VI. THE BRETON OR GALLIC WERGELD OF THE SO-CALLED ‘CANONES WALLICI.’
It is perhaps possible with help from another set of canons to obtain further evidence of Celtic usage as to the fine for homicide, and what is still more to the point, to trace it back to the Continental side of the Channel.
The so-called ‘Canones Wallici’ of perhaps the Breton Church.
At the end of the Latin version of the Dimetian Code of South Wales are appended as part of chapter XLIX. several clauses which do not belong to the Code and are quite inconsistent with its provisions. These clauses are carelessly extracted, with variations, from a set of canons which, from their thus partly appearing at the end of the Latin version of the Dimetian Code, have come to be known as the ‘Canones Wallici.’
The oldest MS. of this document is referred to the 8th century, and the canons themselves are referred by Haddan and Stubbs to the 7th century.[90]
It is not at all clear that, notwithstanding the name they have acquired, they are of Welsh origin.
The intercourse between the missionary monks and churches of Brittany, Cornwall, Wales, and Ireland was so intimate that there is no difficulty in understanding how a Welsh scribe or copyist falling upon these canons should add extracts from them to a Latin copy he was making of the Dimetian Code. Whether of Welsh origin or not, some of them may have been used, amongst others, by the Church in South Wales.
It may seem presumptuous to doubt their Welsh origin after the opinion expressed both by Wasserschleben and such competent authorities as Haddan and Stubbs, to whose labours the student is so greatly indebted. But that opinion is doubtfully expressed, and reference is made by them to the fact that two of the three MSS. describe the collection of canons not as ‘Canones Wallici’ but as ‘excerpta de libris Romanorum et Francorum,’ and ‘excerpta de libris Romanis et Francorum’ while the third, of the 8th century, does not seem to have any heading but ‘Incipit justicium culparum.’ Haddan and Stubbs assign the origin of these canons to that period (c. A.D. 550-650) during which both the Welsh Church and the Welsh Principalities appear to have become organised, i.e. to the period following St. Patrick and St. Finian, during which the monastic churches of South Wales were the channel of intercourse between the Breton and Irish Churches. This collection, according to the same authority, may date from the 7th century.
The Canons may have been meant for use on both sides of the Channel. And as they are ‘excerpta’ from books of the Romans and Franks, they seem to originate from the Continental side, however much they may have been used in Wales.
When we come to examine them, they bear every evidence of being ‘excerpta,’ and we know from the excerpta of Isidor what different materials may be brought together in such a collection. There is no continuous plan or order apparently running through the whole. And certain of the canons, chiefly those relating to homicide, seem to be marked off from the remainder by the payments being made throughout in ‘ancillæ’ and ‘servi’; whilst in most others the payments are made in libræ argenti or in libræ stagni, or occasionally in solidi, unciæ, and scripula.
The safer course may be, therefore, to treat them, not as a consistent and single set of canons, but as excerpta from various sources.
The clauses as to homicide.
Following the eighth-century MS. as most likely to be correct in its text, the excerpta relating to homicide are these:—
C. 1. Si quis homicidium ex intentione commiserit, ancillas III. et servos III. reddat et securitatem accipiat.
Canon 1. If any one by intention shall have committed homicide, let him pay three ancillæ and three servi and acquire safety.
C. 2. Si quis judicio fuerit competitus et præstando verum durus esse voluerit et ipsam intentionem fuerit interfectus, ancillas II. et servos II. reddi debere præcipimus. Quodsi manum aut pedem vel quemlibet membrum perdiderit similiter duas partes prætii se noverit accepturum.
Canon 2. If any one, being brought to justice, tries to resist the arrest and is slain in the attempt, we declare that two ancillæ and two servi shall be given for him, but if he loses a hand or a foot or any limb let him likewise know that he shall accept two thirds of the price.
C. 3. Si quis homicidii causa fuerit suspicatus et non ei titulus comprobandi, XL. et VIII. viris nominatis, ex quibus XXIV. in ecclesia jurent eum esse veracem, sic sine causa discedat. Quodsi non juraverit, ancillas III. et servos III. reddat et securitatem accipiat.
Canon 3. If any one shall be suspected of homicide, but there are not means of proof (‘titulus comprobandi’), 48 men having been named, of whom 24 shall swear in a church that he is right (‘verax’), so he shall depart innocent (‘sine causa’); but if he [they?] shall not have sworn he shall pay three ancillæ and three servi and be free.
C. 4. Si servus ingenuum occiderit et culpa ingenui fuerit hoc, de fuste aut dextrali aut dubio aut de cultello fuerit interemptus, ipse homicida parentibus tradatur, et quidquid faciendi voluerint habeant potestatem.
Canon 4. If a slave shall kill a freeman and it shall be the fault of the freeman, and he shall have been slain by a cudgel, or a hatchet, or a … or a knife, the homicide himself shall be handed over to the parentes and they shall have power to do what they like with him.
C. 5. Si quis dominus servum arma portare permiserit et ingenuum hominem occiderit, ipsum et alium juxta se noverit rediturum.
Canon 5. If any master permits his slave to carry arms and he kills a freeman, let him know that he must hand over the slave himself and another likewise.
C. 6. Si quis ingenuus servum alterius sine culpa occiderit, servos duos domino. Quod si culpa fuerit servi alius, alius servus domino reformetur.
Canon 6. If a freeman shall kill the slave of another without fault (of the slave), he shall pay two slaves to the master. But if it were the fault of the slave, another slave shall be restored in his place.
C. 12. Si quis homicidium fecerit et fugam petierit, parentes ipsius habeant spacium intra dies XV., ut aut partem restituant et securi insedeant, aut ipsi de patria vadant; post hoc si ipse interemptor venire voluerit, reddat medium quod restat et vivat securus. Quodsi interim occisus fuerit, mancipium et quæ acceperint faciant restaurari.
Canon 12. If any one shall have done homicide and shall have sought flight, his parentes shall have the space of fifteen days, in order either to make their share of restitution and remain safe, or themselves quit the country. After this, if the slayer himself wants to return, he shall pay the remaining half and be safe. But if in the meanwhile he shall be slain they shall cause the slave [? slaves] and whatever they had received to be restored.
Payments of six ancillæ or servi for homicide. The slayer to pay half and the parentes half.
Here, apparently, is a fairly complete and consistent set of canons relating to homicide. All the payments are to be made in ancillæ and servi. And the payment for intentional homicide is apparently a fixed payment of three ancillæ and three servi, i.e. six slaves in all. Canons 1 and 2 are consistent and conclusive on this point.
Now, looking at these canons alone, two facts point very strongly to an Irish rather than a Welsh connection, or perhaps we ought to say, to a Goidelic rather than Cymric connection. In the Brehon Laws, as we have seen, the payments are made in cumhals or ancillæ, and the fixed wergeld or coirp-dire is strictly speaking six ancillæ, and one added for a special object, making seven cumhals in all. In the Cymric Codes, on the other hand, the galanas is paid in cows and never in ancillæ, and the amount of the galanas is graduated according to rank, that of the lowest and youngest tribesman being 60 cows, nearly three times as great as the six ancillæ and servi of these canons.
The Irish coirp-dire apparently common to South Wales and the Breton churches from fifth to seventh century.
The force of these suggestions of Irish connection is greatly increased by the fact that nowhere else in the collections of Canons and Penitentials except in these so-called ‘Canones Wallici’ and the ‘Canones Hibernenses,’ and closely allied sources, do we find the payments expressed in ancillæ. And it must be remembered that the intimacy between Breton and Cornish saints was mainly with South Wales, and through South Wales with Ireland, and further that South Wales, until conquered by Maelguin, was Goidelic rather than Cymric.
But whether the payment for homicide in the ‘Canones Wallici’ be the coirp-dire of the Brehon Laws or not, if we may recognise in these rules as to homicide the customs current in some degree on both sides of the Channel, let us say from the fifth to the seventh century, we cannot also fail to recognise in them evidence of influences at work which have broken away partly from tribal usage, and which hail, not from the primitive tribal instincts of Irish or Gallic tribes, but from the side of Roman and ecclesiastical law, to which the districts alluded to had long been subject.
We shall see more and more how foreign the tribal instinct of the solidarity of the kindred, and the consequent obligation on the whole kindred for the whole composition for homicide, were to Roman law and Christian feeling, and how soon under these influences the disintegrating process began in Gallo-Roman districts, causing the solidarity of the kindred to give way.
The solidarity of the kindred is partly recognised in these canons, but it is also partly ignored.
The extent of the liability of the parentes of the slayer.
The 12th canon states, as we have seen, that if the murderer had taken flight his parentes had fifteen days allowed either to pay part and be secure, or themselves leave the country. What part? The clause states that if the murderer wished to return from his exile he might pay the half that remained, and thereafter live secure. So that it would seem that the kindred were only liable to pay half, instead of the whole coirp-dire of six ancillæ and servi. If, in the meantime, the murderer was killed, presumably by the parentes of the slain, the slaves, or whatever else had been received by the parentes of the slain from the parentes of the slayer, had to be restored to the latter, the feud having been satisfied by his death at their hands.
In the Brehon Laws as in the Cymric Codes, the solidarity of the kindred was complete. As we have seen, under Irish custom the whole kindred of the four nearest hearths were liable for the payment of the coirp-dire for unnecessary homicide. But the fact that the payment of wergelds was foreign to Roman law, combined with the claim of the Church to protect from death criminals taking refuge at the altar, had no doubt in Northern Gaul, as we shall find was the case in Southern Gaul also, already begun to break up to some extent the tribal solidarity on which joint liability for the payment of wergelds was based.
The cleric who slays is to give himself up to the slain person’s parentes.
Those criminals who claimed protection at the altar were, under Gallic ecclesiastical usage, as we shall see, saved from death, but at the same time handed over as slaves to the parentes of the slain. And it is not difficult to detect the lines of thought leading to this result. In the ‘Penitentials’ attributed to St. Finian,[91] the spirit in which the missionary churches of Brittany, Wales, and Ireland, from their clerical point of view, dealt with crime very clearly appears. A layman, in addition to making composition to the injured person, should also do penance; but a cleric who possessed no property of his own could not pay the composition (s. 9, p. 110). What, then, was he to do in a case of homicide? The penitential (s. 23) lays down the rule:—
If any cleric kills his neighbour he must undergo ten years’ banishment with seven years’ penance. If after ten years he has acted rightly and is approved by the testimony of the abbot or priest, let him be received back into his country and let him satisfy the friends of him whom he has killed. Let him return to the father or mother (of the slain), if alive, saying ‘Behold I, as for your son, will do whatsoever you tell me.’ If he does not rightly do this he is not to be received—‘in eternum.’
Then in s. 53 is added, ‘If any one will propose better rules we will accept and follow them.’
To sum up the evidence of the canons, we can hardly claim to have done more than to have connected the coirp-dire of the Brehon Laws with the pretium hominis of St. Patrick, and with the pretium sanguinis of the ‘Canones Hibernenses,’ and with the clauses relating to homicide excerpted by the compiler of the so-called ‘Canones Wallici’ from the books of the Romans and Franks.
The connection, though traceable only through ecclesiastical channels, seems to establish a continuity as regards the fixed payment for homicide between the Breton and Irish churches, and possibly the churches of the Goidelic portion of South Wales, of the fifth and sixth centuries.
Continuity of Irish and Breton custom as regards the ‘pretium hominis’ and payment in ancillæ.
If it were suggested that the pretium hominis of seven ancillæ might be an ecclesiastical invention originating with the missionary churches of the Armorican districts of Gaul, we should still have to inquire why these churches differed so much from other Gallic churches. Everywhere else the Church, finding it impossible to get rid of a deep-rooted custom, seems to have made compacts with the secular power, adopting the customary system of wergelds prevalent in each of the conquered and converted tribes, and giving to the several grades in the ecclesiastical hierarchy graduated wergelds placing them on a level with corresponding classes of tribesmen or laymen. Even in these Celtic Canons the clerical instinct, whilst apparently adopting the fixed wergeld or coirp-dire for laymen, claimed for the clergy a graduated wergeld.
The bishop, as we have seen according to the canons, claimed a sevenfold pretium hominis—seven times the price of seven ancillæ—because of his rank in the clerical hierarchy. He claimed too the honour-price of seven ancillæ—the same as that of the Irish chieftain of a district for breach of his protection or precinct. The bishop seems to place himself here as elsewhere in these matters, on a level with the secular prince or even with the king.
And again, if St. Patrick in his ‘Confessions’ (a work the authenticity of which is generally accepted) could use, as he did, the pretium hominis as a well-known unit of payment, it would seem that at least as early as the end of the fifth century the value of the pretium hominis as a unit of payment was perfectly well understood. And this in itself is a proof of further antiquity.
The redeeming of baptized captives from slavery was moreover a recognised method of increasing the number of converts to the Christian Faith. In his equally authentic Epistle to the subjects of Coroticus St. Patrick speaks of the Roman and Gallic custom of Christians to send holy and fit men to the Franks and other nations with so many thousands of solidi for redeeming baptized captives, while Coroticus was killing and selling captives to a foreign people ignorant of God. Mr. Whitley Stokes, in editing this letter, suggests that this passage points to a date before the conversion of the Franks (A.D. 496).[92] The traffic in captives and slaves, and their sale perhaps into a still pagan corner of France, accords with the strangely local use of the ancilla as the unit of payment as well in the Canons as in the Brehon Laws.
What, then, are we to make of this fixed wergeld of seven ancillæ? So far, we find it prevalent only in Ireland and in the Goidelic or non-Cymric districts of South Wales and Brittany. And the evidence seems to carry it back to the fifth century.