Medieval Migration Law. A Matter of Liability

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 'Brookmer letter,' was a book of law, or codex, for the territory of Brookmerland in the present-day region of Ostfriesland in the north-west of Germany. The Brookmerbrief is regarded as the main legal text of the period of the so-called Frisian Freedom – a history we explained in our blog post Magnus’ Choice: The Origins of the Frisian Freedom. The legal texts are written in the Old Frisian language. The quoted article of law above is of interest because it illustrates how the collection of small peasant republics along the Wadden Sea coast in Germany and the Netherlands dealt with the presence of foreigners on the territory of the Frisians, and partly of the Lower Saxons, too, during the Middle Ages.

Old Frisian Law

High-medieval Frisia included the present-day region of Westfriesland in the province of Noord-Holland, the province of Friesland, and the province of Groningen in the north of the Netherlands, as well as the region of Ostfriesland in the north-west of Germany, which is the area between the rivers Ems and Weser. These areas, and that of the region of Dithmarschen, too, differed strongly from the rest of Europe in the sense that feudal structures had not really taken root here and the little feudal system that had taken root crumbled in the High Middle Ages. Tota Frisia, as the collection of marshland republics was named, had neither dukes nor counts, nor any other feudal lords. Jointly, they formed a loose federation of independent peasant republics, also called the Seven Sealands. Hence, this period is named the 'Frisian Freedom'. A society without a government. Yes, it is possible.

Ubi societas, ibi ius ('where society is, is law'), and this maxim also applied to Frisia, even if it lacked state institutions. 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 took place in the 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 the region of Ostfriesland. Check our blog post The Treaty of the Upstalsboom. Why solidarity is not the core of a collective, and learn more about this NATO-like league avant la lettre.

It is too detailed to explain at this place how justice was delivered and how it was organized exactly in each of the small republics. Important is to know it was done by appointed local, more or less rotating 'judges', and not under the authority of a count or a government otherwise. As said, there was no government. There was simply no higher authority at all than the individual inhabitants of the land. This loose federation of republics was a society where formal feud law was applicable. A legal practice where blood revenge was legitimate and that could lead to long-lasting, society disruptive feuds. So, at the same time, feud law regulated violence by means of compensation with money or precious metals instead of blood revenge.

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 was to go to heaven. Obey the Ten Commandments, or in the 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. Specifically, the saga of the twelve asegas from the Sawen Selandum ('seven sealands') who were rescued at sea by Christ and who were taught the divine laws to be upheld by the Frisians. An asega was a functionary who possessed great knowledge of the laws and presided over the gatherings during the thing. In our blog post In Debt to the Beastly Westfrisians you can read more about this saga of the twelve asegas handed down in the thirteenth-century Codex Unia.

Dealing with foreigners

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 home or 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. A German loanword in the Dutch language is unheimisch meaning 'uneasy or unpleasant', and related to uitheems.

By the way, the modern Mid-Frisian word for vthemeda is frjemd, comparable to the Danish word fremmed or the Dutch word vreemd, with the original meaning 'from (a) far'. In today's parlance, frjemdeling or vreemdeling in the Frisian and Dutch languages, respectively, is receiving more and more negative connotations as being strange, weird, and even scary. A pity, since its original meaning 'from afar' is quite factual and without judgment.

The central legal question of the quoted Brookmerbrief article is: Who is responsible for a foreigner, and to what extent? The answer is: the one who shelters the foreigner – and she/he 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 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 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 had the damage to property or to the person to be compensated, but a fine for breaking the peace had to be paid as well. 'Breaking the peace' can be understood as a fine comparable to today's violation of 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, the honour, and the broken peace were not 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 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 comparison is made with today, it is interesting to see that there are still similarities in some basics of immigration law. The distinction between foreign and non-foreign is still there. Logical, since it is the essence of why immigration law exists. Without it, we would all be world citizens, which would equal being stateless and not to be admired. A foreigner is treated differently and has different, mostly fewer, rights than indigenous persons. And everyone is a foreigner and a citizen, depending on where on the planet you find yourself at any given moment.

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 on the territory. Dutch immigration law imposes conditions on a resident who receives a foreigner. For example, if a resident wants to bring over his/her foreign lover, conditions are imposed on the height and durability of the resident's income. 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 rationale behind it is very elementary: the community should not have to bear any costs as a result of a foreigner's presence.

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 actions. The development of 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 the city of Rotterdam damaged, for no reason, the seventeenth-century Bernini fountain in the city of Rome in 2015, the Netherlands' government did feel some moral responsibility. Nevertheless, it was private persons in the Netherlands who raised some money to have the fountain repaired.

fontain at Piazza de Spagna in Rome by Pietro Bernini

Completely different now from eight centuries ago, is that citizens no longer directly experience costs caused by the presence of foreigners, and public order is maintained and restored differently as well. Costs are felt very indirectly and are borne by the government via taxes and by insurance. Thus, they are borne by all of society. Furthermore, public order is upheld and restored through government institutions and not by the community itself. Albeit beyond the scope of this blog post, this disconnect of responsibilities is relevant to understanding part of today's public, quite academic, migration debate.

Nevertheless, the answer to the question who is liable for the actions (and costs) of a foreigner, is among the historic heart of immigration law, and still is a current (legal) question.

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, another different development took place. In the year 1498, the area that is now the province of Friesland lost its independence to Duke Albert III of Saxony. He died quite soon after. His son, Duke George of Saxony, abolished the Old Frisian law in 1504 with the so-called Saxon Ordinance. Ubi societas, ibi ius, and thus a new law had to be introduced. Therefore, with this Ordinance, too, Frisian law was replaced by Roman law in its purest form, not watered down with other legal traditions. Suddenly, Frisians continued a 2,500-year-old Roman legal tradition.

When only 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 Republic of the Seven United Netherlands, apparently nobody in the province of Friesland considered returning to the Old Frisian law tradition and its legal language. A free choice of the Frisians not to do so. Instead, Roman law simply continued to be the applicable law and would –amazingly– exist 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-lying fringes of Europe, 2,000 kilometers from Rome, namely in the province of Friesland.

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.