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

succedat.

Then, if they shall not be [surviving], let the sister of the

mother succeed to the inheritance.

(4) Et inde de illis generationibus quicunque proximior fuerit,

ille in hereditatem succedat.

And further concerning these generations, whichever shall be the

nearer, let it succeed to the inheritance.

(5) De terra vero nulla in muliere hereditas non pertinebit, sed

ad virilem secum (leg. _sexum_) qui fratres fuerint tota terra

perteneunt.

But concerning _land_ no inheritance shall pertain to a woman,

but to the male sex who shall be brothers let the whole land

pertain.

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

(5) De terra vero Salica in mulierem nulla portio hæreditatis

transit, sed hoc virilis sexus acqviret: hoc est, filii in ipsa

hæreditate succedunt. Sed ubi inter _nepotes aut pronepotes_

post longum tempus de alode terræ contentio suscitatur, non per

stirpes sed per capita dividantur.

Concerning, however, _terra Salica_, let no portion of the

inheritance pass to a woman, but let the male sex acquire it:

_i.e._ sons succeed to that inheritance. But where after a long

time dispute may arise between _grandsons_ or _great-grandsons_

concerning the alod of land, let the division be not _per

stirpes_, but _per capita_.

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

&c.]

Now, in the first place, what is meant by the term _alod_? In the Lex

Salica it occurs again in Tit. XCIX. _De rebus in alode patris_, which

relates to a dispute about the right to a certain thing, as to which the

decision turns upon the proof that can be given by the defendant that he

acquired the thing _in alode patris_. He has to bring three witnesses to

prove ‘_quod in alode patris hoc invenisset_,’ and three more witnesses

to prove ‘_qualiter pater suus res ipsas invenisset_,’ and if after

failure of proof and the interdiction of the law the thing be found in

his possession he is to be fined XXXV. solidi.

From this clause the inference must apparently be that the ‘_alod_ of

the father’ was the whole bundle of rights and possessions, personal as

well as real, which passed to descendants by inheritance. Indeed, it

seems to be generally admitted that in the title ‘de alodis’ all the

clauses except the last apply to personal property, and only the last to

realty.[109]

[Sidenote: It was an ancestral family inheritance.]

There are titles ‘de alodibus’ both in the Ripuarian Law[110] and in

that of the ‘Anglii and Werini.’[111] In both laws the ‘alod’ includes

personalty, and the latter defines the personalty as ‘_pecunia_ et

_mancipia_,’ thus reminding us that the personalty of the alod mainly

consisted of cattle and slaves. In the title ‘de alodibus’ of the

Ripuarian Law, the hereditary or ancestral character of the alod is

emphasised by the application to it of the words ‘hereditas _aviatica_’

There may, however, be some doubt whether the term _hereditas aviatica_

included the whole alod or only the land of the alod.

Regarding, therefore, the ‘alod’ as in some sense a bundle of rights and

property, let us try to consider these clauses with a fresh mind in the

light of what we have learned of Cymric tribal custom.

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

favour.]

Under this custom, speaking broadly, as we have seen, daughters did not

share in the landed rights of the gwely. They received instead of landed

rights in the gwely their _gwaddol_ or portion, mostly, no doubt, in

cattle, and they were supposed with it to marry into another gwely, in

whose landed rights their sons were expected to share by paternity. If

women inherited landed rights at all, it was exceptionally in the case of

failure of male heirs, and then only so that their _sons_ might inherit.

The heiress in such a case, under Cymric as well as Greek tribal law, was

in quite an exceptional position, and, as we have seen in Beowulf, the

sister’s son might be called back into the mother’s family to prevent its

failure for want of heirs.[112] The exclusion of female successors from

terra Salica is therefore quite in accordance with tribal custom.

That the clauses as to personalty in the ‘de alodis ’ were modifications

of ancient Salic custom, made in favour of females, is rendered almost

certain by the position of the last clause as a saving clause, apparently

inserted with the object of protecting the rights of the sons in the land

of the alod, by preventing the application to it of the previous clauses.

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

Codex 1 does not describe the land as _terra Salica_. It is content to

protect _land_ without qualification from the application of the previous

clauses, which, if applied to land, would transgress against tribal

custom. And the same may be said of Codices 3 and 4. But in the Codices 5

to 10 and in the ‘Lex emendata’ the words ‘terra Salica’ are used.

This is a point of importance, because it goes far to show that the whole

of the land of the alod was terra Salica, and protected by the saving

clause from participation by females. The use of the word _land_ alone

in Codex 1 forbids our thinking that part of the land of the alod was

terra Salica and the rest not terra Salica.[113] And this consideration

seems to show that to import into the clause any explanation of the

term derived from the word _Sala_, so as to confine its meaning to the

‘_Haus und Hofland_’ or the ‘_Väterliches Wohnhaus_,’ as Amira[114] and

Lamprecht[115] would do, would be misleading. The homestead of the chief

of a tribal family holding, on terra Salica, may, like the Roman villa,

have passed by various and even natural stages into the ‘_Herrengut_,’

or ‘_terra indominicata_’ of later manorial phraseology, and the term

_terra Salica_ may have clung, as it were, to it. But to reason backwards

to the Lex Salica from the instances of its later use, given by Guérard

in his sections on the subject, seems in this case, if I may venture

to say so, to be a reversal of the right order of inference. Lamprecht

carefully guards himself against the view that the _terra Salica_ of the

Lex was as yet a ‘Herrengut,’ and Guérard, in his careful sections on the

subject, admits three stages in the evolution of the _terra Salica_: (1)

‘l’enceinte dépendant de la maison du Germain;’ (2) ‘la terre du manse

seigneurial;’ (3) ‘simplement la terre possédée en propre, quelquefois

donnée en tenure.’[116]

This may in some sense fairly represent the line of evolution

subsequently followed, and I have long ago recognised the embryo manor in

the ‘Germania’ of Tacitus; but, for our present purpose, this does not

seem to help to an understanding of the term as used in the Lex Salica.

When all the Codices are taken together into account, _terra Salica_

seems to include the whole of the land, or landed rights, of the alod.

From the whole, and not only the chief homestead, the succession of

females is excluded, and it is the whole, and not the chief homestead

only, which is to be divided between the nepotes and pronepotes of the

deceased tribesman.

Approaching the Lex Salica, as we are doing, from a tribal point of view,

we seem to get upon quite other and simpler ground.

[Sidenote: _Terra Salica_ was land held under the rules of the Lex

Salica and subject ultimately to division _per capita_ between

great-grandchildren.]

The emphasis laid in the Lex Salica upon the distinction in social

status between persons ‘living under the Lex Salica’ and those living

under Roman law suggests that _land_ held under the Lex Salica was not

held under the same rules as those under which the ‘Romanus possessor’

held his ‘res propria.’ It would seem natural, then, that _terra Salica_

should be land held under Salic custom as opposed to land held under

Roman law. And if this be the simple rendering of the term _terra Salica_

in the Lex, then returning to the likeness of the Salic ‘alod’ to the

Cymric family holding some likeness might be expected in the rules of

succession to the land of the alod when compared with the Cymric rules of

succession to the ‘tir gweliauc’ or family land of the gwely.

We have seen that in the gwely the descendants of a common

great-grandfather were kept together as a family group till, after

internal divisions between brothers and then between cousins, there was

at last equal division of landed rights between second cousins, _i.e._

great-grandsons of the original head of the gwely. The fact of this right

of redivision at last between great-grandchildren was apparently what

held the family group together till the third generation.

The last clause of the ‘de alodis,’ even as it stands in Codex 1,

coincides with Cymric custom in so far as it excludes females from landed

rights and confines inheritance in the land of the alod in the first

instance to _sons_ ‘… _qui fratres fuerint_.’

And when at last later Codices call the land of the alod _terra Salica_,

and the addition in Codex 10 is taken into account, the evidence becomes

very strong indeed that under Salic custom the land of the alod or

terra Salica was held as a family holding, and, like the land of the

gwely, divisible, first between sons, then between grandsons, and at last

between great-grandsons.

But when among grandsons or great-grandsons contention arises,

after long time, concerning the alod of land, they [the lands of

the alod] should be divided, not _per stirpes_, but _per capita_.

The later the date at which this sentence was added to the final clause

of the ‘de alodis,’ the stronger becomes the evidence of what ancient

Salic custom on this matter was.

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

Assuredly the object of these words is not to introduce a new principle.

They obviously describe ancient Salic custom in order to protect it.

And how could a division _per capita_ amongst great-grandsons take

place unless, as in the Cymric gwely, the holding of terra Salica had

during the whole period of the three generations been kept in some sense

together as a family holding?

It would be unwise to press analogies between Cymric and Salic tribal

custom too far, but I have before pointed out that a system of wergelds,

to which paternal and maternal relatives each individually contributed

their share, seems to imply an original solidarity of kindred, which

must, wherever it was fully in force, have been connected with a

corresponding solidarity in the occupation of land, together with its

complement, an individual ownership of cattle. And in the light of the

‘de alodis’ it does not seem unlikely that it may have been so under

ancient Salic custom.

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

If the foregoing considerations be accepted, may we not recognise in

the term _terra Salica_, as at first used, a meaning analogous to that

which Professor Vinogradoff has recently so brilliantly given to the

Anglo-Saxon term ‘folc-land’?[117] In both cases surely it was natural

that there should be a term distinguishing land still held under the

rules of ancient tribal custom from land held under the Romanised rules

of individual landownership.

It is not necessary to do more than allude here to the various clauses of

the Lex Salica from which the existence of individual holdings is clearly

to be inferred. If, from this single mention of _terra Salica_ and its

ultimate division among great-grandsons _per capita_, the continued

existence of tribal or family holdings held still under Salic law may be

legitimately inferred, it is at least equally clear that the _Romanus

possessor_ who lived and held his possession as _res propria_ under Roman

law also existed. And if so the two classes of holders of land must often

have been neighbours. The vicini, ‘qui in villa consistunt,’ of the title

‘de migrantibus’ (XLV.) may some of them have been of the one class and

some of them of the other. The objection of a single person living under

Salic law to the interloper would have a new meaning and become very

natural if the conflict between the two systems were involved. And when

we have reminded ourselves of these facts the title _De eum qui se de

parentilla tollere vult_, to which allusion has already been made, which

enabled the tribesman, by the somewhat theatrical action of breaking

the four sticks of alder over his head, to cut himself loose from his

parentilla, takes its proper place as evidence of the temptation which

must have beset the young tribesman in close contact with Gallo-Roman

neighbours to free himself from what had come to be regarded as a

bondage, and to take an independent position as an individual under the

new order of things which was fast undermining the old.

* * * * *

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

Besides the title ‘de alodis’ there is another source of information

which must not be overlooked--viz. the Edict of Chilperic (A.D.

561-584).[118]

This edict appears to have been issued soon after the extension of the

Frankish boundary from the Loire to the Garonne, and specially to apply

to the newly conquered district.

[Sidenote: Admission of female succession to prevent Salic land from

passing from the family group to strangers.]

This conquest would necessarily extend the area within which Salic

settlements would be made among non-Salic neighbours, and multiply the

cases in which even a Salic Frank might find himself less securely

surrounded by kinsmen than of old. Under these altered circumstances

instances would become more and more frequent of the close neighbourhood

of tribesmen still holding under Salic custom and strangers living under

Roman laws of succession. The clauses of the edict seem accordingly to be

directly intended to prevent lapsed interests of Salic tribesmen in land

from falling to the vicini when there were brothers or female relations

surviving. In old times in purely Salic settlements lapsed interests

must usually have become merged in the general rights of the kindred,

the vicini being kinsmen. And no harm might come of it. Landed rights

would seldom have passed away from the kindred. But as the stranger

element increased in prominence the kindreds would more and more suffer

loss. Hence probably the extended rights given by the edict to female

relatives. It allows them to succeed in certain cases so as to prevent

the land, or, as we should rather say, the landed rights, from lapsing to

the vicini.

Clause 3 is as follows:--

Simili modo placuit atque convenit, ut si quicumque vicinos

habens aut filios aut filias post obitum suum superstitutus

fuerit, quamdiu filii advixerint terra habeant, sicut et Lex

Salica habet.

Likewise we will and declare that if any one having _vicini_,

or sons or daughters, shall be succeeded to after his death, so

long as the sons live let them have the land as the Lex Salica

provides.

So far evidently no change is made; old custom still holds good. But in

the rest of the clauses a modification is made evidently to meet altered

circumstances, and specially to shut out the _vicini_.

Et si subito filii defuncti fuerint, filia simili modo accipiat

terras ipsas, sicut et filii si vivi fuissent aut habuissent.

Et si moritur, frater alter superstitutus fuerit, frater terras

accipiat, _non vicini_. Et subito frater moriens frater non

derelinquerit superstitem, tunc soror ad terra ipsa accedat

possidenda.…

And if suddenly the sons shall have died let the daughter receive

those lands as the sons would have done had they been alive.

And if he [a brother] should die and another brother should

survive, let the brother receive those lands, _not the vicini_.

And if suddenly the brother shall die not leaving a brother

surviving, then let a sister succeed to the possession of that

land.…

The remainder of the clause is very difficult to construe in the

imperfect state of the text, and it is not necessary to dwell upon it.

It seems to apply to newcomers (‘qui adveniunt’) and their rights _inter

se_.[119]

We have then in these clauses an allusion to ancient tribal custom as

well as to the change made necessary by the new circumstances.

[Sidenote: Analogy of Cymric custom.]

The implication is that under the rule of ancient custom, on a brother’s

death without children, _his brothers did not succeed to his land, but

the vicini_. Now the brother is to succeed, _not the vicini_.

At first sight this seems unnatural and unlikely. But it ceases to be

so if we may regard the alod of terra Salica as a family holding under

conditions somewhat like those of the gwely. For under Cymric custom

the brother did not succeed to the childless brother as his heir. The

co-inheritors, as far as second cousins, were his heirs. In other words

the lapsed share went to his _vicini_, but they were the kinsmen of his

own gwely.[120]

Nor did a brother succeed to his brother’s _da_, and the grazing rights

and homestead connected with it. He had received this _da_, as we have

seen, from his chief of kindred by ‘kin and descent,’ _i.e._ by tribal

right in his kindred, and therefore if he should die without children his

_da_ and everything he had by kin and descent went, not to his brothers,

but back to the kindred or the chief of kindred from whom he received it.

If the son die after 14 years of age and leave no heir, his

‘argluyd’ is to possess all his _da_ and to be in place of a son

to him and his house becomes a dead-house. (_Ven. Code_, i. p.

203.)[121]

The lapse of landed rights in family holdings to the kindred was one

thing. Their passing out of the kindred to vicini who were strangers

would be quite another thing.

When after a time, let us say under cover of the title ‘de migrantibus’

or upon extended conquests, others, perhaps ‘Romani possessores,’ had

taken places in the villa side by side with the tribesmen living under

the customary rules of _terra Salica_, or when Salic Franks had settled

among strangers, the new element would have to be reckoned with.

In the clause ‘de migrantibus’ the protection of ancient Salic custom was

sought by the exclusion of strangers at the instance of a single objector

from terra Salica. In the Edict of Chilperic, on the other hand, the

presence of stranger vicini was taken for granted, and the protection of

terra Salica sought by extending the right of succession to brothers and

females, so that at least fewer cases might arise of lapsed inheritances

falling away from the kindred into the hands of the _vicini_ who might be

strangers.

The breaking up of tribal custom thus was not all at once, but by steps.

At first _terra Salica_ was limited to men, then female succession was

allowed, and lastly, in default of kindred, stranger vicini under

certain conditions were admitted to the lapsed inheritance.

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

The customs of the Ripuarian Franks as to wergelds, as might be expected,

do not seem to have varied much from those of the Salic Franks. They were

probably neighbours in close contact with each other, and, judging from

the laws, the population of the district was a mixed one.

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

That of the official threefold.]

The wergeld of the Ripuarian ingenuus, like that of the Salic Frank

or barbarian living under the Lex Salica, was 200 gold solidi, and 12

co-swearers were required to deny the homicide (Tit. VII.).

Here again official position seems, as under the Salic law, to be

protected by a triple wergeld. The _grafio_ or _comes_, who was a fiscal

judge, had a wergeld of 600 solidi (Tit. LIII.). The payment for one _in

truste regis_ was also 600 solidi (Tit. XI.).

On the other hand, the wergeld of a ‘_homo regis_’ (Tit. IX.), like that

of the ‘_puer regis_’ of the Salic law, was only 100 solidi, and that

of the ‘man’ of the Church the same (Tit. X.), _i.e._ half that of the

Ripuarian ingenuus.

Consistently with this, the triple payment for killing a woman between

childbearing and 40, as also in the Salic Law, was 600 solidi, whilst the

wergeld of the ‘femina regia’ or ‘ecclesiastica’ was only 300 solidi.

There are apparently hardly any indications as to how or to whom the

wergelds were to be paid. There is only one reference to the _parentes_,

and that is not connected with the wergelds. In Tit. LXXXV. it is stated

that he who shall disinter a corpse and rob it shall pay 200 solidi and

be ‘expelled till he shall satisfy the _parentes_.’

The murderer alone seems to be responsible, unless indeed the few words

added to the clauses imposing the triple wergeld of 600 solidi upon the

murderer of a woman may be taken to be of general application. The words

are these:--

‘If the murderer shall be poor, so that he cannot pay at once,

then let him pay _per tres decessiones filiorum_.’

Has it really come to this, that since the Edict of Childeric II.

came into force the parentes are released, and the descendants of the

murderer, for three generations, are to be in slavery till the wergeld is

paid? It may be so, for the penalty in default of payment of the wergeld

probably included his own slavery, which involved with it that of his

descendants.

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

The ancient tribal tradition that within the family there could be no

feud or wergeld, but exile only, was still apparently in force. In Title

LXIX. there is a clause which enacts that if any one shall slay one next

in kin (‘proximus sanguinis’) he shall suffer exile and all his goods

shall go to the fisc. This exile of the slayer of a near kinsman and

forfeiture of his goods to the fisc seems to be almost the only distinct

important survival of tribal feeling, apparently neither wergeld nor the

death of the slayer being admitted. But in this case the fisc was, as

usual, the gainer. Parricide under any system of criminal law would be a

capital crime. The pertinacity with which the custom that, being a crime

_within_ the kindred, there could be no feud and therefore no wergeld,

was adhered to in the midst of manifold changes in circumstances,

feeling, and law, is very remarkable.

There is not much else in the Ripuarian laws throwing light upon tribal

customs as regards the solidarity of the kindred. But there is a good

deal of interesting information upon the important subject of the

treatment of strangers in blood.

[Sidenote: Distinction between persons living under Salic law and those

living under Roman law who were treated as strangers in blood.]

We have seen that in the Lex Salica the definition of the _ingenuus_

with a wergeld of 200 solidi was the _Francus_ or _barbarus_ living

under Salic law. The ‘barbarus’ who lived under Salic law was no longer

a stranger; he had in fact become a Frank. As we should say, he had

been _naturalised_. Hence there was no inconsistency in the apparent

occasional indiscriminate use of the words ‘Francus’ and ‘ingenuus.’ They

meant the same thing. But there is nothing to show that the ordinary

Gallo-Roman was included under the term ‘_barbarus_ who lived under Salic

law.’ On the other hand, we find him living under the Roman law.

In considering the method of dealing with people of so mixed a population

as that of the Ripuarian district it is very important to recognise how,

under tribal custom, every man continued to live under the law under

which he was born, until by some legal process his nationality, so to

speak, was admitted to be changed. The Cymric example has shown us how

strictly the tribal blood and admission from outside into the tribe were

guarded. In such a mixed population as that of the Ripuarian district,

the strictness may have been somewhat relaxed, and the formalities of

admission less difficult. But there is evidence enough, I think (with

great deference to M. Fustel de Coulanges’ doubts on the subject), to

show that to some extent at any rate social distinctions were still

founded upon ‘difference of blood.’ At all events it is worth while to

examine the additional evidence afforded by some clauses in the Ripuarian

laws.

[Sidenote: Strangers of allied tribes have wergelds according to the

law of their birth, but if they cannot find compurgators must go to the

ordeal.]

In Tit. XXXI. it is stated that Franks, Burgundians, Alamanni, and

others, of whatever nation, living in the Ripuarian country, are to be

judged and dealt with, if guilty, according to the law of the place of

their birth, and not by the Ripuarian law, and it is significantly added

that (living away from their kinsmen as they often must be) if they

cannot find compurgators they must clear themselves by the ordeal of

‘fire or lot.’[122]

Here we come upon one of the strongest tests of tribal custom in its

insistence upon the necessity of a man being surrounded by a kindred

before he can be a fully recognised tribesman. Unless he be surrounded by

kinsmen who can swear for him, under tribal custom, he must have recourse

to the ordeal in case of any criminal charge.

There is a clause, not inconsistent, I think, with Tit. XXXI., which

seems to draw a clear distinction in favour of tribes more or less

nearly allied in blood with Franks, viz. the Burgundians, Alamanni,

Bavarians, Saxons, and Frisians, resident in the Ripuarian district, as

contrasted with the _Romanus_, who surely must be the Gallo-Roman.

In Title XXXVI. the following wergelds are stated, the slayer being a

Ripuarian in all cases:--

A stranger Frank 200 solidi

” ” Burgundian 160 ”

” ” Romanus 100 ”

” ” Alamann }

” ” Frisian } 160 ”

” ” Bavarian }

” ” Saxon }

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

solidi.]

Thus the Roman stranger is placed in the lowest grade. His wergeld is

only 100 solidi--half that of the Ripuarian or Salic Frank--whilst those

tribes nearer in blood to the Frank are classed together with a wergeld

of 160 solidi, not much less than that of the Frank. Indeed, there is

reason to believe that these were the wergelds of the several tribes in

force in their own country according to their own laws.[123]

In this connection the view of M. Fustel de Coulanges, that the term

‘Romanus’ is confined to the libertus freed under Roman law, hardly

seems natural. The evidence seems to show that the man freed under the

formalities of Frankish law thenceforth lived under Salic law and became

a Frankish freeman with a freeman’s wergeld of 200 solidi, whilst the man

who became a freedman under process of Roman law thenceforth lived under

Roman law, and became a Roman freeman--a Romanus--with a wergeld of only

100 solidi. The inference that the difference in status was the result

of difference in blood is not altered by the fact that the social status

awarded to the Gallo-Roman was the same as that of the libertus in some

other laws.

The fact relied upon by M. Fustel de Coulanges, that under the laws

of the Burgundians and the Wisigoths the Gallo-Roman was placed in a

position of equality with the Teutonic conquerors, need not, I think,

affect the view to be taken of his position under the Salic and Ripuarian

laws. Tribal custom had to meet in Burgundy and the Wisigothic district

with Roman law and Roman institutions still comparatively in their full

strength. Marriages with the Gallo-Roman population were encouraged, and

the system of wergelds almost entirely superseded. The Frankish conquest

was of another kind, and the Frank was hardly likely to care to meet the

Gallo-Roman on equal terms.

[Sidenote: Position of the freedman or _denarialis_ under Frankish law.

His wergeld 200 solidi.]

Passing now from the position of the stranger who was recognised as a

freeman, let us try to get a clear idea of the position of the _freedman_

under the Ripuarian law, taking the cases of the Frankish freedman and

the Roman libertus separately.

In Tit. VIII. the payment for slaying a _servus_ is 36 solidi. In Tit.

LXII., if any one makes his servus into a _tributarius_ or a _litus_ and

he is killed, the penalty is the same--36 solidi, but if he chooses to

make him into a _denarialis_ (_i.e._ a freedman under Frankish law) then

his value shall be 200 solidi.

The tributarius or litus has gained but one step up the ladder of

Frankish freedom. But the denarialis, with nearly six times his wergeld,

has as regards his wergeld reached the highest rung at a single leap.

[Sidenote: But till he has a free kindred, if he has no children the fisc

is his heir.]

Though, however, as regards wergeld he has done so, in another sense he

has by no means done so. Under tribal custom he would not attain to full

tribal rights till a kindred had grown up around him. So under Tit. LVII.

the ‘homo denarialis,’ notwithstanding his wergeld of 200 solidi, is

recognised as having no kindred.

(s. 4) If a ‘homo denariatus’ shall die without children he

leaves no other heir than our fisc.

And in full accord with this statement is the following clause in the

‘Capitulare legi Ripuariæ additum’ of A.D. 803.

Homo denarialis non ante hæreditare in suam agnationem poterit

quam usque ad terciam generationem perveniat.

So that more of tribal custom still prevails in his case than at first

appears. Only in the third generation are full rights of inheritance

secured to his successors.

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

If now we turn to the _libertus_ under Roman law, Tit. LXI. states that

if any one shall make his servus into a libertus and Roman citizen, if he

shall commit a crime he shall be judged by Roman law, and if he be killed

the payment shall be 100 solidi: but ‘if he shall die without children he

shall have no heir but our fisc.’

Thus, as regards inheritance, the Frankish denarialis and the Roman

libertus seem to be treated alike, notwithstanding the difference of

wergeld.

Turning to another matter, the Ripuarian laws, being of later date than

the Lex Salica, made provision for the wergelds of the clergy.

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

Tit. XXXVI. provided that the clergy should be compounded for according

to their birth, whether of the class of servi, or men of the king or of

the Church, or liti, or ingenui. If _ingenui_, they were to be compounded

for with 200 solidi. Then the wergelds of the higher clergy are stated as

follows:--

Subdeacon 400 solidi

Deacon 500 ”

Priest 600 ”

Bishop 900 ”

And there is a long clause _De Tabulariis_ (Tit. LVIII.) providing that

servi may be made under process of Roman law _tabularii_ of the Church,

so that they and their descendants shall be and remain servants of the

Church, and render the proper services of tabularii to the Church,

without any one having power further to enfranchise them. In case of

their death without children the Church is to be their heir. These appear

to be the ‘men of the Church’ whose wergeld was 100 solidi.

[Sidenote: The clause ‘De alodibus.’]

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

Si quis absque liberis defunctus fuerit, si pater materque

superstites fuerint in hereditatem succedant.

If any one shall have died without children, if father and mother

survive they shall succeed to the _hereditas_.

Si pater materque non fuerint, frater et soror succedant.

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

succeed.

Si autem nec eos habuerit, tunc soror matris patrisque succedant.

Et deinceps usque ad quintam genuculum, qui proximus fuerit,

hereditatem succedat.

But if he has not these either, then the sister of the mother and

the sister of the father shall succeed. And further, up to the

fifth knee, whoever is nearest shall succeed to the inheritance.

Sed cum virilis sexus extiterit, femina in hereditatem aviaticam

non succedat.

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

the _hereditas aviatica_.

All that need be remarked regarding this title is, first its close

resemblance to the clause ‘de alodis’ in the Lex Salica and the

confirmation given by the phrase ‘hereditas aviatica’ to the family

character of the ‘alod,’ and secondly that it seems to belong to the time

when female succession was favoured.

Whether the ‘hereditas aviatica’ included the whole alod or only the land

of the alod, on failure of male heirs, females were now to succeed.

[Sidenote: The traditional value of animals in payment of wergelds. The

wergeld of 200 solidi = 100 oxen.]

There remains only to be noticed the interesting addition to Tit. XXXVI.

which enacts that if any one ought to pay wergeld he should reckon,

_inter alia_:--

The ox, horned, seeing, and sound, for 2 solidi

The cow, horned, seeing, and sound, for [3 or] 1 solidus

The horse, seeing and sound, for 6 solidi

The mare, seeing and sound, for 3 ”

And this is followed by a final clause which is found only in some of the

manuscripts and which is probably an addition made under Charlemagne:--

If payment shall be made in silver, let 12 denarii be paid for

the solidus, _sicut antiquitus est constitutum_.

Thus our consideration of these laws ends with the fact that, before

the disturbance in the currency made by Charlemagne, the wergeld of the

Frankish freeman of 200 gold solidi or heavy gold mina was still, in the

Ripuarian district at all events, a normal wergeld of 100 oxen.

V. THE ALAMANNIC AND BAVARIAN LAWS.

These laws have an interest of their own, but only those points come

directly within the range of this inquiry which are likely to throw light

upon the interpretation of the Anglo-Saxon laws.

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

[Sidenote: The wergelds of the early Alamannic ‘Pactus,’ and of the later

‘Lex Hlotharii.’]

According to the ‘Pactus,’ which is assigned to the sixth or seventh

century, and which is considered to represent customs of the Alamanni

before they were conquered by the Franks,[124] the wergelds were as

follows:--

Baro de mino flidis 170 solidi (? 160)

Medianus Alamannus 200 ”

Primus Alamannus 240 ”

And for women:--

Femina mino flidis 320 ”

Mediana 400 ”

Prima Alamanna 480 ”

These wergelds correspond very closely in some points with those of the

Burgundian laws and should be compared with them.[125]

The wergeld of women was double that of men of the same class. In the Lex

Salica and Lex Ripuariorum, women were paid for threefold.

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

If any freeman (‘liber’) kills a freeman, let him compound for

him twice 80 solidi to his sons. If he does not leave sons nor

has heirs let him pay 200 solidi.

Women of theirs, moreover, always in double.

The medius Alamannus, if he shall be killed, let 200 solidi be

paid to the parentes.

It is not clear that there has been any change in the wergelds since the

date of the ‘Pactus.’

[Sidenote: The wergeld of 160 solidi accords with the statement in the

Ripuarian law.]

The wergeld of the medius Alamannus, 200 solidi, is the same as before.

That of the liber, 160 solidi, seems to be the same as that of the baro

de mino flidis in the ‘Pactus.’ It is also the wergeld of the Alamannus

according to the clause mentioning strangers in the Ripuarian law. The

use of the term ‘medius Alamannus’ seems to imply that there should be

a primus Alamannus as in the ‘Pactus.’ But what these two classes of

Alamanni with higher wergelds than that of the liber were does not appear.

This later statement of the wergelds seems also to contain a provision

which can, I think, only be explained by tribal custom. It occurs again

in clause XLVI., which enacts that the same payment has to be paid to the

parentes of a person sold out of the country beyond recall as if he had

been killed. This rule is the same in the Salic and Ripuarian codes. But

in this law a distinction is made between the case of a slain man leaving

an heir, and the case of his leaving no heir.

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

If he cannot recall him let him pay for him with a wergeld to the

parentes. That is twice 80 solidi if he leave an heir. But if he

does not leave an heir let him compound with 200 solidi.

The explanation must be that if the lost kinsman leaves no heir, the loss

is all the greater to the kindred. This looks like a survival of tribal

custom. The dread of a family dying out lay, as we have seen, at the

root of the widespread custom which brought in the sister’s son to fill

the vacant place when there was no one else to keep up the family. This

addition in the later statement, though omitted in the ‘Pactus,’ pointing

back as it appears to earlier custom, seems to show that the Lex as well

as the ‘Pactus’ may in the matter of wergeld be traced to Alamannic

rather than Frankish sources.

[Sidenote: Wergeld of women.]

In both the ‘Pactus’ and the Lex, as we have seen, the wergelds of women

were double those of men. The Bavarian law gives the reason of the rule

(IV. 29) and also the reason why sometimes an exception was made to the

rule.

Whilst a woman is unable to defend herself by arms, let her

receive a double composition; if, however, in the boldness of her

heart, like a man, she chooses to fight, her composition shall

not be double.

In titles XXIX. and XXX. of the Alamannic law it is enacted that if a man

be slain in the _curtis_ of the Dux a threefold wergeld must be paid, and

that if the messenger of the Dux be killed within the province his triple

wergeld must be paid.

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

In the Bavarian law the wergeld of the freeman is stated to be 160

solidi, thus:--

If any one kill a free man (‘liberum hominem’) let there be paid

to his parentes, if he have any, or if he have no parentes to the

Dux or to him to whom he was commended whilst he lived, twice 80

solidi: that is, 160 solidi. (Tit. IV. c. 28.)

There are no wergelds mentioned in the Bavarian law corresponding to

those of the _medius Alamannus_ and the _primus Alamannus_ of the

Alamannic laws.

[Sidenote: Higher wergelds of certain families.]

According to Tit. III. 1, there were certain families who were held in

double honour, and had double wergelds. The Agilolvinga had fourfold

wergelds, being the family from whom the Dux was chosen. The Dux himself

had a fourfold wergeld with one third added. If the life of any of his

parentes were taken the wergeld was, according to one manuscript, 640,

and according to another 600 solidi.

These wergelds of the Alamannic and Bavarian laws are not on all fours

with those of the Salic and Ripuarian Laws. But in both cases the

ordinary freeman’s wergeld is 160 solidi (unless there be no heir to

inherit), so that in both cases the wergelds correspond sufficiently

with the clause in the Ripuarian Laws which accords to them a wergeld of

160 solidi, after having before stated that strangers are to be judged

according to the laws under which they were born.

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

In the Bavarian law there is special mention of the freedman and the

servus, and it is worth while to dwell a moment on the position assigned

to them as compared with the ordinary freeman.

There are three titles headed as under:--

Title IV. De _liberis_, quo modo componuntur.

” V. De liberis qui per manum dimissi sunt liberi,

quod _frilaz_ vocant.

” VI. De _servis_, quo modo componuntur.

These clauses relate to injuries as well as to homicide. As regards all

minor injuries, the freedman is paid for at one half, and the servus at

one third, of the payment to the liber for the same injury.

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

But when the payment comes to be for the eye, hand, or foot, the

difference is, roughly speaking, doubled. The payment for the liber is

40 solidi, for the freedman 10 solidi, and for the servus 6 solidi (? 5

sol.). And these payments are seemingly intended to be one quarter of the

respective wergelds for homicide. We have seen that the wergeld of the

freeman was 160 solidi. These clauses state that the freedman’s wergeld

was 40 solidi, and that of the servus 20 solidi, and that in both these

cases the lord took the payment.

In Tit. IV. 30, _De peregrinis transeuntibus viam_, the passing

stranger’s death was to be paid for with 100 solidi to his parentes, or

in their absence to the fisc.

[Sidenote: Bavarian wergelds.]

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

Ducal family (4 fold) 640 solidi

Families next in honour 320 ”

Liber 160 ”

Stranger 100 ”

Freedman 40 ”

Servus 20 ”

And all these solidi were gold solidi of Imperial or Merovingian

standard, it does not matter much which.

[Sidenote: No wergeld within the family.]

The crime of homicide within the near family was dealt with in the

Alamannic law in conformity with ancient tribal custom. There was no

wergeld in such a case.

If any man wilfully kills his father, uncle, brother, or maternal

uncle (avunculus), or his brother’s son, or the son of his uncle

or maternal uncle, or his mother, or his sister, let him know

that he has acted against God, and not fulfilled brotherhood

according to the command of God, and heavily sinned against God.

And before all his parentes, let his goods be confiscated, and

let nothing of his pertain any more to his heirs. Moreover, let

him do penance according to the Canons. (Tit. XL.)

Once more in these laws the parricide (the fisc having taken his

property) goes free, but for the penance required by the Canons of the

Church.

[Sidenote: Wergelds of the clergy.]

As regards the wergelds of the clergy in the Alamannic law the Church

seems to claim triple penalties. The wergelds of the clergy are as

follows, according to the Lex Hlotharii (XI. to XVII.):--

Bishop as that of the Dux or Rex.

Priest, parochial 600 solidi

Deacon and monk 300 ”

Other clerics like the rest of their parentes.

Liber per cartam (the Ripuarian tabularius) 80 ”

The free colonus of the Church as other Alamanni.

According to the Bavarian law (Tit. I. c. x.) a bishop’s death was to be

paid for by the weight in gold of a leaden tunic as long as himself, or

its value in cattle, slaves, land, or villas, if the slayer should have

them; and he and his wife and children are to be _in servitio_ to the

Church till the debt is paid.

The lower clergy and monks were to be paid for according to their birth

_double_; parochial priests threefold. (I. c. viii. and ix.)

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

born alive.]

In the _Liber secundus_ of the Alamannic law is an interesting clause

which throws some light upon the position of married women.

(XCV.) If any woman who has a paternal inheritance of her own,

after marriage and pregnancy, is delivered of a boy, and she

herself dies in childbirth, and the child remains alive long

enough, _i.e._ for an hour, or so that it can open its eyes and

see the roof and four walls of the house, and afterwards dies,

its maternal inheritance then belongs to its father.

This is natural, but it seems to show that if the child had been born

dead and the wife had died without children her paternal inheritance

would have gone back to her kindred and not to her husband.

In the absence of other evidence this is perhaps enough to show that in

accordance with tribal custom the kindred of the wife had not lost all

hold upon their kinswoman, and therefore that she by her marriage had not

passed altogether out of her own kindred.

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

Lastly, there are clauses in the same _Liber secundus_ which declare the

value of the solidus in equation with cattle.

LXXX. Summus bovus 5 tremisses valet. Medianus 4 tremisses valet.

Minor quod appreciatus fuerit.

LXXVII. Illa mellissima vacca 4 tremisses liceat adpreciare. Illa

alia sequenteriana solidum 1.

These clauses show that the solidi in which the wergelds were paid were

gold solidi of three tremisses.

In the Ripuarian laws the ox was equated with 2 gold solidi, _i.e._ 6

tremisses, so that we learned from the equation that the wergeld of the

Ripuarian liber, 200 solidi, was really a wergeld of 100 oxen. But the

above equations show that under Alamannic law the wergeld of the liber

was not so.

In the Alamannic laws the best ox was valued only at five tremisses

instead of six, so that the wergeld of 200 solidi of the medius Alamannus

was really a wergeld of 120 oxen; and the 160 solidi of the wergeld of

the _baro de mino flidis_ of the ‘Pactus,’ or simple ‘liber’ of the Lex

Hlotharii, was a wergeld of 96 oxen or 120 Alamannic ‘_sweetest cows_.’

Any one who has seen the magnificent fawn-coloured oxen by which waggons

are still drawn in the streets of St. Gall will appreciate what the

‘summus bovus’ of the Alamannic region may have been. Why it should have

been worth in gold less than the oxen of other lands does not appear.

[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:--

Tribal Custom in Anglo-Saxon Law Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales' · 第 17 / 22 章