On the whole, therefore, according to whatever rules of kinship a fine

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.

Tribal Custom in Anglo-Saxon Law Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales' · 第 16 / 22 章