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.
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.’
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.)
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.
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.
