CHAPTER VI.

_TRIBAL CUSTOMS OF THE FRANKS AND OF THE TRIBES CONQUERED BY THE MEROVINGIAN KINGS._

I. THE WERGELDS OF THE LEX SALICA.

In turning now to the Lex Salica the inquiry will again at first more or less be a study of wergelds.

There are many difficult points in the construction of the Lex Salica, and the capitularies connected with it, which, after all the learned labour expended upon them, still remain unsettled. To attempt to discuss them fully would involve an amount of research and erudition to which this essay can lay no claim. All that can be attempted in this survey of the traces of tribal custom in the laws of the Continental tribes is to approach their text afresh in the light of the Cymric evidence, as a tentative first step towards, at last, approaching the Anglo-Saxon laws from the same tribal point of view and from the vantage-ground of a previous study of the survivals of tribal custom elsewhere.

[Sidenote: The district within which the Lex Salica had force.]

The Lex Salica had force apparently at first over the Franks of the district extending from the _Carbonaria Silva_ on the left bank of the Meuse to the River Loire.

[Sidenote: The first sixty-five chapters about A.D. 500, but with later alterations.]

The earliest manuscripts of the Lex Salica are considered to belong to the late eighth or early ninth century. And the general opinion seems to be that the first sixty-five chapters may be ascribed to the time of Clovis, or at least to a period before Christianity had become general among the Franks.

The reign of Clovis extended from A.D. 481 to 511, and may perhaps be taken as covering the date when the sixty-five chapters were first framed. There is, however, no proof that they were not modified afterwards. For at the end of the celebrated chapter _De chrenecruda_ there is a clause in a later manuscript which implies that it was no longer in force.[98]

If these sixty-five titles, in their original form, really go back to the time of Clovis, the fact that they were allowed to continue in late issues of the Lex Salica along with the additions made to it, is probably enough in itself to excite suspicion that even these may not have been allowed to remain as they originally stood without modification.

[Sidenote: Edict of Childebert II. A.D. 599 on homicide discourages receipt and payment of wergelds.]

Particularly on the question of homicide and the liability of the kindred of the slayer in the payment of the wergeld, it is difficult to understand how the clauses relating to its payment and receipt, if representing fully more ancient custom, could have been left altogether unaltered after the decree of Childebert II. (A.D. 599), which may be translated as follows:--

Concerning homicides we order the following to be observed: That whoever by rash impulse shall have killed another without cause shall be in peril of his life. For not by any price of redemption shall he redeem or compound for himself. Should it by chance happen that any one shall stoop to (make or receive?) payment, no one of his parentes or friends shall aid him at all, unless he who shall presume to aid him at all shall pay the whole of the wergeld, because it is just that he who knows how to kill should learn to die. (Pertz, _Leges_, i. p. 10.)

The logic of this decree is curious. The slayer’s kindred were absolved by it from liability if they chose to stand aloof. But, if they stooped to help their kinsman at all, they must see to it that the whole wergeld was paid, no doubt to avoid breaches of the peace from attempts at private revenge if any part were left unpaid. But if the slayer’s relations did not pay the wergeld--what then? The slayer was to be left ‘in peril of his life.’ From whom? It must have been from the vengeance of the slain man’s kindred.

One would have thought that this decree would have defeated itself, for apparently, whilst it absolved the murderer’s kindred from obligation to assist the murderer to pay the wergeld, it left untouched the right of vengeance on the part of the slain man’s relations, thereby, one would have thought, multiplying cases of breach of the peace.

That clauses relative to receipt and payment of wergeld were left in the Lex after this decree shows probably that the system of wergelds remained practically still in force. People went on ‘living under the Lex Salica,’ after the date of the edict, and in spite of the latter no doubt wergelds were paid and received. But whilst this may have been a reason why the clauses regulating the payment and receipt of wergelds could not be altogether omitted, it may also have made necessary the modification of some of their provisions.

One may even venture to trace motives in the making of modifications in favour of the fisc, which can hardly have had their root in ancient tribal custom.

The system of wergelds was extended to the advantage of ultimately both official and clerical hierarchies, and even from the Franks themselves to strangers and to the Gallo-Roman population amongst whom they dwelt. And the whole character and system of the ‘Lex Salica’ was so much like a statement of crimes and the composition to be paid for them that it lent itself very easily to the interest of the fisc.

[Sidenote: The Lex allowed a tribesman to break himself away from his kindred. And the fisc gained by it.]

In the sixty-five titles themselves there is direct evidence that tribal tradition and the solidarity of the kindred had once existed, and that in spite of the edict the fisc was interested in their maintenance. Thus by Tit. LX., _De eum qui se de parentilla tollere vult_, a door was thrown wide open for the Salic tribesman to escape from the obligations of kindred. To secure this object he is to go to the mallus with three branches of alder, and break them over his head, and throw them on four sides in the mallus, and declare that he withdraws from the oath, and the inheritance, and everything belonging to the parentilla, so that thereafter, if any of his parentes either is killed or shall die, no part either of the inheritance or of the composition shall pertain to him, but all go to the fisc. If we take this clause strictly it implies and sanctions the general right of a kinsman of a slain person to share in his wergeld. The share of the kinsman, who under this clause frees himself from the liability to pay, and gives up his right to receive any portion of the wergeld of a relative, does not lapse altogether, but is apparently kept alive for the fisc.

This clause is not perhaps inconsistent with the edict which left the receipt of wergeld still possible, though payment by the slayer’s kindred was optional. And so long as the occasional receipt of wergeld was still possible, rules for its division might reasonably remain in the Lex.

[Sidenote: Tit. LXII., ‘De compositione homicidii.’]

The same may perhaps be said of other clauses included in the original sixty-five. Tit. LXII., _De compositione homicidii_, is the one which deals with the division of the wergeld by its recipients, _i.e._ the kindred of the person slain. According to the text of Hessels, Cod. I., it is as follows:--

Si cujuscumque pater occisus fuerit medietatem compositionis filii collegant, et aliam medietatem parentes quae proximiores sunt tam de patre quam de matre inter se dividant.

If any one’s father be killed, the sons are to take collectively one half of the composition, and the other half is to be divided between the parentes who are proximiores, both of the paternal and maternal kindreds.

Quod si de nulla paterna seu materna nullus parens non fuerit, illa portio in fisco collegatur.

But if there be parentes on neither side,[99] paternal or maternal, then that portion (_i.e._ the second half) is to go to the fisc.

According to this clause, in the absence of the parentes, their half share still has to be paid by the kindred of the slayer, but again the fisc gets control of the lapsed portion which the parentes would have taken had they been forthcoming.

[Sidenote: Addition to the Lex by Childebert I. A.D. 515-551 in the interest of the widow (?) of the person slain.]

Amongst some clauses said to be added to the Lex Salica by Childebert I. (A.D. 515 to 551) is a very important one, Tit. CI., _De hominem ingenuo occiso_, which seems to show that, at that date, composition was still encouraged by the law, but that some alteration was necessary in the division of the wergeld amongst the kindred of the slain.[100]

Si quis hominem ingenuum occiderit et ille qui occiderit probatum fuerit, ad parentibus debeat secundum legem componere; media compositione filius habere debet. Alia medietate exinde ei debet ut ad quarta de leude illa adveniat. Alia quarta pars parentibus propinquis debent. Id est, tres de generatione patris et tres de generatione matris. Si mater viva non fuerit, media parte de leudae illi parentes inter se dividant. Hoc est, tres de patre proximiores et tres de matre. Ita tamen qui proximiores fuerint parentes de prædictis conditionibus prendant.

If any one shall have killed a freeman and he who slew shall have been ascertained, he ought to make composition according to the law to the parentes. The son (Cod. 2 ‘sons’) ought to have half the composition. After that, of the other half it ought to be for her (? the mother), so that she (?) comes in for a quarter of that leuda (or wergeld). The other quarter ought to go to the near parentes, _i.e._ three [parentillæ] of the kindred of the father and three of the kindred of the mother. If the mother shall not be alive, the half leuda (wergeld) those parentes divide amongst themselves, _i.e._ the three proximiores [_i.e._ nearest parentes] of the father and three of the mother, but so that the nearest parentes under the aforesaid conditions shall take [two thirds].

Et tres partes illis duabus dividendam dimittat. Et nam et illis duabus ille qui proximior fuerit, illa tertia parte duas partes prendant, et tertia parte patre suo demittat.

Three parts again it leaves to be divided between the other two [parentillæ]. For also of those two the nearest [parentilla] takes two thirds and leaves one third for [the parentilla of] the previous ancestor.[101]

There must have been some special object in this addition to the Lex. Brunner, following the very plausible suggestion of Wilda and Boretius, points out that the ‘mother,’ who, if alive, is to share in the second half of the wergeld, may be the mother of the son who takes the first half, _i.e._ the _widow of the person slain_, otherwise why should the mother alone be mentioned, and not the father of the slain?[102] If this view may be accepted the object of the clause becomes at once apparent.

Under Tit. LXII. no share is given to the widow. And we have learned from the Cymric example the reason why tribal custom gave no part of the wergeld of the husband to the widow. It was simply because there was no blood relationship between them. The widow and her kindred would have taken no part in the feud, and so took no part of the galanas in composition for the feud.

The silence of Tit. LXII. and the force of the Cymric precedent warrant the inference that it may have been so also under ancient Salic custom. However this may be, the fact that an addition to the Lex was made, whether in favour of the widow or of the mother, seems to show that Roman and Christian influences had introduced other considerations than those of blood relationship, so breaking in upon tribal custom and necessitating special legislation.

[Sidenote: The three ‘parentillæ’ sharing in the wergeld.]

If this view may be accepted, and if (as we had to do in interpreting the Brehon rules regarding divisions of the kindred) we may take the word ‘son’ as meaning all the sons, and insert the word _parentillæ_ in explanation of the three _proximiores_, so as to understand them (as in the Brehon _Geilfine_ division) to be not three persons but three groups of kindred, then these clauses become fairly intelligible and consistent with Tit. LXII.[103]

The wergeld is divided into two halves and the second half (subject to the newly inserted right of the widow or mother of the slain) goes to the three groups of proximiores. What these three groups or parentillæ may be is not very clear.

The father has been killed and his sons take the first half of the wergeld. The other half is taken by the three nearer parentillæ. The nearest group at first sight would be the descendants of the two parents of the slain. The second group would be the descendants of the four grandparents of the slain. The third group should include the descendants of the eight great-grandparents of the person slain.

[Sidenote: The three ‘parentillæ’ include descendants of great-great grandparents.]

But Brunner has pointed out that the division into paternal and maternal lines of relationship begins with the slain person’s grandparents; so that the three proximiores on both sides should go back to the descendants of great-great-grandparents. He also points out that, as at each step the nearer group are to take two thirds and those behind it one third, the division between the three groups would be in the proportions of 6:2:1. And he quotes a statement regarding the division of wergelds in Flanders in the year 1300, in which the proportions of the payments of the three groups of relatives were still as 6:2:1. The half falling to the three groups being reckoned as 18/36, the division was as under:--

Rechtzweers (Geschwister Kinder), { paternal 6/36 } _i.e._ first cousins. { maternal 6/36 } } Anderzweers (Ander-geschwister Kinder), { paternal 2/36 } 18/36 _i.e._ second cousins. { maternal 2/36 } } Derdelinghe (Dritt-geschwister Kinder), { paternal 1/36 } _i.e._ third cousins. { maternal 1/36 }

We may then safely, I think, follow Brunner’s cautiously expressed conclusion that it is very probable that also in the Lex Salica under the words ‘tres proximiores’ are intended relations belonging to three separate parentillæ.[104]

* * * * *

[Sidenote: The wergeld from the payer’s point of view]

So far we have dealt only with the _receivers_ of the wergeld. We have now to consider the wergeld from the _payers’_ point of view. When at last we turn to the title ‘_De chrenecruda_,’ which deals with the _payment_ of the wergeld by the slayer and his kindred, we seem all at once to breathe in the atmosphere of ancient tribal custom before it had been materially tainted by the new influences, which the conquest of a Romanised country and migration into the midst of a mixed population necessarily brought with them. The force of tribal instinct survives in this clause even though since the edict of Childebert II. it may have been allowed to remain in the Lex partly on sufferance, and even though some of its details have been made incoherent by the mutilation it may have undergone. It was probably left in its place in the Lex, together with the clauses regarding the receipt of wergeld, because, even though the assistance of the kindred in the payment of wergeld had been made optional and discouraged, the instincts of kindred were not to be extinguished all at once. To save the life of a kinsman, kinsmen will sometimes exercise the option. And the slayer, before he flees for his life, will make his appeal to his kinsmen. The old traditional rules for payment will have force in the feelings of those who, under all the discouragements of the law, still choose to assist the slayer. Moreover, the Mallus, it appears, still exercised jurisdiction over the option.

This celebrated clause may perhaps therefore be quoted as evidence for so much of ancient tribal custom as to wergelds as the royal edict was unable to extinguish all at once.

[Sidenote: The title ‘De chrenecruda.’]

Difficulty arises chiefly from the imperfect condition of the text of one of the clauses. But, keeping close to Codex I. of Hessels and Kern’s edition, the following translation may pass for our purpose (Tit. LVIII.):

(1) Si quis hominem occiderit et, totam facultatem data, non habuerit unde tota lege conpleat, xii juratores donare debet [quod] nec super terram nec subtus terram plus facultatem non habeat quam jam donavit.

If any one shall kill a man and, having given up all he possesses, he yet shall not have enough to satisfy the whole legal requirement, he ought to give the oaths of twelve co-swearers that neither above the earth nor under the earth he has any more property than he has already given up.

(2) Et postea debet in casa sua introire et de quattuor angulos terræ in pugno collegere et sic postea in duropullo, hoc est in limitare, stare debet intus in casa respiciens, et sic de sinistra manum de illa terra trans scapulas suas jactare super illum quem proximiorem parentem habet.

And afterwards he ought to enter into his house and to gather earth in his hand from its four corners, and after this he ought to stand on the threshold, looking back into the house, and so from his left hand throw across his shoulders some of that earth over _him_ [? those] whom he has nearest of kin.

(3) Quod si jam pater et fratres solserunt, tunc super suos debet illa terra jactare, id est super tres de generatione matris et super tres de generatione patris qui proximiores sunt.

But if father and brothers have already paid, then over his (relations) he ought to throw that earth, to wit over three [parentillæ] of the kindred of the mother and over three [parentillæ] of the kindred of the father who are nearest of kin.

(4) Et sic postea in camisia, discinctus, discalcius, palo in manu, sepe sallire debet, ut pro medietate quantum de compositione diger est, aut quantum lex addicat, illi tres solvant, hoc est illi alii qui de paterno generatione veniunt facere debent.

And likewise after that, in his shirt, ungirded, unshod, stake in hand, he ought to leap the fence, so that for that half those three shall pay whatever is wanting of the composition or what the law adjudges: that is, those others who come of the paternal kindred ought to do so.

(5) Si vero de illis quicumque proximior fuerit ut non habeat unde integrum debitum salvat; quicumque de illis plus habet iterum super illum chrenecruda ille qui pauperior est jactet ut ille tota lege solvat.

But if any very near kinsman shall be unable to pay the whole amount due, then whoever of them has more, on him again let the one who is poorer throw the chrenecruda, so that he may pay the whole amount due.

(6) Quam si vero nec ipse habuerit unde tota persolvat, tunc illum qui homicidium fecit qui eum sub fidem habuit in mallo præsentare debent, et sic postea eum per quattuor mallos ad suam fidem tollant. Et si eum in compositione nullus ad fidem tullerunt, hoc est ut redimant de quo domino[105] persolvit, tunc de sua vita conponat.

But if not even he shall have the wherewith to complete the required amount, then those who held him under oath ought to produce him who committed the homicide in the Mallus, and in the same way again afterwards four times in the Mallus hold him to his faith. And if no one take up his faith concerning the composition, _i.e._ to redeem him by payment, then let him make composition with his life.

Now, if we are here dealing with actual tribal custom, it is natural to place some weight upon the picturesque incidents which testify to its traditional origin. These picturesque incidents can hardly be other than proofs of antiquity.

[Sidenote: The slayer and his co-swearers declare that he has given up everything.]

Let us try, then, in spite of some confusion in the text, to make out the probable meaning of the action described. Clause 1 makes it clear that the first public step taken on the part of the slayer was to go to the Mallus with twelve co-swearers, who with him pledge their faith that he has given up everything, above ground or below it, towards the wergeld. There must have been previous negotiations with the kinsmen of the slain, and a stay of vengeance must have been conceded on the understanding that if possible the wergeld will be paid. Having thus obtained legal security for a time, the next stage in the proceeding is one between the slayer and his kinsmen, without whose help he cannot pay the wergeld.

[Sidenote: The family gathering to arrange for payment of the rest of the wergeld.]

The graphic details of the second clause seem to involve the presence of a family gathering met within the enclosure containing the house of the slayer, and, for anything we know, other houses of near relations. In this enclosure the kindred have met to deal with a family catastrophe in which they themselves are involved as well as the slayer. Even if they have to find only their half of the wergeld, fifty head of cattle from the family herd or their separate herds, as the case may be, must be to them a matter of importance. Standing on the threshold of the house from the four corners of which the slayer has gathered a handful of earth, he throws it over the representatives of his paternal and maternal kindred. He has done his part, and now the responsibility rests on them.

The vagueness and difficulty of the next clause result from a text which has probably been tampered with. But with the help of Tit. LXII. and the addition of Tit. CI., giving further details, it becomes at least partly intelligible. The rule that the payment of wergeld was made by the relatives in the same proportions as they would receive it, if one of their kinsmen had been slain, is so general that we may fairly assume that it was followed also by the Salic Franks. We have seen that according to these clauses, if a father was killed, the sons took the first half of the wergeld, and that the other half was divided between three sets of _proximiores_--the three parentillæ or sets of relatives of both paternal and maternal kindreds--in certain proportions. The slayer and his sons should pay the first half, and his father and brothers apparently help them to pay it. The other part ought to fall upon the three parentillæ nearest of kin on both the paternal and maternal side.

So that Clause 3 becomes partly intelligible. ‘If the father and brothers have already paid’ what the slayer could not pay of the first half, the earth has to be thrown upon the three parentillæ nearest of kin of the mother’s kindred and the three parentillæ nearest of kin of the father’s kindred. These seem to be the ‘proximiores’ who should pay the other half.

The phraseology of the titles LXII. and CI. and the analogy of other tribal custom seem to warrant the conclusion that here also the _three proximiores_ on the paternal and the maternal side were originally not three persons next of kin, but the three _parentillæ_, _i.e._, according to Brunner, the descendants of the grandparents, the great-grandparents, and the great-great-grandparents of the slayer on both the paternal and maternal sides.

The next clause is the one which bears clearest marks of having been tampered with. It makes no sense when strictly construed, but it seems to contain two ideas: first that there may be a deficiency as regards the second half of the payment, and secondly that the persons who ought to make it up are ‘_those others who come of the paternal kindred_.’

The question who are intended by these words is one not easily answered decisively. Nor is it one upon which we need to dwell. It is to be regretted, however, that at this critical point the text is so sadly confused. For it must be borne in mind that if no relative was liable beyond those included in the phrase ‘the three proximiores’ then the liability to pay and receive wergeld under Salic custom was restricted to the descendants of the paternal and maternal great-great-grandparents. And whether it was so in ancient custom is just what we should like to know.

[Sidenote: Having cast the responsibility upon his kindred, the slayer leaps over the fence.]

Be this as it may, the slayer has done what he could in throwing the responsibility upon his kindred. He knows not, perhaps, whether they will fulfil the obligation thus cast upon them. He has given up everything he himself possessed, and now, in his shirt, ungirded, and unshod, he leaps over the fence of the enclosure with a stake (‘palus’) in hand, to wander about in suspense until it transpires whether the rest of the wergeld will be found or not: whether those who ought to assist him, whoever they may be, will help him in his need.

Clause 5 seems to state merely that the liability of the ‘proximiores’ is collective and not individual, so that the poorer in each group of relatives are to be assisted by the richer, and we need not dwell upon it.

[Sidenote: If his kindred do not pay, the slayer pays with his life.]

Lastly, Clause 6 brings the slayer, after all his efforts and appeals to his kindred, face to face with the final result. Four successive times his co-swearers have brought him up to the mallus to hold him to his faith, and now at last, if no one steps in to complete payment of the wergeld, he must pay with his life.

This is the best we can make of the famous title in the Lex Salica regarding the payment of wergeld. But perhaps it is enough when taken together with the clauses relating to its receipt to reveal the main points of early Salic tribal custom. We may state them thus:--(1) That the wergeld was divided into two halves, for one of which the slayer, helped by his father and brothers, was responsible, and for the other of which the three grades of kindred, extending apparently to the descendants of great-great-grandparents, were responsible. (2) That if the addition of Tit. CI. in this respect represented ancient tribal custom, the payments, like the receipts, of the second half, were so distributed that the nearer parentilla or group of relatives paid and received, in relation to those behind them in kinship, in the proportion of two thirds and one third. (3) That, if we may take the addition of Tit. CI. as giving a share to the _widow_, and as an innovation, then it may fairly be concluded that, under ancient Salic custom as under Cymric custom, the widow originally took no share in the wergeld of her husband, not being a blood relation to him.

[Sidenote: Position of the wife and her kindred.]

Further, as in the title _De chrenecruda_ there is no mention of any share in the _payment_ of wergeld falling upon the wife of the murderer or her family, we may conclude that however closely two families might be united by a marriage, the wife, for the purpose of wergeld, still belonged to her own kindred, and that marriage did not involve the two families in mutual obligations for each other’s crimes of homicide, until both paternal and maternal kindreds became sharers in payment and receipt of wergelds in the case of the children of the marriage.

[Sidenote: What became of the slayer’s rights in the land.]

It is not needful to follow the speculations of various authorities as to what became of the homestead and landed rights abandoned by the slayer when he threw the chrenecruda upon his kindred and leaped, ungirt and unshod, over the fence of the inclosure. It is begging the question to call it his _Grundstück_ in the sense of a plot of land individually owned. Whether it was so, or whether under Salic custom land was held by family groups, as in the case of the Cymric gwely, is what the clause _De chrenecruda_ does not tell us. The question may perhaps have easily solved itself. The homestead and grazing rights, under tribal custom, might probably simply merge and sink into the common rights of the kindred, _i.e._ the neighbouring kinsmen would get the benefit of them. Even if the slayer, now himself slain or an exile, had held a privileged or official position as chief of his family, it would not follow that his successor (having doubtless already a homestead of his own) would care to succeed to the one left vacant. It is much more likely that tribal superstition would leave the murderer’s homestead to decay. Even the sons of a person, whose kindred had left him to perish by refusing the necessary help in the payment of the wergeld of his victim, might well refuse to ‘uncover’ the haunted hearth of their father, whilst if the wergeld were paid the slayer would return to his old homestead. Finally it must be remembered that in the tribal stage of land occupation the value of land itself bore a very small proportion to the value of the cattle upon it. And so the ‘Grundstück’ of the slayer would be as nothing compared with the value of the hundred cows of a normal wergeld.

II. THE DIVISION OF CLASSES AS SHOWN BY THE AMOUNT OF THE WERGELD.

Turning now to the amount of the wergeld, something may be learned of the division of classes under the Lex Salica.

Tit. XLI. fixes the amount of the wergeld of the typical freeman who is described as ‘the Frank or the barbarian man who lives under the Lex Salica.’

[Sidenote: The wergeld of the freeman living under Salic law 200 solidi.]

The amount, as throughout the Lex are all the payments, is stated in so many denarii and so many solidi--8,000 denarii, _i.e._ 200 solidi. And that the Frank or barbarian living under the Lex Salica was the typical freeman is shown by the title _De debilitatibus_,[106] which fixes the payment for the destruction of an eye, hand, or foot at 100 solidi. Half the wergeld is the highest payment for eye, hand, and foot ever exacted by the Continental laws, and 100 solidi certainly cannot apply to any grade of persons with a lower wergeld than 200 solidi.

Tit. XLI. is as follows:--

Si quis ingenuo franco aut barbarum, qui legem Salega vivit, occiderit, cui fuerit adprobatum viii. _M._ den. qui fac. sol. cc. culp. jud.

If any one shall kill a freeman--a Frank or barbarian man who lives under the Lex Salica--let him whose guilt is proved be judged to be liable for viii. M. denarii, which make cc. solidi.

As this clause probably dates before the issue of Merovingian solidi of diminished weight, the 200 solidi of the wergeld may be taken to have been at the date of the law 200 gold solidi of Imperial standard.

So that the wergeld of the Frank or the free ‘barbarus living under the Lex Salica’ originally, when paid in gold solidi, was neither more nor less than the normal wergeld of a heavy gold mina.

[Sidenote: Officials had a triple wergeld.]

We learn from clause 2 of the same title that if the homicide was aggravated by concealment of the corpse the composition was increased to 24,000 denarii or 600 solidi, and that the wergeld of a person ‘in truste dominica’ was again 600 solidi. The Royal Official thus, as in several other laws, had a triple wergeld.

Then lastly under the same title are three clauses describing the wergelds of the ‘Romanus homo conviva Regis,’ as 300 solidi, of the ‘Romanus homo possessor’ as 100 solidi, and of the ‘Romanus tributarius’ in some texts 45, and in others 63, 70, and 120 solidi. In Codex 10 the ‘Romanus possessor’ is described as the man who in the pagus in which he lives _res proprias possidet_.

The natural inference from these lesser wergelds is that the Gallo-Romans were not ‘living under the Lex Salica,’ but under their own Gallo-Roman law, with wergelds one half the amount of those of the Frankish freemen.

Another of the 65 titles, viz. LIV., gives a further set of wergelds. The wergeld of a _grafio_ is to be 600 solidi, that of a _sacebaro_ or _ob-grafio_ who is a _puer regis_ 300 solidi, and that of a _sacebaro_ who is an _ingenuus_ 600 solidi. The _sacebaro_ was apparently the lowest in rank of judicial officials except the _rachinburgus_, and the clause adds that there ought not to be more than three sacebarones in each malberg.

We may conclude from these statements that, the wergeld of the freeman living under the Lex Salica being 200 gold solidi, the higher wergelds up to 600 solidi were the threefold wergelds of public officials, _i.e._ threefold of the wergeld of the class to which they belonged. The wergeld of the sacebaro who was a _puer regis_ was three times that of the Romanus possessor. The sacebaro who was an _ingenuus_ had a wergeld three times that of the ingenuus living under Salic law.

[Sidenote: Strangers in blood had only half wergelds _Romanus possessor_ 100 solidi.]

We are thus brought into contact with an interesting question. These laws, made after conquest and settlement on once Roman ground, ought to be good evidence upon the tribal method of dealing with strangers in blood: _i.e._, in this case, the Gallo-Roman conquered population. And these clauses seem to show that half wergelds only were awarded to them under Salic law.

M. Fustel de Coulanges held indeed the opinion that the term ‘Romanus’ of the laws was confined to the _freedman_ who had been emancipated by process of Roman law.[107] But here the contrast seems to me to be between Franks and barbarians ‘who live under Salic law’ on the one hand, and the Gallo-Romans, whether freedmen or Roman possessores, living under Roman law on the other hand. We shall come upon this question again when the Ripuarian laws are examined, and need not dwell upon it here.

It is interesting, however, to notice that in Codex 2, Tit. XLI. the Malberg gloss on the clause regarding the wergeld of the ‘_Romanus tributarius_’ is ‘_uuala leodi_,’ which Kern (208) explains to mean the wergeld of a _Wala_--the well-known name given by Teutonic people to their Gallo-Roman and Romanised neighbours.

III. TRIBAL RULES OF SUCCESSION IN ‘TERRA SALICA.’

The question of the payment of wergeld is now generally admitted to be distinct from that of inheritance in land.

The persons who receive and pay their share of the wergeld are those who would have taken part directly or indirectly in the feud. They are not confined to the expectant heirs of the slayer or the slain.[108]

If we are to learn anything directly upon the question of the method of landholding under Salic custom it must be, not from the clauses relating to the wergelds, but mainly from the Title LIX. _De Alodis_. It is the next title to the _De chrenecruda_ and can hardly be passed by without some attempt to recognise the bearing of its clauses upon the present inquiry.

Its text is very variously rendered in the several manuscripts, and it has been the subject of many interpretations. But if it may be legitimate to approach it from a strictly tribal point of view, it will not be difficult, I think, to suggest an interpretation consistent with what we have learned of tribal custom from the Cymric example, and therefore worthy at least of careful consideration.

[Sidenote: The title ‘De Alodis.’]

According to Codex 1 of Hessels and Kern the clauses are as follows:--

(1) Si quis mortuus fuerit et filios non demiserit, si mater sua superfuerit ipsa in hereditatem succedat.

If any one shall have died and not have left sons, if his mother shall have survived let her succeed to the inheritance.

(2) Si mater non fuerit et fratrem aut sororem dimiserit, ipsi in hereditatem succedant.

If the mother shall not be [surviving] and he shall have left brother or sister, let them succeed to the inheritance.

(3) Tunc si ipsi non fuerint, soror matris in hereditatem succedat.

Then, if they shall not be [surviving], let the sister of the mother succeed to the inheritance.

(4) Et inde de illis generationibus quicunque proximior fuerit, ille in hereditatem succedat.

And further concerning these generations, whichever shall be the nearer, let it succeed to the inheritance.

(5) De terra vero nulla in muliere hereditas non pertinebit, sed ad virilem secum (leg. _sexum_) qui fratres fuerint tota terra perteneunt.

But concerning _land_ no inheritance shall pertain to a woman, but to the male sex who shall be brothers let the whole land pertain.

The last clause in Codex 10 (Herold’s) is amplified as follows:

(5) De terra vero Salica in mulierem nulla portio hæreditatis transit, sed hoc virilis sexus acqviret: hoc est, filii in ipsa hæreditate succedunt. Sed ubi inter _nepotes aut pronepotes_ post longum tempus de alode terræ contentio suscitatur, non per stirpes sed per capita dividantur.

Concerning, however, _terra Salica_, let no portion of the inheritance pass to a woman, but let the male sex acquire it: _i.e._ sons succeed to that inheritance. But where after a long time dispute may arise between _grandsons_ or _great-grandsons_ concerning the alod of land, let the division be not _per stirpes_, but _per capita_.

[Sidenote: The ‘alod’ embraced the whole inheritance--land and cattle, &c.]

Now, in the first place, what is meant by the term _alod_? In the Lex Salica it occurs again in Tit. XCIX. _De rebus in alode patris_, which relates to a dispute about the right to a certain thing, as to which the decision turns upon the proof that can be given by the defendant that he acquired the thing _in alode patris_. He has to bring three witnesses to prove ‘_quod in alode patris hoc invenisset_,’ and three more witnesses to prove ‘_qualiter pater suus res ipsas invenisset_,’ and if after failure of proof and the interdiction of the law the thing be found in his possession he is to be fined XXXV. solidi.

From this clause the inference must apparently be that the ‘_alod_ of the father’ was the whole bundle of rights and possessions, personal as well as real, which passed to descendants by inheritance. Indeed, it seems to be generally admitted that in the title ‘de alodis’ all the clauses except the last apply to personal property, and only the last to realty.[109]

[Sidenote: It was an ancestral family inheritance.]

There are titles ‘de alodibus’ both in the Ripuarian Law[110] and in that of the ‘Anglii and Werini.’[111] In both laws the ‘alod’ includes personalty, and the latter defines the personalty as ‘_pecunia_ et _mancipia_,’ thus reminding us that the personalty of the alod mainly consisted of cattle and slaves. In the title ‘de alodibus’ of the Ripuarian Law, the hereditary or ancestral character of the alod is emphasised by the application to it of the words ‘hereditas _aviatica_’ There may, however, be some doubt whether the term _hereditas aviatica_ included the whole alod or only the land of the alod.

Regarding, therefore, the ‘alod’ as in some sense a bundle of rights and property, let us try to consider these clauses with a fresh mind in the light of what we have learned of Cymric tribal custom.

[Sidenote: The position of females and modifications made in their favour.]

Under this custom, speaking broadly, as we have seen, daughters did not share in the landed rights of the gwely. They received instead of landed rights in the gwely their _gwaddol_ or portion, mostly, no doubt, in cattle, and they were supposed with it to marry into another gwely, in whose landed rights their sons were expected to share by paternity. If women inherited landed rights at all, it was exceptionally in the case of failure of male heirs, and then only so that their _sons_ might inherit. The heiress in such a case, under Cymric as well as Greek tribal law, was in quite an exceptional position, and, as we have seen in Beowulf, the sister’s son might be called back into the mother’s family to prevent its failure for want of heirs.[112] The exclusion of female successors from terra Salica is therefore quite in accordance with tribal custom.

That the clauses as to personalty in the ‘de alodis ’ were modifications of ancient Salic custom, made in favour of females, is rendered almost certain by the position of the last clause as a saving clause, apparently inserted with the object of protecting the rights of the sons in the land of the alod, by preventing the application to it of the previous clauses.

[Sidenote: The land of the alod was _terra_.]

Codex 1 does not describe the land as _terra Salica_. It is content to protect _land_ without qualification from the application of the previous clauses, which, if applied to land, would transgress against tribal custom. And the same may be said of Codices 3 and 4. But in the Codices 5 to 10 and in the ‘Lex emendata’ the words ‘terra Salica’ are used.

This is a point of importance, because it goes far to show that the whole of the land of the alod was terra Salica, and protected by the saving clause from participation by females. The use of the word _land_ alone in Codex 1 forbids our thinking that part of the land of the alod was terra Salica and the rest not terra Salica.[113] And this consideration seems to show that to import into the clause any explanation of the term derived from the word _Sala_, so as to confine its meaning to the ‘_Haus und Hofland_’ or the ‘_Väterliches Wohnhaus_,’ as Amira[114] and Lamprecht[115] would do, would be misleading. The homestead of the chief of a tribal family holding, on terra Salica, may, like the Roman villa, have passed by various and even natural stages into the ‘_Herrengut_,’ or ‘_terra indominicata_’ of later manorial phraseology, and the term _terra Salica_ may have clung, as it were, to it. But to reason backwards to the Lex Salica from the instances of its later use, given by Guérard in his sections on the subject, seems in this case, if I may venture to say so, to be a reversal of the right order of inference. Lamprecht carefully guards himself against the view that the _terra Salica_ of the Lex was as yet a ‘Herrengut,’ and Guérard, in his careful sections on the subject, admits three stages in the evolution of the _terra Salica_: (1) ‘l’enceinte dépendant de la maison du Germain;’ (2) ‘la terre du manse seigneurial;’ (3) ‘simplement la terre possédée en propre, quelquefois donnée en tenure.’[116]

This may in some sense fairly represent the line of evolution subsequently followed, and I have long ago recognised the embryo manor in the ‘Germania’ of Tacitus; but, for our present purpose, this does not seem to help to an understanding of the term as used in the Lex Salica.

When all the Codices are taken together into account, _terra Salica_ seems to include the whole of the land, or landed rights, of the alod. From the whole, and not only the chief homestead, the succession of females is excluded, and it is the whole, and not the chief homestead only, which is to be divided between the nepotes and pronepotes of the deceased tribesman.

Approaching the Lex Salica, as we are doing, from a tribal point of view, we seem to get upon quite other and simpler ground.

[Sidenote: _Terra Salica_ was land held under the rules of the Lex Salica and subject ultimately to division _per capita_ between great-grandchildren.]

The emphasis laid in the Lex Salica upon the distinction in social status between persons ‘living under the Lex Salica’ and those living under Roman law suggests that _land_ held under the Lex Salica was not held under the same rules as those under which the ‘Romanus possessor’ held his ‘res propria.’ It would seem natural, then, that _terra Salica_ should be land held under Salic custom as opposed to land held under Roman law. And if this be the simple rendering of the term _terra Salica_ in the Lex, then returning to the likeness of the Salic ‘alod’ to the Cymric family holding some likeness might be expected in the rules of succession to the land of the alod when compared with the Cymric rules of succession to the ‘tir gweliauc’ or family land of the gwely.

We have seen that in the gwely the descendants of a common great-grandfather were kept together as a family group till, after internal divisions between brothers and then between cousins, there was at last equal division of landed rights between second cousins, _i.e._ great-grandsons of the original head of the gwely. The fact of this right of redivision at last between great-grandchildren was apparently what held the family group together till the third generation.

The last clause of the ‘de alodis,’ even as it stands in Codex 1, coincides with Cymric custom in so far as it excludes females from landed rights and confines inheritance in the land of the alod in the first instance to _sons_ ‘… _qui fratres fuerint_.’

And when at last later Codices call the land of the alod _terra Salica_, and the addition in Codex 10 is taken into account, the evidence becomes very strong indeed that under Salic custom the land of the alod or terra Salica was held as a family holding, and, like the land of the gwely, divisible, first between sons, then between grandsons, and at last between great-grandsons.

But when among grandsons or great-grandsons contention arises, after long time, concerning the alod of land, they [the lands of the alod] should be divided, not _per stirpes_, but _per capita_.

The later the date at which this sentence was added to the final clause of the ‘de alodis,’ the stronger becomes the evidence of what ancient Salic custom on this matter was.

[Sidenote: The final clause protects the family holding.]

Assuredly the object of these words is not to introduce a new principle. They obviously describe ancient Salic custom in order to protect it. And how could a division _per capita_ amongst great-grandsons take place unless, as in the Cymric gwely, the holding of terra Salica had during the whole period of the three generations been kept in some sense together as a family holding?

It would be unwise to press analogies between Cymric and Salic tribal custom too far, but I have before pointed out that a system of wergelds, to which paternal and maternal relatives each individually contributed their share, seems to imply an original solidarity of kindred, which must, wherever it was fully in force, have been connected with a corresponding solidarity in the occupation of land, together with its complement, an individual ownership of cattle. And in the light of the ‘de alodis’ it does not seem unlikely that it may have been so under ancient Salic custom.

[Sidenote: Distinction between land under Salic and land under Roman law.]

If the foregoing considerations be accepted, may we not recognise in the term _terra Salica_, as at first used, a meaning analogous to that which Professor Vinogradoff has recently so brilliantly given to the Anglo-Saxon term ‘folc-land’?[117] In both cases surely it was natural that there should be a term distinguishing land still held under the rules of ancient tribal custom from land held under the Romanised rules of individual landownership.

It is not necessary to do more than allude here to the various clauses of the Lex Salica from which the existence of individual holdings is clearly to be inferred. If, from this single mention of _terra Salica_ and its ultimate division among great-grandsons _per capita_, the continued existence of tribal or family holdings held still under Salic law may be legitimately inferred, it is at least equally clear that the _Romanus possessor_ who lived and held his possession as _res propria_ under Roman law also existed. And if so the two classes of holders of land must often have been neighbours. The vicini, ‘qui in villa consistunt,’ of the title ‘de migrantibus’ (XLV.) may some of them have been of the one class and some of them of the other. The objection of a single person living under Salic law to the interloper would have a new meaning and become very natural if the conflict between the two systems were involved. And when we have reminded ourselves of these facts the title _De eum qui se de parentilla tollere vult_, to which allusion has already been made, which enabled the tribesman, by the somewhat theatrical action of breaking the four sticks of alder over his head, to cut himself loose from his parentilla, takes its proper place as evidence of the temptation which must have beset the young tribesman in close contact with Gallo-Roman neighbours to free himself from what had come to be regarded as a bondage, and to take an independent position as an individual under the new order of things which was fast undermining the old.

* * * * *

[Sidenote: Edict of Chilperic A.D. 561-584.]

Besides the title ‘de alodis’ there is another source of information which must not be overlooked--viz. the Edict of Chilperic (A.D. 561-584).[118]

This edict appears to have been issued soon after the extension of the Frankish boundary from the Loire to the Garonne, and specially to apply to the newly conquered district.

[Sidenote: Admission of female succession to prevent Salic land from passing from the family group to strangers.]

This conquest would necessarily extend the area within which Salic settlements would be made among non-Salic neighbours, and multiply the cases in which even a Salic Frank might find himself less securely surrounded by kinsmen than of old. Under these altered circumstances instances would become more and more frequent of the close neighbourhood of tribesmen still holding under Salic custom and strangers living under Roman laws of succession. The clauses of the edict seem accordingly to be directly intended to prevent lapsed interests of Salic tribesmen in land from falling to the vicini when there were brothers or female relations surviving. In old times in purely Salic settlements lapsed interests must usually have become merged in the general rights of the kindred, the vicini being kinsmen. And no harm might come of it. Landed rights would seldom have passed away from the kindred. But as the stranger element increased in prominence the kindreds would more and more suffer loss. Hence probably the extended rights given by the edict to female relatives. It allows them to succeed in certain cases so as to prevent the land, or, as we should rather say, the landed rights, from lapsing to the vicini.

Clause 3 is as follows:--

Simili modo placuit atque convenit, ut si quicumque vicinos habens aut filios aut filias post obitum suum superstitutus fuerit, quamdiu filii advixerint terra habeant, sicut et Lex Salica habet.

Likewise we will and declare that if any one having _vicini_, or sons or daughters, shall be succeeded to after his death, so long as the sons live let them have the land as the Lex Salica provides.

So far evidently no change is made; old custom still holds good. But in the rest of the clauses a modification is made evidently to meet altered circumstances, and specially to shut out the _vicini_.

Et si subito filii defuncti fuerint, filia simili modo accipiat terras ipsas, sicut et filii si vivi fuissent aut habuissent. Et si moritur, frater alter superstitutus fuerit, frater terras accipiat, _non vicini_. Et subito frater moriens frater non derelinquerit superstitem, tunc soror ad terra ipsa accedat possidenda.…

And if suddenly the sons shall have died let the daughter receive those lands as the sons would have done had they been alive. And if he [a brother] should die and another brother should survive, let the brother receive those lands, _not the vicini_. And if suddenly the brother shall die not leaving a brother surviving, then let a sister succeed to the possession of that land.…

The remainder of the clause is very difficult to construe in the imperfect state of the text, and it is not necessary to dwell upon it. It seems to apply to newcomers (‘qui adveniunt’) and their rights _inter se_.[119]

We have then in these clauses an allusion to ancient tribal custom as well as to the change made necessary by the new circumstances.

[Sidenote: Analogy of Cymric custom.]

The implication is that under the rule of ancient custom, on a brother’s death without children, _his brothers did not succeed to his land, but the vicini_. Now the brother is to succeed, _not the vicini_.

At first sight this seems unnatural and unlikely. But it ceases to be so if we may regard the alod of terra Salica as a family holding under conditions somewhat like those of the gwely. For under Cymric custom the brother did not succeed to the childless brother as his heir. The co-inheritors, as far as second cousins, were his heirs. In other words the lapsed share went to his _vicini_, but they were the kinsmen of his own gwely.[120]

Nor did a brother succeed to his brother’s _da_, and the grazing rights and homestead connected with it. He had received this _da_, as we have seen, from his chief of kindred by ‘kin and descent,’ _i.e._ by tribal right in his kindred, and therefore if he should die without children his _da_ and everything he had by kin and descent went, not to his brothers, but back to the kindred or the chief of kindred from whom he received it.

If the son die after 14 years of age and leave no heir, his ‘argluyd’ is to possess all his _da_ and to be in place of a son to him and his house becomes a dead-house. (_Ven. Code_, i. p. 203.)[121]

The lapse of landed rights in family holdings to the kindred was one thing. Their passing out of the kindred to vicini who were strangers would be quite another thing.

When after a time, let us say under cover of the title ‘de migrantibus’ or upon extended conquests, others, perhaps ‘Romani possessores,’ had taken places in the villa side by side with the tribesmen living under the customary rules of _terra Salica_, or when Salic Franks had settled among strangers, the new element would have to be reckoned with.

In the clause ‘de migrantibus’ the protection of ancient Salic custom was sought by the exclusion of strangers at the instance of a single objector from terra Salica. In the Edict of Chilperic, on the other hand, the presence of stranger vicini was taken for granted, and the protection of terra Salica sought by extending the right of succession to brothers and females, so that at least fewer cases might arise of lapsed inheritances falling away from the kindred into the hands of the _vicini_ who might be strangers.

The breaking up of tribal custom thus was not all at once, but by steps. At first _terra Salica_ was limited to men, then female succession was allowed, and lastly, in default of kindred, stranger vicini under certain conditions were admitted to the lapsed inheritance.

IV. THE WERGELDS AND DIVISION OF CLASSES IN THE ‘LEX RIPUARIORUM.’

The customs of the Ripuarian Franks as to wergelds, as might be expected, do not seem to have varied much from those of the Salic Franks. They were probably neighbours in close contact with each other, and, judging from the laws, the population of the district was a mixed one.

[Sidenote: Wergeld of freeman as under the Lex Salica, 200 gold solidi. That of the official threefold.]

The wergeld of the Ripuarian ingenuus, like that of the Salic Frank or barbarian living under the Lex Salica, was 200 gold solidi, and 12 co-swearers were required to deny the homicide (Tit. VII.).

Here again official position seems, as under the Salic law, to be protected by a triple wergeld. The _grafio_ or _comes_, who was a fiscal judge, had a wergeld of 600 solidi (Tit. LIII.). The payment for one _in truste regis_ was also 600 solidi (Tit. XI.).

On the other hand, the wergeld of a ‘_homo regis_’ (Tit. IX.), like that of the ‘_puer regis_’ of the Salic law, was only 100 solidi, and that of the ‘man’ of the Church the same (Tit. X.), _i.e._ half that of the Ripuarian ingenuus.

Consistently with this, the triple payment for killing a woman between childbearing and 40, as also in the Salic Law, was 600 solidi, whilst the wergeld of the ‘femina regia’ or ‘ecclesiastica’ was only 300 solidi.

There are apparently hardly any indications as to how or to whom the wergelds were to be paid. There is only one reference to the _parentes_, and that is not connected with the wergelds. In Tit. LXXXV. it is stated that he who shall disinter a corpse and rob it shall pay 200 solidi and be ‘expelled till he shall satisfy the _parentes_.’

The murderer alone seems to be responsible, unless indeed the few words added to the clauses imposing the triple wergeld of 600 solidi upon the murderer of a woman may be taken to be of general application. The words are these:--

‘If the murderer shall be poor, so that he cannot pay at once, then let him pay _per tres decessiones filiorum_.’

Has it really come to this, that since the Edict of Childeric II. came into force the parentes are released, and the descendants of the murderer, for three generations, are to be in slavery till the wergeld is paid? It may be so, for the penalty in default of payment of the wergeld probably included his own slavery, which involved with it that of his descendants.

[Sidenote: The fisc gradually takes the place of the kindred.]

The ancient tribal tradition that within the family there could be no feud or wergeld, but exile only, was still apparently in force. In Title LXIX. there is a clause which enacts that if any one shall slay one next in kin (‘proximus sanguinis’) he shall suffer exile and all his goods shall go to the fisc. This exile of the slayer of a near kinsman and forfeiture of his goods to the fisc seems to be almost the only distinct important survival of tribal feeling, apparently neither wergeld nor the death of the slayer being admitted. But in this case the fisc was, as usual, the gainer. Parricide under any system of criminal law would be a capital crime. The pertinacity with which the custom that, being a crime _within_ the kindred, there could be no feud and therefore no wergeld, was adhered to in the midst of manifold changes in circumstances, feeling, and law, is very remarkable.

There is not much else in the Ripuarian laws throwing light upon tribal customs as regards the solidarity of the kindred. But there is a good deal of interesting information upon the important subject of the treatment of strangers in blood.

[Sidenote: Distinction between persons living under Salic law and those living under Roman law who were treated as strangers in blood.]

We have seen that in the Lex Salica the definition of the _ingenuus_ with a wergeld of 200 solidi was the _Francus_ or _barbarus_ living under Salic law. The ‘barbarus’ who lived under Salic law was no longer a stranger; he had in fact become a Frank. As we should say, he had been _naturalised_. Hence there was no inconsistency in the apparent occasional indiscriminate use of the words ‘Francus’ and ‘ingenuus.’ They meant the same thing. But there is nothing to show that the ordinary Gallo-Roman was included under the term ‘_barbarus_ who lived under Salic law.’ On the other hand, we find him living under the Roman law.

In considering the method of dealing with people of so mixed a population as that of the Ripuarian district it is very important to recognise how, under tribal custom, every man continued to live under the law under which he was born, until by some legal process his nationality, so to speak, was admitted to be changed. The Cymric example has shown us how strictly the tribal blood and admission from outside into the tribe were guarded. In such a mixed population as that of the Ripuarian district, the strictness may have been somewhat relaxed, and the formalities of admission less difficult. But there is evidence enough, I think (with great deference to M. Fustel de Coulanges’ doubts on the subject), to show that to some extent at any rate social distinctions were still founded upon ‘difference of blood.’ At all events it is worth while to examine the additional evidence afforded by some clauses in the Ripuarian laws.

[Sidenote: Strangers of allied tribes have wergelds according to the law of their birth, but if they cannot find compurgators must go to the ordeal.]

In Tit. XXXI. it is stated that Franks, Burgundians, Alamanni, and others, of whatever nation, living in the Ripuarian country, are to be judged and dealt with, if guilty, according to the law of the place of their birth, and not by the Ripuarian law, and it is significantly added that (living away from their kinsmen as they often must be) if they cannot find compurgators they must clear themselves by the ordeal of ‘fire or lot.’[122]

Here we come upon one of the strongest tests of tribal custom in its insistence upon the necessity of a man being surrounded by a kindred before he can be a fully recognised tribesman. Unless he be surrounded by kinsmen who can swear for him, under tribal custom, he must have recourse to the ordeal in case of any criminal charge.

There is a clause, not inconsistent, I think, with Tit. XXXI., which seems to draw a clear distinction in favour of tribes more or less nearly allied in blood with Franks, viz. the Burgundians, Alamanni, Bavarians, Saxons, and Frisians, resident in the Ripuarian district, as contrasted with the _Romanus_, who surely must be the Gallo-Roman.

In Title XXXVI. the following wergelds are stated, the slayer being a Ripuarian in all cases:--

A stranger Frank 200 solidi ” ” Burgundian 160 ” ” ” Romanus 100 ” ” ” Alamann } ” ” Frisian } 160 ” ” ” Bavarian } ” ” Saxon }

[Sidenote: Wergeld of the _Romanus_ 100 solidi instead of 200 or 160 solidi.]

Thus the Roman stranger is placed in the lowest grade. His wergeld is only 100 solidi--half that of the Ripuarian or Salic Frank--whilst those tribes nearer in blood to the Frank are classed together with a wergeld of 160 solidi, not much less than that of the Frank. Indeed, there is reason to believe that these were the wergelds of the several tribes in force in their own country according to their own laws.[123]

In this connection the view of M. Fustel de Coulanges, that the term ‘Romanus’ is confined to the libertus freed under Roman law, hardly seems natural. The evidence seems to show that the man freed under the formalities of Frankish law thenceforth lived under Salic law and became a Frankish freeman with a freeman’s wergeld of 200 solidi, whilst the man who became a freedman under process of Roman law thenceforth lived under Roman law, and became a Roman freeman--a Romanus--with a wergeld of only 100 solidi. The inference that the difference in status was the result of difference in blood is not altered by the fact that the social status awarded to the Gallo-Roman was the same as that of the libertus in some other laws.

The fact relied upon by M. Fustel de Coulanges, that under the laws of the Burgundians and the Wisigoths the Gallo-Roman was placed in a position of equality with the Teutonic conquerors, need not, I think, affect the view to be taken of his position under the Salic and Ripuarian laws. Tribal custom had to meet in Burgundy and the Wisigothic district with Roman law and Roman institutions still comparatively in their full strength. Marriages with the Gallo-Roman population were encouraged, and the system of wergelds almost entirely superseded. The Frankish conquest was of another kind, and the Frank was hardly likely to care to meet the Gallo-Roman on equal terms.

[Sidenote: Position of the freedman or _denarialis_ under Frankish law. His wergeld 200 solidi.]

Passing now from the position of the stranger who was recognised as a freeman, let us try to get a clear idea of the position of the _freedman_ under the Ripuarian law, taking the cases of the Frankish freedman and the Roman libertus separately.

In Tit. VIII. the payment for slaying a _servus_ is 36 solidi. In Tit. LXII., if any one makes his servus into a _tributarius_ or a _litus_ and he is killed, the penalty is the same--36 solidi, but if he chooses to make him into a _denarialis_ (_i.e._ a freedman under Frankish law) then his value shall be 200 solidi.

The tributarius or litus has gained but one step up the ladder of Frankish freedom. But the denarialis, with nearly six times his wergeld, has as regards his wergeld reached the highest rung at a single leap.

[Sidenote: But till he has a free kindred, if he has no children the fisc is his heir.]

Though, however, as regards wergeld he has done so, in another sense he has by no means done so. Under tribal custom he would not attain to full tribal rights till a kindred had grown up around him. So under Tit. LVII. the ‘homo denarialis,’ notwithstanding his wergeld of 200 solidi, is recognised as having no kindred.

(s. 4) If a ‘homo denariatus’ shall die without children he leaves no other heir than our fisc.

And in full accord with this statement is the following clause in the ‘Capitulare legi Ripuariæ additum’ of A.D. 803.

Homo denarialis non ante hæreditare in suam agnationem poterit quam usque ad terciam generationem perveniat.

So that more of tribal custom still prevails in his case than at first appears. Only in the third generation are full rights of inheritance secured to his successors.

[Sidenote: Wergeld of the _libertus_ under Roman law 100 solidi.]

If now we turn to the _libertus_ under Roman law, Tit. LXI. states that if any one shall make his servus into a libertus and Roman citizen, if he shall commit a crime he shall be judged by Roman law, and if he be killed the payment shall be 100 solidi: but ‘if he shall die without children he shall have no heir but our fisc.’

Thus, as regards inheritance, the Frankish denarialis and the Roman libertus seem to be treated alike, notwithstanding the difference of wergeld.

Turning to another matter, the Ripuarian laws, being of later date than the Lex Salica, made provision for the wergelds of the clergy.

[Sidenote: Wergelds of the clergy, and of their ‘men.’]

Tit. XXXVI. provided that the clergy should be compounded for according to their birth, whether of the class of servi, or men of the king or of the Church, or liti, or ingenui. If _ingenui_, they were to be compounded for with 200 solidi. Then the wergelds of the higher clergy are stated as follows:--

Subdeacon 400 solidi Deacon 500 ” Priest 600 ” Bishop 900 ”

And there is a long clause _De Tabulariis_ (Tit. LVIII.) providing that servi may be made under process of Roman law _tabularii_ of the Church, so that they and their descendants shall be and remain servants of the Church, and render the proper services of tabularii to the Church, without any one having power further to enfranchise them. In case of their death without children the Church is to be their heir. These appear to be the ‘men of the Church’ whose wergeld was 100 solidi.

[Sidenote: The clause ‘De alodibus.’]

The Tit. LVI. _De alodibus_ is as follows:--

Si quis absque liberis defunctus fuerit, si pater materque superstites fuerint in hereditatem succedant.

If any one shall have died without children, if father and mother survive they shall succeed to the _hereditas_.

Si pater materque non fuerint, frater et soror succedant.

If there are not father and mother, brother and sister shall succeed.

Si autem nec eos habuerit, tunc soror matris patrisque succedant. Et deinceps usque ad quintam genuculum, qui proximus fuerit, hereditatem succedat.

But if he has not these either, then the sister of the mother and the sister of the father shall succeed. And further, up to the fifth knee, whoever is nearest shall succeed to the inheritance.

Sed cum virilis sexus extiterit, femina in hereditatem aviaticam non succedat.

But as long as the male sex survive, a woman shall not succeed to the _hereditas aviatica_.

All that need be remarked regarding this title is, first its close resemblance to the clause ‘de alodis’ in the Lex Salica and the confirmation given by the phrase ‘hereditas aviatica’ to the family character of the ‘alod,’ and secondly that it seems to belong to the time when female succession was favoured.

Whether the ‘hereditas aviatica’ included the whole alod or only the land of the alod, on failure of male heirs, females were now to succeed.

[Sidenote: The traditional value of animals in payment of wergelds. The wergeld of 200 solidi = 100 oxen.]

There remains only to be noticed the interesting addition to Tit. XXXVI. which enacts that if any one ought to pay wergeld he should reckon, _inter alia_:--

The ox, horned, seeing, and sound, for 2 solidi The cow, horned, seeing, and sound, for [3 or] 1 solidus The horse, seeing and sound, for 6 solidi The mare, seeing and sound, for 3 ”

And this is followed by a final clause which is found only in some of the manuscripts and which is probably an addition made under Charlemagne:--

If payment shall be made in silver, let 12 denarii be paid for the solidus, _sicut antiquitus est constitutum_.

Thus our consideration of these laws ends with the fact that, before the disturbance in the currency made by Charlemagne, the wergeld of the Frankish freeman of 200 gold solidi or heavy gold mina was still, in the Ripuarian district at all events, a normal wergeld of 100 oxen.

V. THE ALAMANNIC AND BAVARIAN LAWS.

These laws have an interest of their own, but only those points come directly within the range of this inquiry which are likely to throw light upon the interpretation of the Anglo-Saxon laws.

Beginning at once with the wergelds, there are two distinct statements.

[Sidenote: The wergelds of the early Alamannic ‘Pactus,’ and of the later ‘Lex Hlotharii.’]

According to the ‘Pactus,’ which is assigned to the sixth or seventh century, and which is considered to represent customs of the Alamanni before they were conquered by the Franks,[124] the wergelds were as follows:--

Baro de mino flidis 170 solidi (? 160) Medianus Alamannus 200 ” Primus Alamannus 240 ”

And for women:--

Femina mino flidis 320 ” Mediana 400 ” Prima Alamanna 480 ”

These wergelds correspond very closely in some points with those of the Burgundian laws and should be compared with them.[125]

The wergeld of women was double that of men of the same class. In the Lex Salica and Lex Ripuariorum, women were paid for threefold.

In the Lex Hlotharii, s. LXIX., the wergelds are stated as follows:--

If any freeman (‘liber’) kills a freeman, let him compound for him twice 80 solidi to his sons. If he does not leave sons nor has heirs let him pay 200 solidi.

Women of theirs, moreover, always in double.

The medius Alamannus, if he shall be killed, let 200 solidi be paid to the parentes.

It is not clear that there has been any change in the wergelds since the date of the ‘Pactus.’

[Sidenote: The wergeld of 160 solidi accords with the statement in the Ripuarian law.]

The wergeld of the medius Alamannus, 200 solidi, is the same as before. That of the liber, 160 solidi, seems to be the same as that of the baro de mino flidis in the ‘Pactus.’ It is also the wergeld of the Alamannus according to the clause mentioning strangers in the Ripuarian law. The use of the term ‘medius Alamannus’ seems to imply that there should be a primus Alamannus as in the ‘Pactus.’ But what these two classes of Alamanni with higher wergelds than that of the liber were does not appear.

This later statement of the wergelds seems also to contain a provision which can, I think, only be explained by tribal custom. It occurs again in clause XLVI., which enacts that the same payment has to be paid to the parentes of a person sold out of the country beyond recall as if he had been killed. This rule is the same in the Salic and Ripuarian codes. But in this law a distinction is made between the case of a slain man leaving an heir, and the case of his leaving no heir.

[Sidenote: Wergeld of 200 solidi if no heir of the person slain.]

If he cannot recall him let him pay for him with a wergeld to the parentes. That is twice 80 solidi if he leave an heir. But if he does not leave an heir let him compound with 200 solidi.

The explanation must be that if the lost kinsman leaves no heir, the loss is all the greater to the kindred. This looks like a survival of tribal custom. The dread of a family dying out lay, as we have seen, at the root of the widespread custom which brought in the sister’s son to fill the vacant place when there was no one else to keep up the family. This addition in the later statement, though omitted in the ‘Pactus,’ pointing back as it appears to earlier custom, seems to show that the Lex as well as the ‘Pactus’ may in the matter of wergeld be traced to Alamannic rather than Frankish sources.

[Sidenote: Wergeld of women.]

In both the ‘Pactus’ and the Lex, as we have seen, the wergelds of women were double those of men. The Bavarian law gives the reason of the rule (IV. 29) and also the reason why sometimes an exception was made to the rule.

Whilst a woman is unable to defend herself by arms, let her receive a double composition; if, however, in the boldness of her heart, like a man, she chooses to fight, her composition shall not be double.

In titles XXIX. and XXX. of the Alamannic law it is enacted that if a man be slain in the _curtis_ of the Dux a threefold wergeld must be paid, and that if the messenger of the Dux be killed within the province his triple wergeld must be paid.

[Sidenote: The freeman’s wergeld of 160 solidi under Bavarian law.]

In the Bavarian law the wergeld of the freeman is stated to be 160 solidi, thus:--

If any one kill a free man (‘liberum hominem’) let there be paid to his parentes, if he have any, or if he have no parentes to the Dux or to him to whom he was commended whilst he lived, twice 80 solidi: that is, 160 solidi. (Tit. IV. c. 28.)

There are no wergelds mentioned in the Bavarian law corresponding to those of the _medius Alamannus_ and the _primus Alamannus_ of the Alamannic laws.

[Sidenote: Higher wergelds of certain families.]

According to Tit. III. 1, there were certain families who were held in double honour, and had double wergelds. The Agilolvinga had fourfold wergelds, being the family from whom the Dux was chosen. The Dux himself had a fourfold wergeld with one third added. If the life of any of his parentes were taken the wergeld was, according to one manuscript, 640, and according to another 600 solidi.

These wergelds of the Alamannic and Bavarian laws are not on all fours with those of the Salic and Ripuarian Laws. But in both cases the ordinary freeman’s wergeld is 160 solidi (unless there be no heir to inherit), so that in both cases the wergelds correspond sufficiently with the clause in the Ripuarian Laws which accords to them a wergeld of 160 solidi, after having before stated that strangers are to be judged according to the laws under which they were born.

[Sidenote: Wergelds of the freedman and the servus.]

In the Bavarian law there is special mention of the freedman and the servus, and it is worth while to dwell a moment on the position assigned to them as compared with the ordinary freeman.

There are three titles headed as under:--

Title IV. De _liberis_, quo modo componuntur. ” V. De liberis qui per manum dimissi sunt liberi, quod _frilaz_ vocant. ” VI. De _servis_, quo modo componuntur.

These clauses relate to injuries as well as to homicide. As regards all minor injuries, the freedman is paid for at one half, and the servus at one third, of the payment to the liber for the same injury.

[Sidenote: Payments for eye, hand, or foot one fourth the wergeld.]

But when the payment comes to be for the eye, hand, or foot, the difference is, roughly speaking, doubled. The payment for the liber is 40 solidi, for the freedman 10 solidi, and for the servus 6 solidi (? 5 sol.). And these payments are seemingly intended to be one quarter of the respective wergelds for homicide. We have seen that the wergeld of the freeman was 160 solidi. These clauses state that the freedman’s wergeld was 40 solidi, and that of the servus 20 solidi, and that in both these cases the lord took the payment.

In Tit. IV. 30, _De peregrinis transeuntibus viam_, the passing stranger’s death was to be paid for with 100 solidi to his parentes, or in their absence to the fisc.

[Sidenote: Bavarian wergelds.]

The wergelds of the Bavarian laws may therefore be thus stated:--

Ducal family (4 fold) 640 solidi Families next in honour 320 ” Liber 160 ” Stranger 100 ” Freedman 40 ” Servus 20 ”

And all these solidi were gold solidi of Imperial or Merovingian standard, it does not matter much which.

[Sidenote: No wergeld within the family.]

The crime of homicide within the near family was dealt with in the Alamannic law in conformity with ancient tribal custom. There was no wergeld in such a case.

If any man wilfully kills his father, uncle, brother, or maternal uncle (avunculus), or his brother’s son, or the son of his uncle or maternal uncle, or his mother, or his sister, let him know that he has acted against God, and not fulfilled brotherhood according to the command of God, and heavily sinned against God. And before all his parentes, let his goods be confiscated, and let nothing of his pertain any more to his heirs. Moreover, let him do penance according to the Canons. (Tit. XL.)

Once more in these laws the parricide (the fisc having taken his property) goes free, but for the penance required by the Canons of the Church.

[Sidenote: Wergelds of the clergy.]

As regards the wergelds of the clergy in the Alamannic law the Church seems to claim triple penalties. The wergelds of the clergy are as follows, according to the Lex Hlotharii (XI. to XVII.):--

Bishop as that of the Dux or Rex. Priest, parochial 600 solidi Deacon and monk 300 ” Other clerics like the rest of their parentes. Liber per cartam (the Ripuarian tabularius) 80 ”

The free colonus of the Church as other Alamanni.

According to the Bavarian law (Tit. I. c. x.) a bishop’s death was to be paid for by the weight in gold of a leaden tunic as long as himself, or its value in cattle, slaves, land, or villas, if the slayer should have them; and he and his wife and children are to be _in servitio_ to the Church till the debt is paid.

The lower clergy and monks were to be paid for according to their birth _double_; parochial priests threefold. (I. c. viii. and ix.)

[Sidenote: The wife’s inheritance goes back to her kindred if no children born alive.]

In the _Liber secundus_ of the Alamannic law is an interesting clause which throws some light upon the position of married women.

(XCV.) If any woman who has a paternal inheritance of her own, after marriage and pregnancy, is delivered of a boy, and she herself dies in childbirth, and the child remains alive long enough, _i.e._ for an hour, or so that it can open its eyes and see the roof and four walls of the house, and afterwards dies, its maternal inheritance then belongs to its father.

This is natural, but it seems to show that if the child had been born dead and the wife had died without children her paternal inheritance would have gone back to her kindred and not to her husband.

In the absence of other evidence this is perhaps enough to show that in accordance with tribal custom the kindred of the wife had not lost all hold upon their kinswoman, and therefore that she by her marriage had not passed altogether out of her own kindred.

[Sidenote: Traditional value of cattle stated in gold tremisses.]

Lastly, there are clauses in the same _Liber secundus_ which declare the value of the solidus in equation with cattle.

LXXX. Summus bovus 5 tremisses valet. Medianus 4 tremisses valet. Minor quod appreciatus fuerit.

LXXVII. Illa mellissima vacca 4 tremisses liceat adpreciare. Illa alia sequenteriana solidum 1.

These clauses show that the solidi in which the wergelds were paid were gold solidi of three tremisses.

In the Ripuarian laws the ox was equated with 2 gold solidi, _i.e._ 6 tremisses, so that we learned from the equation that the wergeld of the Ripuarian liber, 200 solidi, was really a wergeld of 100 oxen. But the above equations show that under Alamannic law the wergeld of the liber was not so.

In the Alamannic laws the best ox was valued only at five tremisses instead of six, so that the wergeld of 200 solidi of the medius Alamannus was really a wergeld of 120 oxen; and the 160 solidi of the wergeld of the _baro de mino flidis_ of the ‘Pactus,’ or simple ‘liber’ of the Lex Hlotharii, was a wergeld of 96 oxen or 120 Alamannic ‘_sweetest cows_.’

Any one who has seen the magnificent fawn-coloured oxen by which waggons are still drawn in the streets of St. Gall will appreciate what the ‘summus bovus’ of the Alamannic region may have been. Why it should have been worth in gold less than the oxen of other lands does not appear.