Clause 5 seems to state merely that the liability of the ‘proximiores’ is collective and not individual, so that the poorer in each group of relatives are to be assisted by the richer, and we need not dwell upon it.
If his kindred do not pay, the slayer pays with his life.
Lastly, Clause 6 brings the slayer, after all his efforts and appeals to his kindred, face to face with the final result. Four successive times his co-swearers have brought him up to the mallus to hold him to his faith, and now at last, if no one steps in to complete payment of the wergeld, he must pay with his life.
This is the best we can make of the famous title in the Lex Salica regarding the payment of wergeld. But perhaps it is enough when taken together with the clauses relating to its receipt to reveal the main points of early Salic tribal custom. We may state them thus:—(1) That the wergeld was divided into two halves, for one of which the slayer, helped by his father and brothers, was responsible, and for the other of which the three grades of kindred, extending apparently to the descendants of great-great-grandparents, were responsible. (2) That if the addition of Tit. CI. in this respect represented ancient tribal custom, the payments, like the receipts, of the second half, were so distributed that the nearer parentilla or group of relatives paid and received, in relation to those behind them in kinship, in the proportion of two thirds and one third. (3) That, if we may take the addition of Tit. CI. as giving a share to the widow, and as an innovation, then it may fairly be concluded that, under ancient Salic custom as under Cymric custom, the widow originally took no share in the wergeld of her husband, not being a blood relation to him.
Position of the wife and her kindred.
Further, as in the title De chrenecruda there is no mention of any share in the payment of wergeld falling upon the wife of the murderer or her family, we may conclude that however closely two families might be united by a marriage, the wife, for the purpose of wergeld, still belonged to her own kindred, and that marriage did not involve the two families in mutual obligations for each other’s crimes of homicide, until both paternal and maternal kindreds became sharers in payment and receipt of wergelds in the case of the children of the marriage.
What became of the slayer’s rights in the land.
It is not needful to follow the speculations of various authorities as to what became of the homestead and landed rights abandoned by the slayer when he threw the chrenecruda upon his kindred and leaped, ungirt and unshod, over the fence of the inclosure. It is begging the question to call it his Grundstück in the sense of a plot of land individually owned. Whether it was so, or whether under Salic custom land was held by family groups, as in the case of the Cymric gwely, is what the clause De chrenecruda does not tell us. The question may perhaps have easily solved itself. The homestead and grazing rights, under tribal custom, might probably simply merge and sink into the common rights of the kindred, i.e. the neighbouring kinsmen would get the benefit of them. Even if the slayer, now himself slain or an exile, had held a privileged or official position as chief of his family, it would not follow that his successor (having doubtless already a homestead of his own) would care to succeed to the one left vacant. It is much more likely that tribal superstition would leave the murderer’s homestead to decay. Even the sons of a person, whose kindred had left him to perish by refusing the necessary help in the payment of the wergeld of his victim, might well refuse to ‘uncover’ the haunted hearth of their father, whilst if the wergeld were paid the slayer would return to his old homestead. Finally it must be remembered that in the tribal stage of land occupation the value of land itself bore a very small proportion to the value of the cattle upon it. And so the ‘Grundstück’ of the slayer would be as nothing compared with the value of the hundred cows of a normal wergeld.
II. THE DIVISION OF CLASSES AS SHOWN BY THE AMOUNT OF THE WERGELD.
Turning now to the amount of the wergeld, something may be learned of the division of classes under the Lex Salica.