Medieval Migration Law
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 of ca. 1250, the so-called Brookmerbrief. The Brookmerbrief, meaning ‘letter of Brookmer’ was a book of law, or codex, of the district Brookmerland in the present-day region of Ostfriesland, Germany. The Brookmerbrief is regarded to be the main legal text of the period of the so-called Frisian Freedom. The legal texts are written in Old Frisian. The quoted article above is interesting because it illustrates how the collection of medieval peasant republics dealt with the presence of foreigners on the territory of Frisia.
Old Frisian Law
High-medieval Frisia included present-day region Westfriesland in province Noord Holland, province Friesland and province Groningen in the north of the Netherlands, and region Ostriesland in the northwest of Germany, the area between the rivers Ems and Weser. These areas differed strongly from the rest of Europe in the sense that feudal structures had not really rooted here, and the little feudalism there was, crumbled in the High Middle Ages. The Seven Sealands, as the federation of small republics was named, had neither dukes nor counts. Jointly they formed a loose federation of independent peasant republics. Hence, this period is named the ‘Frisian Freedom’. A society without government. Read our post Magnus’ Choice: the Origin of the Frisian Freedom.
Ubi societas, ibi ius ‘wherever there is society, there is law’, and this maxim also applied for Frisia. During the thirteenth and fourteenth centuries, delegates from the Seven Sealands declared new laws once a year on the first Tuesday after Pentecost. It was a somewhat imaginative event and happened in open air at the gathering of the thing (also called ðing, þing, ting, or ding) named Upstalsboom, near the present-day town of Aurich in Ostfriesland. It is too detailed to explain at this place how justice was being done and how it was organized exactly in each republic. Important is to know it was done by appointed local, more or less rotating ‘judges’, and not under the authority of a count or ‘government’ otherwise. As said, there was no government. There was simply no higher authority at all. This loose federation of republics was a society where formal feud law was applicable. A law practice to regulate violence. Read our post Upstalsboom: why solidarity is not the core of a collective, and learn more about this NATO-like league avant la lettre.
In the High Middle Ages, law and religion were one and the same. The order of law was identical to the order of spiritual salvation. Observance of the law was essential if one would go the heaven. Obey the Ten Commandments, or in Old Frisian language haad dae tzien ‘hold the ten’, live your faith (Mulder-Bakker & Bremmer 2021). Medieval sagas explain how the Frisian people received their laws directly from Christ. Especially, the saga of the twelve asegas from the Sawen Selandum ‘seven sealands’ who were rescued at sea by Christ, and after being taught the divine laws to be uphold by the Frisians. In our post In debt to the beastly Westfrisians you can read more about this saga handed down in the thirteenth-century Codex Unia.
Dealing with foreigners
The Old Frisian law books, of which the Brookmerbrief was merely one of many, were important to settle disputes and to prevent or terminate feuds. Also, the quoted article can be considered rudimentary or basic immigration law. It is interesting because it provides a bit insight into the most important interests which had to be secured in relation to foreigners. Let’s explain.
The Old Frisian word for foreigner was vthemeda, and is very similar to the present Dutch word uitheems. This means ‘out of heem’ where hemeda or heem stands for residence. Compare the Mid-Frisian word hiem or the English home. Many current town and village names in the Netherlands still have the extension –heem, or a corruption thereof. The part vt or ut means ‘out’. So, an vthemeda is someone from ‘outside the residence’, to be understood as a designated area of land.
By the way, the modern Mid-Frisian word for vthemeda is frjemd, comparable to the Danish fremmed, or the Dutch vreemd, original meaning ‘from (a)far’. In today’s parlance frjemdeling or vreemdeling receives more and more a negative connotation as being strange, weird, scary even. A pitty, since its original meaning ‘from afar’ is quite factual and without judgement.
The central, legal question of the quoted Brookmerbrief article is: Who is responsible for a foreigner, and to what extend? The answer: The one who shelters the foreigner. And he/she is responsible for all the foreigner’s actions. This law leads to a number of 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 was being made between local and non-local persons. Citizens and non-citizens, in today’s wording. The same distinction is being made in modern immigration law worldwide to this day.
(3) The third observation is that of the primary concern, namely the responsibility. This is understandable, even more so in a context where no government exists. Suppose the foreigner causes damage to someone’s property or to a person. In a feud society not only the damage to property or to the person had to be compensated, but a fine for breaking the peace had to be paid as well. ‘Breaking the peace’ can be understand as a fine comparable with today’s violation of the public order. The compensation for the damage had to be paid to the owner or to the victim, or in cases of murder and manslaughter, to his/her family. In other words, the primary concern was that no disruption of the peace of the community would occur. And if it did, the balance had to be restored through money. After all, if the damage and the broken peace would not be balanced again, it could very well escalate into a long-term, 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. Read also our 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, cozy bed and breakfasts or otherwise. Foreigners staying in the area sought shelter in homes or on yards of residents. Anyone who offered a foreigner shelter 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 (fully) be recovered from the guarantor, the damage is covered by the government or by insurance companies (also a Frisian invention by the way, read our 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 to 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 have existed.
If comparison is made with today, it is interesting to see there are still similarities on some basics of immigration law. The distinction between foreign and non-foreign is still there. Logical, since it is the essence why immigration law exists. A foreigner is treated differently and has different, mostly less, rights than indigenous persons.
Furthermore, just as in the thirteenth century, it is a reality that there may arise costs or other issues due to the presence of foreigners. Dutch immigration law imposes conditions on a resident who receives a foreigner. For example, if a residents wants to bring over his/her foreign lover, conditions are imposed on to the height and durability of the income of the resident. The same might apply for a company hiring foreign workers. With a guarantee, the company may be held liable for costs that may occur. The ratio behind it is very elementary: the own community should not have to bear any costs.
The underlying dilemma in this regard has not changed since the thirteenth century, namely that foreigners have no person, clan or government behind them that can be held liable for any costs or disturbances incurred by their subject. The development of the modern nation states has not changed this. Governments do not vouch for costs that have been caused by their own nationals abroad. If they would, however, it would solve a lot of issues in the field of migration. Nearly all, to be frank. It is not the case. However, when Dutch football hooligans from Rotterdam damaged for no reason the seventeenth-century Bernini fountain in Rome in 2015, the Netherlands’ government did feel some moral responsibility. Nevertheless, it were private persons in the Netherlands who did raise some money to have the fountain repaired.
Completely different now from eight centuries ago, is that citizens do no longer directly experience costs caused by the presence of foreigners, and the peace or public order is maintained and restored differently as well. Costs are felt very indirectly, and are borne by the government via taxes, and by insurances. Thus borne by all of society. Furthermore, the public order is uphold and restored through government institutions and not by the community itself. Albeit beyond the scope of this post, it is this disconnect of responsibilities what is very relevant to understand today’s public, quite academic, migration debate.
Nevertheless, the answer to the question who is liable for the actions of a foreigner, is among the historic heart of immigration law, and still is a current (legal) question.
Frisia, also a legal anomaly in European history
As discussed, medieval Frisia had quite a unique status during the High Middle Ages for being a lordless, collection of republics. A situation it had in common with the collection of farmer republics in the region Dithmarschen and with the Swiss Waldstätte. More about the latter in our post Make way for the dead!. Thus feudal law was formal law. As a consequence of this deviant political situation without a government, Frisian, feud law was practiced until around 1500.
Around 1500 all the Frisian farmer republics had lost their independence. The small republics and their feud laws ceased to exist, and feudalism and feudal law was introduced. The tradition of Old Frisian law came to and end too, including the use of the Frisian language in official and judicial domains.
In province Friesland, another different development took place. In the year 1498, the area what is now province Friesland lost its independence to duke Albert III of Saxony. He died quite soon. His son, duke George of Saxony, abolished the Old Frisian law in 1504 with the so-called Saxon Ordonnance. With this ordonnance Frisian law was replaced by Roman law in its purest form. Not watered down with other legal traditions. Suddenly, Frisians continued a 2.5 thousand-years-old Roman legal tradition.
When (only) seventy-five years later, in 1581, province Friesland joined the uprising against the kingdom of Spain and regained its independence as part of the Republic of the Seven United Netherlands, apparently nobody in Friesland considered to return to the Old Frisian law tradition and its legal language. Instead, Roman law simply continued to be the applicable law, and would, amazingly, existed until the Dutch Republic was incorporated into the French Republic in 1795. So, ancient Roman law was actively practiced until the late eighteenth century at the low-laying fringes of Europe, namely in province Friesland.
Note 1 – Also relating to migration laws, the Older Law of Västergötland’ 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, fulfill functions in public life, etc. Honour was a kind of insurance policy, and because, in general, no one could vouch for a unknown foreigner, he or she was without honour.
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