East Frisian land law

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The East Frisian Land Law was conceived in 1518 under Count Edzard I for the county of East Frisia . For almost 300 years it formed the formally valid state law. It was printed for the first time in 1746 in Prussian times: At the request and suggestion of the East Frisian estates, Councilor Matthias von Wicht ordered “The East Frisian Land Law, along with the dike and sluice rights ” with a High German translation of the Low German text and a detailed preliminary report and - mainly linguistic - explanations appear in print at Tapper in Aurich . Previously it was only available in manuscripts, of which around 100 copies still exist today.

The East Frisian land law was in effect until May 1, 1809 . On this day, the Code Napoléon was introduced under Louis Bonaparte in the Kingdom of Holland , which also included East Frisia . It replaced all law that had been in force until then.

structure

The East Frisian Land Law comprises a total of 566 chapters, which are divided into three books:

The first book, comprising 145 chapters, contains the older Frisian law, namely from chap. 19 to chap. 63 the 17 freedoms (end of the 12th century), from chap. 64 to chap. 114 the 24 land rights (12th / 13th century) and from chap. 115 to chap. 145 an extract from the Emsiger Pfennigschuldbuch.

The second book deals in 298 chapters with kinship , adoption , marriage and inheritance law , wills , local purchases and land pay . It mainly contains Roman law .

The third book with 123 chapters again consists of Frisian law, namely the 12 Emsiger domes and the penal taxes, the six superelevations (Articles 100, 101) and other legal considerations.

preface

In the promulgation certificate of " Edzard, Graff zu Ost-Friesland " labeled "Preface", the reader feels a deep traditional awareness of the sovereign. He justified u. a. the changes made by him to the earlier land law with the fact that corrections were only made there, "if at this our time (the application of the old law) is not appropriate nor serves the land to receive and use ..." Link to the Roman Emperor Justinian I , who, according to Edzard's declaration, "... improved all the old laws of the Romans and their imperial ancestors, which were very dark and indistinct, and also disorderly ...".

Judge

The position of the East Frisian judge resulted from numerous individual determinations that can be found scattered throughout the first book. The religious reference to be found in many places in East Frisian land law is expressed by the judge in a “warning”, which is described in Chapter 2. takes place and the content consists of a listing of biblical passages calling on the judge to act fairly. In addition to “You shouldn't take presents” there is also the saying “You shouldn't oppress the stranger”. A kind of presumption of innocence combined with the principle of the right to be heard is expressed in the saying "Do not condemn anyone and you should not judge before you hear the matter and let the people finish speaking first".

According to Chap. 3 only be a man at least twenty-five years old, who also showed what is nowadays known as an innocent way of life. The principle that no one can be a judge in his or her own case already applied in East Frisian law (Chapter 3, Item 7). The authorization to create judicial law was found in the declaration that in cases not expressly regulated in the law, the judge had to proceed “whatever he wanted it to happen to him” (Chapter 3, Item 8).

A limitation of the judicial competence was to be found, however, in the order that “chiefs and good men of nobility” could only be tried by the sovereign (Chapter 14). According to chap. 3, a court in the narrower sense consisted of the judge, the prosecutor and the accused, in the broader sense of two or more assessors, the absence of which resulted in the nullity of the judgment, the “sentence”.

Process capability

The ability of women to even go to court was severely limited in line with their subordinate role at the time. Men under the age of twenty-five were considered minors and, as a rule, could not appear as plaintiffs in court (Chapter 3, Item 9). However, there was an exception when someone appeared with “the consent and full word of his guardian” and accepted the judgment “in the same presence” (chapter 3, item 10).

Another exception existed when the sovereign had granted a corresponding exemption, called “vacation” in the law. In all other cases, a “verdict ... could not do harm”, which is to be understood as meaning that a judgment against the minor that was in violation of the provision had no legal effect. In the case of the exceptions described above, the formulation "... finds him the judge's judgment equal to the one who is 25 years old" seems remarkable from the legal technique. Men who were twenty-five years old also had to belong to the liberal class in order to be able to lead a lawsuit.

Limitations of Action

According to the East Frisian Land Law, the principle that anyone could sue anyone did not apply. Rather, there were restrictions on legal action: children could not sue their “father, grandfather and upper-grandfather” “without vacation” (Chapter 5); the same applied to the "mother, grand-mother and the upper-grand-mother". In addition to these family complaints, there was also one against the employer, even if the person obliged to serve had previously been "released" (Chapter 6).

Charges

In the 7th chapter of the 1st book of the East Frisian Land Law, the summons of the parties was ordered under threat of an appropriate punishment in the event of a violation. In the 8th chap. the reasons were listed which were used as excuses for no-shows. These included: Proof that a summons had not been delivered “to home”, that the summoned person was ill and that he could not appoint a representative. "Wind and weather" excused as well as conflagration or death of a relative and also participation in dike work. The meaning of the summons becomes clear from Chapter 6, in which it is stated that justice could only be given about someone after three (unsuccessful) summons. The East Frisian land law was based on the presence of the party as a rule. In addition, see Chap. 12 referred to, according to which the defendant could also fail to exercise his right once the matter had been brought before him and the action had been communicated to him.

Procedural duties of conduct

With regard to demands, the principle was that no one should demand more than he was really entitled to. Knowingly demanding too much led to corresponding claims for damages. A kind of process promotion obligation for the parties included Chap. 10. In the event of a complicated matter in dispute, the parties were required to inform the judge of the essential facts in writing, if necessary, "so that the judge could understand all the same circumstances more clearly and properly". There was also an obligation of the judge to give the party time to obtain evidence, unless there were indications of what the relevant lawsuits today call “intent to delay proceedings” (Chapter 13). As part of the seventh arbitration, the 49th chap. that neither party should insult the other in court.

Court-free times

According to chap. 9 existed for certain days and periods of time what would today be called court holidays. These included For example, the period in which the field was plowed and the grain brought in, as well as legal holidays due to war or “water shortages”. Regardless of these phases of the suspension of judicial activity, there were - similar to today - no such court-free periods for certain matters. These included: a) Guardianship matters, b) Alimentation matters, which the law justifies "so that these persons may not pervert", c) further cases in which someone has "expelled or expelled someone else" and matters "there the privilege of the law could bring great harm ”. According to today's understanding, the claim to the granting of rights, which is associated with the claim to the monopoly of power (cf. Chapter 23), is mandatory for the sovereign in the 9th chapter. to: "Apart from these times, however, one should continually hold judgment and allow everyone to regain their rights."

proof

In the first book there are numerous regulations with regard to the presentation of evidence, e.g. B. in the 25th chapter. as part of the fifth arbitrariness, a provision on how to prove that one has inherited a thing; in Chapter 26 it is about proof of purchase (or donation) of an item previously owned by the Church. The East Frisian Land Law requires seven witnesses who should be "freye, well-bored, inherited, established people who can show their grandfather's legacy, including the Ten Commandments, faith and our father's knowledge". Due to the difficulties of providing evidence according to earlier law, the sovereign placed in chap. 27 et seq., That the plaintiff was in principle obliged to provide evidence for the existence of the facts justifying the claim, but the defendant for the defense, which referred to a principle that still applies in today's procedural law. In matters that “concern life and limb, including the honor of a man”, the judge should “be much more attentive in listening to witnesses ... than in matters of money”. It is noteworthy that the increased attention was only given to matters relating to the man's honor (Chapter 27). The three types of evidence (chap. 28) were "living witnesses", "letters with seals or instruments" and the "visible deed that something can be seen and recognized with human eyes", with which the latter addressed the appearance. The summoning of a witness (for the summons of the party, see Section V) was carried out (as was that of the party) with the threat of a penalty in the event that he did not appear (Chapter 31). The party charged with evidence bore the costs of the summons (Chapter 31).

Among other things, adulterers and women “who had taken another man within a year after the previous man's death” were deemed unworthy of testimony (Chapter 32). The ability to testify was not recognized even in the case of serfs or those under the age of twenty-five, although a few exceptions were made (Chapter 34). Parents could just as little testify for their children as vice versa, one brother not for the other, if it concerned a will or other "blood things" (chapters 39 and 40). Women were generally mistrusted in testament matters, so that they could not be witnesses in this area (Chapter 38). In connection with this regulation, the stipulation of Chapter 47 appears astonishing for the time: For persons “of both sexes” ( hermaphrodites ), the ability to witness is given, “as far as the male sex evidently has the greatest strength in him”. Witnesses who lived far away and were subject to another authority were questioned by a judge “from the same authority” and the written examination was then sent to the judge who decided the dispute.

The 18th arbitrariness listed facts, the existence of which no longer required proof, because the legislature assumed that the facts spoke for themselves. For example, it should be mentioned that a mint master was considered a counterfeiter if a false coin was found in his house. The same applied to emergency punishments if a woman called or screamed and other people heard it. "What happened to her then is obvious and does not require any further testimony or proof." A certain restriction was made, however, insofar as the judge “should see these things described above and give them diligent respect”, “whether they also need a more detailed explanation. Because in difficult matters the proof should be as clear as the sun ”(chap. 62).

Appeal

Against the chap. 16 judgments to be drafted and read out were, according to Chap. 17 to call the district judge or the sovereign within ten days. It is precisely at this point that a change in the previous East Frisian land law by the Count becomes clear, as he refers to the earlier regulation, according to which there was only two days to appeal. In the accuracy that was remarkable for the time, it was pointed out that the ten-day period should not include public holidays (Chapter 18). It is also worth mentioning in Chapter 18. the order that in the case of a “young man” under the age of twenty-five, “a judge should come to the aid of the minor” and “allow him to appeal even after ten days”. This expresses a certain duty of care on the part of the judge combined with elements of a “procedural protection of minors”.

Arbitrariness

After the section that concerned the “order of the court” (Book I, preface p. 6), there followed the seventeen arbitrariness, which can hardly be seen from a uniform point of view. On the one hand, they contain legal protection based on individual law, but on the other hand, they contain regulatory content that affects the areas of “state organization”.

In accordance with the Frisian legal tradition, property and the right of ownership to be derived from it as a rule at that time are particularly protected. But the impression must be countered that the “honor” (of a man) had no meaning at the time. In the first arbitration in the 19th chapter. it is declared “that everyone may use his own property and be mighty”, this also applied to the heir whose inheritance was in the possession of a third party. If the heir simply took away the thing he had inherited, "he forfeited all his rights, if he had anything to do with it". In addition to the first arbitrariness, the third arbitrariness can be seen, according to which "everyone may freely, peacefully and unobstructed use and possess his mobile and movable goods on water, or guest march and Mohrlande ..." (Chapter 23). The protection, like the threat of punishment, which is usually carried out with fines, also related to actions that were aimed at owning land and farm without a corresponding "watch leave" had been granted by the master or judge (Chapter 24). The employer was liable for acts of violence that a servant committed on the orders of his “Brodt master” (Chapter 24). The 14th arbitrariness also served the protection of property / property when it ordered that the deprivation of property in the absence of the owner "should ... be harmless to his rights" (Chapter 57).

The second arbitrariness (20th chapter) pronounced peace over all churches and spiritual persons who are called "Gaedes-Huisen" or "Gaedes-Mannen" in the original text. Interesting here that “widows, orphans, parentless children, also poor people who do not like to support themselves from their own things and yet are ashamed of begging”, and those “who without deceit must seek the almoses in the streets and houses and cannot earn anything “Were counted among the spiritual persons. The 13th arbitrariness ordered the general peace (chap. 56, also chap. 54 and the eleventh arbitrariness). In the 12th arbitrariness (chap. 55) church and house peace is protected, while the 15th arbitrariness pronounced the protection of "virgins, maidservants or other people's wives" (chap. 58) from rape.

In the eighth arbitrariness (Chapter 50), in deviation from the principle that usually only fines are imposed (see Chapter 59), the death penalty is threatened if “the househusband rebelled against his masters and authorities”. The law regards it as a “swear offense” when “a subject opposes his master and opposes him with words or works, or against them or the common good, or a town or a village which belongs to the master of this land who took up arms ”.

The seventh arbitrariness (chap. 48) explains that "all Frisians should have a free chair and free language which King Carolus gave them ...". This regulates the relationship between the people in the county and the king. The in the 53rd chap. The tenth arbitration contained therein explains that the Frisians therefore did not have to follow an army so that “they could come home again on the same day, (to) protect their fatherland against the floods of the great sea and on land in the south against the Heydnian princes” .

Finally, the ninth arbitrariness (Chapter 51) deals with free access to the seven most important traffic routes. These were the " Elbe , Weser , Emser , Flie , land between Oldenburg to Jever , Münster to Emden , west of Lewarden to Stavorn ". If these were blocked, the East Frisian authorities raised a “peace penny”. This brought together financial means with which the blocked traffic routes could be bought free.

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