in contact with things Roman at the time their codes were written down. But in general, it is not the difference in time that accounts for the greatest difference in these codes. The chief factor seems to be Roman influence. Those peoples who were relatively little intluenced by Rome (e.g., the Anglo-Saxons and the Franks) display a more consistent Germanic and unsophisticated approach to the problem of law than do, for example, the Lombards and Visigoths who settled in the heart ot the old Roman empire and faced non-Germanic problems almost every day of their lives. The institutions probably least affected by Roman contacts were criminal law and family law, and of the two the Germanic concept of criminal law LEGAL MATERIALS AS A SOURCE 35 proved considerably more resistant to Roman influence than did family law. With the possible exception of the Visigothic, ail the Germanic states ap- proached the problem of violent crime from the Germanic standpoint: specific offenses entailed specific penalties. Accordingly, a significant portion of each of the codes is devoted to the detailing of a long list of physical in- juries that an offender might inflict upon his victim accompanied by a cor- responding list of penalties (usually money compositions) to be paid in recompense to the injured party either by the offender himself or by the offender in conjunction with his family.' According to this concept, almost any violent crime (with the exception of such extraordinary offenses as secret murder and treason) could be compounded for by a money payment known as a composition. Even homicide could be handled thus, with the offender paying the slain man's value (wergeld) to his family; if the compen- sation fixed by law could not be paid, the offender was subjected to tempo- rary or permanent debt servitude. The rationale behind this form of justice isclear: the family that had received compensation for the lnjurles committed against it had no further excuse for waging a blood feud. In connection with the administration of criminal law, the role of the family retained strong Germanic overtones. At one time the Germanic family or kin group had almost certainly been the most important if not the only agency for protecting the lives and property of ~tsmembers and for obtaining redress for offenses committed against them: justice rested primarily on the concept of blood revenge. Since the state was weak, such "revenge" had to be obtained by the offended family. In such a situation the individual alone was quite defenseless; membership in a strong family group was essential. Only through the group did one have "security." By the fifth century, however, the family group had already lost its role as the sole guarantor of peace and security for its individual members. The state instead had assumed this function. This does not mean that the family organization had completely disappeared; even in the administration of justice the role played by the family was still very important. Only by membership in a family could an individual be assured of sufficient strength to bring his offenders before the courts in order to receive justice; only by membership in a family could he be certain of having sufficient oathhelpers to support his oath in court; only with the support of a family could an individual be assured of avoiding the rigors of that debt servitude which followed inability to pay some of the larger composition^.^ Thus carefully guarding the family tie and carefully defining the extent of specific family obligations and privileges would remain aprominent part of all barbarian legislation. The Germanic family retained its importance in yet another area of activity; this was in connection with preservation of the family property for the future members of the family. All of the codes without exception are concerned with this problem. A man might dispose by gilt or testament of' all those properties that he had obtained by purchase or gift, but the land that he had inherited as his share of the family estate had to be preserved for his heirs. 36 RICE UNIVERSITY STUDIES Although the exact disposition of this estate among the heirs differed from people to people, nonetheless the basic concept remained. A man did not really "own" family property-he was rather its temporary administrator and on his death it passed to his heirs according to fixed rules of succession -rules that in some cases excluded women in favor of male heirs (e.g., the Lombards) but in others treated the claims of a man's female descendants as virtually equal to those of his male descendants (as among the Visigoths).> Only toward the end of the period under discussion were the family's exclu- sive rights to the family inheritance eroded by recognition of the claim that concern for the future welfare of his soul justified an individual's disposing of part or all of his property by testament in favor of thechurch.