The canons go on to state that if the blood does not reach the ground nec colirio indigeat the hand of the striker is to be cut off, or the half of VII. ancillæ paid, if the act is done with intention; if not, the price of one ancilla is to be paid.

Another clause states that if a bishop be struck or violently handled, without effusion of blood, half the price of VII. ancillæ is to be paid.

In all these cases the fines are reckoned in a unit of VII. ancillæ or the half of it. The cutting off of the hand of the criminal is reckoned as equal to half of VII. ancillæ. The VII. ancillæ is the recognised unit.

When, in other clauses, dealing with the case of the same things done to a priest, a lesser punishment is decreed, still the price of VII. ancillæ is the price of the life of the criminal. If the blood of a priest is shed and reaches the ground, donec colorium subfert, the hand of the criminal is to be cut off, or half of VII. ancillæ to be paid, if the act be intentional. If not intentional, the price of one ancilla is enough.

In title IV., Dejectione, after a clause stating that he who ejects a poor man kills him, and he who meets a person ready to perish and does not succour him kills him, there follows this clause:—

Here the ordinary ‘pretium sanguinis’ or coirp-dire is again clearly reckoned at VII. ancillæ, and the bishop, being of the seventh grade of rank in the ecclesiastical hierarchy, is to be paid for sevenfold.

It is also worth notice that in these clauses the cutting off of a hand is reckoned as half of the ‘pretium sanguinis.’ This is in full accordance with the Brehon rule laid down in the ‘Book of Aicill’ (iii. p. 349).

But inasmuch as the ‘eric-fine’ in this case might be taken by mistake to include the honour-price as well as the coirp-dire, the commentary adds:—

The loss of the hand was reckoned at half the coirp-dire. The full honour-price was due for the insult or assault.

Yet another clause in these canons seems to show that not only the coirp-dire of seven cumhals was familiar to the makers of the canons, but also the honour-price.

In the Brehon Laws the honour-price was payable for breach of a chieftain’s protection, and in the case of the Ri-tuaith or kingly chieftain of a Tuath the honour-price was, as we have seen, seven cumhals. And so also was that of the bishop of the church in his territory.[88]

Accordingly, in the following clause in the canons the bishop is put in the same position as a king, with what was practically an honour-price of seven ancillæ:—

So that, though it is not very easy to put an exact date upon these canons, they seem clearly to adopt and confirm for ecclesiastical persons the Irish coirp-dire of seven ancillæ, and the highest honour-price also of seven ancillæ. And further the ancilla of these canons was, it appears, of the same silver value as the cumhal of the Brehon Laws.

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.

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.

Following the eighth-century MS. as most likely to be correct in its text, the excerpta relating to homicide are these:—

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 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 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.

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:—

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.

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.

VII. THE WERGELD OF ANCIENT GALLIC CUSTOM. THE EVIDENCE OF CÆSAR.

There seems to be left but one possible further source of evidence as regards the wergelds of the Gallic tribes before the Roman conquest, viz. that of Cæsar. Speaking of the Druids, his words are these:—

There is certainly nothing in these words, when carefully considered, which indicates in the slightest degree whether the Gallic wergeld was fixed, or graduated according to rank. They amount to this:—

On the occasion of any murder committed, there would be plenty of room for controversy whether the wergeld were fixed or graduated according to rank, or even, as is quite possible, left open to the judgment of the Druids. So that we gain nothing from Cæsar’s evidence on this particular point, further than that the penalties for slaying were within the jurisdiction of the Druids.

It may, however, be well to notice that this passage has been the subject of controversy upon another point of interest to this inquiry: viz. on the question whether the evidence of Cæsar should be taken as in favour of the theory of the communistic ownership of land in Gaul or that of individual ownership.

M. Fustel de Coulanges[93] has argued with great force that the statement of Cæsar that the Druids were accustomed to settle controversies whether de hereditate or de finibus implies that in his view there must have been something like private property whether of individuals or of families.

Now if a connection may be traced between the liability of the whole kindred for wergeld and the occupation of land by kindreds, with lesser divisions into something like gwelys, then, without pressing the point too far, without suggesting that the Welsh or the Irish form of tribal occupation of land may have been exactly that which in Cæsar’s time prevailed in Gaul, we may at least say that the analogy of the Welsh and Irish examples would lead us, from a tribal point of view, to judge that the form of land occupation in Gaul was not likely to be either absolute individual or absolute communal ownership. And as under Welsh and Irish tribal custom and forms of land occupation there was plenty of room for public and private controversies both de hereditate and de finibus, it may fairly be suggested that some form of tribal land occupation would at least be more consistent with what Cæsar recorded in the few sentences under review than either complete individual or complete communal ownership would be.

But, passing from the passages already quoted to Cæsar’s further statements relating to the Druids, light seems to pour from them into another matter otherwise very difficult to realise.

It is at first sight with something like amazement that we view the arrogance of the pretension of the missionary priests of the Christian Church to impose what must have been galling penances upon chieftains and tribesmen who had committed crimes of murder or incest. Still more surprised might we well be that they had any chance of securing obedience.

The evidence of Gildas and of the Cadoc records quoted in a former volume is sufficient to show that to a most astonishing extent even chieftains submitted to the penalties and penances imposed by priests and monks who were claiming for themselves immunity from secular services and payments. The very fact that the Ecclesiastical Canons contain the rules we have examined as to the payments for homicide by the kindred of the murderer seems to involve the bold claim of the Church to bring the punishment of crime within its jurisdiction. We have seen also how in these Canons the right of the bishop to be placed in social rank on a level with the highest chieftains and princes and kings was already taken for granted in the corner of Gaul so closely connected with South Wales and Ireland.

The statement of Cæsar opens our eyes to the extent to which under the earliest prevalent system of religious belief the way was paved both for these clerical pretensions and also for the submission of chieftains and people to the penances imposed.

After describing, as above, the prerogatives of the Druids, Cæsar adds a few words to describe the nature of the sanctions by which obedience to their awards was secured:—

Then in the passage following Cæsar describes how strongly organised was the power which the Druids represented and which they had at their back:—

It is not necessary here to follow further these familiar passages in the ‘De Bello Gallico’ or to inquire more deeply into the religion of the Gauls. It is enough that the religion or superstition of the Gauls was sufficient in itself, and sufficiently deeply believed in, to fortify the influence and power of the Druids with the necessary sanction, and to outlive the disintegration which Roman conquest, in spite of its tolerance to tribal religions, must have in degree produced. The testimony of Renan to the deep-rooted superstition of the Breton population, and the lingering presence even to this day of instincts and customs reaching back to a stratum of indigenous ideas underlying Roman and Christian civilisation, shows, as Irish and Welsh legends do also, that feelings of this kind are not subject to sudden change.

And when we try to realise the position and work of the early Gallic or Breton or Cornish or Welsh or Irish churches from the fifth century onwards, we seem to see how their position and work were made possible only by the fact that what was technically called the conversion of a people to Christianity was not after all so great a revolution as one might at first sight have thought.

The missionary monks or priests, it might almost be said, naturally took the place of the Druids in the minds of the people. They had power to shut out the criminal from the sacrifices of the Christian altar, just as the Druids could from theirs. The conversion, such as it was, meant at least that in the belief of the people the spiritual powers were transferred to the priest, and that the old sanctions of superstition naturally followed the transfer. Thereby was secured to the Church something of the same prestige and power which had once belonged to the priests of the old religion.

When it is considered how the organised and world-wide system of the Church, with its centre in Rome, continuing to some extent the prestige and the civilisation of Imperial Rome, must have appeared to the chieftains and petty kings of uncivilised tribes, it may be recognised that in this respect also it resembled to their eyes the power of the priesthood of the old religion with its centre at Chartres and reaching in its authority from Britain to Southern Gaul. So that in this respect also the way was paved for the Church in the minds of the people. The tribes were used to the idea of a great central spiritual power, and in the Church, by transfer from the old to the new religion, they found it again.

CHAPTER V.
THE WERGELDS OF THE BURGUNDIAN AND WISIGOTHIC LAWS.

I. THE BURGUNDIAN WERGELDS.

It is not proposed to do more in this chapter than very briefly to examine the laws of the Burgundians and Wisigoths with reference to the evidence they contain with regard to the results of contact with Roman and Christian civilisation upon the solidarity of the kindred as shown in the payment of wergelds.

The remoteness of these tribes from any connection with the Anglo-Saxon invasion of Britain makes it unnecessary to do more than this. Indeed, this chapter might have been omitted but for the useful light it may throw upon the process of disintegration in tribal custom in the case of tribes settling in countries with a long-established civilisation superior to their own. In such cases tribal custom, however hardly it might resist, had eventually to succumb, thus affording a strong contrast with the Cymric and Irish examples, in which tribal custom was so much better able to hold its own, and even succeeded to some extent in forcing tribal rules upon the new Christian institutions.

The Burgundian laws, so far as they belong to those first issued by Gundebald himself, fall between A.D. 501 and 516, and his reference to his ancestors in his preface shows that, while he may have remodelled the laws to meet altered circumstances, they were in part based upon traditional customs of his people.[94]

But his people were in a new position. Geographically they were sharing with a population still under Roman law the south-western part of the Helvetian Valley—i.e. between Neuchâtel and Geneva, and a good part of the old country of the Sequani on the Gallic side of the Jura.

They seem to have come into this district not altogether as conquerors, but in some sense as invited guests. According to Tit. 54 of the laws the newcomers, by the munificence of the Burgundian king and his ancestors, had had delegated to them individually, in a particular place, hospitalitas, which consisted of two thirds of the land and one third of the slaves of the hospes upon whom they were quartered, and by this clause in the laws they were forbidden to take more.[95] It is generally understood that this method more or less closely resembled the Roman method of quartering soldiers upon a district.

The Burgundians therefore came into a district with a mixed population of Romanised Gauls and Germans, already, after long residence and many vicissitudes, living and settled under Roman law, and regarded by the newcomers as Romans.

Thus two sets of laws became necessary, one for the Burgundian immigrants, the other for the old inhabitants who were to continue under Roman law.

Now under the Roman law there was no wergeld. And so in the Tit. II. of the Burgundian Lex Romana the slayer, whether a freeman or slave, if captured outside a church was condemned to death. If the homicide was in defence of life it was to be referred to judicial decision according to the Novellæ of Theodosius and Valentinian.

If the slayer had taken refuge in a church, quia de preciis occisionum nihil evidenter lex Romana constituit, the Burgundian lawgiver decreed that if a freeman by a freeman should be killed, and the slayer should flee to a church, he who confessed the homicide should be adjudged to be the slave of the heirs of the person killed, with half of his property, the other half to be left to the heirs of the slayer.

After this follows a clause, also of Burgundian origin, fixing the payment by a freeman who has killed a ‘servus’ and fled to a church. The price is to be paid to the lord of the servus on the following scale:

Now if from these clauses of the Lex Romana which relate to the Roman population, we turn to the Tit. II. of the Burgundian law proper of Gundebald ‘De homicidiis,’ we may gather what the old customary wergelds may have been, but at the same time recognise how strongly Roman law and ecclesiastical influence had led Gundebald to break through what to the Romanised conscience seemed to be the worst features of the system of tribal wergelds.

From Tit. II., ‘De homicidiis,’ it appears that the original wergelds were these:

These wergelds closely correspond with those of the Alamannic and Bavarian laws; but the first clause enacts that the homicide of a freeman by another, of whatsoever nation, shall only be compounded for by the slayer’s blood: thus overriding tribal usage and introducing the Roman law.

The second clause enacts that if the homicide be in self-defence against violence, half the above-mentioned wergelds should be payable to the parentes of the slain.

Clause 3 enacts that if a slave, unknown to his master, shall slay a freeman, the slave shall be delivered up to death and the master free from liability. Clause 4 adds that if the master was privy to the crime of his slave both should be delivered to death. Clause 5 enacts that if the slave after the deed shall have disappeared, his master shall pay 30 solidi—the price of the slave—to the parentes of the slain. And lastly, in clause 6, the parentes of the slain are in all these cases warned that no one is to be answerable for the crime but the homicide himself, ‘because as we enact that the guilty shall be extirpated, so we cannot allow the innocent to suffer wrong.’

The new law breaks away altogether from old tribal traditions, and an attempt is made to treat homicide from the new point of view of reason and justice as between one individual and another, with but little, if any, regard to kindred.

From the law against theft we get a scale for the equation of cattle &c. with gold. If a Burgundian or Roman ‘ingenuus’ steals away a slave, horse, mare, ox, or cow, he is to lose his life, unless he takes refuge in a church, and from the property of the criminal the price of the stolen animal is, ‘in simplum,’ to be paid to the person robbed, unless the thing stolen can be found and restored—i.e.:

Thus from these traditional values, retained even under new circumstances by the Burgundian law, we learn that the wergeld of the middle class of freemen, ‘mediocres in populo,’ of 200 solidi, was still regarded as the equivalent of 100 oxen or 200 cows.

There is no doubt in this case that the solidi were those of the Imperial standard. The Burgundian Kingdom was destroyed by the Franks in A.D. 534—i.e. before the issue by Merovingian princes of solidi and trientes of the Merovingian standard.

II. THE WERGELDS OF THE LEX WISIGOTHORUM.

The laws of the Wisigoths are too Roman to be taken as evidence of what may have been the ancient tribal wergelds of the Goths.