succedat.
Then, if they shall not be [surviving], let the sister of the
mother succeed to the inheritance.
(4) Et inde de illis generationibus quicunque proximior fuerit,
ille in hereditatem succedat.
And further concerning these generations, whichever shall be the
nearer, let it succeed to the inheritance.
(5) De terra vero nulla in muliere hereditas non pertinebit, sed
ad virilem secum (leg. _sexum_) qui fratres fuerint tota terra
perteneunt.
But concerning _land_ no inheritance shall pertain to a woman,
but to the male sex who shall be brothers let the whole land
pertain.
The last clause in Codex 10 (Herold’s) is amplified as follows:
(5) De terra vero Salica in mulierem nulla portio hæreditatis
transit, sed hoc virilis sexus acqviret: hoc est, filii in ipsa
hæreditate succedunt. Sed ubi inter _nepotes aut pronepotes_
post longum tempus de alode terræ contentio suscitatur, non per
stirpes sed per capita dividantur.
Concerning, however, _terra Salica_, let no portion of the
inheritance pass to a woman, but let the male sex acquire it:
_i.e._ sons succeed to that inheritance. But where after a long
time dispute may arise between _grandsons_ or _great-grandsons_
concerning the alod of land, let the division be not _per
stirpes_, but _per capita_.
[Sidenote: The ‘alod’ embraced the whole inheritance--land and cattle,
&c.]
Now, in the first place, what is meant by the term _alod_? In the Lex
Salica it occurs again in Tit. XCIX. _De rebus in alode patris_, which
relates to a dispute about the right to a certain thing, as to which the
decision turns upon the proof that can be given by the defendant that he
acquired the thing _in alode patris_. He has to bring three witnesses to
prove ‘_quod in alode patris hoc invenisset_,’ and three more witnesses
to prove ‘_qualiter pater suus res ipsas invenisset_,’ and if after
failure of proof and the interdiction of the law the thing be found in
his possession he is to be fined XXXV. solidi.
From this clause the inference must apparently be that the ‘_alod_ of
the father’ was the whole bundle of rights and possessions, personal as
well as real, which passed to descendants by inheritance. Indeed, it
seems to be generally admitted that in the title ‘de alodis’ all the
clauses except the last apply to personal property, and only the last to
realty.[109]
[Sidenote: It was an ancestral family inheritance.]
There are titles ‘de alodibus’ both in the Ripuarian Law[110] and in
that of the ‘Anglii and Werini.’[111] In both laws the ‘alod’ includes
personalty, and the latter defines the personalty as ‘_pecunia_ et
_mancipia_,’ thus reminding us that the personalty of the alod mainly
consisted of cattle and slaves. In the title ‘de alodibus’ of the
Ripuarian Law, the hereditary or ancestral character of the alod is
emphasised by the application to it of the words ‘hereditas _aviatica_’
There may, however, be some doubt whether the term _hereditas aviatica_
included the whole alod or only the land of the alod.
Regarding, therefore, the ‘alod’ as in some sense a bundle of rights and
property, let us try to consider these clauses with a fresh mind in the
light of what we have learned of Cymric tribal custom.
[Sidenote: The position of females and modifications made in their
favour.]
Under this custom, speaking broadly, as we have seen, daughters did not
share in the landed rights of the gwely. They received instead of landed
rights in the gwely their _gwaddol_ or portion, mostly, no doubt, in
cattle, and they were supposed with it to marry into another gwely, in
whose landed rights their sons were expected to share by paternity. If
women inherited landed rights at all, it was exceptionally in the case of
failure of male heirs, and then only so that their _sons_ might inherit.
The heiress in such a case, under Cymric as well as Greek tribal law, was
in quite an exceptional position, and, as we have seen in Beowulf, the
sister’s son might be called back into the mother’s family to prevent its
failure for want of heirs.[112] The exclusion of female successors from
terra Salica is therefore quite in accordance with tribal custom.
That the clauses as to personalty in the ‘de alodis ’ were modifications
of ancient Salic custom, made in favour of females, is rendered almost
certain by the position of the last clause as a saving clause, apparently
inserted with the object of protecting the rights of the sons in the land
of the alod, by preventing the application to it of the previous clauses.
[Sidenote: The land of the alod was _terra_.]
Codex 1 does not describe the land as _terra Salica_. It is content to
protect _land_ without qualification from the application of the previous
clauses, which, if applied to land, would transgress against tribal
custom. And the same may be said of Codices 3 and 4. But in the Codices 5
to 10 and in the ‘Lex emendata’ the words ‘terra Salica’ are used.
This is a point of importance, because it goes far to show that the whole
of the land of the alod was terra Salica, and protected by the saving
clause from participation by females. The use of the word _land_ alone
in Codex 1 forbids our thinking that part of the land of the alod was
terra Salica and the rest not terra Salica.[113] And this consideration
seems to show that to import into the clause any explanation of the
term derived from the word _Sala_, so as to confine its meaning to the
‘_Haus und Hofland_’ or the ‘_Väterliches Wohnhaus_,’ as Amira[114] and
Lamprecht[115] would do, would be misleading. The homestead of the chief
of a tribal family holding, on terra Salica, may, like the Roman villa,
have passed by various and even natural stages into the ‘_Herrengut_,’
or ‘_terra indominicata_’ of later manorial phraseology, and the term
_terra Salica_ may have clung, as it were, to it. But to reason backwards
to the Lex Salica from the instances of its later use, given by Guérard
in his sections on the subject, seems in this case, if I may venture
to say so, to be a reversal of the right order of inference. Lamprecht
carefully guards himself against the view that the _terra Salica_ of the
Lex was as yet a ‘Herrengut,’ and Guérard, in his careful sections on the
subject, admits three stages in the evolution of the _terra Salica_: (1)
‘l’enceinte dépendant de la maison du Germain;’ (2) ‘la terre du manse
seigneurial;’ (3) ‘simplement la terre possédée en propre, quelquefois
donnée en tenure.’[116]
This may in some sense fairly represent the line of evolution
subsequently followed, and I have long ago recognised the embryo manor in
the ‘Germania’ of Tacitus; but, for our present purpose, this does not
seem to help to an understanding of the term as used in the Lex Salica.
When all the Codices are taken together into account, _terra Salica_
seems to include the whole of the land, or landed rights, of the alod.
From the whole, and not only the chief homestead, the succession of
females is excluded, and it is the whole, and not the chief homestead
only, which is to be divided between the nepotes and pronepotes of the
deceased tribesman.
Approaching the Lex Salica, as we are doing, from a tribal point of view,
we seem to get upon quite other and simpler ground.
[Sidenote: _Terra Salica_ was land held under the rules of the Lex
Salica and subject ultimately to division _per capita_ between
great-grandchildren.]
The emphasis laid in the Lex Salica upon the distinction in social
status between persons ‘living under the Lex Salica’ and those living
under Roman law suggests that _land_ held under the Lex Salica was not
held under the same rules as those under which the ‘Romanus possessor’
held his ‘res propria.’ It would seem natural, then, that _terra Salica_
should be land held under Salic custom as opposed to land held under
Roman law. And if this be the simple rendering of the term _terra Salica_
in the Lex, then returning to the likeness of the Salic ‘alod’ to the
Cymric family holding some likeness might be expected in the rules of
succession to the land of the alod when compared with the Cymric rules of
succession to the ‘tir gweliauc’ or family land of the gwely.
We have seen that in the gwely the descendants of a common
great-grandfather were kept together as a family group till, after
internal divisions between brothers and then between cousins, there was
at last equal division of landed rights between second cousins, _i.e._
great-grandsons of the original head of the gwely. The fact of this right
of redivision at last between great-grandchildren was apparently what
held the family group together till the third generation.
The last clause of the ‘de alodis,’ even as it stands in Codex 1,
coincides with Cymric custom in so far as it excludes females from landed
rights and confines inheritance in the land of the alod in the first
instance to _sons_ ‘… _qui fratres fuerint_.’
And when at last later Codices call the land of the alod _terra Salica_,
and the addition in Codex 10 is taken into account, the evidence becomes
very strong indeed that under Salic custom the land of the alod or
terra Salica was held as a family holding, and, like the land of the
gwely, divisible, first between sons, then between grandsons, and at last
between great-grandsons.
But when among grandsons or great-grandsons contention arises,
after long time, concerning the alod of land, they [the lands of
the alod] should be divided, not _per stirpes_, but _per capita_.
The later the date at which this sentence was added to the final clause
of the ‘de alodis,’ the stronger becomes the evidence of what ancient
Salic custom on this matter was.
[Sidenote: The final clause protects the family holding.]
Assuredly the object of these words is not to introduce a new principle.
They obviously describe ancient Salic custom in order to protect it.
And how could a division _per capita_ amongst great-grandsons take
place unless, as in the Cymric gwely, the holding of terra Salica had
during the whole period of the three generations been kept in some sense
together as a family holding?
It would be unwise to press analogies between Cymric and Salic tribal
custom too far, but I have before pointed out that a system of wergelds,
to which paternal and maternal relatives each individually contributed
their share, seems to imply an original solidarity of kindred, which
must, wherever it was fully in force, have been connected with a
corresponding solidarity in the occupation of land, together with its
complement, an individual ownership of cattle. And in the light of the
‘de alodis’ it does not seem unlikely that it may have been so under
ancient Salic custom.
[Sidenote: Distinction between land under Salic and land under Roman law.]
If the foregoing considerations be accepted, may we not recognise in
the term _terra Salica_, as at first used, a meaning analogous to that
which Professor Vinogradoff has recently so brilliantly given to the
Anglo-Saxon term ‘folc-land’?[117] In both cases surely it was natural
that there should be a term distinguishing land still held under the
rules of ancient tribal custom from land held under the Romanised rules
of individual landownership.
It is not necessary to do more than allude here to the various clauses of
the Lex Salica from which the existence of individual holdings is clearly
to be inferred. If, from this single mention of _terra Salica_ and its
ultimate division among great-grandsons _per capita_, the continued
existence of tribal or family holdings held still under Salic law may be
legitimately inferred, it is at least equally clear that the _Romanus
possessor_ who lived and held his possession as _res propria_ under Roman
law also existed. And if so the two classes of holders of land must often
have been neighbours. The vicini, ‘qui in villa consistunt,’ of the title
‘de migrantibus’ (XLV.) may some of them have been of the one class and
some of them of the other. The objection of a single person living under
Salic law to the interloper would have a new meaning and become very
natural if the conflict between the two systems were involved. And when
we have reminded ourselves of these facts the title _De eum qui se de
parentilla tollere vult_, to which allusion has already been made, which
enabled the tribesman, by the somewhat theatrical action of breaking
the four sticks of alder over his head, to cut himself loose from his
parentilla, takes its proper place as evidence of the temptation which
must have beset the young tribesman in close contact with Gallo-Roman
neighbours to free himself from what had come to be regarded as a
bondage, and to take an independent position as an individual under the
new order of things which was fast undermining the old.
* * * * *
[Sidenote: Edict of Chilperic A.D. 561-584.]
Besides the title ‘de alodis’ there is another source of information
which must not be overlooked--viz. the Edict of Chilperic (A.D.
561-584).[118]
This edict appears to have been issued soon after the extension of the
Frankish boundary from the Loire to the Garonne, and specially to apply
to the newly conquered district.
[Sidenote: Admission of female succession to prevent Salic land from
passing from the family group to strangers.]
This conquest would necessarily extend the area within which Salic
settlements would be made among non-Salic neighbours, and multiply the
cases in which even a Salic Frank might find himself less securely
surrounded by kinsmen than of old. Under these altered circumstances
instances would become more and more frequent of the close neighbourhood
of tribesmen still holding under Salic custom and strangers living under
Roman laws of succession. The clauses of the edict seem accordingly to be
directly intended to prevent lapsed interests of Salic tribesmen in land
from falling to the vicini when there were brothers or female relations
surviving. In old times in purely Salic settlements lapsed interests
must usually have become merged in the general rights of the kindred,
the vicini being kinsmen. And no harm might come of it. Landed rights
would seldom have passed away from the kindred. But as the stranger
element increased in prominence the kindreds would more and more suffer
loss. Hence probably the extended rights given by the edict to female
relatives. It allows them to succeed in certain cases so as to prevent
the land, or, as we should rather say, the landed rights, from lapsing to
the vicini.
Clause 3 is as follows:--
Simili modo placuit atque convenit, ut si quicumque vicinos
habens aut filios aut filias post obitum suum superstitutus
fuerit, quamdiu filii advixerint terra habeant, sicut et Lex
Salica habet.
Likewise we will and declare that if any one having _vicini_,
or sons or daughters, shall be succeeded to after his death, so
long as the sons live let them have the land as the Lex Salica
provides.
So far evidently no change is made; old custom still holds good. But in
the rest of the clauses a modification is made evidently to meet altered
circumstances, and specially to shut out the _vicini_.
Et si subito filii defuncti fuerint, filia simili modo accipiat
terras ipsas, sicut et filii si vivi fuissent aut habuissent.
Et si moritur, frater alter superstitutus fuerit, frater terras
accipiat, _non vicini_. Et subito frater moriens frater non
derelinquerit superstitem, tunc soror ad terra ipsa accedat
possidenda.…
And if suddenly the sons shall have died let the daughter receive
those lands as the sons would have done had they been alive.
And if he [a brother] should die and another brother should
survive, let the brother receive those lands, _not the vicini_.
And if suddenly the brother shall die not leaving a brother
surviving, then let a sister succeed to the possession of that
land.…
The remainder of the clause is very difficult to construe in the
imperfect state of the text, and it is not necessary to dwell upon it.
It seems to apply to newcomers (‘qui adveniunt’) and their rights _inter
se_.[119]
We have then in these clauses an allusion to ancient tribal custom as
well as to the change made necessary by the new circumstances.
[Sidenote: Analogy of Cymric custom.]
The implication is that under the rule of ancient custom, on a brother’s
death without children, _his brothers did not succeed to his land, but
the vicini_. Now the brother is to succeed, _not the vicini_.
At first sight this seems unnatural and unlikely. But it ceases to be
so if we may regard the alod of terra Salica as a family holding under
conditions somewhat like those of the gwely. For under Cymric custom
the brother did not succeed to the childless brother as his heir. The
co-inheritors, as far as second cousins, were his heirs. In other words
the lapsed share went to his _vicini_, but they were the kinsmen of his
own gwely.[120]
Nor did a brother succeed to his brother’s _da_, and the grazing rights
and homestead connected with it. He had received this _da_, as we have
seen, from his chief of kindred by ‘kin and descent,’ _i.e._ by tribal
right in his kindred, and therefore if he should die without children his
_da_ and everything he had by kin and descent went, not to his brothers,
but back to the kindred or the chief of kindred from whom he received it.
If the son die after 14 years of age and leave no heir, his
‘argluyd’ is to possess all his _da_ and to be in place of a son
to him and his house becomes a dead-house. (_Ven. Code_, i. p.
203.)[121]
The lapse of landed rights in family holdings to the kindred was one
thing. Their passing out of the kindred to vicini who were strangers
would be quite another thing.
When after a time, let us say under cover of the title ‘de migrantibus’
or upon extended conquests, others, perhaps ‘Romani possessores,’ had
taken places in the villa side by side with the tribesmen living under
the customary rules of _terra Salica_, or when Salic Franks had settled
among strangers, the new element would have to be reckoned with.
In the clause ‘de migrantibus’ the protection of ancient Salic custom was
sought by the exclusion of strangers at the instance of a single objector
from terra Salica. In the Edict of Chilperic, on the other hand, the
presence of stranger vicini was taken for granted, and the protection of
terra Salica sought by extending the right of succession to brothers and
females, so that at least fewer cases might arise of lapsed inheritances
falling away from the kindred into the hands of the _vicini_ who might be
strangers.
The breaking up of tribal custom thus was not all at once, but by steps.
At first _terra Salica_ was limited to men, then female succession was
allowed, and lastly, in default of kindred, stranger vicini under
certain conditions were admitted to the lapsed inheritance.
IV. THE WERGELDS AND DIVISION OF CLASSES IN THE ‘LEX RIPUARIORUM.’
The customs of the Ripuarian Franks as to wergelds, as might be expected,
do not seem to have varied much from those of the Salic Franks. They were
probably neighbours in close contact with each other, and, judging from
the laws, the population of the district was a mixed one.
[Sidenote: Wergeld of freeman as under the Lex Salica, 200 gold solidi.
That of the official threefold.]
The wergeld of the Ripuarian ingenuus, like that of the Salic Frank
or barbarian living under the Lex Salica, was 200 gold solidi, and 12
co-swearers were required to deny the homicide (Tit. VII.).
Here again official position seems, as under the Salic law, to be
protected by a triple wergeld. The _grafio_ or _comes_, who was a fiscal
judge, had a wergeld of 600 solidi (Tit. LIII.). The payment for one _in
truste regis_ was also 600 solidi (Tit. XI.).
On the other hand, the wergeld of a ‘_homo regis_’ (Tit. IX.), like that
of the ‘_puer regis_’ of the Salic law, was only 100 solidi, and that
of the ‘man’ of the Church the same (Tit. X.), _i.e._ half that of the
Ripuarian ingenuus.
Consistently with this, the triple payment for killing a woman between
childbearing and 40, as also in the Salic Law, was 600 solidi, whilst the
wergeld of the ‘femina regia’ or ‘ecclesiastica’ was only 300 solidi.
There are apparently hardly any indications as to how or to whom the
wergelds were to be paid. There is only one reference to the _parentes_,
and that is not connected with the wergelds. In Tit. LXXXV. it is stated
that he who shall disinter a corpse and rob it shall pay 200 solidi and
be ‘expelled till he shall satisfy the _parentes_.’
The murderer alone seems to be responsible, unless indeed the few words
added to the clauses imposing the triple wergeld of 600 solidi upon the
murderer of a woman may be taken to be of general application. The words
are these:--
‘If the murderer shall be poor, so that he cannot pay at once,
then let him pay _per tres decessiones filiorum_.’
Has it really come to this, that since the Edict of Childeric II.
came into force the parentes are released, and the descendants of the
murderer, for three generations, are to be in slavery till the wergeld is
paid? It may be so, for the penalty in default of payment of the wergeld
probably included his own slavery, which involved with it that of his
descendants.
[Sidenote: The fisc gradually takes the place of the kindred.]
The ancient tribal tradition that within the family there could be no
feud or wergeld, but exile only, was still apparently in force. In Title
LXIX. there is a clause which enacts that if any one shall slay one next
in kin (‘proximus sanguinis’) he shall suffer exile and all his goods
shall go to the fisc. This exile of the slayer of a near kinsman and
forfeiture of his goods to the fisc seems to be almost the only distinct
important survival of tribal feeling, apparently neither wergeld nor the
death of the slayer being admitted. But in this case the fisc was, as
usual, the gainer. Parricide under any system of criminal law would be a
capital crime. The pertinacity with which the custom that, being a crime
_within_ the kindred, there could be no feud and therefore no wergeld,
was adhered to in the midst of manifold changes in circumstances,
feeling, and law, is very remarkable.
There is not much else in the Ripuarian laws throwing light upon tribal
customs as regards the solidarity of the kindred. But there is a good
deal of interesting information upon the important subject of the
treatment of strangers in blood.
[Sidenote: Distinction between persons living under Salic law and those
living under Roman law who were treated as strangers in blood.]
We have seen that in the Lex Salica the definition of the _ingenuus_
with a wergeld of 200 solidi was the _Francus_ or _barbarus_ living
under Salic law. The ‘barbarus’ who lived under Salic law was no longer
a stranger; he had in fact become a Frank. As we should say, he had
been _naturalised_. Hence there was no inconsistency in the apparent
occasional indiscriminate use of the words ‘Francus’ and ‘ingenuus.’ They
meant the same thing. But there is nothing to show that the ordinary
Gallo-Roman was included under the term ‘_barbarus_ who lived under Salic
law.’ On the other hand, we find him living under the Roman law.
In considering the method of dealing with people of so mixed a population
as that of the Ripuarian district it is very important to recognise how,
under tribal custom, every man continued to live under the law under
which he was born, until by some legal process his nationality, so to
speak, was admitted to be changed. The Cymric example has shown us how
strictly the tribal blood and admission from outside into the tribe were
guarded. In such a mixed population as that of the Ripuarian district,
the strictness may have been somewhat relaxed, and the formalities of
admission less difficult. But there is evidence enough, I think (with
great deference to M. Fustel de Coulanges’ doubts on the subject), to
show that to some extent at any rate social distinctions were still
founded upon ‘difference of blood.’ At all events it is worth while to
examine the additional evidence afforded by some clauses in the Ripuarian
laws.
[Sidenote: Strangers of allied tribes have wergelds according to the
law of their birth, but if they cannot find compurgators must go to the
ordeal.]
In Tit. XXXI. it is stated that Franks, Burgundians, Alamanni, and
others, of whatever nation, living in the Ripuarian country, are to be
judged and dealt with, if guilty, according to the law of the place of
their birth, and not by the Ripuarian law, and it is significantly added
that (living away from their kinsmen as they often must be) if they
cannot find compurgators they must clear themselves by the ordeal of
‘fire or lot.’[122]
Here we come upon one of the strongest tests of tribal custom in its
insistence upon the necessity of a man being surrounded by a kindred
before he can be a fully recognised tribesman. Unless he be surrounded by
kinsmen who can swear for him, under tribal custom, he must have recourse
to the ordeal in case of any criminal charge.
There is a clause, not inconsistent, I think, with Tit. XXXI., which
seems to draw a clear distinction in favour of tribes more or less
nearly allied in blood with Franks, viz. the Burgundians, Alamanni,
Bavarians, Saxons, and Frisians, resident in the Ripuarian district, as
contrasted with the _Romanus_, who surely must be the Gallo-Roman.
In Title XXXVI. the following wergelds are stated, the slayer being a
Ripuarian in all cases:--
A stranger Frank 200 solidi
” ” Burgundian 160 ”
” ” Romanus 100 ”
” ” Alamann }
” ” Frisian } 160 ”
” ” Bavarian }
” ” Saxon }
[Sidenote: Wergeld of the _Romanus_ 100 solidi instead of 200 or 160
solidi.]
Thus the Roman stranger is placed in the lowest grade. His wergeld is
only 100 solidi--half that of the Ripuarian or Salic Frank--whilst those
tribes nearer in blood to the Frank are classed together with a wergeld
of 160 solidi, not much less than that of the Frank. Indeed, there is
reason to believe that these were the wergelds of the several tribes in
force in their own country according to their own laws.[123]
In this connection the view of M. Fustel de Coulanges, that the term
‘Romanus’ is confined to the libertus freed under Roman law, hardly
seems natural. The evidence seems to show that the man freed under the
formalities of Frankish law thenceforth lived under Salic law and became
a Frankish freeman with a freeman’s wergeld of 200 solidi, whilst the man
who became a freedman under process of Roman law thenceforth lived under
Roman law, and became a Roman freeman--a Romanus--with a wergeld of only
100 solidi. The inference that the difference in status was the result
of difference in blood is not altered by the fact that the social status
awarded to the Gallo-Roman was the same as that of the libertus in some
other laws.
The fact relied upon by M. Fustel de Coulanges, that under the laws
of the Burgundians and the Wisigoths the Gallo-Roman was placed in a
position of equality with the Teutonic conquerors, need not, I think,
affect the view to be taken of his position under the Salic and Ripuarian
laws. Tribal custom had to meet in Burgundy and the Wisigothic district
with Roman law and Roman institutions still comparatively in their full
strength. Marriages with the Gallo-Roman population were encouraged, and
the system of wergelds almost entirely superseded. The Frankish conquest
was of another kind, and the Frank was hardly likely to care to meet the
Gallo-Roman on equal terms.
[Sidenote: Position of the freedman or _denarialis_ under Frankish law.
His wergeld 200 solidi.]
Passing now from the position of the stranger who was recognised as a
freeman, let us try to get a clear idea of the position of the _freedman_
under the Ripuarian law, taking the cases of the Frankish freedman and
the Roman libertus separately.
In Tit. VIII. the payment for slaying a _servus_ is 36 solidi. In Tit.
LXII., if any one makes his servus into a _tributarius_ or a _litus_ and
he is killed, the penalty is the same--36 solidi, but if he chooses to
make him into a _denarialis_ (_i.e._ a freedman under Frankish law) then
his value shall be 200 solidi.
The tributarius or litus has gained but one step up the ladder of
Frankish freedom. But the denarialis, with nearly six times his wergeld,
has as regards his wergeld reached the highest rung at a single leap.
[Sidenote: But till he has a free kindred, if he has no children the fisc
is his heir.]
Though, however, as regards wergeld he has done so, in another sense he
has by no means done so. Under tribal custom he would not attain to full
tribal rights till a kindred had grown up around him. So under Tit. LVII.
the ‘homo denarialis,’ notwithstanding his wergeld of 200 solidi, is
recognised as having no kindred.
(s. 4) If a ‘homo denariatus’ shall die without children he
leaves no other heir than our fisc.
And in full accord with this statement is the following clause in the
‘Capitulare legi Ripuariæ additum’ of A.D. 803.
Homo denarialis non ante hæreditare in suam agnationem poterit
quam usque ad terciam generationem perveniat.
So that more of tribal custom still prevails in his case than at first
appears. Only in the third generation are full rights of inheritance
secured to his successors.
[Sidenote: Wergeld of the _libertus_ under Roman law 100 solidi.]
If now we turn to the _libertus_ under Roman law, Tit. LXI. states that
if any one shall make his servus into a libertus and Roman citizen, if he
shall commit a crime he shall be judged by Roman law, and if he be killed
the payment shall be 100 solidi: but ‘if he shall die without children he
shall have no heir but our fisc.’
Thus, as regards inheritance, the Frankish denarialis and the Roman
libertus seem to be treated alike, notwithstanding the difference of
wergeld.
Turning to another matter, the Ripuarian laws, being of later date than
the Lex Salica, made provision for the wergelds of the clergy.
[Sidenote: Wergelds of the clergy, and of their ‘men.’]
Tit. XXXVI. provided that the clergy should be compounded for according
to their birth, whether of the class of servi, or men of the king or of
the Church, or liti, or ingenui. If _ingenui_, they were to be compounded
for with 200 solidi. Then the wergelds of the higher clergy are stated as
follows:--
Subdeacon 400 solidi
Deacon 500 ”
Priest 600 ”
Bishop 900 ”
And there is a long clause _De Tabulariis_ (Tit. LVIII.) providing that
servi may be made under process of Roman law _tabularii_ of the Church,
so that they and their descendants shall be and remain servants of the
Church, and render the proper services of tabularii to the Church,
without any one having power further to enfranchise them. In case of
their death without children the Church is to be their heir. These appear
to be the ‘men of the Church’ whose wergeld was 100 solidi.
[Sidenote: The clause ‘De alodibus.’]
The Tit. LVI. _De alodibus_ is as follows:--
Si quis absque liberis defunctus fuerit, si pater materque
superstites fuerint in hereditatem succedant.
If any one shall have died without children, if father and mother
survive they shall succeed to the _hereditas_.
Si pater materque non fuerint, frater et soror succedant.
If there are not father and mother, brother and sister shall
succeed.
Si autem nec eos habuerit, tunc soror matris patrisque succedant.
Et deinceps usque ad quintam genuculum, qui proximus fuerit,
hereditatem succedat.
But if he has not these either, then the sister of the mother and
the sister of the father shall succeed. And further, up to the
fifth knee, whoever is nearest shall succeed to the inheritance.
Sed cum virilis sexus extiterit, femina in hereditatem aviaticam
non succedat.
But as long as the male sex survive, a woman shall not succeed to
the _hereditas aviatica_.
All that need be remarked regarding this title is, first its close
resemblance to the clause ‘de alodis’ in the Lex Salica and the
confirmation given by the phrase ‘hereditas aviatica’ to the family
character of the ‘alod,’ and secondly that it seems to belong to the time
when female succession was favoured.
Whether the ‘hereditas aviatica’ included the whole alod or only the land
of the alod, on failure of male heirs, females were now to succeed.
[Sidenote: The traditional value of animals in payment of wergelds. The
wergeld of 200 solidi = 100 oxen.]
There remains only to be noticed the interesting addition to Tit. XXXVI.
which enacts that if any one ought to pay wergeld he should reckon,
_inter alia_:--
The ox, horned, seeing, and sound, for 2 solidi
The cow, horned, seeing, and sound, for [3 or] 1 solidus
The horse, seeing and sound, for 6 solidi
The mare, seeing and sound, for 3 ”
And this is followed by a final clause which is found only in some of the
manuscripts and which is probably an addition made under Charlemagne:--
If payment shall be made in silver, let 12 denarii be paid for
the solidus, _sicut antiquitus est constitutum_.
Thus our consideration of these laws ends with the fact that, before
the disturbance in the currency made by Charlemagne, the wergeld of the
Frankish freeman of 200 gold solidi or heavy gold mina was still, in the
Ripuarian district at all events, a normal wergeld of 100 oxen.
V. THE ALAMANNIC AND BAVARIAN LAWS.
These laws have an interest of their own, but only those points come
directly within the range of this inquiry which are likely to throw light
upon the interpretation of the Anglo-Saxon laws.
Beginning at once with the wergelds, there are two distinct statements.
[Sidenote: The wergelds of the early Alamannic ‘Pactus,’ and of the later
‘Lex Hlotharii.’]
According to the ‘Pactus,’ which is assigned to the sixth or seventh
century, and which is considered to represent customs of the Alamanni
before they were conquered by the Franks,[124] the wergelds were as
follows:--
Baro de mino flidis 170 solidi (? 160)
Medianus Alamannus 200 ”
Primus Alamannus 240 ”
And for women:--
Femina mino flidis 320 ”
Mediana 400 ”
Prima Alamanna 480 ”
These wergelds correspond very closely in some points with those of the
Burgundian laws and should be compared with them.[125]
The wergeld of women was double that of men of the same class. In the Lex
Salica and Lex Ripuariorum, women were paid for threefold.
In the Lex Hlotharii, s. LXIX., the wergelds are stated as follows:--
If any freeman (‘liber’) kills a freeman, let him compound for
him twice 80 solidi to his sons. If he does not leave sons nor
has heirs let him pay 200 solidi.
Women of theirs, moreover, always in double.
The medius Alamannus, if he shall be killed, let 200 solidi be
paid to the parentes.
It is not clear that there has been any change in the wergelds since the
date of the ‘Pactus.’
[Sidenote: The wergeld of 160 solidi accords with the statement in the
Ripuarian law.]
The wergeld of the medius Alamannus, 200 solidi, is the same as before.
That of the liber, 160 solidi, seems to be the same as that of the baro
de mino flidis in the ‘Pactus.’ It is also the wergeld of the Alamannus
according to the clause mentioning strangers in the Ripuarian law. The
use of the term ‘medius Alamannus’ seems to imply that there should be
a primus Alamannus as in the ‘Pactus.’ But what these two classes of
Alamanni with higher wergelds than that of the liber were does not appear.
This later statement of the wergelds seems also to contain a provision
which can, I think, only be explained by tribal custom. It occurs again
in clause XLVI., which enacts that the same payment has to be paid to the
parentes of a person sold out of the country beyond recall as if he had
been killed. This rule is the same in the Salic and Ripuarian codes. But
in this law a distinction is made between the case of a slain man leaving
an heir, and the case of his leaving no heir.
[Sidenote: Wergeld of 200 solidi if no heir of the person slain.]
If he cannot recall him let him pay for him with a wergeld to the
parentes. That is twice 80 solidi if he leave an heir. But if he
does not leave an heir let him compound with 200 solidi.
The explanation must be that if the lost kinsman leaves no heir, the loss
is all the greater to the kindred. This looks like a survival of tribal
custom. The dread of a family dying out lay, as we have seen, at the
root of the widespread custom which brought in the sister’s son to fill
the vacant place when there was no one else to keep up the family. This
addition in the later statement, though omitted in the ‘Pactus,’ pointing
back as it appears to earlier custom, seems to show that the Lex as well
as the ‘Pactus’ may in the matter of wergeld be traced to Alamannic
rather than Frankish sources.
[Sidenote: Wergeld of women.]
In both the ‘Pactus’ and the Lex, as we have seen, the wergelds of women
were double those of men. The Bavarian law gives the reason of the rule
(IV. 29) and also the reason why sometimes an exception was made to the
rule.
Whilst a woman is unable to defend herself by arms, let her
receive a double composition; if, however, in the boldness of her
heart, like a man, she chooses to fight, her composition shall
not be double.
In titles XXIX. and XXX. of the Alamannic law it is enacted that if a man
be slain in the _curtis_ of the Dux a threefold wergeld must be paid, and
that if the messenger of the Dux be killed within the province his triple
wergeld must be paid.
[Sidenote: The freeman’s wergeld of 160 solidi under Bavarian law.]
In the Bavarian law the wergeld of the freeman is stated to be 160
solidi, thus:--
If any one kill a free man (‘liberum hominem’) let there be paid
to his parentes, if he have any, or if he have no parentes to the
Dux or to him to whom he was commended whilst he lived, twice 80
solidi: that is, 160 solidi. (Tit. IV. c. 28.)
There are no wergelds mentioned in the Bavarian law corresponding to
those of the _medius Alamannus_ and the _primus Alamannus_ of the
Alamannic laws.
[Sidenote: Higher wergelds of certain families.]
According to Tit. III. 1, there were certain families who were held in
double honour, and had double wergelds. The Agilolvinga had fourfold
wergelds, being the family from whom the Dux was chosen. The Dux himself
had a fourfold wergeld with one third added. If the life of any of his
parentes were taken the wergeld was, according to one manuscript, 640,
and according to another 600 solidi.
These wergelds of the Alamannic and Bavarian laws are not on all fours
with those of the Salic and Ripuarian Laws. But in both cases the
ordinary freeman’s wergeld is 160 solidi (unless there be no heir to
inherit), so that in both cases the wergelds correspond sufficiently
with the clause in the Ripuarian Laws which accords to them a wergeld of
160 solidi, after having before stated that strangers are to be judged
according to the laws under which they were born.
[Sidenote: Wergelds of the freedman and the servus.]
In the Bavarian law there is special mention of the freedman and the
servus, and it is worth while to dwell a moment on the position assigned
to them as compared with the ordinary freeman.
There are three titles headed as under:--
Title IV. De _liberis_, quo modo componuntur.
” V. De liberis qui per manum dimissi sunt liberi,
quod _frilaz_ vocant.
” VI. De _servis_, quo modo componuntur.
These clauses relate to injuries as well as to homicide. As regards all
minor injuries, the freedman is paid for at one half, and the servus at
one third, of the payment to the liber for the same injury.
[Sidenote: Payments for eye, hand, or foot one fourth the wergeld.]
But when the payment comes to be for the eye, hand, or foot, the
difference is, roughly speaking, doubled. The payment for the liber is
40 solidi, for the freedman 10 solidi, and for the servus 6 solidi (? 5
sol.). And these payments are seemingly intended to be one quarter of the
respective wergelds for homicide. We have seen that the wergeld of the
freeman was 160 solidi. These clauses state that the freedman’s wergeld
was 40 solidi, and that of the servus 20 solidi, and that in both these
cases the lord took the payment.
In Tit. IV. 30, _De peregrinis transeuntibus viam_, the passing
stranger’s death was to be paid for with 100 solidi to his parentes, or
in their absence to the fisc.
[Sidenote: Bavarian wergelds.]
The wergelds of the Bavarian laws may therefore be thus stated:--
Ducal family (4 fold) 640 solidi
Families next in honour 320 ”
Liber 160 ”
Stranger 100 ”
Freedman 40 ”
Servus 20 ”
And all these solidi were gold solidi of Imperial or Merovingian
standard, it does not matter much which.
[Sidenote: No wergeld within the family.]
The crime of homicide within the near family was dealt with in the
Alamannic law in conformity with ancient tribal custom. There was no
wergeld in such a case.
If any man wilfully kills his father, uncle, brother, or maternal
uncle (avunculus), or his brother’s son, or the son of his uncle
or maternal uncle, or his mother, or his sister, let him know
that he has acted against God, and not fulfilled brotherhood
according to the command of God, and heavily sinned against God.
And before all his parentes, let his goods be confiscated, and
let nothing of his pertain any more to his heirs. Moreover, let
him do penance according to the Canons. (Tit. XL.)
Once more in these laws the parricide (the fisc having taken his
property) goes free, but for the penance required by the Canons of the
Church.
[Sidenote: Wergelds of the clergy.]
As regards the wergelds of the clergy in the Alamannic law the Church
seems to claim triple penalties. The wergelds of the clergy are as
follows, according to the Lex Hlotharii (XI. to XVII.):--
Bishop as that of the Dux or Rex.
Priest, parochial 600 solidi
Deacon and monk 300 ”
Other clerics like the rest of their parentes.
Liber per cartam (the Ripuarian tabularius) 80 ”
The free colonus of the Church as other Alamanni.
According to the Bavarian law (Tit. I. c. x.) a bishop’s death was to be
paid for by the weight in gold of a leaden tunic as long as himself, or
its value in cattle, slaves, land, or villas, if the slayer should have
them; and he and his wife and children are to be _in servitio_ to the
Church till the debt is paid.
The lower clergy and monks were to be paid for according to their birth
_double_; parochial priests threefold. (I. c. viii. and ix.)
[Sidenote: The wife’s inheritance goes back to her kindred if no children
born alive.]
In the _Liber secundus_ of the Alamannic law is an interesting clause
which throws some light upon the position of married women.
(XCV.) If any woman who has a paternal inheritance of her own,
after marriage and pregnancy, is delivered of a boy, and she
herself dies in childbirth, and the child remains alive long
enough, _i.e._ for an hour, or so that it can open its eyes and
see the roof and four walls of the house, and afterwards dies,
its maternal inheritance then belongs to its father.
This is natural, but it seems to show that if the child had been born
dead and the wife had died without children her paternal inheritance
would have gone back to her kindred and not to her husband.
In the absence of other evidence this is perhaps enough to show that in
accordance with tribal custom the kindred of the wife had not lost all
hold upon their kinswoman, and therefore that she by her marriage had not
passed altogether out of her own kindred.
[Sidenote: Traditional value of cattle stated in gold tremisses.]
Lastly, there are clauses in the same _Liber secundus_ which declare the
value of the solidus in equation with cattle.
LXXX. Summus bovus 5 tremisses valet. Medianus 4 tremisses valet.
Minor quod appreciatus fuerit.
LXXVII. Illa mellissima vacca 4 tremisses liceat adpreciare. Illa
alia sequenteriana solidum 1.
These clauses show that the solidi in which the wergelds were paid were
gold solidi of three tremisses.
In the Ripuarian laws the ox was equated with 2 gold solidi, _i.e._ 6
tremisses, so that we learned from the equation that the wergeld of the
Ripuarian liber, 200 solidi, was really a wergeld of 100 oxen. But the
above equations show that under Alamannic law the wergeld of the liber
was not so.
In the Alamannic laws the best ox was valued only at five tremisses
instead of six, so that the wergeld of 200 solidi of the medius Alamannus
was really a wergeld of 120 oxen; and the 160 solidi of the wergeld of
the _baro de mino flidis_ of the ‘Pactus,’ or simple ‘liber’ of the Lex
Hlotharii, was a wergeld of 96 oxen or 120 Alamannic ‘_sweetest cows_.’
Any one who has seen the magnificent fawn-coloured oxen by which waggons
are still drawn in the streets of St. Gall will appreciate what the
‘summus bovus’ of the Alamannic region may have been. Why it should have
been worth in gold less than the oxen of other lands does not appear.
[Illustration]
CHAPTER VII.
_TRIBAL CUSTOMS OF THE TRIBES CONQUERED BY CHARLEMAGNE._
I. THE EFFECT UPON WERGELDS OF THE NOVA MONETA.
[Sidenote: The _nova moneta_ of Charlemagne.]
We have reached a point in our inquiry at which it becomes necessary to
trouble the reader with further details concerning the changes in the
Frankish currency, made by Charlemagne.
We are about to examine the customs as regards wergelds of those tribes
which owed their laws, in the shape in which we have them, to the
conquests of Charlemagne. The alterations in the currency, made literally
whilst the laws were in course of construction, naturally left marks of
confusion in the texts relating to wergelds, and we have to thread our
way through them as best we can.
[Sidenote: A change from gold to silver.]
The change which we have to try to understand was in the first place a
change from a gold to a silver currency--_i.e._ from the gold currency of
Merovingian solidi and tremisses to the silver currency of Charlemagne’s
_nova moneta_.
There had been a certain amount of silver coinage in circulation before,
but the mass of the coinage had been hitherto gold, mostly in gold
tremisses.
In all the Frankish laws hitherto examined the monetary unit was the
gold solidus with its third--the tremissis. And the only question was
whether the solidi and tremisses were of Imperial or of Merovingian
standard--whether the solidus was the Merovingian solidus of 86·4
wheat-grains and the tremissis 28·8, or the Imperial solidus of 96
wheat-grains and the tremissis 32.
[Sidenote: Merovingian kings first used and then imitated Imperial coin.]
As regards the Lex Salica, originally the solidus was probably of the
Imperial standard, because the Merovingian kings at first in their
coinage copied the Imperial coins both in type and weight. And before
they issued a coinage of their own they made use of Imperial coins, both
gold and silver. Numismatists point in illustration of this to the fact
that in the tomb of Childeric at Tournay were found no Frankish coins,
but a large number of Roman coins, gold and silver, of dates from A.D.
408 to those of the contemporary Emperor Leo I. (457-474). And for proof
that these Roman coins were afterwards imitated by Merovingian princes
M. Maurice Prou had only to refer the student ‘to every page’ of his
catalogue of ‘Les Monnaies Mérovingiennes.’[126]
[Sidenote: The denarius of the Salic law first the scripulum and then the
Merovingian silver tremissis of 28·8 w.g.]
Now, if the gold solidus was at first of 96 wheat-grains, then the
denarius (one fortieth) would be 2·4 wheat-grains of gold, and at a ratio
of 1:10 the denarius would be the scripulum of 24 wheat-grains of silver,
which was called by early metrologists the ‘denarius Gallicus.’ Further,
at 1:12 the denarius would become the Merovingian silver tremissis of
28·8. So that probably the denarius of the Lex Salica may originally
have been the scripulum, and under later Merovingian kings their own
silver tremissis. Thus these silver tremisses had probably been regarded
as the denarius of the Lex Salica for a century or two at least before
Charlemagne’s changes.
Up to this time, therefore, there was apparently a distinct connection
between the reckoning and figures of the Lex Salica and the actual
Frankish coinage. The Merovingian coinage of gold and silver tremisses
of 28·8 wheat-grains was therefore, from this point of view, so to
speak, a tribal coinage for the Franks themselves, but not one adapted
for currency, over a world-wide Empire such as Charlemagne had in view,
and with which at last, when adopting the title of Emperor, he had
practically to deal.
The changes he made in the currency were intimately connected, not only
in time but in policy, with the extension of his kingdom and his ultimate
assumption of the Imperial title.
[Sidenote: Charlemagne, on conquest of Italy, raised the gold and silver
tremissis to the Imperial standard of 32 w.g.]
His raising of the weight of the Frankish gold tremissis and silver
denarius from the Merovingian standard of 28·8 to the Imperial standard
of 32 wheat-grains was probably the result of his conquest of Italy.
He seems to have arranged it with the Pope, for they issued silver
denarii of the higher standard with the impress of both their names upon
them.[127]
It was natural that he should wish his coinage to obtain currency
throughout his dominions, and this could not be expected if it was
continued at a lower standard than that of the Byzantine Emperor.
Not only in the currency, but also in other matters, extended empire
involved the breaking down of tribal peculiarities and greater
uniformity in legal provisions and practice.
[Sidenote: The Lex Salica still in force for Franks. And its family
holdings not yet extinct.]
To mention one instance suggested by our previous inquiry, we have
noticed how the extension of Frankish rule in Gaul from the Loire to the
Garonne increased the difficulties of maintaining two laws as to land.
Strangers under Roman law, as in the ‘de migrantibus,’ one by one were
settling among Franks holding alods or family holdings of terra Salica.
Extended conquests reversed the process, and in conquered provinces
immigrants living under Salic law became strangers amongst vicini living
under Roman, Burgundian, or Wisigothic law.
The family holdings of terra Salica must have now become the exception
and not the rule. This becomes evident in the provisions made for the
army.
In the Capitulare of A.D. 803,[128] _de exercitu promovendo_, it was
ordered that every free man (‘liber homo’) who, _de proprio suo_ or as a
benefice, had four _mansi vestiti_, that is mansi occupied by tenants,
should equip himself and attend ‘in hostem.’ And those not having so many
mansi were to club together so that for every four mansi a soldier should
be found. The possession of mansi had apparently become sufficiently
general to be taken as the typical form of landholding.
In A.D. 807[129] special arrangements were made for the case of the
recently conquered Frisians and Saxons.
If help should be needed in Spain, every five of the Saxons were to equip
a sixth. If the need arose nearer home, every two were to prepare a
third. Or if the need arose still closer at hand, all were to come. Of
the Frisians, counts and vassals and those who held benefices, all were
to come, and of those who were poorer every six were to equip a seventh.
There is no mention of mansi in the case of the Saxons and Frisians.
The Capitulare of A.D. 803 seems to show that in the longer settled
districts of the Empire the possession of so many mansi, _de proprio
suo_, was the prevalent form of landownership. So that, although the lex
Salica remained still in force, the number of Franks living under it
seems by this time to have borne a very small proportion to those living
under Roman and other laws.
Family holdings under the Lex Salica were, however, probably not quite
extinct. In the ‘Capitula generalia’ of A.D. 825[130] was inserted the
following clause providing specially for family holdings, which may
possibly have been holdings of _terra Salica_, though it is not so
directly stated.
De fratribus namque qui simul in paterna seu materna hereditate
communiter vivunt, nolentes substantiam illorum dividere, hac
occasione, ut unus tantum eorum in hostem vadat, volumus ut si
solus est vadat: si autem duo sunt similiter: si tres fuerint
unus remaneat: et si ultra tres numerus fratrum creverit, unus
semper propter domesticam curam adque rerum communium excolentiam
remaneat. Si vero inter eos aliqua orta fuerit contentio, quis
eorum expeditionum facere debeat, prohibemus ut nemo illorum
remaneat. In ætate quoque illorum lex propria servetur. Similiter
et in nepotibus eorum hæc conditio teneatur.
Concerning brothers who together live in common in the paternal
or maternal inheritance, unwilling to divide their substance,
when occasion comes that one of them only should go _in hostem_,
we will that if there be one only he should go, and if there be
two the same: if there be three let one remain; and if the number
of brothers grows to more than three, let one always remain on
account of domestic care and to attend to their common concerns.
But if among them any contention shall have arisen which of them
ought to go on the expedition we prohibit that any one of them
shall remain. During their lives also let the _lex propria_ be
preserved. In the same way let this condition be kept to even
among their grandsons.
When we reflect that the Franks living under the Lex Salica must have
thus sunk into a small minority, it becomes obvious that wider views must
of necessity have entered into the minds of Charlemagne and his advisers,
not only as regards land, but also as regards the currency.
[Sidenote: The currency of the Lex Salica only a local one.]
The currency of the Lex Salica, with its solidi of 40 denarii, was,
as has been said, after all a local one. And outside the old Frankish
boundary, in the Wisigothic region, as well as probably in Italy, the
Roman currency or local modifications of it apparently more or less
prevailed. Ecclesiastics, as we have seen, even Alcuin himself, still
used the terms of Roman currency in writing on monetary matters to their
friends outside the Empire.
[Sidenote: The Roman drachma or _argenteus_ of 72 w.g. the silver
denarius of the Empire.]
To them the denarius was still the Roman drachma of 72 wheat-grains of
silver, commonly called the _argenteus_, in contrast to the gold solidus
or _aureus_.
Gregory of Tours, when he has occasion to mention monetary payments,
speaks of _aurei_, _trientes_, and _argentei_. In one story he speaks of
_solidi_, _trientes_, and _argentei_.[131]
Further, in a supplement to the laws of the Wisigoths[132] is a statement
under the name of _Wamba Rex_ (A.D. 672-680), which apparently represents
the monetary system in vogue south of the Frankish boundary. It states
that the pound of gold equalled 72 gold solidi, so that the gold solidus
was not the Merovingian solidus but that of Constantine. It then states
that the ‘dragma’ of gold = ‘XII argentei.’ The argenteus being the
silver drachma, the ratio of gold to silver was 1:12.
To Isidore of Seville, from his Spanish standpoint, the silver drachma
was still the denarius.[133]
Dragma octava pars unciæ est et _denarii_ pondus argenti, tribus
constans scripulis.
The drachma is the eighth part of an ounce, and the weight of the
silver denarius containing three scripula.
_Solidus_ apud Latinos alio nomine ‘sextula’ dicitur, quod his
sex uncia compleatur; hunc, ut diximus, vulgus _aureum_ solidum
vocat, cujus tertium partem ideo dixerunt tremissem.[133]
The _solidus_ with the Romans is otherwise called the _sextula_
because it is one sixth of the ounce; hence, as we have said, the
vulgar call the _solidus_ the _aureus_, the third part of which
is called the tremissis.
Thus the solidus was the typical gold unit or aureus, and the drachma was
the silver denarius or argenteus.
[Sidenote: Twelve drachmas of silver = at 1:10 the Merovingian gold
solidus.]
It is remarkable that at a ratio of 1:10 twelve Wisigothic or Roman
argentei or drachmas of silver equalled exactly in wheat-grains the
Merovingian gold solidus current on the Frankish side of the Garonne or
the Loire.[134]
It would seem, then, probable that traditionally and ‘according to
ancient custom’ outside the Frankish kingdom the Merovingian gold
solidus had been equated with twelve silver argentei or denarii of this
reckoning, whilst within Frankish limits 40 of the silver tremisses and
now of the pence of the nova moneta were reckoned as equal to the gold
solidus of the Lex Salica.
But even to the Frank the 40 denarii of the Lex Salica may have become
antiquated except for wergelds and other payments under its provisions.
[Sidenote: The silver solidus of 12 silver tremisses already in use in
accounts, as 1/20 of the pound of silver of 240 pence.]
The practice apparently had already grown up of reckoning 12 of the
silver tremisses as a solidus of silver, twenty of which went to the
pound of 240 pence, without, however, any pretence being made that this
solidus of twelve silver pence was to be reckoned as equal to the gold
solidus in making payments.
In the ‘Capitulare Liftinense’ of A.D. 743[135] a payment is enacted _de
unaquaque cassata solidus, id est 12 denarii_. It was necessary to make
this explanation.
It is not known how much earlier the practice of reckoning in pounds of
silver of 20 solidi of 12 denarii came into vogue, but it was long before
the issue of the nova moneta.
It might at first sight be thought that these twelve denarii may have
been twelve _argentei_ or drachmæ, but 240 drachmæ would make far more
than a pound. And by an edict of A.D. 765[136] Pippin had enacted that
out of a pound of silver not more than 22 solidi were to be made, one
of which was to go to the monetarius, and this clearly forbids the
supposition that the solidus could be of twelve drachmæ. The pound would
contain only eight such solidi.
Another Capitulare of A.D. 779[137] proves that the twelve denarii were
Merovingian denarii of 28·8 wheat-grains.[138]
The issue of the new denarii of 32 wheat-grains was apparently made
before A.D. 781, for in that year an edict was passed forbidding the
currency of the old denarii.[139]
[Sidenote: The pound of the _nova moneta_ was 240 pence of 32 w.g. = 7680
w.g.]
There was nothing very remarkable in this raising of the silver denarius
from 28·8 to 32 wheat-grains. It was merely adopting the Imperial
standard. But the extraordinary thing was that Charlemagne seems to have
thought that he could, by law, substitute the solidus of 12 of his silver
denarii for the _gold solidus_ hitherto in use. The gold currency was
going out and the silver currency was taking its place; but it was quite
another thing to make the solidus of 12 silver denarii of 32 wheat-grains
legal tender in the place of the gold solidus of the Lex Salica of 40
silver denarii of 28·8 wheat-grains. Yet this was what Charlemagne did,
though perhaps only by degrees.
[Sidenote: Charlemagne enacted that the silver solidus should be legal
tender for the gold solidus.]
The change was made under the pretence of the sanction of ancient
custom. In the addition made to Tit. XXXVI. of the Ripuarian law the
wording of the clause as to the payment of wergelds was ‘Quod si cum
argento solvere contigerit, pro solido duodecim denarios, _sicut
antiquitus est constitutum_.’ And this allusion to antiquity was repeated.
What was meant by this appeal to ancient custom it is not easy to see,
unless it might be the probably long-established equation already
mentioned between 12 Roman drachmas or argentei and the Merovingian
gold solidus. Very possibly this equation was older than that of the 40
denarii to the solidus of the Lex Salica.
In a series of remarkable articles contributed to the _Forschungen zur
Deutschen Geschichte_ of 1862,[140] Dr. Ad. Soetbeer endeavoured to show,
and with considerable force, that the introduction into the Lex Salica of
the round numbers of denarii--forty to the solidus--was of comparatively
late date; and if this hypothesis be correct, then it may be that
Charlemagne was appealing to an earlier Frankish custom of reckoning 12
silver denarii or drachmæ to the gold solidus. But even if it could be
so, obviously the denarii of 12 to the solidus of ancient custom cannot
have been the same denarii as those which afterwards were reckoned at 40
to the solidus.[141]
[Sidenote: This involved a ratio of 1:4.]
Economically speaking, the substitution of the solidus of 12 denarii
for the gold solidus, if they had been Roman drachmæ, would have been
reasonable and might have made no change in prices; but the substitution
of 12 of the new denarii of 32 wheat-grains for the forty denarii of 28·8
wheat-grains, involving a ratio between gold and silver of 1:4, could
only be justified by such a scarcity of silver as would prevent a rise in
prices. That it was not so justified became very soon apparent.
Following the order of date, the Capitulare of A.D. 785, ‘de partibus
Saxoniæ,’ shows that prices when quoted in the solidus of 12 pence
immediately rose. The ox, the traditional value of which was two gold
solidi, is reckoned as worth ten silver solidi. And M. Guérard has shown
from the various instances given in the ‘Polyptique d’Irminon’ that
on the estates of the Abbey of St. Germain-des-Prés the price of oxen
remained at an average of eight silver solidi long after the death of
Charlemagne.[142]
The Lex Salica continued in force with all its fines and wergelds stated
in gold solidi of 40 denarii. And a Capitulare of A.D. 801[143] contains
the following section which reveals the beginning of confusion:--
[Sidenote: Exception made as to Saxons and Frisians.]
Ut omnis solutio atque compositio, que in lege Saliga continetur,
inter Francos per duodecim denariorum solidos componatur, excepto
hubi contentio contra Saxones et Frisones exorta fuit, ibi
volumus ut 40 dinariorum quantitatem solidus habeat quem vel Saxo
vel Frisio ad partem Salici Franci cum eo litigantis solvere
debet.
That every payment and composition which is contained in the lex
Salica between Franks shall be paid by solidi of twelve pence,
except that where a dispute has risen up against Saxons and
Frisians we will that the solidus shall be of the amount of 40
pence which either a Saxon or a Frisian ought to pay to a Salic
Frank at law with him.
In A.D. 803 a clause was inserted in a Capitulare to the effect that
all debts to the King should be paid in solidi of 12 denarii ‘excepta
freda quæ in lege Saliga scripta sunt.’[144] This looks like a general
reservation of the fines and wergelds of the Lex Salica. But it does not
seem to have been so intended, or perhaps there was vacillation in the
Councils of the Emperor.
A Capitulare of A.D. 816[145] contained the following:--
De omnibus debitis solvendis _sicut antiquitus fuit constitutum_
per duodecim denarios solidus solvatur per totam Salicam legem,
excepto leudis, si Saxo aut Friso Salicum occiderit, per 40
dinarios solvant solidum. Infra Salicos vero ex utraque parte de
omnibus debitis sicut diximus 12 denarii per solidum solvantur,
sive de homicidiis sive de omnibus rebus.
In the payment of all debts _according to ancient custom_ the
solidi shall be paid by 12 denarii throughout Salic Law, except
in the case of wergelds, if a Saxon or Frisian shall kill a Salic
Frank let the solidus be paid by 40 denarii. Among Salic Franks,
however, on both sides as to all debts, as we have said, 12 denarii
shall be paid for the solidus, whether in the case of homicides or
anything else.
As between Salic Franks, therefore, the solidus of 12 denarii was to be
legal tender in payment of wergelds and everything else.
[Sidenote: The _nova moneta_ enforced by penalties.]
This was all very well for debtors, but it was not so satisfactory to
creditors. The exception that, when a Frank was killed by a Saxon or a
Frisian, the wergeld was still to be paid in the solidus of 40 denarii,
was an admission that to receive it in solidi of 12 denarii would
have been a hardship. And as to the general public, the acceptance of
payment of debts in the denarii of the nova moneta had to be secured by
penalties. A clause was introduced into the Capitulare of A.D. 794[146]
according to which freemen refusing the new denarii were to be fined 15
solidi; whilst servi refusing them were to be publicly beaten naked at a
post.
[Sidenote: And it became permanent and was adopted by Offa and Alfred.]
The permanent result was very remarkable. The new currency was maintained
as legal tender in France, and the gold currency practically disappeared.
Charlemagne and his successors coined very few more gold solidi and
tremisses. King Offa and after him Alfred raised the English sceat to the
penny of 32 wheat-grains, probably in imitation of the nova moneta, and
Charlemagne’s pound of 240 of these pence--_i.e._ of 7680 wheat-grains of
silver--became generally recognised as the pound of monetary reckoning in
Western Europe.
[Sidenote: But the ratio between gold and silver went back to 1:12.]
So far Charlemagne triumphed. But in the meantime the artificial ratio
of 1:4, sought to be established between gold and silver, could not be
maintained. The pound of silver remained the standard in accounts, but
one of Charlemagne’s successors restored the Imperial ratio of 1:12 and
enacted that the pound of pure gold should no longer be sold at any other
price than 12 pounds of silver. The date of the edict by which this
restoration of the old ratio was secured was A.D. 864.[147]
These were the changes in the currency which took place during the
period of the formation of the Lex Frisionum and Lex Saxonum which we
have next to examine.
No wonder that they should have introduced confusion and alterations in
the text of the various clauses. And in order that we may be able to
feel our way through them it now only remains that we should realise the
actual difference between the amount of silver in the 40 denarii of the
solidus of the Lex Salica and the amount of silver in the 12 denarii of
the new solidus of the _nova moneta_ which had thenceforth to take its
place as legal tender in the payment of debts and wergelds.
In the first place, we know that the denarius of the nova moneta was a
silver penny of 32 wheat-grains, so that Charlemagne’s solidus of 12
silver pence contained 384 wheat-grains of silver.
[Sidenote: All debts could be paid in one third of the weight of silver
required before.]
In the next place, whatever the denarii of the Lex Salica may originally
have been, we know that the Merovingian silver denarii which had long
been current in France and in England were of the same weight as the
Merovingian gold tremisses, viz. 28·8 wheat-grains. Forty of these would
contain 1152 wheat-grains of silver--_i.e._ exactly three times as much
silver as the twelve denarii of the nova moneta.
So that if a wergeld were paid in silver it could now be paid in exactly
one third of the weight of silver hitherto required under the Salic law,
and so of every other debt.
Finally, not only was the ratio between gold and silver disturbed, but
also the ratio between money and cattle. And this was an important matter
in the payment of wergelds, for, as we have seen, the normal wergeld was
100 head of cattle. Obviously, wergelds would no longer be paid, as of
old, either in gold or in cattle, when they could be paid at a third of
the value in silver.
[Sidenote: In which currency are the wergelds of the Frisians and Saxons
recorded in the laws?]
In framing new laws representing the old customs of the newly conquered
Frisians and Saxons, the question would certainly arise whether the
wergelds were to be stated in the equivalent of their old customary value
in cattle, or reduced to one third of their old value by retaining the
traditional number of solidi as if they were still of the gold value.
We have seen that Frisians and Saxons were exceptionally dealt with; but
they had now become a part of the Empire, and, with the best intentions,
how was the framer of their laws to describe their ancient wergelds which
had hitherto been paid in gold solidi or in cattle? No one of the courses
open to him would be without its difficulties.
He might record the customary wergeld as still to be paid in gold solidi;
in which case the wergeld would be three times that of neighbouring
tribes who could now pay their wergelds in silver.
Or he might divide the amount of the ancient wergeld by three, so as to
reduce it to the lower level; in which case the number of animals in
which by long custom the wergeld had been paid would be worth three times
the wergeld payable in gold.
These would be the alternatives if the payment in gold were continued,
and never as yet in any of the laws had the wergelds been stated
otherwise than in gold.
There was only one other way open to the legislator, if he wished to keep
up the old customary values, viz. to translate the gold values at the old
ratio into the new silver solidi: that is, to treble the gold figures of
the ancient customary wergelds and make them payable in silver solidi.
This would probably be the best course if he wished to continue the old
relation of the wergelds to the animals in which they had hitherto been
mostly paid. But then it might be difficult to enforce the payment of
wergelds in silver in districts where the currency was still gold.
The legislator would, in any case, have to make up his mind whether to
lower the ancient wergelds of the newly conquered tribes to a third of
what they had been, or to keep up the value of the wergelds and the
number of cattle in which they had from time immemorial been paid.
The wergeld in the popular tribal mind was a thing so fixed and so sacred
that the makers of the Lex Frisionum and the Lex Saxonum were almost
certain to find themselves between the horns of a dilemma.
II. THE LEX FRISIONUM.
The tribes conquered by Charlemagne, whose laws we have now to examine,
differed from those whose laws and wergelds have been already considered
in one important particular. They were not conquering tribes which had
migrated into districts already under Roman law.
The conquests of Charlemagne over the Frisians and Saxons were conquests
of German tribes settled as of old in their own countries. They were,
moreover, conquests of still pagan tribes by Christian and partly
Romanised Franks.
Frankish conquest had extended far into Frisian and Westphalian territory
under the Merovingian kings. In Frisia Frankish influence was shown by
the existence of Merovingian mints at Duurstede.[148] In Westphalia, at
Soest and Paderborn, there were already Christian churches under the
jurisdiction of the Archbishop of Cologne. But neither the conquest nor
the conversion was completed till the time of Charlemagne.
[Sidenote: Was the wergeld 160 solidi?]
We have already learned from Titles XXXI. and XXXVI. of the Ripuarian law
that there were Frisians as well as Saxons, Burgundians, Alamanni, and
Bavarians resident in the Ripuarian district. Moreover, it was directly
stated that these immigrants were to be judged, not by Ripuarian law, but
by their own law and custom. Further, being often isolated and without
kindred near them to swear for them, if charged with crime they were to
clear themselves by the ordeal of fire or lot. And finally their wergeld
was stated to be 160 solidi, the inference being that this was the
wergeld of the Frisian freeman in his own country, by the law and custom
of which he was to be judged.
So that we approach the text of the Frisian law with this valuable
earlier knowledge in our possession. Two centuries before the date to
which the collection of Frisian laws is assigned, the Ripuarian law
bears witness that the Frisian wergeld was 160 solidi. Even if these
clauses were not a part of the original text and did not date back to the
sixth century,[149] the inference would be strong, and perhaps all the
stronger, that such must have been the wergeld at the later date of the
Frisian law. This earlier evidence is important, as, without the clue it
gives us and with nothing but the Frisian law to guide us, we might very
easily have been led to a wrong conclusion.
[Sidenote: The laws are of different dates.]
There seems to be no text of the Frisian laws earlier than that published
by Herold at Basle in 1557, and he does not state from whence he obtained
the text followed by him.[150]
Moreover, it is clear from internal evidence that the laws as we have
them are by no means of one single date. They form, in fact, a collection
of the customs of the three districts into which Frisia was divided, with
modifications and various additions made to the original collection at
different times.
At first sight there are inconsistencies in the statements of the
wergelds, and, as in other cases, the key to an understanding of them
is to be found, to some extent, in close attention to the currencies in
which the amounts of the compositions are stated.
It is not necessary to enter into any discussion of the various theories
suggested to meet the difficulties caused by the confusion of the
various currencies. The knowledge already obtained in the course of
this inquiry will, I think, if adhered to, suffice to clear the way
sufficiently for our purpose. Bearing in mind that the ‘Lex Frisionum’ as
we have it is a compilation with various additions, the inconsistencies
in the text will be no surprise provided that the reason for their
occurrence is apparent.
* * * * *
[Sidenote: The three districts of Frisia and their local solidi.]
Frisia was divided into three divisions, and in certain glosses which
appear late in the laws[151] we are told that each division had a
separate solidus of its own.
(1) Between the _Laubach_ and _Weser_ (the Northern division) the
solidus is described as of two denarii, _i.e._ tremisses, of the nova
moneta.[152] This solidus, we shall find, was like that of the Saxon
tribes on the Eastern side of the Weser. The solidus, being of two
tremisses, contained sixty-four wheat-grains of gold.
(2) In the middle division, between the _Laubach_ and _Fli_, the solidus
is said to have been of three denarii, or tremisses, of the nova
moneta,[153] _i.e._ ninety-six wheat-grains of gold. This solidus is the
gold solidus of three tremisses after it had been raised by Charlemagne
to the standard of the Eastern Empire.
(3) In the Southern or Western divisions, between the _Fli_ and the
_Sincfal_, the solidus was 2½ denarii or tremisses _ad novam monetam_,
_i.e._ eighty wheat-grains of gold.[154]
But it seems to be clear that the statements of the wergelds and other
fines in earlier clauses of the laws are not made in these local solidi.
Thus in Title XVI. we are told that _Inter Laubachi et Sincfalam_, _i.e._
in both Middle and Southern divisions, in cases of homicide the payment
to the lord for breach of his peace (_de freda_) was thirty solidi,
‘_which solidus consists of three denarii_,’ although the local solidus
of the Southern division was that of 2½ tremisses. Sometimes the fines
are stated in solidi of three tremisses and sometimes in solidi of 20 to
the pound. There is no difficulty, after what we have seen in other laws,
in recognising in the solidus of three tremisses the _gold solidus_, and
in the solidus of 20 to the pound the _silver solidus_ of the Frankish
Empire.
Again, we at once recognise in the term _nova moneta_ the new standard of
Charlemagne, and in the term _veteres denarii_, which also occurs in the
laws, the gold or silver tremisses of the Merovingian currency before the
monetary reform of Charlemagne.
All this is exactly what might be expected in laws of somewhat different
dates, some of them perhaps going back to the time of the Merovingian
conquests, and others following upon the conquests of Charlemagne.
[Sidenote: Wergelds in gold solidi under Tit. I.]
Having thus so far cleared the way, we pass on to the amounts of the
wergelds as stated in the Lex.
Title I. is headed _Incipit lex Frisionum, et hæc est simpla compositio
de homicidiis_. And the wergelds of the three districts as stated in the
text and glosses may be tabulated as follows:--
(1) _Between the Laubach and the Weser._[155]
Nobilis 106 solidi and 2 denarii (or tremisses)
Liber 53 ” ” 1 denarius
Litus 26½ ” ” ½ tremissis
(2) _Between the Laubach and the Fli._[156]
Nobilis 80 solidi Payable ⅔ to the heir of the slain and ⅓
to his ‘propinqui proximi.’
Liber 53 ” and 1 denarius (_i.e._ tremissis).
Litus 27 ” less 1 denarius (payable to his lord).
” 9 ” less ⅓ denarius payable to the propinqui of
the slain.
(3) _Between the Fli and the Sincfal._[157]
Nobilis 100 solidi }
Liber 50 ” } of three denarii [_i.e._ tremisses]
Litus 25 ” } _novæ monetæ_
These wergelds, with one exception, are alike throughout, so far as
regards the proportions between the three classes. The wergeld of the
liber is double that of the litus, and that of the nobilis double that
of the liber except in the Middle district, in which the wergeld of the
nobilis is only 1½ times that of the liber. In the same district there
is an additional payment to the _propinqui_ of the litus, his proper
wergeld, half of that of the liber, going to his lord.
It will be observed that in the last district only are the denarii
(_i.e._ tremisses) stated to be _novæ monetæ_. The inference is that in
the other two districts the tremisses, and therefore the solidi, were of
the lower Merovingian standard.
The district in which the tremisses were novæ monetæ was the Southern
district, first conquered and most thoroughly brought under Frankish
influence. The other two districts had apparently not yet so completely
come under it.
Accordingly, if we take the 106⅔ solidi of the nobilis of the Northern
district to be of Merovingian standard, the result is (106½ × 86·4
wheat-grains) 9216 wheat-grains, or exactly 16 Roman ounces, _i.e._ the
mina called, as we have seen, the Attic mina, which in Scandinavian usage
was divided into two gold marks.
The wergeld of the nobilis in the Middle district between the Laubach and
the Fli is stated to be 80 solidi instead of 106 solidi and two denarii.
But as the wergeld of the liber and litus are the same as those of the
Northern district, and therefore also presumably expressed in Merovingian
currency, the wergeld of 80 solidi of the nobilis, to be consistent,
should also be of the same Merovingian standard. And so it seems to have
been, for 80 Merovingian solidi (80 × 86·4 wheat-grains) make exactly
the Roman pound of 6912 wheat-grains or 12 Roman ounces, _i.e._ 1½ gold
marks.
In the wergelds of both Northern districts, therefore, an original
reckoning in gold marks of the Scandinavian system seems to have been
afterwards translated with exactness into an uneven amount and fractions
of solidi of the Merovingian standard.
[Sidenote: Wergelds in gold marks of the Baltic tribes.]
We may therefore state the wergelds of the two districts north of the
Zuider Zee in marks of the Scandinavian system thus:
Nobilis 2 or 1½ gold marks.
Liber 1 ” mark.
Litus ½ ” mark.
That these wergelds could be stated thus evenly in gold marks of the
Scandinavian system, whilst in Frankish solidi they could be stated only
in uneven numbers and fractions, is an interesting fact. It seems to show
that the original wergelds went back to a time when the trade intercourse
of Northern Frisia was connected mainly with Scandinavia, the Baltic, and
the Eastern trade route. In ‘Beowulf’ we found that Frisia was on the
horizon of the area included within the vision of the poet, the interest
of whose story lay chiefly in the Baltic.
[Sidenote: Only one third of 160 solidi.]
Now let us compare the wergeld of the liber in these districts, viz. 53
solidi and 1 tremissis of Merovingian currency, with what the statement
in the Ripuarian law would lead us to expect it to have been, viz. 160 of
the same solidi. It is exactly one third of what it ought to be. And the
inference from what we have learned in the last section would be that the
maker of the laws had divided the wergeld of ancient custom by three.
But for the moment we pass on to follow further the text of the Frisian
laws.
[Sidenote: Slave to be paid for at his value.]
In s. 11 of Tit. I. it is enacted that if any one, whether nobilis, liber
or litus, or servus, shall slay the servus of another, he shall compound
for the servus according to his value. And in s. 13 of the same title it
is stated that if a slave shall kill either a nobilis or liber or litus,
unknown to his lord, the lord of the slave shall swear that he did not
order it and pay twice the value of the slave. But if the lord cannot
deny that he ordered it he must pay for the homicide as if he had done it
with his own hand.
In Title IV. it is again enacted that if any one shall kill the slave of
another he shall be compounded for at the value put upon him by his lord.
And the same rule is made to apply to the case of a horse, ox, sheep,
goat, pig, and all domestic animals, except the dog: they are all to be
paid for at the owner’s estimate of value, or the alleged slayer must
clear himself with as many oaths as the judge may require.
[Sidenote: Value of the dog.]
The _dog_ is the only animal whose value is fixed by the law. And its
value at first sight was not the same in the several divisions.
_Between Laubach _Between Laubach
and Sincfal._ and Weser._
Dog for hawking 4 sol. 8 solidi and 12
Wolfhound accustomed to kill wolves 3 sol.
Wolfhound which wounds but does not kill 2 sol. 8 ”
Shepherd dog 1 sol. 4 ”
The difference between the value of the dog in the Northern and the other
divisions can hardly be other than one of different currencies. Probably
the values for the Northern division may be silver values. It may,
however, be remarked in passing that the value of a dog in any case is
not lightly to be regarded as excessive. Its high value in the Frisian
laws, and also in other laws, shows how dependent the tribes surrounded
by forests were upon its help. In the Cymric Codes, as we have seen,
the herdsman’s dog was worth as much as an ox. In the Alamannic Laws
the shepherd dog which could kill a wolf was valued at 3 gold solidi,
or half as much again as the ‘best ox,’[158] and in the Lex Salica the
_canis pastoricalis_[159] was valued at 3 solidi. It is not difficult,
therefore, to understand how in Frisia the dog which could kill a wolf
should be worth 3 gold solidi, and the ordinary shepherd dog a gold
solidus.
We now come to a set of clauses in which the differences between the
three districts again appear, and in one of which, viz. again the
district between the Laubach and the Weser, we meet with values stated in
_silver solidi_ of 20 to the pound, _i.e._ of twelve pence.
[Sidenote: Methods of compurgation and ordeal.]
These clauses are interesting as illustrating Frisian methods of
compurgation, the ordeal of the lot and of hot water, and trial by
battle, all of which evidently belong to ancient tribal custom.
Title XIV. relates to the slaying of a man in a crowd, and describes the
means taken to ascertain whose deed it was. Each division had its own
custom. That of the _Middle district_ is first described:--
The relative of the slain may summon seven men and charge each
of them with the crime, and each is then put upon his oath with
eleven co-swearers. Then they are to go to the church, and lots
are to be cast upon the altar, or if the church be too far off
the lots are to be cast upon relics.
The lots are to be two pieces (tali) cut from a rod and called
_teni_, on one only of which is the sign of the cross, the other
being left blank. A clean cloth is to be spread over the altar
or the relics, and then the priest (or if none, an innocent boy)
ought to take one of the lots from the altar and pray God to show
by some evident sign whether those seven who have sworn have
sworn truly. If he takes up the lot marked with the cross, then
those who have sworn were innocent. But if he takes up the other,
then each one of the seven makes his own lot, from a rod, and
marks his own sign on it, and so that both he and those standing
by can recognise it. And the lots shall be wrapped up in clean
cloth and laid upon the altar or relics, and the priest, if he be
there, and if not the innocent boy, as above, shall take up each
of them one by one from the altar, and shall ask him who knows
it to be his own lot. And he whose lot happens to be last shall
be compelled to pay the composition for the homicide. The rest,
whose lots have already been taken up, are absolved.
But if, in the first trial of the two lots, he takes up the one
marked with the cross, the seven shall be innocent, as aforesaid,
and he (the accuser), if he wishes, shall summon others for the
same homicide, and whoever may be summoned ought to clear himself
by complete oath with 11 co-swearers. And this shall be enough
for the accuser, nor can he bring any one further to the lot.
This law prevailed between the Laubach and the Fli. But between the Fli
and the Sincfal for a case of this kind the following was the custom:--
He who seeks composition for a homicide shall swear on saints’
relics that he will not summon in this matter other than those
who are suspected by him of the actual homicide: and then he
shall summon for the homicide one or two, or even three or four,
or however many there be who have wounded him who was slain. But
though there were twenty, or even thirty, yet not more than seven
are to be summoned, and each of those summoned shall swear with
eleven others, and shall, after the oath has been tested by the
judgment of God, show himself innocent by the (ordeal of) boiling
water. He who swears first shall go to the ordeal first, and the
rest in order. He who shall be found guilty in the ordeal shall
pay the composition for the homicide, and to the king twice his
own wergeld: the rest of his co-swearers shall be treated as
above concerning perjurers.
Between the Laubach and the Weser the following was the custom:--
He who seeks composition for homicide shall summon one man,
declaring him to be the homicide of his kinsman, and saying
that he ought to pay the ‘leud’ of the slain man. And if he, in
reply, says that he is willing to purge himself on oath with his
co-swearers, let him who has summoned him as homicide say that
he wishes to summon him _in placito publico_, and let him so do.
Let him summon him _in placito_ before judges, and let him who
is summoned, if he cannot deny, show another defendant for the
homicide of which he is accused. And this ought to be done thus:
Let him produce the man he wishes, and let him swear “he is
guilty of the homicide for which I am summoned,” holding him by
the hem of his cloak. But if he wishes to deny this oath let him
swear and go forth to wager of battle against him. And whichever
of them in that battle is conquered (_et sibi concrediderit_)
shall pay the ‘leud’ of the slain. But if he be slain his next
heir shall pay the composition of the homicide. But in this
battle it is lawful for either to pay a champion for himself if
he can find one. If the hired champion is slain, let him who
hired him pay sixty _solidi_ (_i.e._ _three libræ_) to the king,
and over and above pay the ‘leud’ of the slain man.
[Sidenote: Wergelds stated in silver.]
The payment of _sixty solidi_--_i.e._ _three libræ_--clearly indicates
that the solidus of this clause was the Frankish silver solidus of
12_d._, of which 20 made the pound of silver. And this helps us to
understand that the compositions described in the immediately succeeding
and closely connected clause are also silver values. (Tit. XV.)
This is the custom in the same region observed for the
composition of wergeld:--
(1) Composition of a _nobilis homo_ }
‘per denarios veteres’ } 11 lbs.
(2) Composition of the _liber_ ‘per }
denarios veteres’ } 5½ lbs.
(3) Composition of a _litus_, of which }
two thirds pertains to the } 2 lbs. 9 oz.
lord, one third to his kinsman }
(4) Composition of a _servus_ 1 lb. 4½ oz.
There can, I think, be no doubt that the libræ of this clause are silver
pounds, and further, that as they are stated to be pounds ‘per denarios
veteres’ they must be pounds of Merovingian and not of Carlovingian
weight.
[Sidenote: These silver values equal to the gold ones at the Norse ratio
1:8.]
The pounds of this statement are therefore Roman pounds, of 240
Merovingian pence. Let us compare then the wergeld of the liber of 5½
such pounds of silver with the wergeld of the liber as stated in Tit.
I., which we saw was equivalent to one mark of gold. Following the
Scandinavian ratio of 1:8, the mark of 8 ounces of gold would equal 64
ounces of silver--_i.e._ 5⅛ pounds instead of 5½. The silver wergeld of
the nobilis would equal 10⅔ pounds instead of 11. The reckoning is rough,
but near enough to justify the conclusion that what was aimed at was the
nearest even pound of silver, and that therefore the wergeld of the one
statement is the equivalent of the wergeld of the other statement.
At the same time the fact of the reckoning being throughout in Roman,
_i.e._ Merovingian pounds, and not in those of Charlemagne’s _nova
moneta_, is instructive. It shows that this clause belongs to the period
during which the silver currency was pushing its way into Frisia. A
reckoning in silver had become necessary, although, as we happen to know,
the Frisians had a special liking for gold. They continued to coin gold
much longer than the Franks, and some years later than the date of the
laws. The Frisians were in close contact with the mint at Duurstede,
which was in fact the commercial metropolis of the North at the date of
the laws. The mint at Duurstede continued to coin gold coins till the
city was destroyed by the ravages of the Northmen in A.D. 837, and it was
from these Duurstede Frisian coins that the types were taken of the first
Scandinavian coinage.[160] In the meantime the close connection between
Frisia and the Scandinavian district is quite sufficient to account for
the Scandinavian ratio of 1:8 being the one used in the translation
of the gold wergeld of the district next to the Weser into a silver
equivalent.
[Sidenote: The wergelds in the local gold solidi.]
Let us now at last translate the wergelds of the three Frisian districts,
as stated in Tit. I. in gold solidi of three tremisses, back again into
what they must have been when reckoned in the local solidi. If originally
they were reckoned in these local solidi the result should be in even
numbers.
_Between the Laubach and the Weser._
Nobilis (9216 w.g.) = 144 solidi of 2 tremisses or 2 gold marks.
Liber (4608 w.g.) = 72 ” or 1 gold mark.
Litus (2304 w.g.) = 36 ” or ½ a gold mark.
_Between the Laubach and the Fli._
Nobilis (6912 w.g.) = 72 solidi of 3 tremisses or 1½ gold mark.
Liber (4608 w.g.) = 48 ” or 1 gold mark.
Litus (2304 w.g.) = 24 ” or ½ a gold mark.
_Between the Fli and the Sincfal._
Nobilis (9600 w.g.) = 120 solidi of 2½ tremisses.
Liber (4800 w.g.) = 60 ” ”
Litus (2400 w.g.) = 30 ” ”
It is interesting to observe that the wergelds of the two districts
north of the Zuider Zee, when translated back again into local solidi,
turn out to have been in even numbers of such solidi, as well as in even
gold marks of the Scandinavian district, whilst those of the Southern
district, most under Frankish influence, make even numbers of the local
solidus but not of the mark.
When these Frisian wergelds in local solidi are regarded in connection
with the fact that the wergelds on the east or Saxon side of the Weser
were, as we shall find, also paid in a local solidus, and that this Saxon
local solidus, like the solidi of the North Frisian district, was of two
tremisses, and further that it represented the value of the one-year-old
bullock, we are led to conjecture that the Frisian local solidi also
may have represented the animal in which the wergelds were originally
reckoned and paid. And this may perhaps be confirmed by the fact that,
down to comparatively modern times, the East Frisian silver currency
consisted chiefly of the _gulden_ and its one-tenth the _schaap_.
Possibly the _gulden_ of this silver currency may point back to a time
when the ‘gold piece’ was reckoned of the value of ten sheep.[161] But
this is conjecture only. The dog, as we have seen, was the only animal
whose value was fixed in the laws.
[Sidenote: Why only one third of 160 solidi?]
The fact that the gold and the silver values of the wergelds of titles I.
and XV. of the lex seem to correspond leads up once more to the difficult
question why the wergeld of the liber should be exactly one third of what
the Ripuarian law apparently declared it to have been.
Richthofen, in his preface and notes to the Frisian laws in the edition
of Pertz, points out that in later additions to the laws there is a
curious duplication and triplication of figures which has to be accounted
for. The facts seem to be these:--
In Tit. XXII. _De Dolg_, relating to the Middle district and forming part
of the more ancient law, the fines for wounding are first given for the
_liber_, and then an explanation is made in the Epilogue that those for
the _nobilis_ were one third higher and those for the _litus_ one half
less. The composition for the eye is stated to be half the wergeld.
[Sidenote: Fines and perhaps wergelds trebled afterwards.]
Then, under the heading _Additio Sapientium_, Tit. II., the amount for
the hand is stated to be ‘25 solidi et 5 denarii.’ And after the mention
of the amounts for the several fingers are the words, ‘_Hoc totum in
triplo componantur_.’ The payments for hand and eye are generally alike,
and three times 25 solidi and 5 denarii = 80 solidi, _i.e._ half a
wergeld of 160 solidi.
Immediately following these words Tit. III. begins with the statement
that the foot entirely cut off is to be compounded for as the hand,
_i.e._ by 53 solidi and 1 tremissis, being double the previous amount.
The payment for the eye put out is ‘ter quadraginta solidi,’ _i.e._
120 solidi. Then whilst in the title _De Dolg_ the ear is valued at 12
solidi, in Tit. III. of the Additio it is valued at ‘_ter_ duodecim
solidi.’ Again, according to the title _De Dolg_, if both testicles were
destroyed, the whole wergeld was to be paid: and in Title III. of the
Additio the fine has become _ter_ 53 solidi and 1 tremissis, three times
the wergeld of the liber in Tit. I.
It is not needful to pursue the comparison further than to point out that
Richthofen had some reason at any rate to form the opinion that in the
additions to the law made, as he thinks, after A.D. 785 and probably
about A.D. 802, the _wergelds_ were trebled, as well as some of the
payments for wounds; and that the inference from the Ripuarian laws that
the Frisian wergeld was 160 solidi was therefore correct.[162]
So far Richthofen’s contention is, I think, a correct one.
But what was the reason of this trebling of the wergeld in the additions
to the laws?
[Sidenote: The wergeld of ‘liber’ was probably 160 solidi.]
Was it that the ancient wergelds were originally one third of those of
neighbouring tribes and trebled at some auspicious moment to make them
correspond with others; or have we not rather to do with the results of
that confusion in the currency which was caused by the endeavour to force
into use the silver solidus of 12 pence as the equivalent of the gold
solidus?
This conjecture standing by itself on the evidence of these laws alone
would be too hazardous to build upon, and it is not necessary to consider
it further in this place. The matter of chief importance is that, all
things considered, there seems to be fairly sufficient evidence that the
wergelds of Tit. I. represent the ancient wergelds divided by three, and
that accordingly we may take the wergeld of the liber in the two Northern
districts of Frisia to have been three gold marks or 160 Merovingian
gold solidi,[163] as stated in the Ripuarian laws.
[Sidenote: Division of wergeld among grades of kindred.]
With regard to the distribution or division of the wergeld amongst the
relations of the person slain, the laws mention only the custom of the
Middle districts, according to which two thirds of the wergeld went to
the heir of the slain and one third ‘ad propinquos proximos.’ They give
no information as to how the ‘propinqui proximi’ divided their third
amongst themselves, or to what grade of kinship this class of relations
extended.
Happily, however, Dr. Brunner, in his informing essay on ‘Sippe und
Wergeld’ already quoted, has been able to supplement the meagre
information given by the laws as to wergelds with further details gained
from later local sources.
In his section (p. 25) on ‘Die Friesen zwischen Zuidersee und Weser,’ he
gives an illustration of the way in which under later custom the payment
of the wergeld was divided amongst the relations of the slain. He states
that the North Frisian _tale_, _i.e._ the third share which the kindred
had to pay, was known as the _mentele_ or _meitele_ (magzahl).
[Sidenote: Later example.]
In a legal document of ‘Westerlauwersches Friesland’ the _mentele_ of
the kindred is described as 4 lbs. 5 oz. 6⅔_d._, and the _erbsühne_, or
two thirds to be paid by the heirs, as 8 lbs. 10 oz. 13⅓ pfennig. The
pound, we are told, is 12 oz. of 20_d._, so that here we have clearly
Frankish currency and _silver_. The third and the two thirds together
make a whole wergeld of 13 lbs. 4 oz. of silver. Now in the first place
if, as we probably should do, we were to consider this wergeld to be
stated in pounds and ounces of Charlemagne’s nova moneta, it would be not
very far from treble the amount of the wergeld of the liber in Titles I.
and XV. of the laws. And this, so far as it goes, confirms the Ripuarian
statement that the ancient Frisian wergeld was one of 160 solidi.[164]
Let us now see how the third falling on the kindred was divided.
The one third of the _mentele_ of the kindred (moeg) was divided thus:--
lbs. oz. p.
(1) The _brother_, or if none, the _brother’s son_, or if
none, the sister’s son 0 12 0
(2) The _uncle_ on the father’s side (fedria) 0 9 0
The _uncle_ on the mother’s side (eem) 0 4 0
Or in default of these the _cousins_ of the slain,
or in default the cousins of the uncles.
(3) The _eftersusterbern_ or cousins descendants of
grandparents:
(_a_) On the side of the father’s grandfather 0 3 8
(_b_) On the side of the father’s grandmother 0 3 8
(_c_) On the side of the mother’s grandfather 0 2 5
(_d_) On the side of the mother’s grandmother 0 2 5
(4) The rest falls on the cousins--the eight stems which
descend from the great grandparents
The four stems from father’s side 0 7 12
” ” mother’s side 0 7 8
--------
4 3 6
This interesting illustration of the payment of a Frisian wergeld, though
of later date than the laws, confirms the statement in the laws that
in its division the immediate heirs of the slain took two thirds and
the _propinqui proximi_ one third. It shows that at a later date the
immediate ‘erbsühne’ was two-thirds, and the share of the kindred one
third. And it adds the important point that the kindred who paid, and by
inference shared in the receipt of the one third, were confined to the
descendants of the great-grandparents, both paternal and maternal, of the
slayer or of the slain.
III. THE LEX SAXONUM.
[Sidenote: Divisions of the Saxon tribes.]
In turning from the Frisian to the Saxon district, we have again to
notice that, as in the Frisian instance, so in the Saxon, the territory
over which the law had force was divided into several districts belonging
to allied but separate tribes with their own peculiar customs.
The Westfali and the Ostfali and the Angrarii were the chief tribes with
which the Lex Saxonum and the Capitularies had to deal. The ‘Saxones
Bortrenses’ and ‘Septentrionales’ are also mentioned in one of the
Capitularies, but these do not appear to be of much importance to our
inquiry.
The stubborn resistance of the Saxon tribes to the Frankish conquest, and
the sanguinary character of the Saxon wars of Charlemagne, may well have
made a cleaner sweep of local custom from these districts than had taken
place in others. And this may explain to some extent the disappointing
silence of the Lex Saxonum upon questions of custom which might otherwise
have been expected to afford useful and interesting points for comparison
with the Kentish and Anglo-Saxon Laws. Moreover, the wergelds as stated
in the text are, like those of the Frisian Laws at first sight so
misleading that only a very careful regard to the changes in Frankish
currency can make their amounts intelligible, and bring them into line
with those of neighbouring tribes.
[Sidenote: Statement of wergelds of _nobilis_ and _litus_.]
Happily, in approaching the wergelds of the Lex Saxonum, we can do so, as
in the case of the Frisian wergelds, with the statement of the Ripuarian
Law in mind, that the Saxon as well as the Frisian wergeld was 160
solidi. And it is well that we can do so, for otherwise we might very
easily lose our way.
The Lex Saxonum begins with a title ‘de vulneribus’ which describes the
payments to be made for the different wounds inflicted upon a _nobilis_.
Title II., ‘de homicidiis,’ next follows with a statement of the wergelds.
Qui nobilem occiderit, 1440 solidos conponat; ruoda dicitur apud
Saxones 120 solidi et in premium 120 solidi.…
Let him who shall kill a _nobilis_ make composition 1440 solidi;
the Saxons call ‘ruoda’ 120 solidi, and ‘in premium’ 120 solidi.…
Litus occisus 120 solidis componatur.…
The _litus_ killed is compounded for with 120 solidi.
Much controversy has arisen upon the two extra payments ‘ruoda’ and ‘in
premium;’ but whatever they may have been, they need not surprise us.
Though we may not be able to identify them with the ‘halsfang’ or the
‘wites’ and ‘bots’ of Anglo-Saxon laws, they were probably payments of
something of the same kind, additional to the wergeld.
It is more important to remark the absence altogether of any mention of
the ordinary ‘liber’ or ‘ingenuus’ between the nobilis and the litus,
especially as in the title on theft the three classes are all mentioned.
According to Clause 2 of the Tit. II. of the Lex, married women had the
same wergelds as men. Those unmarried were to be paid for with a double
wergeld. And by Clause 4 a servus slain by a nobilis was to be paid for
with 36 solidi.
By Clause 5:
Litus si per jussum vel consilium domini sui hominem occiderit,
ut puta nobilem, dominus compositionem persolvat vel faidam
portet. Si autem absque conscientia domini hoc fecerit,
dimittatur a domino, et vindicetur in illo et aliis septem
consanguineis ejus a propinquis occisi, et dominus liti se in hoc
conscium non esse cum undecim juret.
If a litus shall slay a man, _e.g._ a _nobilis_, by the order or
counsel of his lord, the lord shall pay the composition or bear
the feud. But if the litus shall do this without the knowledge
of the lord, he shall be dismissed by the lord and avengement
made on himself and seven others of his blood by the near kindred
of the slain, and the lord of the litus shall swear with eleven
[compurgators] that he had no knowledge of the deed.
[Sidenote: Value of the ox 2 solidi.]
Title IV. on Theft is interesting as, besides mentioning the _liber_, it
fixes the value of the four-year-old ox at the date of the clause at 2
solidi, _i.e._ the old ox-unit.
VI. He who by _night_ steals a four-year-old ox, which is worth 2
solidi, shall be punished by his head.
Theft of bees from within another’s fence or of things to the value of
two solidi by night from a house, or of things of any kind, day or night,
of the value of _three_ solidi, was to be capitally punished. Theft of
things of less value than three solidi was to be compounded for ninefold,
and _pro freda_ the nobilis was to pay 12, the liber 6, and the litus 4
(? 3) solidi.
In Clause 6 of Title II. is the following:--
Si mordum totum quis fecerit, componatur primo in simplo juxta
conditionem suam; cujus multæ pars tertia a proximis ejus qui
facinus perpetravit componenda est, duæ vero partes ab illo; et
insuper octies ab eo componatur, et ille ac filii ejus soli sint
faidosi.
If any one commit murder with aggravation of concealment he (the
murderer) makes composition first _in simplo_ according to his
condition, of which payment one-third part is to be paid by the
next of kin of him who has perpetrated the crime, and two-thirds
by himself; and besides eight times (the wergeld) is to be paid
by him, and he and his children alone shall be in feud.
[Sidenote: Murderer pays two thirds and his kindred one third of wergeld,
as in Frisian law.]
This clause is valuable as showing that, as in the customs of Frisia
and most other Low German tribes, the murderer paid two thirds and his
kinsmen one third of the wergeld in ordinary cases.
The murderer and his children alone had to pay the eight parts added for
the aggravation of the crime by concealment.
That the Lex Saxonum is in some things at least a record of local custom
is shown by the fact that, as in Frisia, varieties were recognised in the
several divisions of the country.
[Sidenote: Local customs as to dower of wife.]
The payment for taking a wife, in all the divisions, was 300 solidi (Tit.
VI.), to be paid to her parentes if with their consent. If with _her_
consent, but not with theirs, the payment was doubled. If she were seized
without the consent of either, she must be restored to her ‘parentes’
with 300 solidi to them and 240 to her. Tit. VIII., however, shows that
with regard to dower the customs of the several districts varied. Among
the Ostfali and the Angrarii, if a wife bore children, she, the mother,
retained the dower received on marriage for her life and left it to her
children. Should she survive her children _her_ next heirs received it.
If there were no children, the rule was _dos ad dantem_, _i.e._ it went
to the husband, or, if he were not alive, to _his_ heirs. Amongst the
Westfali, after a woman had borne children she kept the dower till her
death. After her death, _dos ad dantem_, it went to the husband or the
husband’s next heirs. Further, Tit. IX. states that as regards what had
been acquired by man and wife together, amongst the Westfali the wife
received half, but amongst the Ostfali and Angrarii nothing: she had to
be content with her dower.
The final clause of the laws, which describes the currency in which the
payments were made, is important. According to the best manuscripts it
was as follows:[165]--
[Sidenote: Wergelds to be paid in solidi of two tremisses, _i.e._, value
of the bullock.]
_Tit._ XVIII. _De Solidis._
(1) Solidus est duplex; unus habet duos tremisses, quod est bos
anniculus duodecim mensium: vel ovis cum agno.
(1) The solidus is of two kinds; one has two tremisses, which is
the one-year-old bullock, or a sheep with lamb.
(2) Alter solidus tres tremisses id est, bos 16 mensium.
(2) The other solidus, three tremisses: that is, the ox of
sixteen months.
(3) Majori solido aliæ compositiones, minori homicidia
componuntur.
(3) Other compositions are compounded for with the greater
solidus, homicide with the lesser one.
This was originally the final clause. But the following additions were
afterwards made. In the Corvey Code:--
Quadrinis bos duo solidi. Duo boves quibus arari potest 5 solidi.
Vacca cum vitulo solidi duo et semis. Vitulus anniculus sol. 1.
Ovis cum agno et anniculus agnus, si super adjunctus, sol. 1.
The four-year-old ox, two solidi. Two oxen by which one can
plough five solidi. Cow, with calf, two-and-a-half solidi.
Year-old calf, one solidus. Sheep with lamb, if a year-old lamb
be added, one solidus.
And in the Codex Lindenbrogius:[166]--
Westfalaiorum et Angrariorum et Ostfalaiorum solidus est secales
sceffila 30, ordei 40, avenæ 60; apud utrosque: duo sicle mellis
solidus; quadrimus bos duo solidi: duo boves quibus arari potest
quinque sol., bos bonus tres solidi; vacca cum vitulo solidi duo
et semis.
The solidus of the Westfali and Angrarii and Ostfali is 30
sceffila of rye, 40 of barley, 60 of oats; with both: two siclæ
of honey a solidus; four-year-old ox two solidi; two oxen, with
which one can plough, five solidi; good ox, three solidi; cow
with calf, two-and-a-half solidi.
According to the original final clause, if it had been followed in the
text of the Lex Saxonum the wergelds ought to have been stated in gold
solidi of two tremisses, representing the bullock, or a sheep with her
lamb. And the lesser penalties for wounds, &c., should have been stated
in solidi of three tremisses, representing the ox of 16 months. These
values in gold tremisses would then have been consistent with that of the
full-grown four-year-old ox as stated in Tit. VI. at two solidi--_i.e._
the normal value of the ox before the change in the currency.
But, as it is, the text is not consistent throughout. Returning to the
statement of the wergelds:
Nobilis 1440 solidi.
Litus 120 ”
we are struck at once with the excessive amount of that of the nobilis.
But if the solidi were of two tremisses, as they should have been, then,
translated into solidi of three tremisses, the amounts would stand thus:--
Nobilis 960 solidi, or 1440 bullocks.
Litus 80 ” or 120 ”
These amounts appear to be still far too large; whether regarded in
cattle or in gold.
[Sidenote: The statement of wergelds seems to be in silver solidi.]
It seems probable that, in spite of the last clause, the wergelds of the
Lex Saxonum, in the text as we have it, are described in Charlemagne’s
_silver solidi of_ 12_d._--the solidi which at the moment he was trying
at a ratio of 1:4 to substitute for gold.
Very nearly contemporary with the Lex Saxonum is Charlemagne’s
_Capitulare de partibus Saxonie_, A.D. 785.[167] In this document no
wergelds are mentioned, but other fines are described which may be
compared with them. And it will be noticed that three classes are
mentioned--nobilis, ingenuus, and litus.
In s. 19, for refusal to baptize an infant within a year of birth:--
Nobilis 120 solidi to the fisc.
Ingenuus 60 ” ”
Litus 30 ” ”
So again in s. 20 for illicit marriage, and in s. 21 for engaging in
pagan rites:--
Nobilis 60 solidi.
Ingenuus 30 ”
Litus 15 ”
These fines were evidently payable in the silver solidus, for in s. 27
the penalty for a man remaining at home contrary to the bann was to be
10 _solidi_ or _one ox_. Obviously this is the value of the ox in silver
solidi before they were made legal tender. Its gold value was only 2
solidi, as stated in Tit. VI. of the Lex. And, as we have seen, the value
of the ox in the silver solidus of twelve pence was maintained at an
average of about 8 solidi.
[Sidenote: Capitulare of A.D. 797.]
Twelve years later in date another Capitulare was issued, entitled
_Capitulare Saxonicum_ and dated A.D. 797.[168] It was the result of a
conference and contract between Franks and Saxons of the three tribes,
Westfali, Angrarii, and Ostfali. According to s. 3 the Saxons agreed that
whenever, under the laws, Franks had to pay 15 solidi, the Saxon nobilis
should pay 12 solidi, ingenui 5 solidi, and liti 4 solidi.
Then follows a clause which is interesting as showing that the payment of
wergelds still was a general practice. It enacted that when a homicide
had occurred and a case had been settled in a district by the neighbours,
the pacificators should, according to custom, receive 12 solidi for
their trouble (_pro districtione_), and in respect of the wergeld (_pro
wargida_) they should have sanction to do what according to their custom
they had been used to do. But if the cause had been settled in the
presence of a _royal Missus_, then it was conceded that on account of
that wergeld the neighbours should still have their 12 solidi; and that
the Missus of the King, for the trouble taken in the matter, should
receive another 12 solidi, _ad partem Regis_. In clause 7, homicide of a
_Missus regalis_, or theft from him, was to be paid for threefold.
Further, in Clause 9, the King, with the consent of Franks and Saxons,
was to have power at his pleasure, whether _propter pacem_, or _propter
faidam_, or for greater causes, to double the amount of the usual _bann_
of 60 solidi, making it 120 solidi, and to insure obedience to his
commands by any amount up to 100 or even 1000 solidi.
Lastly, in the final clause is the following:--
[Sidenote: Wergelds payable in cattle &c. or in the silver solidi of 12
pence.]
Moreover, it is to be noted what the solidi of the Saxons ought
to be, _i.e._:
The one-year-old bullock of either sex in autumn, as it is
sent into the stable, for 1 solidus. Likewise in spring, when
it leaves the stable, and afterwards as it grows in age, so
its price increases. _De annona bortrinis_ let them give for a
solidus 40 _scapili_, and of rye 20.
_Septentrionales_ for a solidus, of oats 30 scapili, of rye 15.
_Bortrensi_ 1½ sicla of honey for a solidus. _Septentrionales_ 2
sicla of honey for a solidus; also of clean barley they give the
same as of rye for a solidus.
In silver let them make twelve pence the solidus. (_In argento
duodecim denarios solidum faciant._) In other things at the price
of estimation.
So that in this Capitulare of A.D. 797, issued just before Charlemagne
became Emperor, there is the clear statement that the one-year-old
bullock is still to be reckoned as one solidus, and the further statement
that in silver 12 pence make the solidus. And this in a clause headed
with the words: ‘Moreover it is to be noted what the solidi of the Saxons
ought to be.’
The fact therefore seems to be that these Capitularies relating to the
Saxons, and the Lex Saxonum, following upon the Conquest of the Saxons,
date from the middle of the time when the change in the currency from
gold to silver was taking place, and the silver solidus of 12 pence,
first of Merovingian standard and ultimately of the _nova moneta_, was by
law made equivalent for payments to the gold solidus of the Lex Salica of
three gold tremisses or of 40 pence.
Now, having derived this information from the Capitularies, let us turn
back to the laws.
[Sidenote: Destruction of eye &c. paid for with a half wergeld.]
In Tit. I. _De vulneribus_, the penalty for destroying another’s eye
is 720 solidi, exactly half the number of solidi in the wergeld of the
nobilis, and for both eyes 1,440 solidi--_i.e._ exactly the amount of
the whole wergeld of the nobilis. These proportions are found in several
other laws, and were quite natural if the payments were made in both
cases in the _same_ solidi. But these wounds ought, according to the
final clause in the law, to have been paid for in the solidus of three
tremisses, while the wergelds should have been paid in solidi of two
tremisses.
Clearly they are _not_ stated in different solidi, for if for a moment we
take them to be so, then the two eyes of the nobilis would be paid for at
a higher value than his life.
[Sidenote: The solidi must be silver solidi.]
Further, if we look at these payments for wounds carefully, it becomes
clear that they cannot be _gold_ values. Three hundred and sixty gold
solidi for a thumb and 260 for the little finger of a nobilis are quite
impossible fines. The little finger of the Saxon nobilis cannot have been
valued at more than the ordinary freeman’s wergeld under the Salic and
Ripuarian Laws.
We conclude then that, in spite of the last clause in the law, these
values, both for wounds and homicide, are silver values, and that the
figures in the text have at some date or other been substituted for the
original ones to meet the change in the currency.
Let us try to realise what the effect upon the wergelds of the Lex
Saxonum would be of Charlemagne’s substitution of the silver solidus of
12_d._ for the gold solidus.
Up to this time the wergelds had been paid in bullocks valued in gold
at the solidus of two tremisses, and the equation was one no doubt of
ancient custom. Now the Capitularies made them payable in silver at
12_d._ to the solidus.
[Sidenote: Confusion in the currency.]
One result became at once apparent. In the Saxon district the value of
the ox went up, as we have seen, from two of the gold solidi to ten of
the new silver solidi--an excessive rise, no doubt, and one likely to
startle everybody. As regards most debts the change did not matter very
much. The debtor got the advantage. But as regards wergelds hitherto
payable in cattle and in gold it mattered very much indeed. It meant that
a wergeld of 100 head of cattle could be paid in silver at one third of
their value. And Charlemagne’s advisers soon found this out. What if a
Frisian or a Saxon killed a Frank? Was he to be allowed to escape with
a silver payment of one third the value of the cattle? Certainly not;
and so, as we have seen in the Capitularies of 781 and 801 enforcing the
receipt of the silver solidus of 12_d._ for all debts, an exception was
made of wergelds payable by Saxons and Frisians who killed a Salic Frank.
These were still to be paid for, as heretofore, in the solidus of 40_d._
of the Lex Salica--_i.e._ the gold solidus of three tremisses.
This, so far as the wergelds were concerned, set the matter right when a
Saxon killed a Frank; but it did not set it right in the ordinary case of
a Saxon slaying a Saxon.
[Sidenote: The wergelds must be divided by three to obtain value in gold
solidi.]
How could this be remedied but by altering the figures of the wergeld and
the compositions for wounds, and inserting silver values instead of the
gold ones? This seems to have been clumsily done, the other clauses in
the laws being apparently left unaltered or only partially altered. But
assuming that the wergelds as they appear in the present text of Tit.
II. are stated in silver solidi of twelve denarii, let us divide them by
three, so as to restore them to gold values in solidi of three tremisses.
The wergeld of the nobilis of 1440 solidi divided by three becomes 480
solidi of three tremisses. And if, following very common precedents, we
take this wergeld of the nobilis, whether from his noble birth or natural
official position, to be a triple wergeld, then the missing wergeld of
the _liber_ or _ingenuus_ would be 160 solidi, as the passage in the
Ripuarian laws so often quoted declared it to be.
[Sidenote: Wergeld of ‘liber’ then 160 solidi.]
The wergelds would then stand thus:--
Nobilis 480 solidi of three tremisses.
[Liber 160 ” ” ]
Litus 40 ” ”
or in the local solidi of two tremisses:--
Nobilis 720 solidi or bullocks.
[Liber 240 ” ” ]
Litus 60 ” ”
These then are the figures which, if we are right, were the original
figures of the Title _De homicidiis_.
IV. LEX ANGLIORUM ET WERINORUM, HOC EST THURINGORUM.
We may probably follow Richthofen[169] in his conclusions that the
Thuringians of these laws were the tribes settled with the Anglii
and Werini in North Thuringia, and that they were promulgated under
Charlemagne about A.D. 802.
[Sidenote: Wergelds of the Anglii and Werini.]
In the first title the wergelds for homicide are stated:--