Medieval Migration Law. A Matter of Liability

Hans Faber
Oct 8, 2017
11 min read

Updated: Sep 14

Hwasa thene vthemeda husath ieftha howath ieftha oppa sinne werf set, sa skel hi thes wachtia, hwetsa hi deth.

Who receives a foreigner in his house or in his court or seats on his yard, shall be responsible for all that he does.

This is codified law from around 1250, known as the Brookmerbrief. Literally the 'Brookmer Letter,' the Brookmerbrief was a legal codex for the territory of Brookmerland in what is now the region of Ostfriesland, in north-western Germany bordering the Wadden Sea. It is considered the principal legal text of the period known as Frisian Freedom—a history we explored in our blog post Magnus’ Choice: The Origins of the Frisian Freedom. The laws were written in the Old Frisian language. The article quoted above is particularly noteworthy because it shows how the small peasant republics along the Wadden Sea coast in Germany and the Netherlands managed the presence of foreigners on Frisian—and partly Lower Saxon—territory during the Middle Ages.

And who knows—after decades of Western societies failing to agree on shared norms for migration—these old texts and histories may still hold valuable lessons.

Old Frisian Law

High-medieval Frisia encompassed the present-day region of Westfriesland in the province of Noord Holland, the provinces of Friesland and Groningen in the north of the Netherlands, and the region of Ostfriesland in north-western Germany, lying between the rivers Ems and Weser. These areas, along with the Saxon region of Dithmarschen, differed markedly from much of Europe: feudal structures had scarcely taken root, and the few vestiges that existed crumbled during the High Middle Ages. Frisia tota, as this collection of marshland republics was called, had no dukes, counts, or other feudal lords. Instead, the territories formed a loose federation of independent farmers' republics, also referred to as the Seven Sealands. This era became known as the 'Frisian Freedom'—a society without a central government. Yes, it was possible once! The fourteenth-century French poet and chronicler Jean Froissart described the Frisians as “gens sans loi et sans foi” which translates as 'people without law and without faith' (Janse 1993). But this characterization was not entirely accurate, as we shall see. Quite the opposite.

Ubi societas, ibi ius ('where society exists, there is law')—and this maxim applied equally to Frisia, even in the complete absence of state institutions. During the thirteenth and fourteenth centuries, delegates from the Seven Sealands proclaimed new laws once a year, on the first Tuesday after Pentecost. This somewhat imaginative event took place outdoors at the gathering of the thing—also called þing, ting, or ding in various Germanic languages—known as Upstalsboom, near the present-day town of Aurich in the region of Ostfriesland, Germany. For more details, see our blog post The Treaty of the Upstalsboom: Why Solidarity Is Not the Core of a Collective, and discover more about this NATO-like league avant la lettre.

It is too detailed to explain here exactly how justice was administered in each of the small republics. What is important to know is that it was carried out by appointed local—more or less rotating—'judges,' and not under the authority of a count or any other central government. As noted, there was no government: no higher authority existed beyond the individual inhabitants of the land. This loose federation of republics operated under formal feud law, a legal system in which blood revenge was fully legitimate and could give rise to long-lasting, socially disruptive feuds. At the same time, however, feud law also provided a means of regulating violence through compensation, often in money or precious metals, as a commonly preferred alternative to bloodshed.

In the High Middle Ages, law and religion were inseparable. The order of the law mirrored the order of spiritual salvation: observing the law—or living one’s faith—was essential for entry into heaven. One was expected to obey the Ten Commandments, or in the Old Frisian language, haad dae tzien, meaning 'hold the ten' (Mulder-Bakker & Bremmer 2021). Medieval sagas recount that the Frisian people received their laws directly from Christ. In particular, the saga of the twelve asegas from the Sawen Selandum ('seven sealands') tells how they were rescued at sea by Christ and taught the divine laws that the Frisians were to uphold. An asega was an official with extensive knowledge of the law who presided over gatherings during the thing.

For more on the saga of the twelve asegas as preserved in the thrirteenth-century Codex Unia, see our blog post In Debt to the Beastly Westfrisians.

Dealing with foreigners

The Old Frisian law books — of which the Brookmerbrief was just one among many — played a crucial role in settling disputes and in preventing or ending blood feuds. Moreover, the article quoted at the beginning of this blog post can be seen as a form of rudimentary immigration law. It is particularly interesting because it offers insight into the key interests that had to be safeguarded in dealings with foreigners.

Let us explain.

The Old Frisian word for foreigner was vthemeda, closely related to the modern Dutch word uitheems. Literally, it means 'out of heem,' where heem or hemeda stands for 'home' or 'residence' (compare the modern Mid Frisian word hiem or the English word home). Many contemporary town and village names in the Netherlands still carry the suffix -heem, or a variation of it. The prefix vt or ut means 'out,' so an vthemeda is someone from 'outside the residence'—that is, outside a designated area of land. A related German loanword in Dutch is unheimisch, meaning 'uneasy' or 'unpleasant,' which also shares a connection with uitheems. A language association which makes you think, does it not?

By the way, the modern Mid Frisian word for vthemeda is frjemd, comparable to the Danish fremmed or the Dutch vreemd, originally meaning 'from afar.' Today, however, frjemdeling or vreemdeling in Mid Frisian and Dutch has acquired increasingly negative connotations, suggesting someone strange, odd, or even frightening. This is unfortunate, since its original meaning—'from afar'—was purely factual and neutral. Words do matter, though, and for this reason, 'migrant' has become the socially accepted term, for now.

The central legal question in the quoted Brookmerbrief article is: Who bears responsibility for a foreigner, and to what extent? The answer is clear: the person who provides shelter for the foreigner is fully accountable for all of their actions. This law gives rise to several notable observations:

(1) The first observation is an obvious one. Foreigners could cause damage (too), and this was apparently such a relevant issue that it was regulated by law.

(2) The second observation is quite obvious, too, namely a distinction is made between local and non-local persons. Citizens and non-citizens, in today's wording. The same distinction is made in modern immigration law worldwide to this day.

(3) The third observation concerns the primary issue: responsibility. This is entirely understandable, especially in a context without any formal government. Suppose a foreigner caused damage to someone’s property or harmed a person. In a feud-based society, not only did the damage itself need to be compensated, but a fine for 'breaking the peace' also had to be paid. This concept of breaking the peace is akin to today’s violations of public order. Compensation was made to the owner or victim, or, in cases of murder or manslaughter, to the victim’s family. In other words, the primary concern was to prevent disruption to the community’s peace. If the peace was disturbed, it had to be restored with money. Failure to balance the damage, the honour, and the broken peace could easily escalate into a long-lasting, destructive feud.

Anyway, remember from all this that 'balance' was the key word in medieval Frisia, as it was (and is) in any feud society or sub-culture. Read also our blog post You killed a man? That'll be 1 weregeld, please to get a deeper understanding of the feudal law and compensation mechanisms.

(4) The fourth observation is the solution, namely that a resident was liable. A foreigner was allowed to stay on the territory if a resident could be held responsible. Obviously, there were no motels, inns, cosy beds, motels, and breakfasts or otherwise. Foreigners staying in the area sought shelter in the homes or yards of residents. Anyone who offered a foreigner shelter on his premises was, according to this law, liable for any possible damage caused by the foreigner.

Modern Dutch immigration law still has a somewhat similar variant, namely the figure of the guarantor. Unlike then, when today no guarantor is available, or the damage cannot be recovered (fully) from the guarantor, the damage is covered by the government or by insurance companies (these companies are a Frisian invention, by the way; read our blog post "I did not have financial relations with that village"). Back then, of course, there might have been a kind of trade-off between the resident and the foreigner for giving shelter and carrying this legal, financial risk. Or perhaps the foreigner had to prove beforehand to the resident that they would be able to compensate for any damage in case the resident would be held liable by the community. Sure, it is guessing, but these or similar mechanisms undoubtedly existed.

If we compare this to today, it is interesting to note that some fundamental aspects of immigration law remain similar. The distinction between foreigner and non-foreigner persists—logical, since it lies at the very heart of why immigration law exists. Without such distinctions, we would all be 'world citizens,' effectively stateless, which is hardly a desirable situation. A foreigner is treated differently and generally has fewer rights than indigenous residents. At the same time, because migration law is quite universal, anyone can be considered a foreigner or a citizen depending on where they happen to be on the planet at any given moment. Whether as tourist, family visit, for work, for love, or heaven forbid, as refugee. An aspect that is often left out in the debates on migration today.

Furthermore, just as in the thirteenth century, the presence of foreigners within a community can give rise to costs or other issues. With the rise of nation-states in the nineteenth century, society became defined by its physical borders; hence, today we speak of 'foreigners on the territory.' Dutch immigration law imposes conditions on residents who host foreigners. For example, if a resident wishes to bring over a foreign partner, requirements are placed on the level and stability of their income. The same principle applies to companies hiring foreign workers: with a guarantee, the company may be held liable for any costs that arise. The underlying rationale is simple: the community should not have to bear the costs resulting from a foreigner’s presence.

The fundamental dilemma remains unchanged since the thirteenth century: foreigners have in general no family, clan, or government that can be held liable for any costs or disturbances resulting from their actions. The emergence of modern nation-states has not altered this reality. Governments do not assume responsibility for damages caused by their nationals abroad. If they did, many migration-related issues—nearly all, in fact—would be greatly simplified. Consider, for example, when Dutch football hooligans from Rotterdam damaged the seventeenth-century Bernini fountain in Rome in 2015. While the Dutch government acknowledged some moral responsibility, it was ultimately private individuals in the Netherlands who raised funds to repair the fountain.

fontain at Piazza de Spagna in Rome by Pietro Bernini

What is completely different from eight centuries ago is that citizens no longer directly bear the costs caused by the presence of foreigners, and public order is now maintained and restored in a very different way. Today, costs are felt indirectly, carried by the government through taxes and by insurance—essentially shared across all of society. Public order is upheld and restored by government institutions, rather than by the community itself. While this is beyond the scope of this blog post, this disconnect of responsibilities helps explain part of today’s public—and often quite academic—debate on migration.

Nevertheless, the question of who is liable for the actions (and costs) of a foreigner lies at the very heart of historic immigration law—and it remains a pressing legal question today.

Frisia, a legal anomaly in European history

As discussed, medieval Frisia, including the Frisian regions of Butjadingen and Stadland, and Land Wursten, had quite a unique status during the High Middle Ages for being a lordless collection of republics. A situation, as mentioned, it had in common with the collection of farmer republics in the region of Dithmarschen, but also with the Swiss Waldstätte. More about the latter in our blog post Make way for the homesick dead!, telling about the Frisian origin of the Swiss. Thus, feudal law was formal law. As a consequence of this deviant political situation without a government, Frisian feudal law was practiced until around 1500.

Around halfway through the sixteenth century, all the Frisian and Saxon farmer marshland republics along the Wadden Sea coast had lost their independence and were usurped by counts and bishops. The small republics and their feudal laws ceased to exist, and feudalism and feudal law were introduced. The tradition of Old Frisian law came to an end too, including the use of the Frisian language in official and judicial domains.

In the province of Friesland, a development occurred that differed markedly from the rest of Europe. In 1498, the area that is now Friesland lost its independence to Duke Albert III of Saxony, who died shortly thereafter. His son, Duke George of Saxony, abolished the Old Frisian law in 1504 through the so-called Saxon Ordinance. Ubi societas, ibi ius, as noted earlier—where there is a society, there must be law—and thus a new legal framework had to be established. With this ordinance, Frisian law was replaced by Roman law in its purest form, unmodified by local legal traditions. In effect, the Frisians suddenly found themselves continuing a 2,500-year-old Roman legal tradition!

Seventy-five years later, in 1581, the province of Friesland joined the uprising against the Kingdom of Spain and regained its independence as part of the free republics of the Seven United Netherlands. Interestingly, no one in the province of Friesland considered returning to the Old Frisian legal tradition or its native legal language—a conscious choice by the Frisians. Instead, Roman law remained in force and, remarkably, continued to govern the province until the Dutch Republic was incorporated into the French Republic in 1795. Thus, ancient Roman law was actively applied in the province of Friesland—at the low-lying fringes of Europe, some 2,000 kilometers from Rome—well into the late eighteenth century.

If the Roman jurist Gaius (c. AD 130–180) could hear this, he would have been proud of those self-governing Frisians.

Note 1 — Also relating to migration laws, the Older Law of Västergötland in Sweden of the Viking Age stated that murders of people from Västergötland were punishable by higher payments than if the victim came from other parts of Sweden (Sanmark 2017).

Note 2 — Another aspect is that well into the early modern period, a foreigner had no honour (Van de Pol 2011). Honour for many centuries determined the social position of a person. If you had no honour, you were not able to do business, could not loan money, get proper jobs, fulfil functions in public life, etc. Honour was a kind of insurance policy, and because, in general, no one could vouch for an unknown foreigner, he or she was without honour. See our blog post Harbours, Hookers, Heroines, and Women in Masquerade.

Note 3 — There is another aspect of immigration, which is not part of what migration law regulates, namely cultural identity and social cohesion. This aspect of migration is becoming more and more dominant over the last decade, and migration law is being used for it, while in origin its objective is regulating migration in terms of security and economy. It has led to heated and unguided political and social debates in the Western World. Maybe it would help to redefine what other purposes migration serves besides these two historical ones.