chapter twoFrankish and Anglo-Saxon Justice
The barbariankingdoms that succeeded the Roman empire in the
west developed into states of a new sort, between the empires and the
city-states of the ancient world. Though it generated a body of law on
which all subsequent legal systems would draw, and might even be
called ‘the Roman state’,^1 the vast military empire centred on the city
of Rome ‘was no more than a changing patchwork of control’ of
innumerable local communities.^2 The coherent societies of early Europe
were the separate peoples like the Germans, whose institutions caught
the imagination of Tacitus. In the long term these held the possibility of
integration into a communal authority far stronger than the Romans’
thinly-spread military power. By individual charters of grant and
administrative orders to their servants, rather than by general edict, the
rulers of the barbarian kingdoms developed a legal order based on the
allotment of property rights, the granting of ‘peace’ to the lands and
their inhabitants, and courts and procedures for the settlement of
property disputes and the punishment of obdurate peace-breakers. It
was in the rhetoric of such ‘acts’ (acta) of the kings of the Franks that
a notion of ‘the state of the kingdom’ made its appearance.
The first courts
Tacitus paints a picture of assemblies of all the freemen of German
tribes, meeting at fixed times to settle their affairs under the persuasion
(rather than at the orders) of their chiefs, to hear accusations and to
apportion punishments for crimes: hanging for treason and desertion;
smothering in bogs for cowardice, with hurdles piled on the bodies to
hold them down; and for lighter offences such as homicide, assault, and
larceny, the forfeiture of horses and cattle—partly as compensation
to the injured man or his kin, partly as a fine to the king or city the
authority of which had been transgressed. Leading men, so Tacitus says,
(^1) See H. Goelzer in Bulletin du Cange, ii. 39–40, for an isolated use of Romanus statusby
Tertullian in the early third century.
(^2) F. Millar, ‘The Mediterranean and the Roman Revolution: Politics, War and the
Economy’, Past and Present, 102 (1984), 18.