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.