Their rule extended to the Loire till they were driven back to the Garonne by the Franks in the sixth century, and lasted in Spain and Aquitaine to 711 when it succumbed to Arab conquest. The Wisigoths conquered a country already under Roman law, with a mixed population of German as well as Celtic and Iberian tribes. They were not the first German intruders. They were invaders, but not altogether at enmity with the Romans. Their princes, after the break-up of the Roman power, issued gold coins—solidi and tremisses—in close imitation of those of the Eastern Empire. Goth and Roman were encouraged to marry on equal terms. And though there are traces of a scale of payments in composition for homicide, it bears little trace of the tribal principle of the solidarity of the kindred.

There is no scale of payments directly under the head of homicide, and we are left to gather incidentally what the wergeld (if it can be so called) may have been.

In a clause[96] added between 653 and 672 it was enacted that upon the kidnapping of the child—son or daughter—of a free man or woman, the criminal was to be delivered over into the power of the child’s father, or mother, brother or nearest parentes, so that they may have power to kill him or sell him. And if they desired it, they might demand the composition for homicide from the criminal, i.e. 500 solidi (some MSS. 300 solidi), the crime being to the parents no less grave than homicide. If the child could be recovered, half the composition for homicide was to be paid, and if the criminal could not pay he was to become their slave.

This doubtful mention of 500 solidi or 300 solidi finds some explanation in a later clause.

Indirectly, again, we get the scale in force for homicides in L. VIII. Tit. IV. s. 161, of about the same date. It enacted that injuries done by vicious animals, known to be such, were to be paid for sicut est de homicidiis by the ‘constituted composition’—compositio constituta—and then the following scale is given:

It is impossible to look upon this scale as fully representing ancient Gothic tribal tradition. And when we turn to the title ‘De cæde et morte hominum,’ which seems to belong to the same date, it becomes obvious how far the spirit of these laws had wandered away from any tribal standpoint and from all recognition of the solidarity of the kindred. A homicide committed unknowingly (‘nesciens’) is declared to be in the sight of God no cause of death. ‘Let the man who has committed it depart secure.’[97]

Every man who killed another intentionally, and not by accident, was to be punished for homicide. The punishment had, in fact, already become a matter of criminal law. The prosecution for homicide was no longer to be left only to the parentes of the slain, ‘for they might be lukewarm’ (s. 15). The judex ought to take the matter up, and on neglect of his duty was to be liable for half the payment for homicide, viz. 250 solidi. Strangers in blood as well as relations had already been enabled to bring the accusation.

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.

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.

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.

CHAPTER VI.
TRIBAL CUSTOMS OF THE FRANKS AND OF THE TRIBES CONQUERED BY THE MEROVINGIAN KINGS.

I. THE WERGELDS OF THE LEX SALICA.

In turning now to the Lex Salica the inquiry will again at first more or less be a study of wergelds.

There are many difficult points in the construction of the Lex Salica, and the capitularies connected with it, which, after all the learned labour expended upon them, still remain unsettled. To attempt to discuss them fully would involve an amount of research and erudition to which this essay can lay no claim. All that can be attempted in this survey of the traces of tribal custom in the laws of the Continental tribes is to approach their text afresh in the light of the Cymric evidence, as a tentative first step towards, at last, approaching the Anglo-Saxon laws from the same tribal point of view and from the vantage-ground of a previous study of the survivals of tribal custom elsewhere.

The Lex Salica had force apparently at first over the Franks of the district extending from the Carbonaria Silva on the left bank of the Meuse to the River Loire.

The earliest manuscripts of the Lex Salica are considered to belong to the late eighth or early ninth century. And the general opinion seems to be that the first sixty-five chapters may be ascribed to the time of Clovis, or at least to a period before Christianity had become general among the Franks.

The reign of Clovis extended from A.D. 481 to 511, and may perhaps be taken as covering the date when the sixty-five chapters were first framed. There is, however, no proof that they were not modified afterwards. For at the end of the celebrated chapter De chrenecruda there is a clause in a later manuscript which implies that it was no longer in force.[98]

If these sixty-five titles, in their original form, really go back to the time of Clovis, the fact that they were allowed to continue in late issues of the Lex Salica along with the additions made to it, is probably enough in itself to excite suspicion that even these may not have been allowed to remain as they originally stood without modification.

Particularly on the question of homicide and the liability of the kindred of the slayer in the payment of the wergeld, it is difficult to understand how the clauses relating to its payment and receipt, if representing fully more ancient custom, could have been left altogether unaltered after the decree of Childebert II. (A.D. 599), which may be translated as follows:—

The logic of this decree is curious. The slayer’s kindred were absolved by it from liability if they chose to stand aloof. But, if they stooped to help their kinsman at all, they must see to it that the whole wergeld was paid, no doubt to avoid breaches of the peace from attempts at private revenge if any part were left unpaid. But if the slayer’s relations did not pay the wergeld—what then? The slayer was to be left ‘in peril of his life.’ From whom? It must have been from the vengeance of the slain man’s kindred.

One would have thought that this decree would have defeated itself, for apparently, whilst it absolved the murderer’s kindred from obligation to assist the murderer to pay the wergeld, it left untouched the right of vengeance on the part of the slain man’s relations, thereby, one would have thought, multiplying cases of breach of the peace.

That clauses relative to receipt and payment of wergeld were left in the Lex after this decree shows probably that the system of wergelds remained practically still in force. People went on ‘living under the Lex Salica,’ after the date of the edict, and in spite of the latter no doubt wergelds were paid and received. But whilst this may have been a reason why the clauses regulating the payment and receipt of wergelds could not be altogether omitted, it may also have made necessary the modification of some of their provisions.

One may even venture to trace motives in the making of modifications in favour of the fisc, which can hardly have had their root in ancient tribal custom.

The system of wergelds was extended to the advantage of ultimately both official and clerical hierarchies, and even from the Franks themselves to strangers and to the Gallo-Roman population amongst whom they dwelt. And the whole character and system of the ‘Lex Salica’ was so much like a statement of crimes and the composition to be paid for them that it lent itself very easily to the interest of the fisc.

In the sixty-five titles themselves there is direct evidence that tribal tradition and the solidarity of the kindred had once existed, and that in spite of the edict the fisc was interested in their maintenance. Thus by Tit. LX., De eum qui se de parentilla tollere vult, a door was thrown wide open for the Salic tribesman to escape from the obligations of kindred. To secure this object he is to go to the mallus with three branches of alder, and break them over his head, and throw them on four sides in the mallus, and declare that he withdraws from the oath, and the inheritance, and everything belonging to the parentilla, so that thereafter, if any of his parentes either is killed or shall die, no part either of the inheritance or of the composition shall pertain to him, but all go to the fisc. If we take this clause strictly it implies and sanctions the general right of a kinsman of a slain person to share in his wergeld. The share of the kinsman, who under this clause frees himself from the liability to pay, and gives up his right to receive any portion of the wergeld of a relative, does not lapse altogether, but is apparently kept alive for the fisc.

This clause is not perhaps inconsistent with the edict which left the receipt of wergeld still possible, though payment by the slayer’s kindred was optional. And so long as the occasional receipt of wergeld was still possible, rules for its division might reasonably remain in the Lex.

The same may perhaps be said of other clauses included in the original sixty-five. Tit. LXII., De compositione homicidii, is the one which deals with the division of the wergeld by its recipients, i.e. the kindred of the person slain. According to the text of Hessels, Cod. I., it is as follows:—

According to this clause, in the absence of the parentes, their half share still has to be paid by the kindred of the slayer, but again the fisc gets control of the lapsed portion which the parentes would have taken had they been forthcoming.

Amongst some clauses said to be added to the Lex Salica by Childebert I. (A.D. 515 to 551) is a very important one, Tit. CI., De hominem ingenuo occiso, which seems to show that, at that date, composition was still encouraged by the law, but that some alteration was necessary in the division of the wergeld amongst the kindred of the slain.[100]

There must have been some special object in this addition to the Lex. Brunner, following the very plausible suggestion of Wilda and Boretius, points out that the ‘mother,’ who, if alive, is to share in the second half of the wergeld, may be the mother of the son who takes the first half, i.e. the widow of the person slain, otherwise why should the mother alone be mentioned, and not the father of the slain?[102] If this view may be accepted the object of the clause becomes at once apparent.

Under Tit. LXII. no share is given to the widow. And we have learned from the Cymric example the reason why tribal custom gave no part of the wergeld of the husband to the widow. It was simply because there was no blood relationship between them. The widow and her kindred would have taken no part in the feud, and so took no part of the galanas in composition for the feud.

The silence of Tit. LXII. and the force of the Cymric precedent warrant the inference that it may have been so also under ancient Salic custom. However this may be, the fact that an addition to the Lex was made, whether in favour of the widow or of the mother, seems to show that Roman and Christian influences had introduced other considerations than those of blood relationship, so breaking in upon tribal custom and necessitating special legislation.

If this view may be accepted, and if (as we had to do in interpreting the Brehon rules regarding divisions of the kindred) we may take the word ‘son’ as meaning all the sons, and insert the word parentillæ in explanation of the three proximiores, so as to understand them (as in the Brehon Geilfine division) to be not three persons but three groups of kindred, then these clauses become fairly intelligible and consistent with Tit. LXII.[103]

The wergeld is divided into two halves and the second half (subject to the newly inserted right of the widow or mother of the slain) goes to the three groups of proximiores. What these three groups or parentillæ may be is not very clear.

The father has been killed and his sons take the first half of the wergeld. The other half is taken by the three nearer parentillæ. The nearest group at first sight would be the descendants of the two parents of the slain. The second group would be the descendants of the four grandparents of the slain. The third group should include the descendants of the eight great-grandparents of the person slain.

But Brunner has pointed out that the division into paternal and maternal lines of relationship begins with the slain person’s grandparents; so that the three proximiores on both sides should go back to the descendants of great-great-grandparents. He also points out that, as at each step the nearer group are to take two thirds and those behind it one third, the division between the three groups would be in the proportions of 6:2:1. And he quotes a statement regarding the division of wergelds in Flanders in the year 1300, in which the proportions of the payments of the three groups of relatives were still as 6:2:1. The half falling to the three groups being reckoned as 18/36, the division was as under:—

We may then safely, I think, follow Brunner’s cautiously expressed conclusion that it is very probable that also in the Lex Salica under the words ‘tres proximiores’ are intended relations belonging to three separate parentillæ.[104]

So far we have dealt only with the receivers of the wergeld. We have now to consider the wergeld from the payers’ point of view. When at last we turn to the title ‘De chrenecruda,’ which deals with the payment of the wergeld by the slayer and his kindred, we seem all at once to breathe in the atmosphere of ancient tribal custom before it had been materially tainted by the new influences, which the conquest of a Romanised country and migration into the midst of a mixed population necessarily brought with them. The force of tribal instinct survives in this clause even though since the edict of Childebert II. it may have been allowed to remain in the Lex partly on sufferance, and even though some of its details have been made incoherent by the mutilation it may have undergone. It was probably left in its place in the Lex, together with the clauses regarding the receipt of wergeld, because, even though the assistance of the kindred in the payment of wergeld had been made optional and discouraged, the instincts of kindred were not to be extinguished all at once. To save the life of a kinsman, kinsmen will sometimes exercise the option. And the slayer, before he flees for his life, will make his appeal to his kinsmen. The old traditional rules for payment will have force in the feelings of those who, under all the discouragements of the law, still choose to assist the slayer. Moreover, the Mallus, it appears, still exercised jurisdiction over the option.

This celebrated clause may perhaps therefore be quoted as evidence for so much of ancient tribal custom as to wergelds as the royal edict was unable to extinguish all at once.

Difficulty arises chiefly from the imperfect condition of the text of one of the clauses. But, keeping close to Codex I. of Hessels and Kern’s edition, the following translation may pass for our purpose (Tit. LVIII.):

Now, if we are here dealing with actual tribal custom, it is natural to place some weight upon the picturesque incidents which testify to its traditional origin. These picturesque incidents can hardly be other than proofs of antiquity.

Let us try, then, in spite of some confusion in the text, to make out the probable meaning of the action described. Clause 1 makes it clear that the first public step taken on the part of the slayer was to go to the Mallus with twelve co-swearers, who with him pledge their faith that he has given up everything, above ground or below it, towards the wergeld. There must have been previous negotiations with the kinsmen of the slain, and a stay of vengeance must have been conceded on the understanding that if possible the wergeld will be paid. Having thus obtained legal security for a time, the next stage in the proceeding is one between the slayer and his kinsmen, without whose help he cannot pay the wergeld.

The graphic details of the second clause seem to involve the presence of a family gathering met within the enclosure containing the house of the slayer, and, for anything we know, other houses of near relations. In this enclosure the kindred have met to deal with a family catastrophe in which they themselves are involved as well as the slayer. Even if they have to find only their half of the wergeld, fifty head of cattle from the family herd or their separate herds, as the case may be, must be to them a matter of importance. Standing on the threshold of the house from the four corners of which the slayer has gathered a handful of earth, he throws it over the representatives of his paternal and maternal kindred. He has done his part, and now the responsibility rests on them.

The vagueness and difficulty of the next clause result from a text which has probably been tampered with. But with the help of Tit. LXII. and the addition of Tit. CI., giving further details, it becomes at least partly intelligible. The rule that the payment of wergeld was made by the relatives in the same proportions as they would receive it, if one of their kinsmen had been slain, is so general that we may fairly assume that it was followed also by the Salic Franks. We have seen that according to these clauses, if a father was killed, the sons took the first half of the wergeld, and that the other half was divided between three sets of proximiores—the three parentillæ or sets of relatives of both paternal and maternal kindreds—in certain proportions. The slayer and his sons should pay the first half, and his father and brothers apparently help them to pay it. The other part ought to fall upon the three parentillæ nearest of kin on both the paternal and maternal side.

So that Clause 3 becomes partly intelligible. ‘If the father and brothers have already paid’ what the slayer could not pay of the first half, the earth has to be thrown upon the three parentillæ nearest of kin of the mother’s kindred and the three parentillæ nearest of kin of the father’s kindred. These seem to be the ‘proximiores’ who should pay the other half.

The phraseology of the titles LXII. and CI. and the analogy of other tribal custom seem to warrant the conclusion that here also the three proximiores on the paternal and the maternal side were originally not three persons next of kin, but the three parentillæ, i.e., according to Brunner, the descendants of the grandparents, the great-grandparents, and the great-great-grandparents of the slayer on both the paternal and maternal sides.

The next clause is the one which bears clearest marks of having been tampered with. It makes no sense when strictly construed, but it seems to contain two ideas: first that there may be a deficiency as regards the second half of the payment, and secondly that the persons who ought to make it up are ‘those others who come of the paternal kindred.’

The question who are intended by these words is one not easily answered decisively. Nor is it one upon which we need to dwell. It is to be regretted, however, that at this critical point the text is so sadly confused. For it must be borne in mind that if no relative was liable beyond those included in the phrase ‘the three proximiores’ then the liability to pay and receive wergeld under Salic custom was restricted to the descendants of the paternal and maternal great-great-grandparents. And whether it was so in ancient custom is just what we should like to know.

Be this as it may, the slayer has done what he could in throwing the responsibility upon his kindred. He knows not, perhaps, whether they will fulfil the obligation thus cast upon them. He has given up everything he himself possessed, and now, in his shirt, ungirded, and unshod, he leaps over the fence of the enclosure with a stake (‘palus’) in hand, to wander about in suspense until it transpires whether the rest of the wergeld will be found or not: whether those who ought to assist him, whoever they may be, will help him in his need.

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.

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.

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.

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.

Tit. XLI. fixes the amount of the wergeld of the typical freeman who is described as ‘the Frank or the barbarian man who lives under the Lex Salica.’

The amount, as throughout the Lex are all the payments, is stated in so many denarii and so many solidi—8,000 denarii, i.e. 200 solidi. And that the Frank or barbarian living under the Lex Salica was the typical freeman is shown by the title De debilitatibus,[106] which fixes the payment for the destruction of an eye, hand, or foot at 100 solidi. Half the wergeld is the highest payment for eye, hand, and foot ever exacted by the Continental laws, and 100 solidi certainly cannot apply to any grade of persons with a lower wergeld than 200 solidi.

Tit. XLI. is as follows:—

As this clause probably dates before the issue of Merovingian solidi of diminished weight, the 200 solidi of the wergeld may be taken to have been at the date of the law 200 gold solidi of Imperial standard.

So that the wergeld of the Frank or the free ‘barbarus living under the Lex Salica’ originally, when paid in gold solidi, was neither more nor less than the normal wergeld of a heavy gold mina.

We learn from clause 2 of the same title that if the homicide was aggravated by concealment of the corpse the composition was increased to 24,000 denarii or 600 solidi, and that the wergeld of a person ‘in truste dominica’ was again 600 solidi. The Royal Official thus, as in several other laws, had a triple wergeld.

Then lastly under the same title are three clauses describing the wergelds of the ‘Romanus homo conviva Regis,’ as 300 solidi, of the ‘Romanus homo possessor’ as 100 solidi, and of the ‘Romanus tributarius’ in some texts 45, and in others 63, 70, and 120 solidi. In Codex 10 the ‘Romanus possessor’ is described as the man who in the pagus in which he lives res proprias possidet.

The natural inference from these lesser wergelds is that the Gallo-Romans were not ‘living under the Lex Salica,’ but under their own Gallo-Roman law, with wergelds one half the amount of those of the Frankish freemen.

Another of the 65 titles, viz. LIV., gives a further set of wergelds. The wergeld of a grafio is to be 600 solidi, that of a sacebaro or ob-grafio who is a puer regis 300 solidi, and that of a sacebaro who is an ingenuus 600 solidi. The sacebaro was apparently the lowest in rank of judicial officials except the rachinburgus, and the clause adds that there ought not to be more than three sacebarones in each malberg.

We may conclude from these statements that, the wergeld of the freeman living under the Lex Salica being 200 gold solidi, the higher wergelds up to 600 solidi were the threefold wergelds of public officials, i.e. threefold of the wergeld of the class to which they belonged. The wergeld of the sacebaro who was a puer regis was three times that of the Romanus possessor. The sacebaro who was an ingenuus had a wergeld three times that of the ingenuus living under Salic law.