III. THE LEX SAXONUM.

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.

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.

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.

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.

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]—

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:

Nobilis1440solidi.
Litus120”

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:—

Nobilis960solidi,or1440bullocks.
Litus80”or120”

These amounts appear to be still far too large; whether regarded in cattle or in gold.

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 12d.—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:—

Nobilis120solidi to the fisc.
Ingenuus60” ”
Litus30” ”

So again in s. 20 for illicit marriage, and in s. 21 for engaging in pagan rites:—

Nobilis60 solidi.
Ingenuus30 ”
Litus15 ”

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.

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:—

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.

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.

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 12d. 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 12d. to the solidus.

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 12d. 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 40d. 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.

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.

Wergeld of ‘liber’ then 160 solidi.

The wergelds would then stand thus:—

Nobilis480solidi of three tremisses.
[Liber160” ”]
Litus40” ”

or in the local solidi of two tremisses:—

Nobilis720solidi or bullocks.
[Liber240” ”]
Litus60” ”

These then are the figures which, if we are right, were the original figures of the Title De homicidiis.