Vogelfrei

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Judge and lay judges impose a sentence of outlawry for murder. Woodcut from the Bamberger Halsgerichtsordnung (1507)

Vogelfrei in German usage denotes the status of a person on whom a legal penalty of outlawry has been imposed. However, the original meaning of the term referred to independence, being "free as a bird"; the current negative meaning developed only in the 16th century. It then came to predominate through the influence of Baroque poetry and of Jacob Grimm's Deutsche Grammatik (German Grammar; 1819).

History and etymology[edit]

Originally, the word vogelfrei merely meant "as free as a bird, not bound." That is the usage in older sources.[1] Even Luther and Zwingli used the word still in its original meaning.

Much later the term was linked to a person being banned. This resulted from the formulas:

As you have been lawfully judged and banished for murder, so I remove your body and good from the state of peace and rule them strifed and proclaim you free of any redemption and rights and I proclaim you as free as the birds in the air and the beasts in the forest and the fish in the water, and you shall not have peace nor company on any road or by any ruling of the emperor or king.[2]

and

his body should be free and accessible to all people and beasts, to the birds in the air[3] and the fish in water so that none can be made liable for any crimes committed against him[4]

This ban also implied that persons sentenced thus were not to be granted any dwelling.[5] In the case of death one's body was not buried, but left for the birds to feed on.[6]

According to modern research the cause for the spreading of the pejorative meaning is not to be sought there but rather in the language of the mercenaries and soldiers of that time. This theory is supported by the loan word "Preis" [price] in German (Italian: presa, French: prize), which in this context is synonymous with the word "booty". Malicious people would be "preis gegeben und vogelfrey" [lit: given away and free as the birds].[7]

In his magnum opus, Das Kapital Volume I, Marx uses the term vogelfrei to refer to the emergence of the proletariat during the decay of feudalism:

The proletariat created by the breaking-up of the bands of feudal retainers and by the forcible expropriation of the people from the soil, this free and rightless* [vogelfrei] proletariat could not possibly be absorbed by the nascent manufactures as fast as it was thrown upon the world. On the other hand, these men, suddenly dragged from their accustomed mode of life, could not immediately adapt themselves to the discipline of their new condition. They were turned in massive quantities into beggars, robbers and vagabonds, partly from inclination, in most cases under the force of circumstances. Hence at the end of the fifteenth and during the whole of the sixteenth centuries, a bloody legislation against vagabondage was enforced throughout Western Europe. The fathers of the present working class were chastised for their enforced transformation into vagabonds and paupers. Legislation treated them as ‘voluntary’ criminals, and assumed that it was entirely within their powers to go on working under the old conditions which in fact no longer existed.[8]

Marx calls this second group free or “bird-free” (vogelfrei), meaning at one and the same time that while the proletariat are not property (as slaves), they are themselves without property and cast out of the community of property owners.[9]

See also[edit]

Notes[edit]

  1. ^ According to a 1455 document, clerics of Buchenau monastery were "vogelfrei" (i.e. liberal, generous) if they donated one penny a year. Schmidt-Wiegand, p. 931, including further examples.
  2. ^ Article 241 of the Bamberger Halsgerichtsordnung [Bamberg Penal Code], quoted by Jacob Grimm, volume I, p. 58: ("als du mit urteil u. recht zu der mordacht erteilt worden bist, also nim ich dein leib u. gut aus dem fride und thu sie in den unfrid und künde dich erlös u. rechtlos und künde dich den vögeln frei in den lüften und den tieren in dem wald und den vischen in dem waßer und solt auf keiner straßen noch in keiner mundtat, die keiser oder künig gefreiet haben, nindert fride noch geleit haben; …")
  3. ^ Grimm noted here in a footnote: hence outlawed, permissus avibus; the older language also had another meaning: free as a bird. Konrad von Würzburg: Trojanischer Krieg [Trojan War]. Verse 14,516, 'I'm free as the bird on a twig' [daher vogelfrei, permissus avibus; die ältere sprache sagte auch in anderm sinn: vrî als ein vogel] Konrad von Würzburg: . Vers 14516; ich bin frî als der vogel ûf dem zwî]. Laßberg (ed.) Liedersaal [Hall of Songs]. (1820 to 1825). Volume 3, p. 637"
  4. ^ "sein leib soll frei und erlaubt sein allen leuten und thieren, den vögeln in den lüften, den vischen im waßer, so daß niemand gegen ihn einen frevel begehen kann, dessen er büßen dürfe". Wigand, Das Femgericht Westphalens. Hamm 1825, p. 436; cited by Grimm, p. 59
  5. ^ "Aqua et ignis interdictus" (Latin: Deprived of water and hearth fire)
  6. ^ "permissus avibus" (Latin: free for the birds)
  7. ^ Still noted thus as a pair of terms in Constitutio criminalis Theresiana [Maria Theresa's Criminal Law], 31 December 1768
  8. ^ Karl Marx, Capital, Volume One, 1976, Fowkes trans, p. 896.
  9. ^ Jason Read, Primitive Accumulation: The Aleatory Foundation of Capitalism, Rethinking Marxism 14(2), p. 28.

References[edit]

  • Grimm, Jacob; Heusler, Andreas; Hübner, Rudolf (1994) [1899]. Deutsche Rechtsaltertümer [History of German Law] (Reprint of the 4th, improved ed.). Darmstadt. ISBN 3-534-00205-9. 
  • Schmidt–Wiegand, Ruth (1998). "Vogelfrei". Handwörterbuch der Deutschen Rechtsgeschichte [Dictionary of the History of German Law]. 5: Straftheorie [Penal theory]. Berlin: Schmidt. pp. 930–932. ISBN 3-503-00015-1.