Law and Governance in the Early Middle Ages

The law of the Early Middle Ages was very different from what we now mean by law. There was no centralized legislature, no professional judiciary, no police force, and no public prosecutor. The laws that governed daily life were largely customary, transmitted orally across generations, and enforced by the local community and the local court. Kings issued decrees, bishops issued canons, and councils issued rulings, but the bulk of the law that ordinary people encountered was the law of the village, the manor, the kin-group, and the hundred.

This article surveys the legal systems of the period: the surviving Roman law, the new Germanic codes, the relationship between secular and ecclesiastical law, the institutions of local government, and the changing mechanisms for resolving disputes. It also traces the slow emergence, especially in the Carolingian and Ottonian periods, of more effective royal government, and the parallel growth, especially in the late tenth and eleventh centuries, of movements for the reform of law and the limitation of violence. For the procedure of trial by ordeal, see the What Was Trial by Ordeal?.

The Roman inheritance

The legal system of the Roman Empire survived the collapse of imperial government in the West in fragmentary form. In the Mediterranean regions, where Roman cities and Roman aristocracies persisted, the old law of obligations, of property, of marriage, and of procedure continued to be known and applied. The greatest single monument of this survival is the Code of Justinian, compiled in Constantinople in 534 and revised in the following decades. The Code preserved the whole of Roman law in a systematic form, but its influence on the early medieval West was limited. The Latin West had only limited access to the Justinianic texts until their recovery in the eleventh and twelfth centuries. What survived was the older, pre-Justinianic Roman law, summarized in abridged collections, in episcopal rulings, and in the living practice of the surviving Roman communities.

The most important single fact about Roman law in the West is that it was not the law of the new Germanic kingdoms. The Visigoths, the Ostrogoths, the Franks, the Lombards, the Anglo-Saxons, the Burgundians, and the other Germanic peoples each had their own customary law, and they applied it to themselves, while continuing to apply (in many cases) Roman law to their Roman subjects. The famous principle of personality of law - that each person was judged by the law of his own people - was the rule in most of the successor kingdoms.

The Germanic law codes

The fifth through eighth centuries saw the compilation of a series of law codes for the new Germanic kingdoms. The Salic Law of the Franks, in its earliest form probably dating from the late fifth century, was issued under Clovis and revised many times thereafter. The Visigothic Code of Recceswinth, issued in 654, was the most ambitious of the Germanic codes; it drew on Roman law as well as on Gothic custom, and it applied to all subjects of the Visigothic kingdom regardless of ethnicity. The Edict of Theodoric for the Ostrogoths, the laws of the Burgundians, the laws of the Lombards (issued by King Liutprand in the early eighth century), the Anglo-Saxon laws of Æthelberht of Kent, Ine of Wessex, and Alfred the Great, and many other codes and capitularies, together form a large and varied body of early medieval law.

These codes have a number of common features. They were written in Latin, in the vernacular, or in both; they were public, not private; they were issued by kings, often in consultation with the great men of the kingdom; and they dealt primarily with the regulation of violence, the protection of property, marriage and inheritance, and the procedures for the resolution of disputes. Their central principle was compensation. Most offenses - even homicide - could be atoned for by the payment of a sum, the wergeld, that varied with the status of the victim. The wergeld of a noble might be six or eight times that of a free commoner, and that of a free commoner many times that of an unfree person. The principle was that of proportional justice: a man’s worth was reflected in the price that must be paid for killing or injuring him.

The codes also reveal a great deal about the society that produced them. They tell us about the value of animals and tools, the customary obligations of husband and wife, the procedures for the transfer of land, the rules of inheritance, the rights and duties of lords and dependents, and the rituals of oath, ordeal, and judicial combat by which truth was established. For a discussion of one of the most famous of these procedures, see the What Was Trial by Ordeal?.

Procedure: oath, ordeal, and judicial combat

In the absence of professional investigators, professional judges, and a modern concept of evidence, early medieval procedure relied on a small number of mechanisms for determining the truth. The most common was the oath. A defendant could clear himself by swearing, with a number of oath-helpers (usually twelve for a free man, fewer for a less reputable person), that he was innocent. The oath was a religious act, calling down divine judgment on the swearer if he lied, and the number of oath-helpers required reflected the seriousness of the charge and the status of the accused.

When the oath was insufficient, or when the case was too grave, the parties could have recourse to ordeal. The most common forms were the ordeal of boiling water or oil, in which the accused plunged his hand into a cauldron and was judged by the state of the burn a few days later; the ordeal of fire, in which he walked over hot ploughshares; and the ordeal of cold water, in which he was bound and thrown into a pond, with sinking being taken as a sign of innocence and floating as a sign of guilt. The ordeal was a religious act, presided over by a priest, and it was based on the belief that God would reveal the truth to a community unable to find it by ordinary means.

A third procedure was the judicial duel, in which the parties or their champions fought, and the winner was judged to be in the right. The judicial duel was especially common in cases of treason, of disputed inheritance, and of serious crime, and it became a major feature of the legal procedure of the High Middle Ages. The Fourth Lateran Council of 1215, which forbade the participation of clergy in ordeals, also called into question the legitimacy of judicial combat, but the practice continued in many regions for centuries.

The king’s peace

The most distinctive contribution of the post-Roman kingdoms to the development of early medieval law was the concept of the king’s peace. Originally a protection extended to certain persons (the king himself, his family, his officials, and certain sacred places and occasions), the king’s peace was gradually extended to wider categories. The English king Æthelstan, in the tenth century, issued a code of laws that established a single king’s peace for all of his subjects, regardless of rank. The Frankish kings, the Carolingians, and their successors developed similar concepts. By the eleventh and twelfth centuries, the king’s peace had become the foundation of much of English and continental criminal law.

The king’s peace had two important consequences. First, it gave the king a direct interest in the maintenance of order, and it provided a framework for the development of royal justice. Second, it placed the violation of the peace - the breach of the king’s protection - in the category of serious crime, to be punished not by compensation but by the king’s own authority. The development of the king’s peace was a major step toward the centralization of legal authority in the post-Roman kingdoms.

Local government: the hundred, the shire, and the count

The actual administration of law and government was, in most regions, a local matter. The Anglo-Saxon system of the hundred and the shire, with their regular meetings and their elected or appointed officials, was one of the most effective local government systems of the early Middle Ages. The hundred, a district containing perhaps a thousand hides of land and roughly a hundred men, met regularly to hear cases, to enforce the law, and to manage the common affairs of the district. The shire, a larger unit presided over by the king’s ealdorman or comes, met less frequently, but it had broader responsibilities. The system was further developed after the Norman Conquest of 1066, but its basic structure was already in place in the Anglo-Saxon period.

In the Frankish world, the equivalent of the hundred was the pagus, a district presided over by a count. The count held a mallus, a public court, several times a year; he presided over the enforcement of the royal orders, the collection of the royal revenues, and the administration of justice. The system was inherited from the late Roman Empire, in which the pagus and its officials had played a similar role. The Carolingians greatly expanded the system, and they attempted to ensure its effectiveness through the missi dominici, the itinerant inspectors who checked on the work of the local officials.

The effectiveness of local government varied. In some regions and some periods, the local courts were active, well attended, and respected; in others, they were dominated by the great magnates, who used them to advance their own interests. The major reform of the late tenth and eleventh centuries - the Peace of God, the Truce of God, the royal reforms of the Anglo-Saxon kings, the Ottonian and Salian reforms in Germany - was in part a response to the breakdown of the older systems of local order.

The Peace of God and the Truce of God

The Peace of God, originally proclaimed by the Council of Le Puy in 975 and rapidly spreading through the rest of Latin Christendom in the following decades, was one of the most remarkable mass movements of the early Middle Ages. It was a response to the breakdown of public order in the late tenth century, when the raids of the Magyars, Saracens, and Vikings had ended but the violence of the new knightly class was disrupting the lives of the peasantry, the clergy, and the unarmed. The Peace called on lords, knights, and freemen to swear to refrain from attacking the unarmed, the clergy, the property of the Church, and the tools and animals of the peasantry. It was enforced by ecclesiastical sanctions and by popular assemblies, and it had a real, if limited, effect on the level of violence.

The Truce of God, developed in the eleventh century, extended the Peace by prohibiting fighting on certain days of the week (eventually from Wednesday evening to Monday morning) and during certain seasons (Advent, Lent, and other penitential periods). The combination of Peace and Truce was the foundation of much of the chivalric ideology of the High Middle Ages, and it was a major step in the development of the medieval idea of just war.

The Church and the law

The Church was a major legislator in the Early Middle Ages, and its canons, decrees, and rulings formed an important body of law alongside the secular codes. The canons of the church councils, the rulings of the popes, the penitential literature, and the rules of the religious orders all had the force of law for the baptized. The Church had its own courts, which handled cases of marriage, inheritance, clerical discipline, and certain other matters. The Church’s law was based on the Bible, the writings of the Church Fathers, and the canons of the ecumenical councils, and it was administered by bishops and their officials.

The relationship between secular and ecclesiastical law was complex. The Church claimed jurisdiction over its own members and over a wide range of cases (marriage, wills, oaths, heresy). The secular authorities claimed jurisdiction over most crimes and over the public order. The two systems often competed, and the resolution of their competition was one of the major themes of medieval legal history. By the eleventh century, the Gregorian Reform was attempting to define the boundary more sharply, but the boundary remained contested for centuries. The fuller treatment is in the Early Medieval Christianity.

Royal government: the Carolingian and Ottonian systems

The Carolingian monarchy, especially under Charlemagne, developed one of the most ambitious systems of royal government in early medieval Europe. The king was surrounded by a council of great men, both lay and ecclesiastical; he issued capitularies, detailed instructions to his officials, in enormous numbers; he sent out missi dominici, itinerant inspectors who reported on the conduct of the local officials; and he presided over a system of royal estates, mints, and courts. The system required an unusual degree of literacy, and it was accompanied by a serious effort to train the clergy and the royal officials in the skills of reading, writing, and arithmetic.

The Carolingian system did not long survive the death of Charlemagne’s son Louis the Pious in 840. The empire fragmented under Louis’s successors, and the royal government of the later Carolingian period was much less effective than that of the great emperor. But the legacy of the Carolingian monarchy was enormous. The Ottonian kings of the tenth century consciously modeled themselves on the Carolingians; the English monarchy of the tenth century, especially under Edgar and Æthelred, developed its own version of effective royal government; and the institutions of royal law, royal administration, and royal court survived in many regions long after the Carolingian Empire had fallen.

The tenth- and eleventh-century revival

The late tenth and eleventh centuries saw a major revival of royal and ecclesiastical government across Western Europe. The new royal dynasties of the period - the Ottonians in Germany, the Capetians in France, the Wessex kings in England - were constructing more effective systems of government than their predecessors. The Ottonians, in particular, developed a close alliance with the German church, which provided much of the trained personnel of the royal government. The English kings of the period, especially Edgar and Æthelred, developed a sophisticated system of royal administration, with regular taxation, a system of royal writs, and an effective system of local government. The Capetians were slower to develop effective institutions, but by the end of the eleventh century, the French monarchy was on the rise.

The ecclesiastical reform movement of the period, culminating in the Gregorian Reform of the eleventh century, was in part a response to the same problems that the royal governments were addressing. The Cluniac reform of the monasteries, the Peace of God movement, and the Gregorian reform of the papacy all aimed at a more effective system of law, a more disciplined clergy, and a more orderly society. The combined effect of these movements was to lay the foundations of the much more effective royal and ecclesiastical government of the High Middle Ages. For a broader context, see the Daily Life and Society in the Early Middle Ages and Anglo-Saxon England.