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: the letter of Brookmer) was a book of law in the region Brookmerland within present-day region of Ostfriesland in northwestern Germany. The Brookmerbrief is regarded to be the main legal text of the so-called Frisian Freedom Period. The legal texts are written in Old Frisian. The quoted article above is interesting because it illustrates how the medieval Frisian free, peasant republics dealt with the presence of foreigners on their territory.
High-medieval Frisia included present-day region Westfriesland in province Noord Holland, province Friesland and province Groningen of the Netherlands, and the area in northwest Germany between the rivers Ems and Weser what is called Ostfriesland today. These areas differed strongly from the rest of Europe in the sense that feudal structures had not rooted here and were thus absent. The Seven Sealands, as the federation of 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’.
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 on a ting 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. There was no government. There was simply no higher authority at all. Period. This loose federation of peasant republics was a society where feud law still prevailed. Read our blog post Upstalsboom: why solidarity is not the core of a collective, and learn more about this NATO-like league avant la lettre.
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 of it. 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.
The central question in the Brookmerbrief article is: who is responsible for a foreigner, and to what extend? The answer is: the one who shelters the foreigner. And he/she is responsible for all the foreigner’s actions. This leads to a number of observations.
(1) The first observation is obvious. Foreigners could cause damage (too) and this was apparently such a relevant issue that it had to be regulated by law.
(2) The second observation is quite obvious too, namely that a distinction was made between local and non-local persons, citizens and non-citizens in today’s wording. The same distinction still is being made in modern immigration law worldwide.
(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 (which can be compared with the current concept ‘public order’) had to be paid as well. 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 would be restored. 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. Remember from all this that ‘balance’ was the key-word in medieval Frisia, as it was (and is) in any feud society.
(4) The fourth observation is the solution, namely that a resident was liable. The foreigner was allowed to stay on the territory if a resident could be held responsible. Obviously there were no inns, cozy bed and breakfasts or otherwise. Foreigners staying in the area sought shelter in homes or on yards of residents. And, everyone 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 governments and insurance companies. There might, of course, have been a kind of trade-off between the resident and the foreigner, for giving shelter and carrying this 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. Sure, it is guessing but these or similar mechanisms undoubtedly have existed.
If comparison is made with today, it is interesting to see that 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 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 group member. The forming of nation states has not changed this. Governments do not vouch for costs that have been caused by their nationals abroad. If they would, it would solve a lot of issues in the field of migration. However, when Dutch football hooligans destroyed for no reason the Bernini fountain in Rome in 2015, the Netherlands’ government felt some responsibility. But the immigration-law ratio stayed unchanged, namely that the host community as a whole, in principle should not suffer financial disadvantage or disturbance of the public order from non-residents.
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 through government taxes and insurances, and thus borne by all of society. The public order is uphold and restored through government institutions. Albeit beyond the scope of this blog post, it is this disconnect of responsibilities and relations what is (also) 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.