CHAPTER V.

_THE WERGELDS OF THE BURGUNDIAN AND WISIGOTHIC LAWS._

I. THE BURGUNDIAN WERGELDS.

[Sidenote: The result of contact with Roman and Christian civilisation.]

It is not proposed to do more in this chapter than very briefly to examine the laws of the Burgundians and Wisigoths with reference to the evidence they contain with regard to the results of contact with Roman and Christian civilisation upon the solidarity of the kindred as shown in the payment of wergelds.

The remoteness of these tribes from any connection with the Anglo-Saxon invasion of Britain makes it unnecessary to do more than this. Indeed, this chapter might have been omitted but for the useful light it may throw upon the process of disintegration in tribal custom in the case of tribes settling in countries with a long-established civilisation superior to their own. In such cases tribal custom, however hardly it might resist, had eventually to succumb, thus affording a strong contrast with the Cymric and Irish examples, in which tribal custom was so much better able to hold its own, and even succeeded to some extent in forcing tribal rules upon the new Christian institutions.

The Burgundian laws, so far as they belong to those first issued by Gundebald himself, fall between A.D. 501 and 516, and his reference to his ancestors in his preface shows that, while he may have remodelled the laws to meet altered circumstances, they were in part based upon traditional customs of his people.[94]

But his people were in a new position. Geographically they were sharing with a population still under Roman law the south-western part of the Helvetian Valley--_i.e._ between Neuchâtel and Geneva, and a good part of the old country of the Sequani on the Gallic side of the Jura.

[Sidenote: The method of settlement.]

They seem to have come into this district not altogether as conquerors, but in some sense as invited guests. According to Tit. 54 of the laws the newcomers, by the munificence of the Burgundian king and his ancestors, had had delegated to them individually, in a particular place, _hospitalitas_, which consisted of two thirds of the land and one third of the slaves of the _hospes_ upon whom they were quartered, and by this clause in the laws they were forbidden to take more.[95] It is generally understood that this method more or less closely resembled the Roman method of quartering soldiers upon a district.

The Burgundians therefore came into a district with a mixed population of Romanised Gauls and Germans, already, after long residence and many vicissitudes, living and settled under Roman law, and regarded by the newcomers as Romans.

Thus two sets of laws became necessary, one for the Burgundian immigrants, the other for the old inhabitants who were to continue under Roman law.

[Sidenote: Homicide under the ‘Lex Romana.’]

Now under the Roman law there was no wergeld. And so in the Tit. II. of the Burgundian _Lex Romana_ the slayer, whether a freeman or slave, if captured outside a church was condemned to death. If the homicide was in defence of life it was to be referred to judicial decision according to the Novellæ of Theodosius and Valentinian.

If the slayer had taken refuge in a church, _quia de preciis occisionum nihil evidenter lex Romana constituit_, the Burgundian lawgiver decreed that if a freeman by a freeman should be killed, and the slayer should flee to a church, he who confessed the homicide should be adjudged to be the slave of the heirs of the person killed, with half of his property, the other half to be left to the heirs of the slayer.

After this follows a clause, also of Burgundian origin, fixing the payment by a freeman who has killed a ‘servus’ and fled to a church. The price is to be paid to the lord of the servus on the following scale:

For an ‘Actor’ 100 solidi For a ‘Ministerialis’ 60 ” ploughman, or swineherd, or shepherd, and other ‘servi’ 30 ” goldsmith 100 ” smith (iron) 50 ” carpenter 40 ” ‘This by order of the King.’

[Sidenote: Under the Burgundian Law.]

Now if from these clauses of the Lex Romana which relate to the Roman population, we turn to the Tit. II. of the Burgundian law proper of Gundebald ‘De homicidiis,’ we may gather what the old customary wergelds may have been, but at the same time recognise how strongly Roman law and ecclesiastical influence had led Gundebald to break through what to the Romanised conscience seemed to be the worst features of the system of tribal wergelds.

[Sidenote: Original wergelds no longer adhered to. Homicide punished by death.]

From Tit. II., ‘De homicidiis,’ it appears that the original wergelds were these:

Optimatus nobilis 300 solidi Aliquis in populo mediocris 200 ” Minor persona 150 ” Pretium servi 30 ”

These wergelds closely correspond with those of the Alamannic and Bavarian laws; but the first clause enacts that the homicide of a freeman by another, of whatsoever nation, shall only be compounded for by the slayer’s blood: thus overriding tribal usage and introducing the Roman law.

The second clause enacts that if the homicide be in self-defence against violence, half the above-mentioned wergelds should be payable to the parentes of the slain.

[Sidenote: Homicide by a slave.]

Clause 3 enacts that if a slave, unknown to his master, shall slay a freeman, the slave shall be delivered up to death and the master free from liability. Clause 4 adds that if the master was privy to the crime of his slave both should be delivered to death. Clause 5 enacts that if the slave after the deed shall have disappeared, his master shall pay 30 solidi--the price of the slave--to the parentes of the slain. And lastly, in clause 6, the parentes of the slain are in all these cases warned that no one is to be answerable for the crime but the homicide himself, ‘because as we enact that the guilty shall be extirpated, so we cannot allow the innocent to suffer wrong.’

The new law breaks away altogether from old tribal traditions, and an attempt is made to treat homicide from the new point of view of reason and justice as between one individual and another, with but little, if any, regard to kindred.

[Sidenote: The traditional value of animals.]

From the law against theft we get a scale for the equation of cattle &c. with gold. If a Burgundian or Roman ‘ingenuus’ steals away a slave, horse, mare, ox, or cow, he is to lose his life, unless he takes refuge in a church, and from the property of the criminal the price of the stolen animal is, ‘in simplum,’ to be paid to the person robbed, unless the thing stolen can be found and restored--_i.e._:

For the slave 25 solidi For ‘best horse’ 10 ” For moderate horse 5 ” For mare 3 ” For ox 2 ” For cow 1 solidus.

Thus from these traditional values, retained even under new circumstances by the Burgundian law, we learn that the wergeld of the middle class of freemen, ‘mediocres in populo,’ of 200 solidi, was still regarded as the equivalent of 100 oxen or 200 cows.

There is no doubt in this case that the solidi were those of the Imperial standard. The Burgundian Kingdom was destroyed by the Franks in A.D. 534--_i.e._ before the issue by Merovingian princes of solidi and trientes of the Merovingian standard.

II. THE WERGELDS OF THE LEX WISIGOTHORUM.

The laws of the Wisigoths are too Roman to be taken as evidence of what may have been the ancient tribal wergelds of the Goths.

[Sidenote: The tribal polity of the Goths broken up by Roman influences.]

Their rule extended to the Loire till they were driven back to the Garonne by the Franks in the sixth century, and lasted in Spain and Aquitaine to 711 when it succumbed to Arab conquest. The Wisigoths conquered a country already under Roman law, with a mixed population of German as well as Celtic and Iberian tribes. They were not the first German intruders. They were invaders, but not altogether at enmity with the Romans. Their princes, after the break-up of the Roman power, issued gold coins--solidi and tremisses--in close imitation of those of the Eastern Empire. Goth and Roman were encouraged to marry on equal terms. And though there are traces of a scale of payments in composition for homicide, it bears little trace of the tribal principle of the solidarity of the kindred.

There is no scale of payments directly under the head of homicide, and we are left to gather incidentally what the wergeld (if it can be so called) may have been.

In a clause[96] added between 653 and 672 it was enacted that upon the kidnapping of the child--son or daughter--of a free man or woman, the criminal was to be delivered over into the power of the child’s father, or mother, brother or nearest parentes, so that they may have power to kill him or sell him. And if they desired it, they might demand the composition for homicide from the criminal, _i.e._ 500 solidi (some MSS. 300 solidi), the crime being to the parents no less grave than homicide. If the child could be recovered, half the composition for homicide was to be paid, and if the criminal could not pay he was to become their slave.

This doubtful mention of 500 solidi or 300 solidi finds some explanation in a later clause.

[Sidenote: The wergeld graduated according to the age of the individual.]

Indirectly, again, we get the scale in force for homicides in L. VIII. Tit. IV. s. 161, of about the same date. It enacted that injuries done by vicious animals, known to be such, were to be paid for _sicut est de homicidiis_ by the ‘constituted composition’--_compositio constituta_--and then the following scale is given:

Aliquis honestus 500 solidi Ingenuus persona, 20 years old and up to 50 300 ” Ingenuus persona from 50 to 60 200 ” Older than this 100 ” Youths of 15 years 150 ” ” 14 ” 140 ” ” 13 ” 130 ” ” 12 ” 120 ” ” 11 ” 110 ” ” 10 ” 100 ” ” 7 to 9 90 ” ” 4 to 6 80 ” ” 2 to 3 70 ” ” 1 year 60 ” Daughter or wife from 15 to 40 250 ” ” ” 40 to 60 200 ” ” ” older 100 ” Under 15, half the payment for a male; liberti, half-payments.

[Sidenote: Innocent homicide no longer to be paid for.]

It is impossible to look upon this scale as fully representing ancient Gothic tribal tradition. And when we turn to the title ‘_De cæde et morte hominum_,’ which seems to belong to the same date, it becomes obvious how far the spirit of these laws had wandered away from any tribal standpoint and from all recognition of the solidarity of the kindred. A homicide committed unknowingly (‘nesciens’) is declared to be in the sight of God no cause of death. ‘Let the man who has committed it depart secure.’[97]

Every man who killed another intentionally, and not by accident, was to be punished for homicide. The punishment had, in fact, already become a matter of criminal law. The prosecution for homicide was no longer to be left only to the parentes of the slain, ‘for they might be lukewarm’ (s. 15). The judex ought to take the matter up, and on neglect of his duty was to be liable for half the payment for homicide, viz. 250 solidi. Strangers in blood as well as relations had already been enabled to bring the accusation.

[Sidenote: Homicides fleeing to a church to be handed over as slaves to the family of the slain.]

Chindasvinthe, who reigned from 642 to 653, had legislated in the same direction. The question had arisen, what was to be done with homicides who took refuge in a church and committed themselves to the protection of God? Seeing that every one ought to be punished for his crime, he issued an edict to settle this question once for all. He enacted that whatever slayer or evil-doer the law required to be punished, no power whatever should be able to shield from punishment. And although the criminal might flee to the sacred altar, and in that case no prosecutor could drag him away without the concurrence of the priest, yet the priest, having been consulted, the sacrament having been given, was to repel the criminal from the altar, and expel him from the choir, so that his prosecutor might apprehend him. The criminal thus expelled was to be freed from any further death penalty, but short of this was to be in the power of the parentes of the slain, who might do what they liked with him, _i.e._ he became their slave unless presumably the composition required was paid.

[Sidenote: Murder of a kinsman to be punished with death.]

The successor of this king (653-672) dealt with another point in which tribal instinct was at variance with Roman law. With the dissolution of the kindred disappeared the reason and traditional justification for the rule that there was no feud and no wergeld within the kindred. Tribal custom everywhere left the worst crime of all--murder of a parent or a kinsman--without redress, at the same time unpardonable and unavenged. It became, therefore, needful to promulgate an edict that the judex should punish the murder of a kinsman by death. And in this case, if there were no children, all the murderer’s property was to go to the heirs and near relations of the murdered person. But if there were children of another marriage, innocent of their parent’s crime, half only of the property was to go to the children of the murdered kinsman, and half to the innocent children of the parricide.

If the murderer had fled to the altar of a church he was to be delivered up to the parentes or propinqui of the slain kinsman, to be dealt with as they chose, short of death, and if there were no such parentes his property was to go to the fisc. The murderer whose life was thus spared was not to have the use of the property.

Lastly there is found in some of the MSS., as an addition to Lib. XII. Tit. II., an edict of King Wamba, who reigned 672-680, which seems to mark the last stage in the process of confining the punishment of the crime to the criminal alone.

[Sidenote: The punishment had become a matter of criminal law and was confined to the criminal alone.]

Up to this time, as we have seen, the murderer _with all his possessions_ was by law to remain the slave of the parentes, or the next heirs of the murdered person, except in the one case of the murderer having children by another wife. Thenceforth, if the murderer, according to the edict, had children or wife free from participation in the crime, he alone was to be delivered up to the parentes or next heirs of the dead. His possessions were not to go to them, but to the children or heirs of the _criminal_, on the ground that the punishment should in justice fall alone upon the sinner, and not upon his innocent family. Clearly the last tie of tribal instinct securing the solidarity of kindreds was now broken. It had lost its ancient significance. Murder had become the crime of an individual against the State, and a matter of criminal law. The only survival of tribal feeling seems to have been that, as some compensation to the family of the murdered man, the murderer whose life the Church had saved was to become their slave.