II. THE WERGELDS OF THE LEX WISIGOTHORUM.
The laws of the Wisigoths are too Roman to be taken as evidence of what may have been the ancient tribal wergelds of the Goths.
The tribal polity of the Goths broken up by Roman influences.
Their rule extended to the Loire till they were driven back to the Garonne by the Franks in the sixth century, and lasted in Spain and Aquitaine to 711 when it succumbed to Arab conquest. The Wisigoths conquered a country already under Roman law, with a mixed population of German as well as Celtic and Iberian tribes. They were not the first German intruders. They were invaders, but not altogether at enmity with the Romans. Their princes, after the break-up of the Roman power, issued gold coins—solidi and tremisses—in close imitation of those of the Eastern Empire. Goth and Roman were encouraged to marry on equal terms. And though there are traces of a scale of payments in composition for homicide, it bears little trace of the tribal principle of the solidarity of the kindred.
There is no scale of payments directly under the head of homicide, and we are left to gather incidentally what the wergeld (if it can be so called) may have been.
In a clause[96] added between 653 and 672 it was enacted that upon the kidnapping of the child—son or daughter—of a free man or woman, the criminal was to be delivered over into the power of the child’s father, or mother, brother or nearest parentes, so that they may have power to kill him or sell him. And if they desired it, they might demand the composition for homicide from the criminal, i.e. 500 solidi (some MSS. 300 solidi), the crime being to the parents no less grave than homicide. If the child could be recovered, half the composition for homicide was to be paid, and if the criminal could not pay he was to become their slave.
This doubtful mention of 500 solidi or 300 solidi finds some explanation in a later clause.
The wergeld graduated according to the age of the individual.
Indirectly, again, we get the scale in force for homicides in L. VIII. Tit. IV. s. 161, of about the same date. It enacted that injuries done by vicious animals, known to be such, were to be paid for sicut est de homicidiis by the ‘constituted composition’—compositio constituta—and then the following scale is given:
| Aliquis honestus | 500 | solidi |
| Ingenuus persona, 20 years old and up to 50 | 300 | ” |
| Ingenuus persona from 50 to 60 | 200 | ” |
| Older than this | 100 | ” |
| Youths of 15 years | 150 | ” |
| ” 14 ” | 140 | ” |
| ” 13 ” | 130 | ” |
| ” 12 ” | 120 | ” |
| ” 11 ” | 110 | ” |
| ” 10 ” | 100 | ” |
| ” 7 to 9 | 90 | ” |
| ” 4 to 6 | 80 | ” |
| ” 2 to 3 | 70 | ” |
| ” 1 year | 60 | ” |
| Daughter or wife from 15 to 40 | 250 | ” |
| ” ” 40 to 60 | 200 | ” |
| ” ” older | 100 | ” |
| Under 15, half the payment for a male; liberti, half-payments. | ||
Innocent homicide no longer to be paid for.
It is impossible to look upon this scale as fully representing ancient Gothic tribal tradition. And when we turn to the title ‘De cæde et morte hominum,’ which seems to belong to the same date, it becomes obvious how far the spirit of these laws had wandered away from any tribal standpoint and from all recognition of the solidarity of the kindred. A homicide committed unknowingly (‘nesciens’) is declared to be in the sight of God no cause of death. ‘Let the man who has committed it depart secure.’[97]
Every man who killed another intentionally, and not by accident, was to be punished for homicide. The punishment had, in fact, already become a matter of criminal law. The prosecution for homicide was no longer to be left only to the parentes of the slain, ‘for they might be lukewarm’ (s. 15). The judex ought to take the matter up, and on neglect of his duty was to be liable for half the payment for homicide, viz. 250 solidi. Strangers in blood as well as relations had already been enabled to bring the accusation.
Homicides fleeing to a church to be handed over as slaves to the family of the slain.
Chindasvinthe, who reigned from 642 to 653, had legislated in the same direction. The question had arisen, what was to be done with homicides who took refuge in a church and committed themselves to the protection of God? Seeing that every one ought to be punished for his crime, he issued an edict to settle this question once for all. He enacted that whatever slayer or evil-doer the law required to be punished, no power whatever should be able to shield from punishment. And although the criminal might flee to the sacred altar, and in that case no prosecutor could drag him away without the concurrence of the priest, yet the priest, having been consulted, the sacrament having been given, was to repel the criminal from the altar, and expel him from the choir, so that his prosecutor might apprehend him. The criminal thus expelled was to be freed from any further death penalty, but short of this was to be in the power of the parentes of the slain, who might do what they liked with him, i.e. he became their slave unless presumably the composition required was paid.
Murder of a kinsman to be punished with death.
The successor of this king (653-672) dealt with another point in which tribal instinct was at variance with Roman law. With the dissolution of the kindred disappeared the reason and traditional justification for the rule that there was no feud and no wergeld within the kindred. Tribal custom everywhere left the worst crime of all—murder of a parent or a kinsman—without redress, at the same time unpardonable and unavenged. It became, therefore, needful to promulgate an edict that the judex should punish the murder of a kinsman by death. And in this case, if there were no children, all the murderer’s property was to go to the heirs and near relations of the murdered person. But if there were children of another marriage, innocent of their parent’s crime, half only of the property was to go to the children of the murdered kinsman, and half to the innocent children of the parricide.
If the murderer had fled to the altar of a church he was to be delivered up to the parentes or propinqui of the slain kinsman, to be dealt with as they chose, short of death, and if there were no such parentes his property was to go to the fisc. The murderer whose life was thus spared was not to have the use of the property.
Lastly there is found in some of the MSS., as an addition to Lib. XII. Tit. II., an edict of King Wamba, who reigned 672-680, which seems to mark the last stage in the process of confining the punishment of the crime to the criminal alone.
The punishment had become a matter of criminal law and was confined to the criminal alone.
Up to this time, as we have seen, the murderer with all his possessions was by law to remain the slave of the parentes, or the next heirs of the murdered person, except in the one case of the murderer having children by another wife. Thenceforth, if the murderer, according to the edict, had children or wife free from participation in the crime, he alone was to be delivered up to the parentes or next heirs of the dead. His possessions were not to go to them, but to the children or heirs of the criminal, on the ground that the punishment should in justice fall alone upon the sinner, and not upon his innocent family. Clearly the last tie of tribal instinct securing the solidarity of kindreds was now broken. It had lost its ancient significance. Murder had become the crime of an individual against the State, and a matter of criminal law. The only survival of tribal feeling seems to have been that, as some compensation to the family of the murdered man, the murderer whose life the Church had saved was to become their slave.
