The Laws of Slavery

Slavery in the eighth century was not a “peculiar institution.”^1.A term generally attributed to the antebellum southern politician John C. Calhoun, who owned slaves himself. Slavery was embedded into every aspect of early medieval society. All strata of society bought, sold, and used slaves. Slavery had been inherited from the ancient world, and continued for more than a millennium after Charlemagne’s death. The only hint of concern or opposition to the practice of treating people as property came from the church, and that opposition was heavily conditional, as we shall see.

The topic of slavery is a large one, and over the next couple of posts I will touch on some of its most salient and visible aspects. In this first installment let’s look at what the law said about slavery.^2.This post has been delayed due to the amount of content I’ve found (and my own laziness), so I decided to break it up into more manageable chunks.

Defining who was and was not a slave is surprisingly difficult, as Frankish law recognized degrees of slavery. There are two words that denote full slavery, servi and mancipia, which meant a person owned by another person.^3.Much of my understanding of the legal landscape comes from Drew, The Laws of the Salian Franks. I will reference specific passages where warranted. The slave was treated differently than everyone else under the law, and in most ways, but not all, was considered physical property. Slaves could be punished, sold, or otherwise used as their owner desired. There were no laws against the misuse or abuse of slaves.

The law recognized various functions that slaves fulfilled. Agriculture was obviously labor-intensive, and slaves served as swine-herds, vinedressers, grooms, and stable hands. Male and female slaves served in households. Slaves could be skilled workers such as metal workers, millers, carpenters, craftsmen, and ironsmiths. Interestingly I’ve never found reference to slaves crews on board ships, either commercial or military.

The king’s slaves were worth more than common slaves. There is an entire law, “Concerning Having Intercourse with a Female Slave,” and therein the punishment for having sex with the king’s slave is twice that for anyone else’s slave.

While the law unquestionably viewed slaves as property, they were also more than mere objects. One example is legal concept of compurgation, or proof of innocence. Frankish law made no distinction between criminal and civil offenses. The law essentially codified how money (or value) resolved disputes between persons, and that was the extent of legal jurisdiction. Actions taken against “the state” (failing to appear for muster or selling armor to those outside the kingdom, for example) were actually considered as disputes between the accused and the king as a person. Innocence or guilt was not a matter of evidence, but consideration of which side was most favored by God and society.

An accused freeman gathered witnesses (often the law declared how many witnesses were required for a given offense) who swore to the accused’s behavior. If these witnesses of quality were able to declare the accused innocent of the charge, and do so without flinching, hesitating, or otherwise betraying uncertainty, then the accusation was dropped. This legal method is illustrative of the power that tribal Germanic institutions continued to hold in Frankish society.

A slave, however, could not rely on witnesses to his character, because by definition he could not be a person of quality. Indeed, paragraph 6 of “Concerning the Slave Who Is Accused of Theft” specifically states that, “If a slave confesses against his lord, let him never be believed.” Instead a slave would be subjected to “the ordeal” which included a variety of methods that ostensibly appealed to God’s judgement. Two ordeals are mentioned, boiling water and the casting of lots. A person seeking (or ordered) to prove their innocence with boiling water put their hand into a pot of boiling water. No one pulled their hand out without injury, so the proof was in the recovery. An “innocent” person’s hand would heal without complications.

Weirdly, slaves were not subjected to the water ordeal (although they could be tortured with the whip, and sometimes the law demanded flogging – female or male). A slave’s ordeal was something called the “casting of lots.” Unfortunately we don’t have any details on the casting of lots, but presumably the slave had to pull a the correct sherd from a bag full of pottery remnants, or something equally unlikely.

Why did slaves go through casting lots, and not boiling water? No one knows. As Drew notes, “Frankish laws demonstrate that slavery was a very important institution in Frankish society, [but] we are not given a very clear picture of it.”

While the usual methods were conquest and plunder, the law also dictated how one could become a slave. The aforementioned law about sex with female slaves declares, “If any Frank joins another man’s female slave with himself publicly, let him remain in servitude with her.” Note that the law does not refer to a physical “joining,” but rather marriage. A similar law from an earlier era said that either a man or a woman who marries a slave will stay with them in servitude.

Another version of the laws^4.“There are many versions of the laws and numerous varying texts of each of these versions.” Drew, p. 52. includes a chapter concerning a women who marries one of her own slaves. In such a case “the fisc [the king’s lands] shall acquire all her possessions and she herself will be outlawed.” As an outlaw, the law specified that any of her relatives could kill her without penalty, while any relative who gave the woman food or shelter would be subject to a hefty fine. The slave, meanwhile, “shall be placed in the most severe torture, that is, he shall be placed on the wheel.” It is not clear why marrying your own slave was so much worse than marrying the slave of another. Evidently a man who married his own slave would simply join her in servitude, as noted above.

An additional path to servitude was debt. Since Frankish law was essentially civil, even murder could be solved with payments to the kin of the victim. The fines were steep (and varied with social class), and if the perpetrator could not come up with the necessary value in either cash or land, he would become a slave to the family of the victim.

A capitulary of King Chlotar (d. 560) includes an oddly harsh penalty for keeping stolen goods under lock and key: “the owner of the house shall make composition with his life.” Not executed, but forced into slavery.

The laws of the Franks could be bizarrely specific (“Concerning the Theft of Bees”?) and frustratingly vague. While understandable as a manifestation of legacy Germanic tribal culture, it forces historians to make educated guesses, particularly regarding the nature of Frankish society. No doubt the Franks felt no need to explain themselves to themselves (except about bees) and built their laws on an unwritten foundation of common knowledge. The existence and nature of slavery was one of those aspects of their society that needed no explanation.