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Medieval Sourcebook:
Burchard of Worms:
Lex Familie Wormatiensis
Charter of immunity for the church of Worms July
29, 1014
©Translated by Steve Lane, [email protected]
from Lorenz Weinrich, ed., Quellen zur deutschen verfassungs-,
wirtschafts- und sozialgeschichte [Darmstadt: Wissenschaftliche
Buchgesellschaft 1977], document 22
In the name of the holy and undivided Trinity. Henry, by the pre-ordination
of the divine mercy, Emperor Augustus of the Romans. If we give
weight to the petitions of the priests of God, which they have
brought before us, concerning the necessities of the churches
committed to them, we truly believe that this will redound both
to the benefit of our earthly realm and to the augmentation of
our eternal happiness. Therefore let it be known to the industry
of all of our and God's faithful, present and future, that the
venerable man Burchard, bishop of the holy church of Worms, by
the unanimous plea of the bishops and abbots of that province,
came before our majesty complaining of the frequent injuries and
unjust laws imposed upon the familia of his church by our
own counts, with such presumption that, if anyone from that familia were to be found guilty of theft or assault or any
criminal charge, whether the case was big or small, he would be
forced to pay a fine of 60 shillings to the count. He further
presented to our sight the charters of immunity which the most
Christian king of the Franks Dagobert gave in the beginning to
God and to Peter and Paul his holy apostles, in which charters
it is written that the same Dagobert decreed that no count should
have any power to hear cases concerning that familia.[1]
He further showed to us and to our faithful men the confirmations
of Dagobert's successors, namely Pepin, Charles [2],
Louis, Chilperic, Arnulf and the three Ottos, our own ancestors,
greatest of kings and emperors, in which documents we found that
they had renewed with their own permissions the original grant
of Dagobert. And lest this unjust law [i.e. of the counts]
proceed any further, it has been asked of our clemency that we
coerce the insulting presumption of the counts by our own domination,
and confirm this grant to the church by our own authority.
Acquiescing to his petitions out of love and voluntary service
to the divine worship, we have ordered that this precept be made,
by which we order that the said priest Burchard and his successors
should peacefully possess the rights of the church as they were
confirmed by the above- mentioned kings and emperors, and that
none of our counts should presume in the future to do any injury
or injustice to the familia of that church.
Further, for the remuneration of eternal happiness and the veneration
of the blessed apostles Peter and Paul, we lay down this imperial
precept and order that it remain firm and unchanged forever, namely
that, if hereafter anyone of the familia of the church
of Worms commits a theft or an assault or any criminal matter
within that familia, he shall make restitution into the
bishop's hands, to his advocate. [3] If he
has a quarrel outside the familia, with some stranger,
his advocate shall answer on his behalf before the count; and
if he does an injustice to any free man, or fights with him, or
commits any theft outside the familia, the advocate will
answer for him similarly. If he commits a theft within someone's
enclosure (fences), he shall give back what he took, and pay 5
shillings besides; if the theft was outside the enclosure, he
shall restore the goods and pay an ounce [of gold] as well. The
security shall never be valued at more than 5 shillings. Further,
the counts are to have no power whatsoever over the familia of the aforementioned church, unless a person of the familia is convicted of theft in a legal tribunal by the judgement of
the scabini[4] and the oath of free men. [5] If he is caught red-handed in the theft,
let him be kept meantime in the count's prison, until his case
may be decided by the judgement of the scabini on the court-day.
The sixty shillings which until now the counts received by an
unjust and unreasonable law, we completely forbid [them to take],
except in the royal cities. And if anyone should violate these
charters of confirmation or stand out as a transgressor of this
constitution of ours, if he is free, let him pay three pounds
of gold to our treasury; if he is a serf, let him lose his hair
and skin. [6]
So that this authority may remain forever firm and stable, we
have subscribed it with our own hand, and have ordered that it
be sealed with the impression of our seal. Given on the fourth
day before the Kalends of August, in the twelfth indiction, in
the year of our lord's incarnation 1014, in the 13th regnal year
of the lord Henry the second, in the first year of his empire; [7] done at Mersifeld, in God's name, happily,
amen
Law of the familia of
the church of Worms, ca. 1024/25
(Lex familie Wormatiensis, Weinrich doc. 22, pp.
90 ff.)
In the name of the holy and undivided Trinity. I Burchard, bishop
of the church of Worms, on account of the strenuous lamentations
of the wretched, and the frequent schemes of those many people
who tear like dogs at the familia of St. Peter, imposing
various laws on them and oppressing the weaker among them by their
judgements; with the advice of the clergy and knights and the
whole familia I have ordered that these laws be written
down, so that no advocate or agent or official or any other person
among them may impose on them [the familia] anything new;
rather, let it be known before everyone that there is one and
the same law, common to rich and poor alike.
(1) If anyone of the familia of St. Peter shall contract
a legitimate marriage, whatever he gives his bride as a dowry
and she then holds for a year and a day without anyone's protest, [8] if the husband should die first, the wife
shall have the whole dowry until the end of her life. If she then
dies without children, the husband's nearest kin shall have the
dowry. Let it be the same if the wife should die first. Whatever
the two of them acquire together, if either outlives the other,
that person shall have it all in his or her own power, and may
do with it as he or she pleases. Whatever goods the woman has
brought with her to the marriage, when they are both dead, if
they have had children, the children shall have the mother's inheritance;
if they have had no children, the wife's kin shall have her goods
after death, unless she has made some other particular bequest.
(2) This shall be the law of the familia: if anyone accepts
property or servants through a bequest and then falls into poverty,
and because of this necessity wishes to sell the inheritance,
he must first offer it for sale to his nearest heirs. If they
don't want to buy it, let him sell it to some friend -- whomever
he wishes. If a piece of land has come into the bishop's hands
by the judgement of the judges, [9] and one
of the heirs to the land is willing to pay what is due, he shall
be given the power to do this, so that on this condition he may
accept the inheritance. But if no heir wishes to make satisfaction,
the official of the place shall give the land to some other person
of the familia, and that person thereafter shall have a
firm claim to be heir. But if someone comes along after two years
or after three or more and says "I am the heir, I was a pauper,
I was an orphan, I had nothing to feed myself with and on that
account I left the country and maintained myself there on my own
labor up until now," and wishes to expel, simply by his own
oath [10], the person who has been made heir
by the bishop's order and who has cultivated and maintained the
land well, then we establish, since initially there was no heir
who wished to pay the back rent, the person who was made heir
by the official shall have a firm claim to be the heir [i.e. to
keep the land]. If the other man was an heir, why did he flee,
why did he not stay at home and guard his inheritance? We don't
want to hear any further complaints from him in this matter, unless
he can bring some reasonable case forward. If someone who holds
a heritable piece of land dies and leaves behind an heir so small
he can't do the accustomed service for the land, if there is any
kinsman who wishes to do the service until the heir reaches full
age, we will permit this, so that the heir will not be disinherited
on account of his tender age. We ask that the case of such an
heir be treated with kindness.
(3) If anyone who has an inheritance in the episcopal lands dies,
the heir shall accept the lands without making a payment, and
shall thereafter provide the customary service. [11]
(4) If any person of the familia dies, his nearest heirs
shall inherit any goods he didn't bestow on his wife, unless the
deceased made an explicit bequest to other persons.
(5) If anyone, with the consent of his wife and with good witnesses,
hands over any of the dowry, or of any other goods, this transaction
is to be upheld, unless there are other circumstances to the contrary.
(6) If anyone sells his property or his inheritance within the familia, and one of his heirs is present [at the sale] and
doesn't object, or if one of the heirs was absent, but later realized
what occurred and keeps silent for a year, that heir shall lose
his rights.
(7) This shall be the law of the familia: if anyone comes
into the hands of the bishop for some crime, by the judgement
of his fellows [i.e. peers], he shall be condemned by him [the
bishop], together with his possessions. [12]
(8) If anyone has done an injustice against a member of his group,
along with others he brought along with him [13] , he and his people shall make restitution in one payment, and
each of the others will reconcile himself with his own payment. [14]
(9) This shall be the law of the familia: for the weregeld of a fisgilinus five pounds will be paid to the treasury,
of which half will go to his friends. [15]
(10) This shall be the law: if in the familia a man and
his wife die and leave a son and daughter behind, the son shall
take the land which owes service, and the daughter will inherit
the clothing and money of the mother. Anything else they shall
divide equally between them.
(11) "This then shall be the law" [16] of the familia: if anyone accepts property or servants
through a bequest and then takes to his sick-bed, so that he may
neither ride, nor walk under his own power, he may not alienate
the goods from his heirs, unless he needs to make some small bequest
from them for the good of his soul; any profit he has gotten from
the goods he may give to whomever he wishes.
(12) So that false oaths may avoided in all places where they
might arise, if anyone does damage to his fellow, whether in to
his fields, his vineyards or his less important goods, and admits
this to the magistrate of the place, let the local official, with
his fellow- citizens, decide the case without taking oaths.
(13) And this is also laid down, that if anyone of the familia who is a fisgilinus conducts any affair, large or small,
unjustly, he shall pay a securityof five shillings under the bishop's
ban, as though he were a dagwart [17] , and he shall pay a composition of 5 shillings to the person
to whom the injury was done, if they are of the same group. If
the injured party is outside of his group, he shall give security
of an ounce of gold and does not have to swear.
(14) If anyone marries from the bishop's household into the fief of another, he shall take his law from the household.
If on the other hand he marries from the fief into the household,
he shall answer to the lord of the fief. [18]
(15) If anyone of the accepts a foreign wife, it is just that,
when he dies, two thirds of his goods shall become the bishop's
property.
(16) Let this be the law: if a man who is fisgilinus marries a
woman who is dagewart, any children they have shall live under
the worse of the two laws; similarly, if a man who is dagewart
marries a woman who is fisgilina. [19]
(17) This shall be the law of the familia: if anyone makes
an unjustified outcry in court, or leaves his seat in anger or
does not get to court on time, if he is not convicted of this
by the others in attendance, he is not to swear; the matter will
rest on the testimony of the scabini.
(18) This shall be the law of the familia: that everyone
will swear with his fellow with one hand; if the case concerns
a feud, he needs seven "hands." This is also true if
the case is against the bishop. [20]
(19) They have also had this as their custom: if someone lends
his money to another, the latter person may pay back what they
want -- whatever he doesn't pay, he may deny owing under oath. [21] But so that false oaths may be avoided,
we establish this, that if the lender of the money does not wish
to permit this oath, he can instead undertake a duel to establish
his claim to the unpaid money. [22] If he
is a sufficiently lofty personage, such that he disdains to fight
in person for such a thing, he may choose someone to fight in
his place.
(20) If anyone, in the city of Worms, loses a duel he has been
condemned to fight, he shall give security of 60 shillings; but
outside the city or within the familia if he loses a duel,
he shall pay a triple fine for this unjust duel, and shall pay
a fine to the bishop, and shall give 20 shillings to the advocate,
or shall lose his skin and hair. [23]
(21) If anyone from the familia of St. Peter buys or otherwise
acquires goods or servants from a free man, he may not then give
those goods to anyone outside the familia, either with
or without [the permission of] the advocate, unless he is making
an exchange. [24]
(22) If anyone wishes to deprive a fisgilinus of his rights,
that is, to try to make him a dagwart or force him to pay
some rent he doesn't owe, the fisgilinus, with [the oath
of] seven kinsmen (who have not been paid to defend him) will
obtain the rights which are his by birth. [25] If the accusation comes from his father's side of the family,
he must have two witnesses from that side and one from his mother's
side, and similarly if the accusation comes from his mother's
side, unless he can be convicted by the judgement of the scabini or the testimony of his kinsmen.
(23) This shall be the law of the familia: if any of them
[i.e. of the familia] enters another's house with armed
force and takes a daughter away by force, he shall pay her father
or guardian triple the worth of the clothing she was wearing when
she was taken and shall also pay a fine to the bishop; he shall
return her with the fines to her father, and since he did not
wish to have her in the way prescribed the canons [i.e. wanted
to take the woman by force rather than contracting a legal marriage],
let him pay twelve shields, twelve lances and a pound of pennies
to her friends in order to make reconciliation.
(24) And we also establish this: if anyone confesses before an
official that he owes a debt, and the official cannot resolve
the case that day, and the person who had earlier confessed the
debt on a later occasion wishes to deny it, if there are witnesses
to his earlier confession, the official is to handle the case
as he would have earlier.
(25) And this shall be the law: if anyone confesses anything to
an official and the court-day for this matter is postponed, he
shall be judged as though he had made the confession in court,
if the official has not been able to convict him by producing
a witness to the earlier confession.
(26) This shall be the law for fellow-citizens: if anyone has
a hereditary piece of land in the city, he may not be condemned
before the bishop unless he has defaulted on his rent and other
dues for three years. After those three years he is to be summoned
to three legitimate court-days [given three chances to appear
in court], and if he wishes to fully pay back the defaulted rent,
he shall have the land as before; and is he sells the house ho
has in the city, he shall lose the land [it stands on].
(27) And this shall be the law: if in the city one man should
strike another so that he falls to the ground, he shall pay a
fine of sixty shillings to the bishop; if on the other hand he
strikes someone with a fist, or with the light weapon they call
a bluathra, so that he does not fall, he shall pay only
five shillings.
(28) This shall be the law: if anyone in the city draws a sword,
or nocks an arrow and draws his bow, or lowers his lance, in other
to kill another, he shall pay sixty shillings.
(29) This shall be the law: if the bishop wishes to take a man
of the fisc [26] into his service, he may
have him do no other service than that of chamberlain, wine-server,
steward, marshal, or ministerial, [27] and
if he does not wish to put him to such service let him pay 4 denarii to the crown, and six more for the king's military ... and let
the man of the fisc serve whom he wishes.
(30) On account of the murders which arise daily in the familia of St. Peter as though among beasts, because often for nothing,
or on account of drunkenness or pride, one person rages against
another as though insane, so that in the course of one year thirty-five
of the servants of St. Peter have been killed for no reason out
of the servants of the church, and their murderers rejoice and
are covered with more glory than repentance, on account of this
great injury to our church, with the counsel of our faithful people
we have decreed this correction, that if anyone of the familia wishes to kill his fellow needlessly, that is, without any of
the following reasons, namely that the other might wish to kill
him, or is a brigand, or if the killer is defending his goods
and family, we establish that he shall lose his hair and skin
and be branded on either side of his jaw, and shall pay the weregeld and make peace with the kinsmen of the dead man in the accustomed
way, and the kinsmen shall be constrained to accept this peace.
If the kinsmen of the dead man wish to take vengeance upon the
killer's kin, if any of the killer's kin can clear himself by
oath, of advising or abetting the deed [that is, swear he did
not take part in the murder in any way], he is entitled to firm
and perpetual peace from the dead man's kin. If the dead man's
kin spurn this present law and devise plots against the killer's
kin, even if the schemes come to nothing and no one is hurt, they
shall lose their skin and hair and suffer the aforementioned branding.
But if the murderer flees and cannot be captured, his goods shall
go to the [royal] fisc [that is, be confiscated by the royal treasury],
and his kin, if they are without guilt, shall be entitled to a
firm peace. If the murderer does not flee, but wishes to defend
his innocence [28] by a duel with a kinsman
of the deceased, and he wins the duel, he shall pay the weregeld and have peace with the dead man's kin. But if none of the kin
of the dead wish to fight a duel with the killer, the killer may
clear himself before the bishop by boiling water [29] ; he shall then pay the weregeld and have peace with kin
of the dead man, and they shall be compelled to accept. If, though,
out of fear of this law, the kin of the dead should go to another familia, and stir them up against members of their own familia, and if there is no one who dares undertake a duel
against any of them, they shall each [the killer and the killer's
kin] clear themselves before the bishop by the ordeal of boiling
water, and whoever loses shall suffer the penalties laid out above.
And if anyone of the familia kills another person of the familia in the city without any of the above conditions
[self-defense etc.], he shall lose his skin and his hair and be
branded as set forth above, and shall pay the fine and theweregeld and make peace with the dead man's kin, and they shall be compelled
to accept this. But if anyone from outside the familia is working the land of St. Peter and dares to do such a thing,
that is, is he kills a member of our familia without any
of the excuses mentioned above, he shall either suffer the above-
mentioned penalties, or he shall lose the land he holds from us
and be liable to reprisals from the familia and the advocates.
If it is our own servant who does service in our court who has
dared to commit murder, it shall be up to our judgement and that
of our faithful men how the case should be handled.
(31) If anyone of the familia has an argument with his
fellow over anything, whether over fields, vineyards, servants
or money, if the case can be decided by witnesses on both sides,
without any taking of oaths, we approve this; if not, in order
to avoid false oaths, we establish that the testimony be given
by both sides, and the witnesses shall agree on what they think
the truth is; from the two groups of witnesses two people shall
be chosen for a duel, and by this duel the case will be decided.
He whose champion loses the duel, loses the case, and his testimony
shall be revealed as false testimony, as though under oath. (32)
If anyone of the familia commits a theft, and this is not
out of the necessity of hunger, but because of avarice or greed,
or out of custom, and if the stolen goods can be appraised at
a worth of five shillings [or more], and it can be demonstrated
that he made security for the theft to the person he robbed, in
the assembly of the citizens or in the public market, we establish,
for the chastisement of evildoers, that he shall lose the law
he was born with [i.e. his personal status] on account of this
theft, and if he is accused by anyone of anything, he may not
clear himself by oath, but by the duel, the boiling water or the
hot iron. Similarly for he who is guilty of swearing a false oath.
Similarly also the one who incurs a duel because he is widely
known to be thief. similarly the case of he who takes counsel
with enemies, against his lord, namely the bishop, against the
latter's health and honor.
FOOTNOTES
[1] The document of Dagobert referred to here was
in any case a forgery, though Otto presumably took it to be genuine.
[2] I.e. Charlemagne.
[3] An advocate was a lay person appointed as
the legal representative of a church or monastery.
[4] A group of local men, often 7 or 12 in number,
whose role it was to pronounce on local custom, and to say what
that custom dictated on a case-by-case basis.
[5] Free in the literal sense, that is, not
subjected to another person in serfdom.
[6] This may mean that the serf will be shorn,
a ritual humiliation, and beaten.
[7] Henry, that is, had been king 13 years,
but only crowned emperor in 1013 or 1014.
[8] The Germanic dowry goes from the man to
the woman, rather than the reverse.
[9] For example, land which had belonged to
a tenant of the church, but was for some reason forfeited, for
example for non-payment of rent.
[10] That is, without any "oath-helpers,"
others who will swear in court to the truth of his statements.
[11] Often it was customary for the lord to
exact a payment from an heir claiming an inheritance of land owned
by the lord.
[12] The sense seems to be that the criminal's
goods could be confiscated.
[13] =46or example, getting together a few
friends to take vengeance, as part of a feud.
[14] Payment, or composition, was a frequent
form of dispute-settlement. The sense here is that the instigator
and his friends will be treated as one person.
[15] A fiscalinus was a personal tenant of
the king. The weregeld (wergeld, wergild etc.) is a price for
injury or death, here paid to the royal treasury and to the injured
man's friends -- the reference to friends suggest this article
may concern murder rather than mere injury.
[16] Deuteronomy 19.4.
[17] A legal status considerably lower than
that of a fisgilinus.
[18] That is, if a personal servant of the
bishop marries and receives property which might subject him to
the court of a lord, he will nonetheless remain personally subject
to the bishop, that is, be under episcopal jurisdiction. But if
he already holds land from another lord and attends the lord's
court, and marries into the bishop's household, he'll still attend
the lord's court, not the bishop's.
[19] That is, if two people of these different
legal statuses marry, the status of the children will be the lower
of the two statuses.
[20] Cases in these courts were often decided
by oaths, with each party needing to put forward an oath to uphold
its claim. "Oath-helpers," that is, people who were
willing to add their oaths to one side or the other, were an advantage.
Here we see that it especially difficult to defend oneself against
a charge of feud, or to bring a case against the bishop -- a minimum
of six oath-helpers being needed in either case.
[21] The oath again --the debtor can pay only
a portion of the debt, as long as he's willing to swear that that's
really all he owes. It's clear from this that the oath, at least
in theory, was taken very seriously -- but the rest of this section
suggests this may not have been the case.
[22] Not necessarily a fight between the disputants
but a "judicial duel," often with each party picking
a person to fight on his behalf. The winner of the duel was presumed
to have God's favor and hence be in the right.
[23] This latter section refers to the case
of a person who provokes a duel as a method of settling the case
and loses it (showing his case had no merit); a "frivolous
suit" of this sort is severely punished here.
[24] An exchange, that is, a trade for goods
of equal value, so that the familia suffers no net loss.
[25] With the oath of 7 relatives, the fisgilinus
can prove he really does have that status, and not a lesser status.
[26] Like a fisgilinus, a person personally
subject to the king.
[27] These are all important honorary duties,
as opposed to servile duties such as cleaning, gardening etc.
[28] This may mean that he is defending himself
against a charge of premeditation, claiming that the death was
caused accidentally.
[29] Like the duel, the ordeal of boiling water
was intended to demonstrate the judgement of God for or against
the defendant.
This text is part of the Internet Medieval Source Book.
The Sourcebook is a collection of public domain and copy-permitted
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Unless otherwise indicated the specific electronic form of the
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No permission is granted for commercial use.
Paul Halsall May 1997
[email protected]
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