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:—