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

by Frederic Seebohm

I. THE BURGUNDIAN WERGELDS.

The result of contact with Roman and Christian civilisation.

It is not proposed to do more in this chapter than very briefly to examine the laws of the Burgundians and Wisigoths with reference to the evidence they contain with regard to the results of contact with Roman and Christian civilisation upon the solidarity of the kindred as shown in the payment of wergelds.

The remoteness of these tribes from any connection with the Anglo-Saxon invasion of Britain makes it unnecessary to do more than this. Indeed, this chapter might have been omitted but for the useful light it may throw upon the process of disintegration in tribal custom in the case of tribes settling in countries with a long-established civilisation superior to their own. In such cases tribal custom, however hardly it might resist, had eventually to succumb, thus affording a strong contrast with the Cymric and Irish examples, in which tribal custom was so much better able to hold its own, and even succeeded to some extent in forcing tribal rules upon the new Christian institutions.

The Burgundian laws, so far as they belong to those first issued by Gundebald himself, fall between A.D. 501 and 516, and his reference to his ancestors in his preface shows that, while he may have remodelled the laws to meet altered circumstances, they were in part based upon traditional customs of his people.[94]

But his people were in a new position. Geographically they were sharing with a population still under Roman law the south-western part of the Helvetian Valley—i.e. between Neuchâtel and Geneva, and a good part of the old country of the Sequani on the Gallic side of the Jura.

The method of settlement.

They seem to have come into this district not altogether as conquerors, but in some sense as invited guests. According to Tit. 54 of the laws the newcomers, by the munificence of the Burgundian king and his ancestors, had had delegated to them individually, in a particular place, hospitalitas, which consisted of two thirds of the land and one third of the slaves of the hospes upon whom they were quartered, and by this clause in the laws they were forbidden to take more.[95] It is generally understood that this method more or less closely resembled the Roman method of quartering soldiers upon a district.

The Burgundians therefore came into a district with a mixed population of Romanised Gauls and Germans, already, after long residence and many vicissitudes, living and settled under Roman law, and regarded by the newcomers as Romans.

Thus two sets of laws became necessary, one for the Burgundian immigrants, the other for the old inhabitants who were to continue under Roman law.

Homicide under the ‘Lex Romana.’

Now under the Roman law there was no wergeld. And so in the Tit. II. of the Burgundian Lex Romana the slayer, whether a freeman or slave, if captured outside a church was condemned to death. If the homicide was in defence of life it was to be referred to judicial decision according to the Novellæ of Theodosius and Valentinian.

If the slayer had taken refuge in a church, quia de preciis occisionum nihil evidenter lex Romana constituit, the Burgundian lawgiver decreed that if a freeman by a freeman should be killed, and the slayer should flee to a church, he who confessed the homicide should be adjudged to be the slave of the heirs of the person killed, with half of his property, the other half to be left to the heirs of the slayer.

After this follows a clause, also of Burgundian origin, fixing the payment by a freeman who has killed a ‘servus’ and fled to a church. The price is to be paid to the lord of the servus on the following scale:

For an	‘Actor’	100	solidi
For a	‘Ministerialis’	60	”
	ploughman, or swineherd, or shepherd, and other ‘servi’	30	”
	goldsmith	100	”
	smith (iron)	50	”
	carpenter	40	”
‘This by order of the King.’

Under the Burgundian Law.

Now if from these clauses of the Lex Romana which relate to the Roman population, we turn to the Tit. II. of the Burgundian law proper of Gundebald ‘De homicidiis,’ we may gather what the old customary wergelds may have been, but at the same time recognise how strongly Roman law and ecclesiastical influence had led Gundebald to break through what to the Romanised conscience seemed to be the worst features of the system of tribal wergelds.

Original wergelds no longer adhered to. Homicide punished by death.

From Tit. II., ‘De homicidiis,’ it appears that the original wergelds were these:

Optimatus nobilis	300	solidi
Aliquis in populo mediocris	200	”
Minor persona	150	”
Pretium servi	30	”

These wergelds closely correspond with those of the Alamannic and Bavarian laws; but the first clause enacts that the homicide of a freeman by another, of whatsoever nation, shall only be compounded for by the slayer’s blood: thus overriding tribal usage and introducing the Roman law.

The second clause enacts that if the homicide be in self-defence against violence, half the above-mentioned wergelds should be payable to the parentes of the slain.

Homicide by a slave.

Clause 3 enacts that if a slave, unknown to his master, shall slay a freeman, the slave shall be delivered up to death and the master free from liability. Clause 4 adds that if the master was privy to the crime of his slave both should be delivered to death. Clause 5 enacts that if the slave after the deed shall have disappeared, his master shall pay 30 solidi—the price of the slave—to the parentes of the slain. And lastly, in clause 6, the parentes of the slain are in all these cases warned that no one is to be answerable for the crime but the homicide himself, ‘because as we enact that the guilty shall be extirpated, so we cannot allow the innocent to suffer wrong.’

The new law breaks away altogether from old tribal traditions, and an attempt is made to treat homicide from the new point of view of reason and justice as between one individual and another, with but little, if any, regard to kindred.

The traditional value of animals.

From the law against theft we get a scale for the equation of cattle &c. with gold. If a Burgundian or Roman ‘ingenuus’ steals away a slave, horse, mare, ox, or cow, he is to lose his life, unless he takes refuge in a church, and from the property of the criminal the price of the stolen animal is, ‘in simplum,’ to be paid to the person robbed, unless the thing stolen can be found and restored—i.e.:

For the slave	25	solidi
For ‘best horse’	10	”
For moderate horse	5	”
For mare	3	”
For ox	2	”
For cow	1	solidus.

Thus from these traditional values, retained even under new circumstances by the Burgundian law, we learn that the wergeld of the middle class of freemen, ‘mediocres in populo,’ of 200 solidi, was still regarded as the equivalent of 100 oxen or 200 cows.

There is no doubt in this case that the solidi were those of the Imperial standard. The Burgundian Kingdom was destroyed by the Franks in A.D. 534—i.e. before the issue by Merovingian princes of solidi and trientes of the Merovingian standard.