LAW SPEAKERS LOSE THEIR JOBS

I. The Germans
A. Characteristics
· Valiance, spirit of freedom
· Assembly, “Ting or Thing” of people acted as a protector of rights of
individuals
o Sessions:
§ attended by all free MALES in open air
§ decisions of government, clan policy and trial of lawsuits
§ princes are chosen, chiefs elected to act as magistrates
(judicial officers)
o accusations are exhibited and capital offenses prosecuted
§ pains and penalties are proportioned to crime’s nature
§ punishments…point and spirit of law -> crime which affect
the state may be exposed to public notoriety
§ TREASON & DESERTION: hanged on tree
§ Coward guilty of UNNATURAL PRACTICES: hurdled into
bogs and fens
§ TRANSGRESSION of inferior nature: pay a molet of horses
or cattle (to king/community and person injured/his family)
B. Germans had amazing interest in their trials and disputations
· Reflected in Icelandic Saga “Saga of Burnt Njal”: written 13th century,
reflecting 12th century
C. German Lawmen/German Law speakers
· Jurists of primitive kind
· In charge of
o Handing down law by WORD OF MOUTH
o Acting as advisers to litigants in private
o Reciting rules of law in public
o Supervising trial procedure at clan assemblies
o Acting as advisers to the chief
· PROCESS
o Disputants pleaded their case before assembly
o Law speakers state what they thought the decision should be
o People vote on it
§ Not agreeable to people, reject it with general murmur
§ If it pleases, they brandish their javelins
D. Trial characteristics (among primitive people)
· Usually formal
· Required strictest adherence to prescribed forms
 o In the Saga of Burnt Njal, Mort had to recite some lines to pursue a
suit…if some parts are mistaken, suit would be defective.
· This shows how Germans love pettifogging and hair splitting
E. Place of Religion in German Law
· There were law gods (although religion itself didn’t have prominent place
in the law)
· THOR (War God/Lord of Justice)
o Rough-hewn and sever judge who dispensed justice under the
great ash tree (Ygdrasil)
· FORSETE (God of justice)
o Dealt out justice in Castle Glither
F. LAWS
· PRIMITIVE TORT LAW – MAIN LAW
o Law which gods of justice supervised and law speakers recited
o An eye-for-an-eye principle was law
§ Right and duty of family and clan to avenge an injury,
severity of which depends if intended or accidental
i.
Intended: retribution in kind
ii.
Accidental: killer could buy off vengeance;
payment of wergild or reparation payment
according to status of man who’d been slain
· PROPERTY LAW
o No such thing as real property, held that earth belonged to no man
o Tribe/clan occupied a section of land for herding and agriculture
o Plots were allotted to members, changed annually
§ Crops were property of those who cultivated them =>
Concept of Property (as opposed to Greeks: communal
while soil was strict property right)
§ Greeks: sedentary, worshipped family gods, inherently
attached to soil
Germans: wanderers, gods were not in any way identified
with homestead
o Wills unknown except kings divided among sons by
TESTAMENTARY METHOD
§ Father to son…if none the brothers..if none then uncle
· COMMERCIAL LAW
o Almost none because there was very little commerce
o Learned barter and trade advantages
§ Possible for visitor now to trade peacefully under protection
of some eminent patron, sometimes rewarded by a cut in
profits
 § Through this protected trading, some customs of trade arose
o Until contact with people of Roman Empire, there was no
commerce law
· MORALITY/MARRIAGE
o Monogamy was invariable rule (but some polygamy in upper class)
o Ceremony -> DOWRY from husband to wife in presence of her
parents
§ Indicates: Germanic marriage originated in purchase
§ DOWRY (useful things): cattle, horses, articles of war and of
agriculture
§ Wife also gave gifts
§ Exchange of gifts constituted entire ceremony

II. The Law Speakers Lose Their Jobs (immigration of Germans)

A. Roman empire expanded, legions originally composed of handy farmers and
tough aristocrats, but came more and more to be composed of alien soldiers
· GERMANS…some settled down in Roman territories; some returned
and took with them what they learned of Roman military and civil ways
B. German Invasions
· Flooded over greater part of Roman Empire once defense was weak
· Not all are violent
o Some were encouraged by Romans
o Some not voluntary (pressure from rear)
C. Effect of Germanic conquests
· Considerable confusion
· Gradual deterioration (except in Churches) – people forgot how to read
and write (Europe) except for German kings…but they were
preoccupied.
· Intermarriage of ways of living as well as of blood
D. Treated the problems of government and of law
· Some tried to retain law giving some space for legal autonomy to
latinized natives
· The Lombards: Germanic Law > Roman
o But it was impossible to keep purity of law…it was eventually
diluted
E. Latin Law and Germanic Law existing side by side
· Latin: well-developed and comprehensive
· German: meager and rough
· Naturally…latin law > Germanic law so…
· Germans sought to reduce their laws to writing and as the germans
couldn’t write, Roman jurists/priests were called to write the law

· “Leges Barbarirum” (crim law, brief torts rules, some rules of procedural
law)
 o written in latin…thus impossible to keep purity
o the romans filled in gaps with their own ideas
o infiltration of Roman ideas (by this time, Church had law of its own
· Other codes lost elements of German law
· They administered a society far more complex than any to which they
had been accustomed and it was inevitable that they rely upon
assistance of Romanized advisers and agents…hence, the law
speakers lost their jobs

V. The Decline of Feudalism

- took place after King Charlemagne’s death
- feudal law had developed rapidly to create a vast number of semi-independent
states and baronies
- feudal law grew to a state of mechanical perfection

Customary Law

- grew alongside feudal law, in the fields not covered by it

- almost all law developed out of custom
- new law growing up in the feudal localities
- became a class law

Nobles —> wholly feudal law

Peasants —> local law of each manor
Merchants —> commercial and trade customs (developed by merchants
themselves)
Townspeople —> municipal law (created by ordinances)
Artisans —> guilds and corporations with their own customs

Sources of Customary Law:

- customs of trade and association in work
- decisions of local judges
- judges apply what they found to be custom (from consulting with venerable and
informed persons in the community, consulting with a higher court or making
general
- if they could not find any, made rulings of their own (which became “customary”
after being followed a sufficient number of times)

Requisites:
1) repeated often enough
2) public
3) of long use
Natural Law

- custom does not conform to natural law and is not valid if deemed mala or
against public weal (general good)
- introduced by the Church

Role of the Church

- the Church took over the power to sanction new legal customs from the clan
assemblies
- King, as an agent of God, also had power to sanction new legal customs

Post-feudalism Trials

- a presiding judge states the issues and the law which applied, gave the
judgement that has to be assented to by the lay judges in order to become a
“collective judgement” and be effective
- similar to the old clan practice where the assent of the assembled people to a
judgement given by the chief or presiding officer
- crude forerunner of the modern jury system
- feudal era courtrooms were open at one end, similar to ancient German
courtrooms that were held in open air
- held from sunrise to sunset and no judgement rendered after sunset was valid
- should not last beyond one day

Types of Trials
*somewhat primitive

1) Decision by combat
2) Trial by ordeal
- hot iron, walking on hot plowshares, seizing stone, cold water
- relates to God (God will protect the innocent, relationship of water and baptism)
3) compurgation of oaths — ?? not sure

Rise of Trade and Economy

- crusades to the East brought about trade opportunities

- cash became more valuable than service which led to the fall of military
structure and specialized force
- villages grew into towns and townspeople developed trade
- artisans and traders banded into guilds and unions, acquired money and
political strength (that they did not have in the strictures of feudal society)
- new ideas of law and of legal system came into Europe and accelerated
learning
- feudalism could not withstand the attack of the rapidly strengthened middle and
intellectual classes