I. THE WERGELDS OF THE LEX SALICA.
In turning now to the Lex Salica the inquiry will again at first more or less be a study of wergelds.
There are many difficult points in the construction of the Lex Salica, and the capitularies connected with it, which, after all the learned labour expended upon them, still remain unsettled. To attempt to discuss them fully would involve an amount of research and erudition to which this essay can lay no claim. All that can be attempted in this survey of the traces of tribal custom in the laws of the Continental tribes is to approach their text afresh in the light of the Cymric evidence, as a tentative first step towards, at last, approaching the Anglo-Saxon laws from the same tribal point of view and from the vantage-ground of a previous study of the survivals of tribal custom elsewhere.
The district within which the Lex Salica had force.
The Lex Salica had force apparently at first over the Franks of the district extending from the Carbonaria Silva on the left bank of the Meuse to the River Loire.
The first sixty-five chapters about A.D. 500, but with later alterations.
The earliest manuscripts of the Lex Salica are considered to belong to the late eighth or early ninth century. And the general opinion seems to be that the first sixty-five chapters may be ascribed to the time of Clovis, or at least to a period before Christianity had become general among the Franks.
The reign of Clovis extended from A.D. 481 to 511, and may perhaps be taken as covering the date when the sixty-five chapters were first framed. There is, however, no proof that they were not modified afterwards. For at the end of the celebrated chapter De chrenecruda there is a clause in a later manuscript which implies that it was no longer in force.[98]
If these sixty-five titles, in their original form, really go back to the time of Clovis, the fact that they were allowed to continue in late issues of the Lex Salica along with the additions made to it, is probably enough in itself to excite suspicion that even these may not have been allowed to remain as they originally stood without modification.
Edict of Childebert II. A.D. 599 on homicide discourages receipt and payment of wergelds.
Particularly on the question of homicide and the liability of the kindred of the slayer in the payment of the wergeld, it is difficult to understand how the clauses relating to its payment and receipt, if representing fully more ancient custom, could have been left altogether unaltered after the decree of Childebert II. (A.D. 599), which may be translated as follows:—
Concerning homicides we order the following to be observed: That whoever by rash impulse shall have killed another without cause shall be in peril of his life. For not by any price of redemption shall he redeem or compound for himself. Should it by chance happen that any one shall stoop to (make or receive?) payment, no one of his parentes or friends shall aid him at all, unless he who shall presume to aid him at all shall pay the whole of the wergeld, because it is just that he who knows how to kill should learn to die. (Pertz, Leges, i. p. 10.)
The logic of this decree is curious. The slayer’s kindred were absolved by it from liability if they chose to stand aloof. But, if they stooped to help their kinsman at all, they must see to it that the whole wergeld was paid, no doubt to avoid breaches of the peace from attempts at private revenge if any part were left unpaid. But if the slayer’s relations did not pay the wergeld—what then? The slayer was to be left ‘in peril of his life.’ From whom? It must have been from the vengeance of the slain man’s kindred.
One would have thought that this decree would have defeated itself, for apparently, whilst it absolved the murderer’s kindred from obligation to assist the murderer to pay the wergeld, it left untouched the right of vengeance on the part of the slain man’s relations, thereby, one would have thought, multiplying cases of breach of the peace.
That clauses relative to receipt and payment of wergeld were left in the Lex after this decree shows probably that the system of wergelds remained practically still in force. People went on ‘living under the Lex Salica,’ after the date of the edict, and in spite of the latter no doubt wergelds were paid and received. But whilst this may have been a reason why the clauses regulating the payment and receipt of wergelds could not be altogether omitted, it may also have made necessary the modification of some of their provisions.
One may even venture to trace motives in the making of modifications in favour of the fisc, which can hardly have had their root in ancient tribal custom.
The system of wergelds was extended to the advantage of ultimately both official and clerical hierarchies, and even from the Franks themselves to strangers and to the Gallo-Roman population amongst whom they dwelt. And the whole character and system of the ‘Lex Salica’ was so much like a statement of crimes and the composition to be paid for them that it lent itself very easily to the interest of the fisc.
The Lex allowed a tribesman to break himself away from his kindred. And the fisc gained by it.
In the sixty-five titles themselves there is direct evidence that tribal tradition and the solidarity of the kindred had once existed, and that in spite of the edict the fisc was interested in their maintenance. Thus by Tit. LX., De eum qui se de parentilla tollere vult, a door was thrown wide open for the Salic tribesman to escape from the obligations of kindred. To secure this object he is to go to the mallus with three branches of alder, and break them over his head, and throw them on four sides in the mallus, and declare that he withdraws from the oath, and the inheritance, and everything belonging to the parentilla, so that thereafter, if any of his parentes either is killed or shall die, no part either of the inheritance or of the composition shall pertain to him, but all go to the fisc. If we take this clause strictly it implies and sanctions the general right of a kinsman of a slain person to share in his wergeld. The share of the kinsman, who under this clause frees himself from the liability to pay, and gives up his right to receive any portion of the wergeld of a relative, does not lapse altogether, but is apparently kept alive for the fisc.
This clause is not perhaps inconsistent with the edict which left the receipt of wergeld still possible, though payment by the slayer’s kindred was optional. And so long as the occasional receipt of wergeld was still possible, rules for its division might reasonably remain in the Lex.
Tit. LXII., ‘De compositione homicidii.’
The same may perhaps be said of other clauses included in the original sixty-five. Tit. LXII., De compositione homicidii, is the one which deals with the division of the wergeld by its recipients, i.e. the kindred of the person slain. According to the text of Hessels, Cod. I., it is as follows:—
Si cujuscumque pater occisus fuerit medietatem compositionis filii collegant, et aliam medietatem parentes quae proximiores sunt tam de patre quam de matre inter se dividant.
If any one’s father be killed, the sons are to take collectively one half of the composition, and the other half is to be divided between the parentes who are proximiores, both of the paternal and maternal kindreds.
Quod si de nulla paterna seu materna nullus parens non fuerit, illa portio in fisco collegatur.
But if there be parentes on neither side,[99] paternal or maternal, then that portion (i.e. the second half) is to go to the fisc.
According to this clause, in the absence of the parentes, their half share still has to be paid by the kindred of the slayer, but again the fisc gets control of the lapsed portion which the parentes would have taken had they been forthcoming.
Addition to the Lex by Childebert I. A.D. 515-551 in the interest of the widow (?) of the person slain.
Amongst some clauses said to be added to the Lex Salica by Childebert I. (A.D. 515 to 551) is a very important one, Tit. CI., De hominem ingenuo occiso, which seems to show that, at that date, composition was still encouraged by the law, but that some alteration was necessary in the division of the wergeld amongst the kindred of the slain.[100]
Si quis hominem ingenuum occiderit et ille qui occiderit probatum fuerit, ad parentibus debeat secundum legem componere; media compositione filius habere debet. Alia medietate exinde ei debet ut ad quarta de leude illa adveniat. Alia quarta pars parentibus propinquis debent. Id est, tres de generatione patris et tres de generatione matris. Si mater viva non fuerit, media parte de leudae illi parentes inter se dividant. Hoc est, tres de patre proximiores et tres de matre. Ita tamen qui proximiores fuerint parentes de prædictis conditionibus prendant.
If any one shall have killed a freeman and he who slew shall have been ascertained, he ought to make composition according to the law to the parentes. The son (Cod. 2 ‘sons’) ought to have half the composition. After that, of the other half it ought to be for her (? the mother), so that she (?) comes in for a quarter of that leuda (or wergeld). The other quarter ought to go to the near parentes, i.e. three [parentillæ] of the kindred of the father and three of the kindred of the mother. If the mother shall not be alive, the half leuda (wergeld) those parentes divide amongst themselves, i.e. the three proximiores [i.e. nearest parentes] of the father and three of the mother, but so that the nearest parentes under the aforesaid conditions shall take [two thirds].
Et tres partes illis duabus dividendam dimittat. Et nam et illis duabus ille qui proximior fuerit, illa tertia parte duas partes prendant, et tertia parte patre suo demittat.
Three parts again it leaves to be divided between the other two [parentillæ]. For also of those two the nearest [parentilla] takes two thirds and leaves one third for [the parentilla of] the previous ancestor.[101]
There must have been some special object in this addition to the Lex. Brunner, following the very plausible suggestion of Wilda and Boretius, points out that the ‘mother,’ who, if alive, is to share in the second half of the wergeld, may be the mother of the son who takes the first half, i.e. the widow of the person slain, otherwise why should the mother alone be mentioned, and not the father of the slain?[102] If this view may be accepted the object of the clause becomes at once apparent.
Under Tit. LXII. no share is given to the widow. And we have learned from the Cymric example the reason why tribal custom gave no part of the wergeld of the husband to the widow. It was simply because there was no blood relationship between them. The widow and her kindred would have taken no part in the feud, and so took no part of the galanas in composition for the feud.
The silence of Tit. LXII. and the force of the Cymric precedent warrant the inference that it may have been so also under ancient Salic custom. However this may be, the fact that an addition to the Lex was made, whether in favour of the widow or of the mother, seems to show that Roman and Christian influences had introduced other considerations than those of blood relationship, so breaking in upon tribal custom and necessitating special legislation.
The three ‘parentillæ’ sharing in the wergeld.
If this view may be accepted, and if (as we had to do in interpreting the Brehon rules regarding divisions of the kindred) we may take the word ‘son’ as meaning all the sons, and insert the word parentillæ in explanation of the three proximiores, so as to understand them (as in the Brehon Geilfine division) to be not three persons but three groups of kindred, then these clauses become fairly intelligible and consistent with Tit. LXII.[103]
The wergeld is divided into two halves and the second half (subject to the newly inserted right of the widow or mother of the slain) goes to the three groups of proximiores. What these three groups or parentillæ may be is not very clear.
The father has been killed and his sons take the first half of the wergeld. The other half is taken by the three nearer parentillæ. The nearest group at first sight would be the descendants of the two parents of the slain. The second group would be the descendants of the four grandparents of the slain. The third group should include the descendants of the eight great-grandparents of the person slain.
The three ‘parentillæ’ include descendants of great-great grandparents.
But Brunner has pointed out that the division into paternal and maternal lines of relationship begins with the slain person’s grandparents; so that the three proximiores on both sides should go back to the descendants of great-great-grandparents. He also points out that, as at each step the nearer group are to take two thirds and those behind it one third, the division between the three groups would be in the proportions of 6:2:1. And he quotes a statement regarding the division of wergelds in Flanders in the year 1300, in which the proportions of the payments of the three groups of relatives were still as 6:2:1. The half falling to the three groups being reckoned as 18/36, the division was as under:—
| Rechtzweers (Geschwister Kinder), i.e. first cousins. | { | paternal 6/36 | } 18/36 |
| maternal 6/36 | |||
| Anderzweers (Ander-geschwister Kinder), i.e. second cousins. | { | paternal 2/36 | |
| maternal 2/36 | |||
| Derdelinghe (Dritt-geschwister Kinder), i.e. third cousins. | { | paternal 1/36 | |
| maternal 1/36 |
We may then safely, I think, follow Brunner’s cautiously expressed conclusion that it is very probable that also in the Lex Salica under the words ‘tres proximiores’ are intended relations belonging to three separate parentillæ.[104]
The wergeld from the payer’s point of view
So far we have dealt only with the receivers of the wergeld. We have now to consider the wergeld from the payers’ point of view. When at last we turn to the title ‘De chrenecruda,’ which deals with the payment of the wergeld by the slayer and his kindred, we seem all at once to breathe in the atmosphere of ancient tribal custom before it had been materially tainted by the new influences, which the conquest of a Romanised country and migration into the midst of a mixed population necessarily brought with them. The force of tribal instinct survives in this clause even though since the edict of Childebert II. it may have been allowed to remain in the Lex partly on sufferance, and even though some of its details have been made incoherent by the mutilation it may have undergone. It was probably left in its place in the Lex, together with the clauses regarding the receipt of wergeld, because, even though the assistance of the kindred in the payment of wergeld had been made optional and discouraged, the instincts of kindred were not to be extinguished all at once. To save the life of a kinsman, kinsmen will sometimes exercise the option. And the slayer, before he flees for his life, will make his appeal to his kinsmen. The old traditional rules for payment will have force in the feelings of those who, under all the discouragements of the law, still choose to assist the slayer. Moreover, the Mallus, it appears, still exercised jurisdiction over the option.
This celebrated clause may perhaps therefore be quoted as evidence for so much of ancient tribal custom as to wergelds as the royal edict was unable to extinguish all at once.
The title ‘De chrenecruda.’
Difficulty arises chiefly from the imperfect condition of the text of one of the clauses. But, keeping close to Codex I. of Hessels and Kern’s edition, the following translation may pass for our purpose (Tit. LVIII.):
(1) Si quis hominem occiderit et, totam facultatem data, non habuerit unde tota lege conpleat, xii juratores donare debet [quod] nec super terram nec subtus terram plus facultatem non habeat quam jam donavit.
If any one shall kill a man and, having given up all he possesses, he yet shall not have enough to satisfy the whole legal requirement, he ought to give the oaths of twelve co-swearers that neither above the earth nor under the earth he has any more property than he has already given up.
(2) Et postea debet in casa sua introire et de quattuor angulos terræ in pugno collegere et sic postea in duropullo, hoc est in limitare, stare debet intus in casa respiciens, et sic de sinistra manum de illa terra trans scapulas suas jactare super illum quem proximiorem parentem habet.
And afterwards he ought to enter into his house and to gather earth in his hand from its four corners, and after this he ought to stand on the threshold, looking back into the house, and so from his left hand throw across his shoulders some of that earth over him [? those] whom he has nearest of kin.
(3) Quod si jam pater et fratres solserunt, tunc super suos debet illa terra jactare, id est super tres de generatione matris et super tres de generatione patris qui proximiores sunt.
But if father and brothers have already paid, then over his (relations) he ought to throw that earth, to wit over three [parentillæ] of the kindred of the mother and over three [parentillæ] of the kindred of the father who are nearest of kin.
(4) Et sic postea in camisia, discinctus, discalcius, palo in manu, sepe sallire debet, ut pro medietate quantum de compositione diger est, aut quantum lex addicat, illi tres solvant, hoc est illi alii qui de paterno generatione veniunt facere debent.
And likewise after that, in his shirt, ungirded, unshod, stake in hand, he ought to leap the fence, so that for that half those three shall pay whatever is wanting of the composition or what the law adjudges: that is, those others who come of the paternal kindred ought to do so.
(5) Si vero de illis quicumque proximior fuerit ut non habeat unde integrum debitum salvat; quicumque de illis plus habet iterum super illum chrenecruda ille qui pauperior est jactet ut ille tota lege solvat.
But if any very near kinsman shall be unable to pay the whole amount due, then whoever of them has more, on him again let the one who is poorer throw the chrenecruda, so that he may pay the whole amount due.
(6) Quam si vero nec ipse habuerit unde tota persolvat, tunc illum qui homicidium fecit qui eum sub fidem habuit in mallo præsentare debent, et sic postea eum per quattuor mallos ad suam fidem tollant. Et si eum in compositione nullus ad fidem tullerunt, hoc est ut redimant de quo domino[105] persolvit, tunc de sua vita conponat.
But if not even he shall have the wherewith to complete the required amount, then those who held him under oath ought to produce him who committed the homicide in the Mallus, and in the same way again afterwards four times in the Mallus hold him to his faith. And if no one take up his faith concerning the composition, i.e. to redeem him by payment, then let him make composition with his life.
Now, if we are here dealing with actual tribal custom, it is natural to place some weight upon the picturesque incidents which testify to its traditional origin. These picturesque incidents can hardly be other than proofs of antiquity.
The slayer and his co-swearers declare that he has given up everything.
Let us try, then, in spite of some confusion in the text, to make out the probable meaning of the action described. Clause 1 makes it clear that the first public step taken on the part of the slayer was to go to the Mallus with twelve co-swearers, who with him pledge their faith that he has given up everything, above ground or below it, towards the wergeld. There must have been previous negotiations with the kinsmen of the slain, and a stay of vengeance must have been conceded on the understanding that if possible the wergeld will be paid. Having thus obtained legal security for a time, the next stage in the proceeding is one between the slayer and his kinsmen, without whose help he cannot pay the wergeld.
The family gathering to arrange for payment of the rest of the wergeld.
The graphic details of the second clause seem to involve the presence of a family gathering met within the enclosure containing the house of the slayer, and, for anything we know, other houses of near relations. In this enclosure the kindred have met to deal with a family catastrophe in which they themselves are involved as well as the slayer. Even if they have to find only their half of the wergeld, fifty head of cattle from the family herd or their separate herds, as the case may be, must be to them a matter of importance. Standing on the threshold of the house from the four corners of which the slayer has gathered a handful of earth, he throws it over the representatives of his paternal and maternal kindred. He has done his part, and now the responsibility rests on them.
The vagueness and difficulty of the next clause result from a text which has probably been tampered with. But with the help of Tit. LXII. and the addition of Tit. CI., giving further details, it becomes at least partly intelligible. The rule that the payment of wergeld was made by the relatives in the same proportions as they would receive it, if one of their kinsmen had been slain, is so general that we may fairly assume that it was followed also by the Salic Franks. We have seen that according to these clauses, if a father was killed, the sons took the first half of the wergeld, and that the other half was divided between three sets of proximiores—the three parentillæ or sets of relatives of both paternal and maternal kindreds—in certain proportions. The slayer and his sons should pay the first half, and his father and brothers apparently help them to pay it. The other part ought to fall upon the three parentillæ nearest of kin on both the paternal and maternal side.
So that Clause 3 becomes partly intelligible. ‘If the father and brothers have already paid’ what the slayer could not pay of the first half, the earth has to be thrown upon the three parentillæ nearest of kin of the mother’s kindred and the three parentillæ nearest of kin of the father’s kindred. These seem to be the ‘proximiores’ who should pay the other half.
The phraseology of the titles LXII. and CI. and the analogy of other tribal custom seem to warrant the conclusion that here also the three proximiores on the paternal and the maternal side were originally not three persons next of kin, but the three parentillæ, i.e., according to Brunner, the descendants of the grandparents, the great-grandparents, and the great-great-grandparents of the slayer on both the paternal and maternal sides.
The next clause is the one which bears clearest marks of having been tampered with. It makes no sense when strictly construed, but it seems to contain two ideas: first that there may be a deficiency as regards the second half of the payment, and secondly that the persons who ought to make it up are ‘those others who come of the paternal kindred.’
The question who are intended by these words is one not easily answered decisively. Nor is it one upon which we need to dwell. It is to be regretted, however, that at this critical point the text is so sadly confused. For it must be borne in mind that if no relative was liable beyond those included in the phrase ‘the three proximiores’ then the liability to pay and receive wergeld under Salic custom was restricted to the descendants of the paternal and maternal great-great-grandparents. And whether it was so in ancient custom is just what we should like to know.
Having cast the responsibility upon his kindred, the slayer leaps over the fence.
Be this as it may, the slayer has done what he could in throwing the responsibility upon his kindred. He knows not, perhaps, whether they will fulfil the obligation thus cast upon them. He has given up everything he himself possessed, and now, in his shirt, ungirded, and unshod, he leaps over the fence of the enclosure with a stake (‘palus’) in hand, to wander about in suspense until it transpires whether the rest of the wergeld will be found or not: whether those who ought to assist him, whoever they may be, will help him in his need.
Clause 5 seems to state merely that the liability of the ‘proximiores’ is collective and not individual, so that the poorer in each group of relatives are to be assisted by the richer, and we need not dwell upon it.
If his kindred do not pay, the slayer pays with his life.
Lastly, Clause 6 brings the slayer, after all his efforts and appeals to his kindred, face to face with the final result. Four successive times his co-swearers have brought him up to the mallus to hold him to his faith, and now at last, if no one steps in to complete payment of the wergeld, he must pay with his life.
This is the best we can make of the famous title in the Lex Salica regarding the payment of wergeld. But perhaps it is enough when taken together with the clauses relating to its receipt to reveal the main points of early Salic tribal custom. We may state them thus:—(1) That the wergeld was divided into two halves, for one of which the slayer, helped by his father and brothers, was responsible, and for the other of which the three grades of kindred, extending apparently to the descendants of great-great-grandparents, were responsible. (2) That if the addition of Tit. CI. in this respect represented ancient tribal custom, the payments, like the receipts, of the second half, were so distributed that the nearer parentilla or group of relatives paid and received, in relation to those behind them in kinship, in the proportion of two thirds and one third. (3) That, if we may take the addition of Tit. CI. as giving a share to the widow, and as an innovation, then it may fairly be concluded that, under ancient Salic custom as under Cymric custom, the widow originally took no share in the wergeld of her husband, not being a blood relation to him.
Position of the wife and her kindred.
Further, as in the title De chrenecruda there is no mention of any share in the payment of wergeld falling upon the wife of the murderer or her family, we may conclude that however closely two families might be united by a marriage, the wife, for the purpose of wergeld, still belonged to her own kindred, and that marriage did not involve the two families in mutual obligations for each other’s crimes of homicide, until both paternal and maternal kindreds became sharers in payment and receipt of wergelds in the case of the children of the marriage.
What became of the slayer’s rights in the land.
It is not needful to follow the speculations of various authorities as to what became of the homestead and landed rights abandoned by the slayer when he threw the chrenecruda upon his kindred and leaped, ungirt and unshod, over the fence of the inclosure. It is begging the question to call it his Grundstück in the sense of a plot of land individually owned. Whether it was so, or whether under Salic custom land was held by family groups, as in the case of the Cymric gwely, is what the clause De chrenecruda does not tell us. The question may perhaps have easily solved itself. The homestead and grazing rights, under tribal custom, might probably simply merge and sink into the common rights of the kindred, i.e. the neighbouring kinsmen would get the benefit of them. Even if the slayer, now himself slain or an exile, had held a privileged or official position as chief of his family, it would not follow that his successor (having doubtless already a homestead of his own) would care to succeed to the one left vacant. It is much more likely that tribal superstition would leave the murderer’s homestead to decay. Even the sons of a person, whose kindred had left him to perish by refusing the necessary help in the payment of the wergeld of his victim, might well refuse to ‘uncover’ the haunted hearth of their father, whilst if the wergeld were paid the slayer would return to his old homestead. Finally it must be remembered that in the tribal stage of land occupation the value of land itself bore a very small proportion to the value of the cattle upon it. And so the ‘Grundstück’ of the slayer would be as nothing compared with the value of the hundred cows of a normal wergeld.