may have been divided into the ‘four nearest fines or hearths,’ we
can hardly be wrong in considering them not as four artificial groups
including in all seventeen individuals, but as four _family groups_
arranged in the order in which liability for a kinsman’s crime was to be
shared.
[Sidenote: The same groups both received and paid eric.]
The full liability for the eric would then, as in the Cymric case, fall
upon the four groups or hearths as a whole. But, again as in the Cymric
case, the amount falling upon each of them was defined and divided among
the individuals composing it. The same family division held good both as
regards payment and receipt of eric.[67]
The general correspondence between the obligation to pay and the right to
receive a share in fines is shown by another passage from the Senchus Mor:
The feini charge the liability of each kinsman [comfogius] upon
the other in the same way as he obtained his eric fine and his
inheritance.[68]
The penalties for any other crime than homicide fell in the first
instance upon the criminal alone, and the person injured took the whole
of the compensation for his injury.
But it was not so in the case of homicide. It was not a matter for the
individual alone. Both in payment and receipt it was, as with the Cymry,
a joint interest of the kindred.
The following passage makes this clear:--
What is the reason that it is upon himself alone every crime that
a person commits goes, _except killing_, provided he has the
means of paying it?
_Answer._ Because, though it be against him alone evil is done,
_except killing_, it is to himself alone it shall be paid. Every
_killing_, however, which he commits, it is not he alone that
shall pay for, though he has the means of paying for it, but it
goes upon the family (fine), and this is now the reason: because
though it were himself or his son that had been killed, it is the
whole family (fine) that would take the body fine (coirp-dire) of
either of them, and not his son or father.[69]
[Sidenote: The solidarity of the kindred.]
A still clearer indication of this solidarity of the family or kindred
occurs in the Book of Aicill (p. 541) in regard to the right of the
several members, according to relationship, to share in composition for
a kinswoman abducted without their consent. If taken without her own
consent, honour-price was to be paid to herself, and also honour-price
was to be paid to her chiefs, and her relations, according to the nature
of their relationship to her. This presumably was for the breach of their
protection. Should death overtake her before she was restored, coirp-dire
and honour-price were to be paid to her family. In case of her consent
it was the same except that she could claim no honour-price for herself.
So far, then, we have felt our way to the following conclusions:--
[Sidenote: Summary of the rules as to eric.]
(1) That the eric for homicide in Ireland was shared by the family in
grades of relationship elaborately fixed, but which it is not necessary
to discuss further.
(2) In cases of innocent homicide the family, _i.e._ four nearest hearths
or grades of kindred, shared the eric with the slayer, _i.e._ the slayer
was only liable to pay a share of the eric.
(3) In cases of intentional homicide the goods of the murderer all had to
go first, and only the remainder was thrown upon his kindred. But (except
_inter se_) they were liable to the kindred of the slain for the whole of
what the slayer could not pay.
(4) The eric consisted of two parts--the coirp-dire and the honour-price.
The coirp-dire was seven cumhals, one of which was for restitution
(_aithgin_), the other six cumhals being the _coirp-dire_ proper.
(5) As in other laws, there were sometimes additional payments for breach
of protection or privilege &c.
II. THE HONOUR-PRICE (ENECLANN).
It is necessary next to direct special attention to the honour-price
(eneclann).
The question at once arises, _whose_ honour-price had to be paid?
In the first place, according to a passage in the Book of Aicill, it is
the honour-price of the _slayer_ that had to be paid, _i.e._ the higher
the rank of the slayer the greater the payment to the kindred of the
person slain.
[Sidenote: The honour-price of the slayer.]
The passage alluded to occurs almost at the beginning of the Book of
Aicill (p. 99). The heading, literally translated, is: ‘Fines are doubled
by anger (ferg).’ Then follows a long commentary, in which the point
seems to be limited to _secret_ murder, and the doubling seems to be the
result of the _concealment_. This is quite consistent with tribal feeling
as shown in other laws, concealment of the slain person on the part of
the murderer being considered a grave aggravation. The passage is as
follows:--
_Fines are doubled by anger (ferg)._
The double of _his own honour-price_ is due of each and every
person, whether native freeman, stranger, foreigner, daerman, or
looker-on, for the crime of _secret_ murder.[70]
And then the commentary goes on to say that if it was the same person who
killed and concealed
a fine of 7 cumhals and full honour-price for the concealing, and
7 cumhals and full honour-price for the killing, which is twice 7
cumhals and double honour-price upon a native freeman for secret
murder.
Obviously the _honour-price_ in both cases is that of the murderer, for a
little further on is a statement that
the same fine is upon a native freeman for looking on at the
killing of a native freeman, or a stranger, or a foreigner, or a
daerman.[71]
[Sidenote: The honour-price of the slain or of his kinsmen.]
But besides this honour-price of the criminal, as we have seen, other
payments had apparently to be made to the relatives of the slain, for
breach of their protection or for injury sustained, and these were
measured by the honour-price of the recipients and not by that of the
criminal.
It is not quite clearly stated that these payments were a part of the
eric, but we may suppose that they were in a sense a buying off of the
right of feud, and accepted in lieu of the right of joining in the
avengement of the crime and in the feud, for which the eric was the
composition.
[Sidenote: The honour-price of the protector of the slain.]
A passage in the Book of Aicill (p. 107) incidentally seems to show that
the son of a person slain could choose whether to claim honour-price on
the scale of his own social rank, according to right of property, or of
the status of his father or grandfather, or that of the chieftain under
whose protection he lived.
If, having been given his choice of taking honour-price in
right of property, or honour-price in right of his father and
his grandfather, he made choice of honour-price in right of his
property, and decay came upon his property so that he has [left]
but the kingship of the three handles--the handle of his flail,
the handle of his hatchet, and the handle of his wood axe; he is
(then) entitled to but one screpall for his worthiness if he be
worthy; and if he be not worthy he is entitled to nothing, unless
children have been born to him afterwards which he had not before
on the day of making his choice, and if they have been born he
has honour-price in right of them.
The passage goes on to mention the case of his having made choice ‘to
have honour-price in right of his relations or in right of his chief.’
In the Senchus Mor (i. p. 275), without direct mention of the case of
homicide, is the following statement:--
The honour-price is fourfold. Full honour-price is due to one for
his father, half honour-price for his father’s brother, one third
honour-price for his son or his daughter, one fourth honour-price
for his grandson.
On the whole it may be gathered from the Brehon tracts that, whilst the
coirp-dire or body fine was a fixed amount, the eric or full payment
was complex, involving, besides the coirp-dire, the honour-price of the
slayer according to his rank, and also payments to the relations of
the slain, regulated by their honour-price and rank, and nearness of
relationship to the slain person, by way of reparation for the insult or
injury involved, or for breach of their protection, &c.
In order to judge how much these payments of honour-price added to the
eric, we must seek to learn something of the character of the various
grades and ranks, and the amount of the honour-price of each.
III. THE GRADATIONS IN RANK UNDER THE BREHON LAWS.
The gradations in the honour-price, as stated in the ‘Crith Gabhlach,’
become very important from the light thrown by them upon the structure of
tribal society in Ireland.
[Sidenote: The ‘midboth’ or ordinary freeman and his food allowance.]
At the bottom of the list of these grades is mentioned the _midboth_ man
or ordinary freeman without land or cows (?). He is said to be entitled,
as food allowance, to the humblest fare of ‘milk and stirabout’ and for
himself alone (iv. 301).
His honour-price is only a dairt heifer or colpach heifer, and his
honour-price (as that of other grades) is also the limit of the value of
his oath or pledge. He is a man who has not yet attained to a household
of his own. When he has done that he seems to rise to the next rank of an
_og-aire_, _i.e._ a young _aire_.
Suddenly, we are told of the og-aire that he has seven cows and a bull,
seven pigs, seven sheep, and a horse. He also has a cow land, _i.e._
land to graze seven cows, for which a cow is paid every year by him to
his chief. He has an ox, and a fourth part of the needful for ploughing:
_i.e._ presumably he joins with others in making up a plough team of four
oxen. Surely these have been supplied to him by his chief, as in the case
of the Cymric ‘da.’ His proportionate stock (turcreicc) is eight cows,
which with his land he gets from a bo-aire, possessed of surplus cattle,
and he pays to him a food-rent ‘bes tigi’ (like the Welsh gwestva) of a
cow and a pig, &c. Should his stock increase he does not always become
at once a _bo-aire_, ‘because four or five such may occupy the land of a
bo-aire, and it would not be easy for each of them to be a bo-aire’ (iv.
pp. 305-309).
[Sidenote: The ‘bo-aire.’]
So in the same way a _bo-aire_ has land of twice seven cumhals, and he
has half of a full ploughing apparatus, and his proportionate stock (from
his chief) is twelve cows; and a colpach heifer is his food-rent; and his
honour-price is five seds.
A bo-aire may have a full and complete plough team and twenty cows
and other things, and he may even rise to the giving of proportionate
stock to tenants of his own if his stock should have grown too much
for his land. But he still may remain a bo-aire. He may, however, rise
from a bo-aire into a _flaith_ (or chief), when he has double as much
as an ‘aire desa’ and has established himself with a _green_ round his
homestead, and so surrounded his house with a _precinct_ in which he
can give protection to cattle taken in distress, this being one of the
important duties and functions of a chief (flaith) (iv. pp. 309-317).
It would seem that even when a man had risen to be the chief of his
kindred (fine) he might still be simply a bo-aire, and not necessarily
yet a _flaith chief_.
In another tract, among other disconnected items are the following:--
Whatever number of the divisions of the bo-aires happen to be
contending, though one of them be older than the others, the
grade which is most wealthy, _i.e._ in point of wealth, it is it
that takes precedence.
He is a hill of chieftainship in the third person.
Unless his father and grandfather were flaith, though he may be
of the same race as to his origin, his chieftainship is lost to
him.
A plebeian chief is one whose father or grandfather was not a
chief (flaith). (iv. pp. 379-381.)
It would seem from these statements that to become a flaith from the
rank of bo-aires something like an election was needful, and that wealth
weighed most in the election. It shows, however, that it was election
out of a class or family in which the flaithship descended from father
to son, and that one of the qualifications was that a man’s father and
grandfather before him must have been flaiths.
[Sidenote: The ‘aire desa.’]
So too in the ‘Crith Gabhlach’ (iv. p. 321) the _aire desa_ must be the
son of an aire and the grandson of an aire. He has (probably a minimum
of) ten tenants, five _giallna_ and five _saer_, and gets a food-rent
from each. But he himself takes proportionate stock from his chief, for
which he pays food-rent in the same way.
[Sidenote: The ‘aire ard.’]
The _aire ard_ has twenty tenants, ten _giallna_ and ten _saer_, and in
his turn he takes proportionate stock from his chief (iv. p. 325).
[Sidenote: The ‘aire tuisi.’]
The _aire tuisi_ has twenty-seven tenants, fifteen giallna and twelve
saer, and he takes himself proportionate stock from a king, ‘and
he makes corus-arrangements _in the raith right of his father and
grandfather_,’ whatever this may be (iv. 325).
[Sidenote: The ‘aire forgaill.’ The ‘Ri-tuaithe.’]
Above him is the _aire forgaill_, with forty tenants; and at the head of
the flaith or chieftain grade comes the _Ri-tuaithe_, who is the chief or
King of a Tuath.
[Sidenote: The lower grades take stock from the higher and pay food-rents
to them.]
We need not attempt to discuss the details of this hierarchy of
chieftains. It is enough that, throughout, the lower chieftain takes
stock from and pays food-rents to the higher chieftain, or the
Ri-tuaithe, as the case may be. So that the grades of tribal rank were
connected by the link formed by the receipt of an allotment of stock
from, and the payment of food-rent to, the next superior grade.
* * * * *
Concentrating attention now on the ‘fine’ or group dependent upon a
single flaith or chief, we have seen that it consisted not only of his
kindred, but also of other dependents.
[Sidenote: The other tenants of a chieftain.]
We have seen that the chief had both _giallna_ and _saer_ tenants, and
that he supplied these tenants with stock, and received food-rent and
services in return.
In the second volume of the Senchus Mor[72] are two chapters on
_Saer-raith_ and _Daer-raith_. And the two kinds of tenancy are explained
somewhat as follows.
[Sidenote: Effect of continuance of tenancy for three lives.]
In the _saer_-raith the stock is given without any pledge, and the return
for it is one-third in value as food-rent every year, and the tenant
has to perform what is translated as homage, and to do service on the
dun-fort, at harvest time, and on military expeditions, but he does no
manual labour. The saer tenant cannot separate from his own hereditary
tribal chieftain, or refuse to take stock from him, and to that extent
he seems to be _adscriptus glebæ_. But if he chooses to receive stock
from another chief he can give it up when he likes, unless not having
returned it _for three lifetimes_, he has let the chief get a permanent
hold on him, but this must not be so as to rob his own tribe of their
innate rights (p. 219). This freedom to take stock from other chieftains
does not, therefore, seem to alter his position or that of his successor
as permanent tenants of their own hereditary chieftain. And this applies
both to his higher chieftain of _kingly_ rank, and his own lesser
chieftain of _flaith_ rank.
He cannot separate from his own king (ri) at any time, either in
_saer_-rath or _daer_-rath, unless the chief be indigent.… His
own _aire_ of the _flaith_ grade is in the same position as his
own _king_ (p. 211).
On the other hand, whilst in the case of stock taken from another
chieftain the contract can be ended on either side (except after three
lives), the hereditary king or chieftain cannot, without good reason,
withdraw the stock from the tenants.
If he be his own king he can never take away either his _saer_
stock or _daer_ stock unless the tenant be indigent, and there
are no life separations between the tenant and his own hereditary
king unless either of them act illegally, &c.…
The tightness of the tribal bond is shown still more clearly by the
statement that the chieftain himself is not competent to forgive, so as
to bind his successors, the food-rent due from the tenant.
The food-rent is free to the successors of the chief; for the
chief is not competent to forgive the payment of what supplies
his house (p. 213).
So much we gather from the chapter on _saer_-rath. Now as to _daer_-rath
(p. 223). No one was bound to take _daer_ stock from any one, not even
from his own chieftain or king. Taking daer stock was therefore a matter
of contract, and a contract by a tribesman affected his _fine_ or kindred.
The stock is received by the tenant either with or without the
knowledge of the _fine_, for if it was unknown to them they could
impugn his contract, but if it was within their knowledge, though
the stock be ever so great, it is fastened upon them.
The fine had a voice, presumably lest it should be found that cattle
in their family herd, unknown to them, might belong to some outside
chieftain. And further, if continued for three lives, the obligation
might become permanent, as in the case of saer stock.
[Sidenote: ‘Fuidhir’ tenants become _adscripti glebæ_ after three
generations.]
Besides these _daer_ and _saer_ tenants who had taken stock from their
chieftain or king, and who seem to have been to a great extent _adscripti
glebæ_, there is mention of _fuidhir_ tenants. They seem to be strangers,
admitted, like the Cymric alltuds, upon a chieftain’s land, and, like
the Cymric alltuds, free to move away, until by residence for three
generations they also have become recognised as freemen, and at the same
time _adscripti glebæ_.
In the tract, ‘Divisions of the Tribe of a Territory,’[73] is the
following mention of the fuidhir tenants, confirming what has been said
above.
It occurs in the commentary:--
His fuidhir tenants, _i.e._ they become free during the time of
three persons; the fourth man is called a daer-bothach person;
the _fifth is a sencleithe_ person.
The fifth person would be the great-great-grandson of the original
fuidhir. Further on (p. 287) is the following:--
The families of the fuidhir tenants are subject to manifold
divisions. The son is enriched in the same ratio as his father,
and the father does not sell anything to the prejudice of his
sons, grandsons, great-grandsons, or great-great-grandsons.
[Sidenote: The fifth generation become ‘sencleithe.’]
The chief point of interest is that the men of the fourth generation of
fuidhirs, according to the above-quoted passages, became _daer-bothach_
persons--half free men--and the fifth generation _sencleithe_, so that
the family, like the Cymric stranger, grew into freedom in four or five
generations.
This gradual growth of fuidhirs into sencleithe tenants in five
generations of occupation is illustrated by the retention of rights for
a corresponding period. In the Book of Aicill (p. 157) is a statement
that the land of an imbecile person (a fool’s land) is not lost to his
descendants, though they be also imbeciles, ‘till five persons:’ that is,
till the fifth generation.
The number of generations required does not, however, seem to have been
absolutely uniform.
The following is from the ‘Crith Gabhlach’ (p. 321):--
If there be service from them (cottier and fuidhir tenants which
he, the chief, brings upon the land) to ‘flaith’ chiefs to nine
times nine (years?), they are cottiers and fuidhir tenants; they
are _sencleithe_ tenants from that out.
In the Editor’s note (p. 350) to the sequel to the ‘Crith Gabhlach,’
there is a statement that the sencleithe tenant was a man who came
from his natural chief to settle under another chief; and if he or his
successors continued away during the time of three successive chiefs,
with the knowledge of the former chief, and unclaimed by him or his
successors, he or they then became ‘sencleithe,’ and could not go away of
themselves nor be claimed by the other.[74]
[Sidenote: Comparison with Cymric custom as to strangers, and as to the
link between chief and tribesmen made by bestowal and acceptance of
cattle.]
These passages, taken together, seem to imply that after five, or
sometimes three, generations of tenancy under the same chieftain or his
successors, the fuidhir tenants became in some sense _adscripti glebæ_,
like the Cymric alltuds, and at the same time formed a group of kindred
very much like a Cymric gwely.
Beyond this it is not easy to realise the position of the _sencleithe_
person. The text of the Brehon law tracts is often very obscure, and
the commentary so imperfect that the suggestion again and again occurs
to the student that the commentator may sometimes himself be groping in
the dark. Moreover, all the Brehon tracts have not yet been published,
so that we have as yet only part of the evidence before us. Still it
seems to be safe to say that there are indications that, as in Wales,
there were rungs in the social ladder by which the stranger or unfree
tenant might, after a certain number of generations, climb into something
like freedom and tribal rights at the cost of becoming at the same time
attached to the land of the chieftain; and that to the freeman also the
grades of social rank were in some measure dependent upon the social
position of fathers and grandfathers and great-grandfathers as well
as upon the acceptance of stock and the payment of food-rent and the
performance of services to chieftains of higher rank.
Further, without pressing too far resemblances which are not complete
between Irish and Cymric custom, it may at least be suggested that the
Irish example of the acceptance of stock by the young og-aire from the
chief of his family, or some higher chieftain whose man he was or became,
may throw some light upon the Cymric provision of _da_ or cattle to the
young tribesman who became ‘man and kin’ to the chieftain who gave it for
his maintenance. In the Irish instance, this bestowal and acceptance of
stock was part of a system which ran through all ranks and grades. And
it seems to have formed the natural link connecting one social rank with
another, and securing some kind of solidarity in the whole kindred or
tribe, in addition to the tie of blood relationship and sometimes as a
substitute for it.
We are now in a position to consider the amount of the honour-price of
the various grades in tribal society as exhibited in the Brehon tracts,
and to judge how far it was an important addition to the coirp-dire, and
whether it raised the Irish _eric_ to an amount at all near to that of
the _galanas_ of the Cymric Codes.
[Sidenote: The amount of the honour-price of each grade.]
In the ‘Crith Gabhlach’ the honour-price of each grade is given as
below:--
Midboth men a dairt heifer or colpach heifer
Og-aire 3 seds of cow kind
Bo-aire 5 seds or = 1 cumhal
_Aire desa_ 10 seds or = 2 cumhals
Aire ard 15 seds or = 3 cumhals
Aire tuisi 20 seds or = 4 cumhals
Aire forgaill 15 seds (_sic_; ? 30 seds) or = 6 cumhals.[75]
_Ri_-tuaith 7 cumhals
The honour-price is given in the ‘Crith Gabhlach’ in seds. The number
of cumhals or female slaves is taken from a list in the Book of Aicill
(p. 475) and from a statement in the Senchus Mor (i. p. 76) in which the
honour-price of the aire forgaill is stated to be 6 cumhals.
It seems, then, that the honour-price of the Ri-tuaith, the highest
chieftain, was seven cumhals, whilst the honour-price of the bo-aire only
amounted to one cumhal, that of the og-aire to only three two-year-old
heifers, whilst that of the simple freeman without land or cattle was
only one single heifer.
[Sidenote: Difference between the Irish ‘eric’ and the Cymric ‘galanas.’]
The whole eric fine for homicide, including the coirp-dire and additional
payments of honour price, evidently fell very far short of that of the
Cymric galanas. Even in the case of the Ri-tuaith or highest chieftain
slain by one of his own rank, the eric can hardly have exceeded the
galanas of the young unmarried Cymric tribesman--viz. of sixty cows.
[Sidenote: The honour-price the limit of the power of protection.]
The importance under Irish tribal custom of the honour-price of a
tribesman, and its graduation in proportion to rank, position, and wealth
in the tribe, is apparent quite apart from the question of homicide. It
ruled the value of ‘his oath, of his guarantee, of his pledge, and of
his evidence.’ These according to the ‘Crith Gabhlach’ (p. 307) were
the four things in which he acted to the extent of his honour-price,
and he was not competent to undertake liabilities beyond this limit.
This becomes very important when we realise how large a place the
system of compurgation, or the support of a kinsman by the oaths of his
fellow-kinsmen, filled in tribal usage.
On the other hand, whilst the honour-price of a tribesman or chieftain
was the limit up to which his power of giving protection to his
fellow-tribesmen by oath or pledge or otherwise extended, it also was
the measure of his own protection. He was entitled to his honour-price
not only in case of homicide. If he was satirised or insulted, or if the
protection he afforded to others was violated, or his house was burned,
or any one stole from him, out of his house or in it, or forced his
wife or his daughter, his honour-price was the measure of the amount of
redress he could claim for the wrong. The analogy of this to the Cymric
_saraad_ is obvious, and something like it is found in most tribal
systems.
[Sidenote: A typical case of eric from the Senchus Mor.]
Finally, imperfect and vague in some points as may be the result of the
foregoing examination of the Irish evidence, we are now perhaps in a
position to appreciate, for what it is worth, the curious case described
in the Senchus Mor.[76] It may be taken so far as it goes as a precedent
or indication of the way in which the intricate matters connected with
the eric fine and honour-price were worked out in practice, though it is
difficult to explain all the rulings of the Brehon experts.
The matter in dispute was between two of the three principal races of
Erin--the Feini or ‘men of the North’ and the Ulaidh or ‘men of the
South.’ Fergus was the son of the King of the Ulaidh. Owing to a quarrel
amongst the Feini, Eochaidh Belbhuidhe, being expelled by Conn of the
Hundred Battles, had fled from his own tribe and put himself under the
protection of Fergus.
Whilst under the protection of Fergus, Eochaidh was killed by Asal the
son of Conn, and by four sons of Buidhe, and a grandson of Buidhe. The
latter, being the son of Buidhe’s daughter _Dorn_ by a stranger, was not
acknowledged by her kindred (fine).
The eric fine for this outrage upon the protection of Fergus was thus
arranged:--He was to have three times seven cumhals, _i.e._ seven
cumhals in gold, seven in silver, and land of seven cumhals called
_Inbher-Ailbhine_.
This was in satisfaction for the crime of the six murderers, viz. the
son of Conn, and the four sons and the grandson of Buidhe. Five out of
the six slayers apparently were able to pay their share. But not so the
sixth, viz. the grandson of Buidhe, the illegitimate son of his daughter
Dorn, who, being unrecognised by the kindred, apparently had no claim
for help from them. Consequently Dorn, the mother of the illegitimate
grandson, was handed over to Fergus as a bondwoman in pledge for her
son’s share of the eric.
So matters stood for a time. But a new trouble arose, which seems to have
upset the whole settlement and made it necessary to consider it over
again, from the beginning.
It would seem that after all there was a question whether the land
_Inbher-Ailbhine_ was permanently handed over, or only for a time, and
redeemable within the period of the lives of three chieftains, because
there was a question whether such a period had expired or not. And again
it was claimed that Dorn was only given in _temporary_ bondage as a
pledge for her illegitimate son’s share of the eric.
Besides these doubts, new circumstances had created a new position.
Fergus was unfortunate enough to have suffered a blemish on his face.
This, being a serious matter in a chieftain, was studiously kept from
his knowledge. Dorn, acting as bondwoman, was one day, according to the
story, preparing a bath for Fergus. Fergus complained that she was too
slow about it and struck her with his horse-whip. She, being vexed,
reproached him with his blemish, and for this insult Fergus slew her on
the spot. Very shortly afterwards Fergus himself died.
This then was the new position, causing a new quarrel between the two
tribes and involving the reopening of the old one. The interest lies in
the way in which it was settled.
[Sidenote: Final balance of payments agreed to.]
A balance was now struck between the crimes on each side, beginning
with the slaying of Eochaidh while under the protection of Fergus, as
follows:--
Fergus, being king of a province, was entitled to 18 cumhals
both as airer-fine and honour-price for the violation of his
protection. There were also due to him 9 cumhals for his half
airer-fine and half honour-price for Dorn’s insult in reproaching
him with the blemish; so that this was altogether 27 cumhals to
Fergus.
On the other side the Feini claimed as follows:--
Honour-price was demanded by the Feini for the killing of (Dorn)
the pledge, for the pledge they had given was without limitation
of time, and for it 23 cumhals were payable by Fergus for
airer-fine and honour-price, for the authority of Fergus was
opposed at the time.
This seems to have settled the matter between the two tribes; _i.e._, so
to speak, the public matter between the Feini and Fergus’s people. But
there were individual rights to be considered also. Besides these 23
cumhals due to his tribe,
Buidhe was entitled to honour-price for the killing of his
daughter, _i.e._ he was an _aire-forgaill_ of the middle rank and
was entitled to 6 cumhals as honour-price. Her brother was also
entitled to honour-price for her death; he was an _aire-ard_ and
was entitled to 4 cumhals as his honour-price.
Why the other brother had no claim for honour-price does not
appear--perhaps the one brother was the representative of the brothers as
a class. The total sum demanded on Dorn’s side was therefore 23 + 6 + 4
cumhals = 33 cumhals.
So that this which the men of the South demanded amounted to 33
cumhals, and the men of the North demanded 27; and a balance
was struck between them, and it was found that an excess of 6
cumhals was due by the men of the North, for which the land
_Inbher-Debhline_ was again restored by the men of the North.
The commentary goes on to say:--
And it is evident from this, that when a man has paid eric fine,
should the person to whom it has been paid commit a crime against
him, the law orders that his own eric fine should be restored to
the former should it be better than the other eric fine.
In this case the land which had been taken by Fergus as ‘seven cumhals of
land’ was returned to pay for the balance due of six cumhals only.
It will be observed that whilst the father and brother of Dorn had their
own honour-price allowed for her slaying, no _coirp-dire_ was claimed for
the life of Dorn herself. The reason is given as follows:--
What is the reason that the land was restored by the people of
the North and that the eric-fine for the woman was not restored,
whereas both had been given (to Fergus) as eric-fine for
trespass? The reason is the woman committed an offence in the
North for which she was forfeited, and the land did not commit
any offence for which it could be forfeited, but it was returned
in part payment for that trespass (_i.e._ the killing of Dorn).
IV. THE CURRENCY IN WHICH THE BREHON FINES WERE PAID.
Before leaving the Irish coirp-dire and honour-price, allusion must be
made to the currency in which they were paid.
[Sidenote: Payment in cumhals or female slaves.]
The most significant point was the payment in _cumhals_ or female slaves.
The cumhal was equated with three cows, but the payment was reckoned and
stated in cumhals. The female slave was the prominent customary unit of
payment, and doubtless a common object of commerce and trade.
[Sidenote: Cumhal = three cows or ounces of silver.]
The equation of the cumhal and the cow with silver was also remarkable.
The cow was equated with the Roman ounce, and the cumhal with three
ounces.
From a passage in the Senchus Mor (i. p. 247) and the Book of Aicill (pp.
371-377), the following table of values is evolved:--
8 wheat-grains = pinginn of silver
24 ” (3 pinginns) = screpall
72 ” (3 screpalls) = sheep (B. of A. p. 377)
96 ” (4 screpalls) = dairt heifer
576 ” (6 dairts) = bo, or cow, or unga
1728 ” (3 bo) = cumhal or female slave
These silver values as compared with those of the Cymric Codes seem at
first sight to be singularly low. The Welsh cow, as we have seen, was
valued in silver at three Saxon ounces, and the male and female slave
each at a pound of twelve ounces. The Welsh value of the cow was roughly
three times, and that of the slave three and one third times, the Irish
silver value.
This Irish equation between cattle and silver must surely have been made
at a time when silver was of quite exceptional value in Ireland. But
there is some reason to believe that an earlier equation had been made
with gold of a very different character.
[Sidenote: An older equation with gold.]
Professor Ridgeway has called attention to an interesting story from the
life of St. Finian in the Book of Lismore (fol. 24, b.c.), in which an
ounce of gold was required for the liberation of a captive, and a ring of
gold weighing an ounce was accordingly given.
Now, if the ounce of gold is put in the place of the cumhal or female
slave, the gold values of the Brehon monetary reckonings would be:--
Cumhal = 576 wheat-grains = ounce
Bo or cow = 192 ” = stater or ox unit
Dairt heifer = 32 ” = tremissis
These gold values, if established, would take their place at once as
following the gold system of Constantine, and probably might belong
therefore to a period in which the Continental ratio of gold to silver
would be 1:12, and the silver values fairly consistent with those of
the Welsh and other tribes. The cumhal or female slave would then equal
twelve ounces or one pound of silver as in Wales. This, however, must
not be taken as proved. It is with the silver values of the Brehon Laws
that we are here concerned. And we should be tempted to refer this silver
value to the period of Charlemagne’s attempted introduction of the ratio
of 1:4 were it not that, as we shall see, it seems to date back to a
period some centuries earlier.
There is another point of interest in connection with the early Irish
monetary reckoning.
[Sidenote: The reckoning in scores of Roman ounces, _i.e._ the ‘Mina
Italica.’]
We have seen that in the Brehon Laws the smallest silver unit was the
_screapall_ or scripulum. And it has already been mentioned that the
scripulum was also known as the _denarius Gallicus_, of which 24 went to
the Roman ounce of 576 wheat-grains, as in the Brehon Laws, and that a
score of ounces made the mina Italica of twice 5760 wheat-grains. It is
curious to find in a passage quoted by Petrie[77] from the _Fodla Feibe_
in the Book of Ballymote,[78] a full and exact appreciation of the number
of wheat-grains in the scripulum and the Roman ounce. The wheat-grains,
according to this passage, are to be taken from wheat grown on typically
rich soil which produces ‘the three roots,’ and 24 wheat-grains are the
weight of the ‘screapall’ of silver, and 576 the weight of the ‘uinge’
or ounce. Further it is stated that the full weight which the _Tinde_
or weighing bar is to weigh is--not a pound: there is no mention of the
pound--but _seven score ounces_.[79] Now this reckoning, not in pounds,
but in _scores of ounces_, has already been alluded to as, consciously
or unconsciously, a reckoning in so many of the _mina Italica_. Petrie
quotes a passage from the ‘Annals of the Four Masters’ in which this
payment in scores is illustrated.[80]
A.D. 1029. Amlaff, son of Sitric, lord of the Danes, was captured
by Mahon O’Riagain, lord of Bregia, who exacted 1,200 cows as his
ransom, together with seven score British horses and three score
ounces of gold and the sword of Carlus … and three score ounces
of white silver as his fetter ounces, and four score cows for
word and supplication, and four hostages to O’Riagain himself as
a security for peace and the full value of the life of the third
hostage.
Apart, however, from the monetary system of the Brehon Laws, the fact
remains that the real currency of early Irish custom seems to have been
in _cumhals_ or _female slaves_. The coirp-dire and the honour-price of
the Brehon tracts were reckoned in cumhals, and we shall find that there
appears to be good evidence that both payment in female slaves and the
equation of the female slave with three Roman ounces of silver go back to
a very early period.
V. THE IRISH COIRP-DIRE AND HONOUR-PRICE TRACED FURTHER BACK THAN THE
BREHON LAWS.
The evidence regarding the coirp-dire of the Brehon Laws and its payment
in female slaves does not rest on those laws alone.
[Sidenote: St. Patrick’s ‘pretium hominis’ of ‘seven ancillæ.’]
St. Patrick, in his ‘Confessions,’[81] treats the _pretium hominis_ as a
well-known unit of value. These are the words of St. Patrick:--
Vos autem experti estis quantum erogavi illis qui judicabant per
omnes regiones quas ego frequentius visitabam; censeo enim non
minimum quam pretium quindecim hominum distribui illis.
You know by experience how much I have paid out to those who
were judges in all the regions which I have often visited; for I
think that I have given away to them not less than the _pretium
quindecim hominum_.
Further, in the ‘Tripartite Life’ St. Patrick is represented as putting
the alternative between the death of a transgressor and the payment of
seven cumhals (‘_Aut reum morti aut VII. ancillas reddere debet_’).[82]
The evidence for this coirp dire and its payment in ancillæ seems to be
thrown back by these passages to the fifth century.
[Sidenote: Evidence of the ‘Canones Hibernenses.’]
Further, when we turn to the series of ‘Canones Hibernenses’ published in
Wasserschleben’s work, _Die Bussordnungen der abendländischen Kirche_ (p.
136), we find repeated evidence that the ‘pretium hominis,’ or ‘pretium
sanguinis,’ of seven ancillæ, was a well-recognised unit of payment in
ecclesiastical quarters more or less connected with the Irish and Breton
Churches.
The first group of these Canons is headed ‘_De disputatione Hybernensis
Sinodi et Gregori Nasaseni sermo de innumerabilibus peccatis incipit_.’
The first clause of this group imposes a penance for parricide of
fourteen years in bread and water and satisfaction; or half this only if
there was no intention.
The next clause imposes for ordinary homicide seven years’ penance in
bread and water.
Clauses 8 and 10 fix the ‘prætium animæ’ of a pregnant woman (including
woman and child) at twelve ancillæ.
[Sidenote: _Ancilla_ of same value in silver as the Brehon _cumhal_.]
Clause 9 fixes for us the silver value of the _ancilla_ and seems to show
that it was the same as the silver value of the cumhal in the Brehon Laws.
The clause is as follows:--
XII. Altilia[83] vel XIII. sicli (? XII.) prætium uniuscujusque
ancillæ.
Ecclesiastical usage retained to some extent the use of Roman
phraseology. The siclus or sicilicus, as we have already seen, was the
didrachma of two Roman _argentei_ or silver drachmæ. And as the drachma
after Nero was one eighth of the Roman ounce, so the _siclus_ was
one quarter. The Altilia was the ‘fattened heifer’ possibly of Irish
custom.[84] Twelve fattened heifers or sicli equalled therefore three
Roman ounces--_i.e._ the exact silver value of the cumhal of the Brehon
Laws. Here, therefore, in these so-called Irish Canons the ancilla seems
to be reckoned at the Brehon silver value of the cumhal.
Having gained this point we proceed to examine the other clauses.
In title III., headed ‘_Synodus Hibernensis decrevit_,’ are the
following:[85]--
[Sidenote: Seven ancillæ the price of a man’s life.]
Sanguis episcopi vel excelsi principis vel scribæ qui ad terram
effunditur, si colirio indiguerit, eum, qui effuderit, sapientes
crucifigi judicant, vel VII. ancillas reddat.
The blood of a bishop or high prince or a scribe poured on the
ground, _si colirio indiguerit_,[86] the ‘sapientes’ judge that
he who sheds it shall be crucified or pay seven ancillæ.
Here, obviously, the VII. ancillæ are the price of the life of the
criminal--the seven cumhals of the coirp-dire. The canon adds the
following:--
Si in specie, tertiam partem de argento et comparem verticis
de auro latitudinem nec non et similem oculi de gemma pretiosa
magnitudine reddat.
If paid in specie, one third must be paid in silver, and of
gold of the size of the crown of the head, and also the like in
precious stone of the size of an eye.
These passages seem to have a curious correspondence with the following
passage in the Brehon Laws (sequel to the ‘Crith Grabhlach,’ iv. p.
363):--
As to the shedding of a bishop’s blood, if it reaches to the
ground as blood that requires a tent the guilty person is to be
hanged for it, or it is seven cumhals that are to be paid for his
sick maintenance and his eric.
If the wound be in his face, the breadth of his face of silver is
paid, and of the crown of his head of gold.
The canons go on to state that if the blood does not reach the ground
_nec colirio indigeat_ the hand of the striker is to be cut off, or the
half of VII. ancillæ paid, if the act is done with intention; if not, the
price of one ancilla is to be paid.
Another clause states that if a bishop be struck or violently handled,
without effusion of blood, half the price of VII. ancillæ is to be paid.
In all these cases the fines are reckoned in a unit of VII. ancillæ or
the half of it. The cutting off of the hand of the criminal is reckoned
as equal to half of VII. ancillæ. The VII. ancillæ is the recognised unit.
When, in other clauses, dealing with the case of the same things done
to a _priest_, a lesser punishment is decreed, still _the price of VII.
ancillæ_ is the price of the life of the criminal. If the blood of a
priest is shed and reaches the ground, _donec colorium subfert_, the hand
of the criminal is to be cut off, or half of VII. ancillæ to be paid, if
the act be intentional. If not intentional, the price of one ancilla is
enough.
In title IV., _Dejectione_, after a clause stating that he who ejects a
poor man kills him, and he who meets a person ready to perish and does
not succour him kills him, there follows this clause:--
Si quis jecerit episcopum et si mortuus fuerit, accipiatur ab eo
pretium sanguinis ejus L. ancillas reddit, id est VII. ancillas
uniuscujusque gradus vel l. annis peniteat et ex his accipiuntur
VII. ancille de jectione ejus.
If any one ejects a bishop and if he should be dead, let there
be received for him the price of his blood, let him render
fifty ancillæ, _i.e._ seven ancillæ for each grade of rank, or
do penance fifty years, and from these shall be received seven
ancillæ _de jectione ejus_.[87]
[Sidenote: ‘Pretium sanguinis’ seven ancillæ.]
Here the ordinary ‘_pretium sanguinis_’ or _coirp-dire_ is again clearly
reckoned at VII. ancillæ, and the bishop, being of the seventh grade of
rank in the ecclesiastical hierarchy, is to be paid for sevenfold.
It is also worth notice that in these clauses the cutting off of a hand
is reckoned as _half_ of the ‘_pretium sanguinis_.’ This is in full
accordance with the Brehon rule laid down in the ‘Book of Aicill’ (iii.
p. 349).
Half the eric-fine of every person is to be paid for a foot, a
hand, an eye, a tongue.
But inasmuch as the ‘eric-fine’ in this case might be taken by mistake to
include the honour-price as well as the coirp-dire, the commentary adds:--
He is entitled to half ‘coirp-dire’ and half compensation
(aithgin) and full honour-price.
The loss of the hand was reckoned at half the coirp-dire. The full
honour-price was due for the insult or assault.
Yet another clause in these canons seems to show that not only the
coirp-dire of seven cumhals was familiar to the makers of the canons,
but also the honour-price.
In the Brehon Laws the honour-price was payable for breach of a
chieftain’s protection, and in the case of the Ri-tuaith or kingly
chieftain of a Tuath the honour-price was, as we have seen, seven
cumhals. And so also was that of the bishop of the church in his
territory.[88]
[Sidenote: ‘Honour-price’ of a bishop or king seven ancillæ.]
Accordingly, in the following clause in the canons the bishop is put in
the same position as a king, with what was practically an honour-price of
seven ancillæ:--
_Patricius dicit_: Omnis qui ausus fuerit ea quæ sunt regis
vel episcopi aut scribæ furari aut rapere aut aliquod in eos
committere, parvipendens dispicere, VII. ancillarum pretium
reddat aut VII. annis peniteat cum episcopo vel scriba.
_Patricius dicit_: Every one who shall dare to steal anything
belonging to a king or bishop or scribe, or to take away from
or commit anything against them heedlessly, shall pay the price
of seven ancillæ or do penance for seven years with a bishop or
scribe.[89]
So that, though it is not very easy to put an exact date upon these
canons, they seem clearly to adopt and confirm for ecclesiastical persons
the Irish coirp-dire of seven ancillæ, and the highest honour-price also
of seven ancillæ. And further the _ancilla_ of these canons was, it
appears, of the same silver value as the _cumhal_ of the Brehon Laws.
VI. THE BRETON OR GALLIC WERGELD OF THE SO-CALLED ‘CANONES WALLICI.’
It is perhaps possible with help from another set of canons to obtain
further evidence of Celtic usage as to the fine for homicide, and what
is still more to the point, to trace it back to the Continental side of
the Channel.
[Sidenote: The so-called ‘Canones Wallici’ of perhaps the Breton Church.]
At the end of the Latin version of the Dimetian Code of South Wales are
appended as part of chapter XLIX. several clauses which do not belong to
the Code and are quite inconsistent with its provisions. These clauses
are carelessly extracted, with variations, from a set of canons which,
from their thus partly appearing at the end of the Latin version of the
Dimetian Code, have come to be known as the ‘Canones Wallici.’
The oldest MS. of this document is referred to the 8th century, and
the canons themselves are referred by Haddan and Stubbs to the 7th
century.[90]
It is not at all clear that, notwithstanding the name they have acquired,
they are of Welsh origin.
The intercourse between the missionary monks and churches of Brittany,
Cornwall, Wales, and Ireland was so intimate that there is no difficulty
in understanding how a Welsh scribe or copyist falling upon these canons
should add extracts from them to a Latin copy he was making of the
Dimetian Code. Whether of Welsh origin or not, some of them may have been
used, amongst others, by the Church in South Wales.
It may seem presumptuous to doubt their Welsh origin after the opinion
expressed both by Wasserschleben and such competent authorities as Haddan
and Stubbs, to whose labours the student is so greatly indebted. But that
opinion is doubtfully expressed, and reference is made by them to the
fact that two of the three MSS. describe the collection of canons not as
‘Canones Wallici’ but as ‘_excerpta de libris Romanorum et Francorum_,’
and ‘_excerpta de libris Romanis et Francorum_’ while the third, of the
8th century, does not seem to have any heading but ‘_Incipit justicium
culparum_.’ Haddan and Stubbs assign the origin of these canons to that
period (c. A.D. 550-650) during which both the Welsh Church and the Welsh
Principalities appear to have become organised, _i.e._ to the period
following St. Patrick and St. Finian, during which the monastic churches
of South Wales were the channel of intercourse between the Breton and
Irish Churches. This _collection_, according to the same authority, may
date from the 7th century.
The Canons may have been meant for use on both sides of the Channel. And
as they are ‘_excerpta_’ from books of the Romans and Franks, they seem
to originate from the Continental side, however much they may have been
used in Wales.
When we come to examine them, they bear every evidence of being
‘_excerpta_,’ and we know from the _excerpta_ of Isidor what different
materials may be brought together in such a collection. There is no
continuous plan or order apparently running through the whole. And
certain of the canons, chiefly those relating to _homicide_, seem to be
marked off from the remainder by the payments being made throughout in
‘_ancillæ_’ and ‘_servi_’; whilst in most others the payments are made
in _libræ argenti_ or in _libræ stagni_, or occasionally in _solidi_,
_unciæ_, and _scripula_.
The safer course may be, therefore, to treat them, not as a consistent
and single set of canons, but as _excerpta_ from various sources.
[Sidenote: The clauses as to homicide.]
Following the eighth-century MS. as most likely to be correct in its
text, the _excerpta_ relating to homicide are these:--
C. 1. Si quis homicidium ex intentione commiserit, ancillas III.
et servos III. reddat et securitatem accipiat.
Canon 1. If any one by intention shall have committed homicide,
let him pay three ancillæ and three servi and acquire safety.
C. 2. Si quis judicio fuerit competitus et præstando verum durus
esse voluerit et ipsam intentionem fuerit interfectus, ancillas
II. et servos II. reddi debere præcipimus. Quodsi manum aut pedem
vel quemlibet membrum perdiderit similiter duas partes prætii se
noverit accepturum.
Canon 2. If any one, being brought to justice, tries to resist
the arrest and is slain in the attempt, we declare that two
ancillæ and two servi shall be given for him, but if he loses a
hand or a foot or any limb let him likewise know that he shall
accept two thirds of the price.
C. 3. Si quis homicidii causa fuerit suspicatus et non ei titulus
comprobandi, XL. et VIII. viris nominatis, ex quibus XXIV. in
ecclesia jurent eum esse veracem, sic sine causa discedat. Quodsi
non juraverit, ancillas III. et servos III. reddat et securitatem
accipiat.
Canon 3. If any one shall be suspected of homicide, but there
are not means of proof (‘titulus comprobandi’), 48 men having
been named, of whom 24 shall swear in a church that he is right
(‘verax’), so he shall depart innocent (‘sine causa’); but if
he [they?] shall not have sworn he shall pay _three ancillæ and
three servi_ and be free.
C. 4. Si servus ingenuum occiderit et culpa ingenui fuerit
hoc, de fuste aut dextrali aut dubio aut de cultello fuerit
interemptus, ipse homicida parentibus tradatur, et quidquid
faciendi voluerint habeant potestatem.
Canon 4. If a slave shall kill a freeman and it shall be the
fault of the freeman, and he shall have been slain by a cudgel,
or a hatchet, or a … or a knife, the homicide himself shall be
handed over to the parentes and they shall have power to do what
they like with him.
C. 5. Si quis dominus servum arma portare permiserit et ingenuum
hominem occiderit, ipsum et alium juxta se noverit rediturum.
Canon 5. If any master permits his slave to carry arms and he
kills a freeman, let him know that he must hand over the slave
himself and another likewise.
C. 6. Si quis ingenuus servum alterius sine culpa occiderit,
servos duos domino. Quod si culpa fuerit servi alius, alius
servus domino reformetur.
Canon 6. If a freeman shall kill the slave of another without
fault (of the slave), he shall pay two slaves to the master.
But if it were the fault of the slave, another slave shall be
restored in his place.
C. 12. Si quis homicidium fecerit et fugam petierit, parentes
ipsius habeant spacium intra dies XV., ut aut partem restituant
et securi insedeant, aut ipsi de patria vadant; post hoc si
ipse interemptor venire voluerit, reddat medium quod restat et
vivat securus. Quodsi interim occisus fuerit, mancipium et quæ
acceperint faciant restaurari.
Canon 12. If any one shall have done homicide and shall have
sought flight, his parentes shall have the space of fifteen days,
in order either to make their share of restitution and remain
safe, or themselves quit the country. After this, if the slayer
himself wants to return, he shall pay the remaining half and
be safe. But if in the meanwhile he shall be slain they shall
cause the slave [? slaves] and whatever they had received to be
restored.
[Sidenote: Payments of six _ancillæ_ or _servi_ for homicide. The slayer
to pay half and the parentes half.]
Here, apparently, is a fairly complete and consistent set of canons
relating to homicide. All the payments are to be made in _ancillæ_ and
_servi_. And the payment for intentional homicide is apparently a fixed
payment of three ancillæ and three servi, _i.e._ six slaves in all.
Canons 1 and 2 are consistent and conclusive on this point.
Now, looking at these canons alone, two facts point very strongly to
an Irish rather than a Welsh connection, or perhaps we ought to say,
to a Goidelic rather than Cymric connection. In the Brehon Laws, as we
have seen, the payments are made in _cumhals_ or ancillæ, and the fixed
wergeld or _coirp-dire_ is strictly speaking _six_ ancillæ, and one added
for a special object, making seven cumhals in all. In the Cymric Codes,
on the other hand, the galanas is paid in cows and never in ancillæ, and
the amount of the galanas is graduated according to rank, that of the
lowest and youngest tribesman being 60 cows, nearly three times as great
as the six ancillæ and servi of these canons.
[Sidenote: The Irish coirp-dire apparently common to South Wales and the
Breton churches from fifth to seventh century.]
The force of these suggestions of Irish connection is greatly increased
by the fact that nowhere else in the collections of Canons and
Penitentials except in these so-called ‘Canones Wallici’ and the ‘Canones
Hibernenses,’ and closely allied sources, do we find the payments
expressed in ancillæ. And it must be remembered that the intimacy between
Breton and Cornish saints was mainly with South Wales, and through South
Wales with Ireland, and further that South Wales, until conquered by
Maelguin, was Goidelic rather than Cymric.
But whether the payment for homicide in the ‘Canones Wallici’ be the
coirp-dire of the Brehon Laws or not, if we may recognise in these rules
as to homicide the customs current in some degree on both sides of the
Channel, let us say from the fifth to the seventh century, we cannot
also fail to recognise in them evidence of influences at work which
have broken away partly from tribal usage, and which hail, not from the
primitive tribal instincts of Irish or Gallic tribes, but from the side
of Roman and ecclesiastical law, to which the districts alluded to had
long been subject.
We shall see more and more how foreign the tribal instinct of the
solidarity of the kindred, and the consequent obligation on the whole
kindred for the whole composition for homicide, were to Roman law and
Christian feeling, and how soon under these influences the disintegrating
process began in Gallo-Roman districts, causing the solidarity of the
kindred to give way.
The solidarity of the kindred is partly recognised in these canons, but
it is also partly ignored.
[Sidenote: The extent of the liability of the parentes of the slayer.]
The 12th canon states, as we have seen, that if the murderer had taken
flight his parentes had fifteen days allowed either to pay part and be
secure, or themselves leave the country. What part? The clause states
that if the murderer wished to return from his exile he might pay the
_half_ that remained, and thereafter live secure. So that it would seem
that the kindred were only liable to pay half, instead of the whole
coirp-dire of six ancillæ and servi. If, in the meantime, the murderer
was killed, presumably by the parentes of the slain, the slaves, or
whatever else had been received by the parentes of the slain from the
parentes of the slayer, had to be restored to the latter, the feud having
been satisfied by his death at their hands.
In the Brehon Laws as in the Cymric Codes, the solidarity of the kindred
was complete. As we have seen, under Irish custom the whole kindred of
the four nearest hearths were liable for the payment of the _coirp-dire_
for unnecessary homicide. But the fact that the payment of wergelds was
foreign to Roman law, combined with the claim of the Church to protect
from death criminals taking refuge at the altar, had no doubt in Northern
Gaul, as we shall find was the case in Southern Gaul also, already begun
to break up to some extent the tribal solidarity on which joint liability
for the payment of wergelds was based.
[Sidenote: The cleric who slays is to give himself up to the slain
person’s parentes.]
Those criminals who claimed protection at the altar were, under Gallic
ecclesiastical usage, as we shall see, saved from death, but at the
same time handed over as slaves to the parentes of the slain. And it is
not difficult to detect the lines of thought leading to this result. In
the ‘Penitentials’ attributed to St. Finian,[91] the spirit in which
the missionary churches of Brittany, Wales, and Ireland, from their
clerical point of view, dealt with crime very clearly appears. A layman,
in addition to making composition to the injured person, should also do
penance; but a cleric who possessed no property of his own could not pay
the composition (s. 9, p. 110). What, then, was he to do in a case of
homicide? The penitential (s. 23) lays down the rule:--
If any cleric kills his neighbour he must undergo ten years’
banishment with seven years’ penance. If after ten years he has
acted rightly and is approved by the testimony of the abbot or
priest, let him be received back into his country and let him
satisfy the friends of him whom he has killed. Let him return to
the father or mother (of the slain), if alive, saying ‘Behold I,
as for your son, will do whatsoever you tell me.’ If he does not
rightly do this he is not to be received--‘in eternum.’
Then in s. 53 is added, ‘If any one will propose better rules we will
accept and follow them.’
To sum up the evidence of the canons, we can hardly claim to have done
more than to have connected the coirp-dire of the Brehon Laws with the
_pretium hominis_ of St. Patrick, and with the _pretium sanguinis_ of
the ‘Canones Hibernenses,’ and with the clauses relating to homicide
excerpted by the compiler of the so-called ‘Canones Wallici’ from the
books of the Romans and Franks.
The connection, though traceable only through ecclesiastical channels,
seems to establish a continuity as regards the fixed payment for homicide
between the Breton and Irish churches, and possibly the churches of the
Goidelic portion of South Wales, of the fifth and sixth centuries.
[Sidenote: Continuity of Irish and Breton custom as regards the ‘pretium
hominis’ and payment in ancillæ.]
If it were suggested that the _pretium hominis_ of seven ancillæ might
be an ecclesiastical invention originating with the missionary churches
of the Armorican districts of Gaul, we should still have to inquire why
these churches differed so much from other Gallic churches. Everywhere
else the Church, finding it impossible to get rid of a deep-rooted
custom, seems to have made compacts with the secular power, adopting
the customary system of wergelds prevalent in each of the conquered and
converted tribes, and giving to the several grades in the ecclesiastical
hierarchy graduated wergelds placing them on a level with corresponding
classes of tribesmen or laymen. Even in these Celtic Canons the clerical
instinct, whilst apparently adopting the fixed wergeld or coirp-dire for
laymen, claimed for the clergy a graduated wergeld.
The bishop, as we have seen according to the canons, claimed a sevenfold
_pretium hominis_--seven times the price of seven ancillæ--because of
his rank in the clerical hierarchy. He claimed too the _honour-price_ of
seven ancillæ--the same as that of the Irish chieftain of a district for
breach of his protection or precinct. The bishop seems to place himself
here as elsewhere in these matters, on a level with the secular prince or
even with the king.
And again, if St. Patrick in his ‘Confessions’ (a work the authenticity
of which is generally accepted) could use, as he did, the _pretium
hominis_ as a well-known unit of payment, it would seem that at least as
early as the end of the fifth century the value of the _pretium hominis_
as a unit of payment was perfectly well understood. And this in itself is
a proof of further antiquity.
The redeeming of baptized captives from slavery was moreover a recognised
method of increasing the number of converts to the Christian Faith. In
his equally authentic Epistle to the subjects of Coroticus St. Patrick
speaks of the Roman and Gallic custom of Christians to send holy and fit
men to the Franks and other nations with so many thousands of solidi for
redeeming baptized captives, while Coroticus was killing and selling
captives to a foreign people ignorant of God. Mr. Whitley Stokes, in
editing this letter, suggests that this passage points to a date before
the conversion of the Franks (A.D. 496).[92] The traffic in captives
and slaves, and their sale perhaps into a still pagan corner of France,
accords with the strangely local use of the _ancilla_ as the unit of
payment as well in the Canons as in the Brehon Laws.
What, then, are we to make of this fixed wergeld of seven ancillæ?
So far, we find it prevalent only in Ireland and in the Goidelic or
non-Cymric districts of South Wales and Brittany. And the evidence seems
to carry it back to the fifth century.
VII. THE WERGELD OF ANCIENT GALLIC CUSTOM. THE EVIDENCE OF CÆSAR.
[Sidenote: Cæsar does not state the amount of the Gallic wergeld, but the
Druids had jurisdiction in cases of homicide.]
There seems to be left but one possible further source of evidence as
regards the wergelds of the Gallic tribes before the Roman conquest, viz.
that of Cæsar. Speaking of the Druids, his words are these:--
Illi rebus divinis intersunt, sacrificia publica ac privata
procurant, religiones interpretantur. Ad eos magnus adulescentium
numerus disciplinæ causa concurrit, magnoque hi sunt apud eos
honore. Nam fere de omnibus controversiis publicis privatisque
constituunt, et, si quod est admissum facinus, _si cædes
facta_, si de hereditate, si de finibus controversia est, iidem
decernunt, præmia pœnasque constituunt (vi. 13).
There is certainly nothing in these words, when carefully considered,
which indicates in the slightest degree whether the Gallic wergeld was
fixed, or graduated according to rank. They amount to this:--
The Druids have cognisance of nearly all public and private
controversies, and if any crime has been committed, if a
murder has been done, if concerning inheritance, if concerning
boundaries there is controversy, it is they who decide, and they
fix the compensation and penalties.
On the occasion of any murder committed, there would be plenty of room
for controversy whether the wergeld were fixed or graduated according to
rank, or even, as is quite possible, left open to the judgment of the
Druids. So that we gain nothing from Cæsar’s evidence on this particular
point, further than that the penalties for slaying were within the
jurisdiction of the Druids.
It may, however, be well to notice that this passage has been the subject
of controversy upon another point of interest to this inquiry: viz. on
the question whether the evidence of Cæsar should be taken as in favour
of the theory of the communistic ownership of land in Gaul or that of
individual ownership.
M. Fustel de Coulanges[93] has argued with great force that the statement
of Cæsar that the Druids were accustomed to settle controversies whether
_de hereditate_ or _de finibus_ implies that in his view there must
have been something like private property whether of individuals or of
families.
[Sidenote: The evidence of Cæsar on tribal landholding.]
Now if a connection may be traced between the liability of the whole
kindred for wergeld and the occupation of land by kindreds, with lesser
divisions into something like _gwelys_, then, without pressing the point
too far, without suggesting that the Welsh or the Irish form of tribal
occupation of land may have been exactly that which in Cæsar’s time
prevailed in Gaul, we may at least say that the analogy of the Welsh and
Irish examples would lead us, from a tribal point of view, to judge that
the form of land occupation in Gaul was not likely to be either absolute
individual or absolute communal ownership. And as under Welsh and Irish
tribal custom and forms of land occupation there was plenty of room for
public and private controversies both _de hereditate_ and _de finibus_,
it may fairly be suggested that some form of tribal land occupation
would at least be more consistent with what Cæsar recorded in the few
sentences under review than either complete individual or complete
communal ownership would be.
But, passing from the passages already quoted to Cæsar’s further
statements relating to the Druids, light seems to pour from them into
another matter otherwise very difficult to realise.
It is at first sight with something like amazement that we view the
arrogance of the pretension of the missionary priests of the Christian
Church to impose what must have been galling penances upon chieftains
and tribesmen who had committed crimes of murder or incest. Still more
surprised might we well be that they had any chance of securing obedience.
The evidence of Gildas and of the Cadoc records quoted in a former volume
is sufficient to show that to a most astonishing extent even chieftains
submitted to the penalties and penances imposed by priests and monks who
were claiming for themselves immunity from secular services and payments.
The very fact that the Ecclesiastical Canons contain the rules we have
examined as to the payments for homicide by the kindred of the murderer
seems to involve the bold claim of the Church to bring the punishment
of crime within its jurisdiction. We have seen also how in these Canons
the right of the bishop to be placed in social rank on a level with the
highest chieftains and princes and kings was already taken for granted in
the corner of Gaul so closely connected with South Wales and Ireland.
[Sidenote: The position of the Druids paved the way for clerical
pretensions.]
The statement of Cæsar opens our eyes to the extent to which under the
earliest prevalent system of religious belief the way was paved both for
these clerical pretensions and also for the submission of chieftains and
people to the penances imposed.
After describing, as above, the prerogatives of the Druids, Cæsar adds a
few words to describe the nature of the _sanctions_ by which obedience to
their awards was secured:--
vi. xiii. 5. Si qui aut privatus aut populus eorum decreto
non stetit, sacrificiis interdicunt. Hæc pœna apud eos est
gravissima. Quibus ita est interdictum, hi numero impiorum ac
sceleratorum habentur, his omnes decedunt, aditum sermonemque
defugiunt, ne quid ex contagione incommodi accipiant, neque his
petentibus jus redditur, neque honos ullus communicatur.
Whoever of them, whether a private person or a people, does not
stand to the award, they interdict from the sacrifices. This
penalty is with them a most heavy one. Those who come under this
interdict are looked upon as in the number of the impious and
criminal. These all shun, avoiding touch or speech, lest they
should be hurt by the contagion. Nor to these is justice given if
they seek it, nor is any honour shared with them.
Then in the passage following Cæsar describes how strongly organised was
the power which the Druids represented and which they had at their back:--
His autem omnibus Druidibus præest unus, qui summam inter eos
habet auctoritatem. Hoc mortuo aut, si qui ex reliquis excellit
dignitate, succedit, aut, si sunt plures pares, suffragio
Druidum, nonnumquam etiam armis, de principatu contendunt.
Hi certo anni tempore in finibus Carnutum, quæ regio totius
Galliæ media habetur, considunt in loco consecrato. Huc omnes
undique, qui controversias habent, conveniunt, eorumque decretis
judiciisque parent.…
Above all these Druids, there is one who holds the chief
authority among them. To him, if dead, if there be one of the
others excelling in dignity, he succeeds, or if there be many
equal, by the suffrage of the Druids, sometimes even by arms,
they contend for the chieftainship. At a fixed time of year they
hold session in a consecrated place in the district of the Carnutes,
which region is held to be the centre of all Gaul. Here all, from
everywhere, who have controversies, assemble and submit to their
decrees and judgments.…
Druides a bello abesse consuerunt neque tributa una cum reliquis
pendunt: militiæ vacationem omniumque rerum habent immunitatem.
Tantis excitati præmiis et sua sponte multi in disciplinam
conveniunt et a parentibus propinquisque mittuntur.
The Druids are accustomed to keep away from war, nor do they pay
tribute with other people; they have exemption from military
service and a general immunity. Induced by so great advantages,
many join their order both of their own accord and sent by
parents and relations.
It is not necessary here to follow further these familiar passages in
the ‘De Bello Gallico’ or to inquire more deeply into the religion
of the Gauls. It is enough that the religion or superstition of the
Gauls was sufficient in itself, and sufficiently deeply believed in,
to fortify the influence and power of the Druids with the necessary
sanction, and to outlive the disintegration which Roman conquest, in
spite of its tolerance to tribal religions, must have in degree produced.
The testimony of Renan to the deep-rooted superstition of the Breton
population, and the lingering presence even to this day of instincts and
customs reaching back to a stratum of indigenous ideas underlying Roman
and Christian civilisation, shows, as Irish and Welsh legends do also,
that feelings of this kind are not subject to sudden change.
And when we try to realise the position and work of the early Gallic
or Breton or Cornish or Welsh or Irish churches from the fifth century
onwards, we seem to see how their position and work were made possible
only by the fact that what was technically called the conversion of a
people to Christianity was not after all so great a revolution as one
might at first sight have thought.
The missionary monks or priests, it might almost be said, _naturally_
took the place of the Druids in the minds of the people. They had power
to shut out the criminal from the sacrifices of the Christian altar,
just as the Druids could from theirs. The conversion, such as it was,
meant at least that in the belief of the people the spiritual powers were
transferred to the priest, and that the old sanctions of superstition
naturally followed the transfer. Thereby was secured to the Church
something of the same prestige and power which had once belonged to the
priests of the old religion.
[Sidenote: The tribes were used to the central power of the Druids and of
Imperial Rome and the Church took their place.]
When it is considered how the organised and world-wide system of the
Church, with its centre in Rome, continuing to some extent the prestige
and the civilisation of Imperial Rome, must have appeared to the
chieftains and petty kings of uncivilised tribes, it may be recognised
that in this respect also it resembled to their eyes the power of the
priesthood of the old religion with its centre at Chartres and reaching
in its authority from Britain to Southern Gaul. So that in this respect
also the way was paved for the Church in the minds of the people. The
tribes were used to the idea of a great central spiritual power, and in
the Church, by transfer from the old to the new religion, they found it
again.
[Illustration]
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.
[Illustration]
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.