We are thus brought into contact with an interesting question. These laws, made after conquest and settlement on once Roman ground, ought to be good evidence upon the tribal method of dealing with strangers in blood: i.e., in this case, the Gallo-Roman conquered population. And these clauses seem to show that half wergelds only were awarded to them under Salic law.

M. Fustel de Coulanges held indeed the opinion that the term ‘Romanus’ of the laws was confined to the freedman who had been emancipated by process of Roman law.[107] But here the contrast seems to me to be between Franks and barbarians ‘who live under Salic law’ on the one hand, and the Gallo-Romans, whether freedmen or Roman possessores, living under Roman law on the other hand. We shall come upon this question again when the Ripuarian laws are examined, and need not dwell upon it here.

It is interesting, however, to notice that in Codex 2, Tit. XLI. the Malberg gloss on the clause regarding the wergeld of the ‘Romanus tributarius’ is ‘uuala leodi,’ which Kern (208) explains to mean the wergeld of a Wala—the well-known name given by Teutonic people to their Gallo-Roman and Romanised neighbours.

III. TRIBAL RULES OF SUCCESSION IN ‘TERRA SALICA.’

The question of the payment of wergeld is now generally admitted to be distinct from that of inheritance in land.

The persons who receive and pay their share of the wergeld are those who would have taken part directly or indirectly in the feud. They are not confined to the expectant heirs of the slayer or the slain.[108]

If we are to learn anything directly upon the question of the method of landholding under Salic custom it must be, not from the clauses relating to the wergelds, but mainly from the Title LIX. De Alodis. It is the next title to the De chrenecruda and can hardly be passed by without some attempt to recognise the bearing of its clauses upon the present inquiry.

Its text is very variously rendered in the several manuscripts, and it has been the subject of many interpretations. But if it may be legitimate to approach it from a strictly tribal point of view, it will not be difficult, I think, to suggest an interpretation consistent with what we have learned of tribal custom from the Cymric example, and therefore worthy at least of careful consideration.

According to Codex 1 of Hessels and Kern the clauses are as follows:—

The last clause in Codex 10 (Herold’s) is amplified as follows:

Now, in the first place, what is meant by the term alod? In the Lex Salica it occurs again in Tit. XCIX. De rebus in alode patris, which relates to a dispute about the right to a certain thing, as to which the decision turns upon the proof that can be given by the defendant that he acquired the thing in alode patris. He has to bring three witnesses to prove ‘quod in alode patris hoc invenisset,’ and three more witnesses to prove ‘qualiter pater suus res ipsas invenisset,’ and if after failure of proof and the interdiction of the law the thing be found in his possession he is to be fined XXXV. solidi.

From this clause the inference must apparently be that the ‘alod of the father’ was the whole bundle of rights and possessions, personal as well as real, which passed to descendants by inheritance. Indeed, it seems to be generally admitted that in the title ‘de alodis’ all the clauses except the last apply to personal property, and only the last to realty.[109]

There are titles ‘de alodibus’ both in the Ripuarian Law[110] and in that of the ‘Anglii and Werini.’[111] In both laws the ‘alod’ includes personalty, and the latter defines the personalty as ‘pecunia et mancipia,’ thus reminding us that the personalty of the alod mainly consisted of cattle and slaves. In the title ‘de alodibus’ of the Ripuarian Law, the hereditary or ancestral character of the alod is emphasised by the application to it of the words ‘hereditas aviatica’ There may, however, be some doubt whether the term hereditas aviatica included the whole alod or only the land of the alod.

Regarding, therefore, the ‘alod’ as in some sense a bundle of rights and property, let us try to consider these clauses with a fresh mind in the light of what we have learned of Cymric tribal custom.

Under this custom, speaking broadly, as we have seen, daughters did not share in the landed rights of the gwely. They received instead of landed rights in the gwely their gwaddol or portion, mostly, no doubt, in cattle, and they were supposed with it to marry into another gwely, in whose landed rights their sons were expected to share by paternity. If women inherited landed rights at all, it was exceptionally in the case of failure of male heirs, and then only so that their sons might inherit. The heiress in such a case, under Cymric as well as Greek tribal law, was in quite an exceptional position, and, as we have seen in Beowulf, the sister’s son might be called back into the mother’s family to prevent its failure for want of heirs.[112] The exclusion of female successors from terra Salica is therefore quite in accordance with tribal custom.

That the clauses as to personalty in the ‘de alodis ’ were modifications of ancient Salic custom, made in favour of females, is rendered almost certain by the position of the last clause as a saving clause, apparently inserted with the object of protecting the rights of the sons in the land of the alod, by preventing the application to it of the previous clauses.

Codex 1 does not describe the land as terra Salica. It is content to protect land without qualification from the application of the previous clauses, which, if applied to land, would transgress against tribal custom. And the same may be said of Codices 3 and 4. But in the Codices 5 to 10 and in the ‘Lex emendata’ the words ‘terra Salica’ are used.

This is a point of importance, because it goes far to show that the whole of the land of the alod was terra Salica, and protected by the saving clause from participation by females. The use of the word land alone in Codex 1 forbids our thinking that part of the land of the alod was terra Salica and the rest not terra Salica.[113] And this consideration seems to show that to import into the clause any explanation of the term derived from the word Sala, so as to confine its meaning to the ‘Haus und Hofland’ or the ‘Väterliches Wohnhaus,’ as Amira[114] and Lamprecht[115] would do, would be misleading. The homestead of the chief of a tribal family holding, on terra Salica, may, like the Roman villa, have passed by various and even natural stages into the ‘Herrengut,’ or ‘terra indominicata’ of later manorial phraseology, and the term terra Salica may have clung, as it were, to it. But to reason backwards to the Lex Salica from the instances of its later use, given by Guérard in his sections on the subject, seems in this case, if I may venture to say so, to be a reversal of the right order of inference. Lamprecht carefully guards himself against the view that the terra Salica of the Lex was as yet a ‘Herrengut,’ and Guérard, in his careful sections on the subject, admits three stages in the evolution of the terra Salica: (1) ‘l’enceinte dépendant de la maison du Germain;’ (2) ‘la terre du manse seigneurial;’ (3) ‘simplement la terre possédée en propre, quelquefois donnée en tenure.’[116]

This may in some sense fairly represent the line of evolution subsequently followed, and I have long ago recognised the embryo manor in the ‘Germania’ of Tacitus; but, for our present purpose, this does not seem to help to an understanding of the term as used in the Lex Salica.

When all the Codices are taken together into account, terra Salica seems to include the whole of the land, or landed rights, of the alod. From the whole, and not only the chief homestead, the succession of females is excluded, and it is the whole, and not the chief homestead only, which is to be divided between the nepotes and pronepotes of the deceased tribesman.

Approaching the Lex Salica, as we are doing, from a tribal point of view, we seem to get upon quite other and simpler ground.

The emphasis laid in the Lex Salica upon the distinction in social status between persons ‘living under the Lex Salica’ and those living under Roman law suggests that land held under the Lex Salica was not held under the same rules as those under which the ‘Romanus possessor’ held his ‘res propria.’ It would seem natural, then, that terra Salica should be land held under Salic custom as opposed to land held under Roman law. And if this be the simple rendering of the term terra Salica in the Lex, then returning to the likeness of the Salic ‘alod’ to the Cymric family holding some likeness might be expected in the rules of succession to the land of the alod when compared with the Cymric rules of succession to the ‘tir gweliauc’ or family land of the gwely.

We have seen that in the gwely the descendants of a common great-grandfather were kept together as a family group till, after internal divisions between brothers and then between cousins, there was at last equal division of landed rights between second cousins, i.e. great-grandsons of the original head of the gwely. The fact of this right of redivision at last between great-grandchildren was apparently what held the family group together till the third generation.

The last clause of the ‘de alodis,’ even as it stands in Codex 1, coincides with Cymric custom in so far as it excludes females from landed rights and confines inheritance in the land of the alod in the first instance to sons ‘… qui fratres fuerint.’

And when at last later Codices call the land of the alod terra Salica, and the addition in Codex 10 is taken into account, the evidence becomes very strong indeed that under Salic custom the land of the alod or terra Salica was held as a family holding, and, like the land of the gwely, divisible, first between sons, then between grandsons, and at last between great-grandsons.

The later the date at which this sentence was added to the final clause of the ‘de alodis,’ the stronger becomes the evidence of what ancient Salic custom on this matter was.

Assuredly the object of these words is not to introduce a new principle. They obviously describe ancient Salic custom in order to protect it. And how could a division per capita amongst great-grandsons take place unless, as in the Cymric gwely, the holding of terra Salica had during the whole period of the three generations been kept in some sense together as a family holding?

It would be unwise to press analogies between Cymric and Salic tribal custom too far, but I have before pointed out that a system of wergelds, to which paternal and maternal relatives each individually contributed their share, seems to imply an original solidarity of kindred, which must, wherever it was fully in force, have been connected with a corresponding solidarity in the occupation of land, together with its complement, an individual ownership of cattle. And in the light of the ‘de alodis’ it does not seem unlikely that it may have been so under ancient Salic custom.

If the foregoing considerations be accepted, may we not recognise in the term terra Salica, as at first used, a meaning analogous to that which Professor Vinogradoff has recently so brilliantly given to the Anglo-Saxon term ‘folc-land’?[117] In both cases surely it was natural that there should be a term distinguishing land still held under the rules of ancient tribal custom from land held under the Romanised rules of individual landownership.

It is not necessary to do more than allude here to the various clauses of the Lex Salica from which the existence of individual holdings is clearly to be inferred. If, from this single mention of terra Salica and its ultimate division among great-grandsons per capita, the continued existence of tribal or family holdings held still under Salic law may be legitimately inferred, it is at least equally clear that the Romanus possessor who lived and held his possession as res propria under Roman law also existed. And if so the two classes of holders of land must often have been neighbours. The vicini, ‘qui in villa consistunt,’ of the title ‘de migrantibus’ (XLV.) may some of them have been of the one class and some of them of the other. The objection of a single person living under Salic law to the interloper would have a new meaning and become very natural if the conflict between the two systems were involved. And when we have reminded ourselves of these facts the title De eum qui se de parentilla tollere vult, to which allusion has already been made, which enabled the tribesman, by the somewhat theatrical action of breaking the four sticks of alder over his head, to cut himself loose from his parentilla, takes its proper place as evidence of the temptation which must have beset the young tribesman in close contact with Gallo-Roman neighbours to free himself from what had come to be regarded as a bondage, and to take an independent position as an individual under the new order of things which was fast undermining the old.

Besides the title ‘de alodis’ there is another source of information which must not be overlooked—viz. the Edict of Chilperic (A.D. 561-584).[118]

This edict appears to have been issued soon after the extension of the Frankish boundary from the Loire to the Garonne, and specially to apply to the newly conquered district.

This conquest would necessarily extend the area within which Salic settlements would be made among non-Salic neighbours, and multiply the cases in which even a Salic Frank might find himself less securely surrounded by kinsmen than of old. Under these altered circumstances instances would become more and more frequent of the close neighbourhood of tribesmen still holding under Salic custom and strangers living under Roman laws of succession. The clauses of the edict seem accordingly to be directly intended to prevent lapsed interests of Salic tribesmen in land from falling to the vicini when there were brothers or female relations surviving. In old times in purely Salic settlements lapsed interests must usually have become merged in the general rights of the kindred, the vicini being kinsmen. And no harm might come of it. Landed rights would seldom have passed away from the kindred. But as the stranger element increased in prominence the kindreds would more and more suffer loss. Hence probably the extended rights given by the edict to female relatives. It allows them to succeed in certain cases so as to prevent the land, or, as we should rather say, the landed rights, from lapsing to the vicini.

Clause 3 is as follows:—

So far evidently no change is made; old custom still holds good. But in the rest of the clauses a modification is made evidently to meet altered circumstances, and specially to shut out the vicini.

The remainder of the clause is very difficult to construe in the imperfect state of the text, and it is not necessary to dwell upon it. It seems to apply to newcomers (‘qui adveniunt’) and their rights inter se.[119]

We have then in these clauses an allusion to ancient tribal custom as well as to the change made necessary by the new circumstances.

The implication is that under the rule of ancient custom, on a brother’s death without children, his brothers did not succeed to his land, but the vicini. Now the brother is to succeed, not the vicini.

At first sight this seems unnatural and unlikely. But it ceases to be so if we may regard the alod of terra Salica as a family holding under conditions somewhat like those of the gwely. For under Cymric custom the brother did not succeed to the childless brother as his heir. The co-inheritors, as far as second cousins, were his heirs. In other words the lapsed share went to his vicini, but they were the kinsmen of his own gwely.[120]

Nor did a brother succeed to his brother’s da, and the grazing rights and homestead connected with it. He had received this da, as we have seen, from his chief of kindred by ‘kin and descent,’ i.e. by tribal right in his kindred, and therefore if he should die without children his da and everything he had by kin and descent went, not to his brothers, but back to the kindred or the chief of kindred from whom he received it.

The lapse of landed rights in family holdings to the kindred was one thing. Their passing out of the kindred to vicini who were strangers would be quite another thing.

When after a time, let us say under cover of the title ‘de migrantibus’ or upon extended conquests, others, perhaps ‘Romani possessores,’ had taken places in the villa side by side with the tribesmen living under the customary rules of terra Salica, or when Salic Franks had settled among strangers, the new element would have to be reckoned with.

In the clause ‘de migrantibus’ the protection of ancient Salic custom was sought by the exclusion of strangers at the instance of a single objector from terra Salica. In the Edict of Chilperic, on the other hand, the presence of stranger vicini was taken for granted, and the protection of terra Salica sought by extending the right of succession to brothers and females, so that at least fewer cases might arise of lapsed inheritances falling away from the kindred into the hands of the vicini who might be strangers.

The breaking up of tribal custom thus was not all at once, but by steps. At first terra Salica was limited to men, then female succession was allowed, and lastly, in default of kindred, stranger vicini under certain conditions were admitted to the lapsed inheritance.

IV. THE WERGELDS AND DIVISION OF CLASSES IN THE ‘LEX RIPUARIORUM.’

The customs of the Ripuarian Franks as to wergelds, as might be expected, do not seem to have varied much from those of the Salic Franks. They were probably neighbours in close contact with each other, and, judging from the laws, the population of the district was a mixed one.

The wergeld of the Ripuarian ingenuus, like that of the Salic Frank or barbarian living under the Lex Salica, was 200 gold solidi, and 12 co-swearers were required to deny the homicide (Tit. VII.).

Here again official position seems, as under the Salic law, to be protected by a triple wergeld. The grafio or comes, who was a fiscal judge, had a wergeld of 600 solidi (Tit. LIII.). The payment for one in truste regis was also 600 solidi (Tit. XI.).

On the other hand, the wergeld of a ‘homo regis’ (Tit. IX.), like that of the ‘puer regis’ of the Salic law, was only 100 solidi, and that of the ‘man’ of the Church the same (Tit. X.), i.e. half that of the Ripuarian ingenuus.

Consistently with this, the triple payment for killing a woman between childbearing and 40, as also in the Salic Law, was 600 solidi, whilst the wergeld of the ‘femina regia’ or ‘ecclesiastica’ was only 300 solidi.

There are apparently hardly any indications as to how or to whom the wergelds were to be paid. There is only one reference to the parentes, and that is not connected with the wergelds. In Tit. LXXXV. it is stated that he who shall disinter a corpse and rob it shall pay 200 solidi and be ‘expelled till he shall satisfy the parentes.’

The murderer alone seems to be responsible, unless indeed the few words added to the clauses imposing the triple wergeld of 600 solidi upon the murderer of a woman may be taken to be of general application. The words are these:—

Has it really come to this, that since the Edict of Childeric II. came into force the parentes are released, and the descendants of the murderer, for three generations, are to be in slavery till the wergeld is paid? It may be so, for the penalty in default of payment of the wergeld probably included his own slavery, which involved with it that of his descendants.

The ancient tribal tradition that within the family there could be no feud or wergeld, but exile only, was still apparently in force. In Title LXIX. there is a clause which enacts that if any one shall slay one next in kin (‘proximus sanguinis’) he shall suffer exile and all his goods shall go to the fisc. This exile of the slayer of a near kinsman and forfeiture of his goods to the fisc seems to be almost the only distinct important survival of tribal feeling, apparently neither wergeld nor the death of the slayer being admitted. But in this case the fisc was, as usual, the gainer. Parricide under any system of criminal law would be a capital crime. The pertinacity with which the custom that, being a crime within the kindred, there could be no feud and therefore no wergeld, was adhered to in the midst of manifold changes in circumstances, feeling, and law, is very remarkable.

There is not much else in the Ripuarian laws throwing light upon tribal customs as regards the solidarity of the kindred. But there is a good deal of interesting information upon the important subject of the treatment of strangers in blood.

We have seen that in the Lex Salica the definition of the ingenuus with a wergeld of 200 solidi was the Francus or barbarus living under Salic law. The ‘barbarus’ who lived under Salic law was no longer a stranger; he had in fact become a Frank. As we should say, he had been naturalised. Hence there was no inconsistency in the apparent occasional indiscriminate use of the words ‘Francus’ and ‘ingenuus.’ They meant the same thing. But there is nothing to show that the ordinary Gallo-Roman was included under the term ‘barbarus who lived under Salic law.’ On the other hand, we find him living under the Roman law.

In considering the method of dealing with people of so mixed a population as that of the Ripuarian district it is very important to recognise how, under tribal custom, every man continued to live under the law under which he was born, until by some legal process his nationality, so to speak, was admitted to be changed. The Cymric example has shown us how strictly the tribal blood and admission from outside into the tribe were guarded. In such a mixed population as that of the Ripuarian district, the strictness may have been somewhat relaxed, and the formalities of admission less difficult. But there is evidence enough, I think (with great deference to M. Fustel de Coulanges’ doubts on the subject), to show that to some extent at any rate social distinctions were still founded upon ‘difference of blood.’ At all events it is worth while to examine the additional evidence afforded by some clauses in the Ripuarian laws.

In Tit. XXXI. it is stated that Franks, Burgundians, Alamanni, and others, of whatever nation, living in the Ripuarian country, are to be judged and dealt with, if guilty, according to the law of the place of their birth, and not by the Ripuarian law, and it is significantly added that (living away from their kinsmen as they often must be) if they cannot find compurgators they must clear themselves by the ordeal of ‘fire or lot.’[122]

Here we come upon one of the strongest tests of tribal custom in its insistence upon the necessity of a man being surrounded by a kindred before he can be a fully recognised tribesman. Unless he be surrounded by kinsmen who can swear for him, under tribal custom, he must have recourse to the ordeal in case of any criminal charge.

There is a clause, not inconsistent, I think, with Tit. XXXI., which seems to draw a clear distinction in favour of tribes more or less nearly allied in blood with Franks, viz. the Burgundians, Alamanni, Bavarians, Saxons, and Frisians, resident in the Ripuarian district, as contrasted with the Romanus, who surely must be the Gallo-Roman.

In Title XXXVI. the following wergelds are stated, the slayer being a Ripuarian in all cases:—

Thus the Roman stranger is placed in the lowest grade. His wergeld is only 100 solidi—half that of the Ripuarian or Salic Frank—whilst those tribes nearer in blood to the Frank are classed together with a wergeld of 160 solidi, not much less than that of the Frank. Indeed, there is reason to believe that these were the wergelds of the several tribes in force in their own country according to their own laws.[123]

In this connection the view of M. Fustel de Coulanges, that the term ‘Romanus’ is confined to the libertus freed under Roman law, hardly seems natural. The evidence seems to show that the man freed under the formalities of Frankish law thenceforth lived under Salic law and became a Frankish freeman with a freeman’s wergeld of 200 solidi, whilst the man who became a freedman under process of Roman law thenceforth lived under Roman law, and became a Roman freeman—a Romanus—with a wergeld of only 100 solidi. The inference that the difference in status was the result of difference in blood is not altered by the fact that the social status awarded to the Gallo-Roman was the same as that of the libertus in some other laws.

The fact relied upon by M. Fustel de Coulanges, that under the laws of the Burgundians and the Wisigoths the Gallo-Roman was placed in a position of equality with the Teutonic conquerors, need not, I think, affect the view to be taken of his position under the Salic and Ripuarian laws. Tribal custom had to meet in Burgundy and the Wisigothic district with Roman law and Roman institutions still comparatively in their full strength. Marriages with the Gallo-Roman population were encouraged, and the system of wergelds almost entirely superseded. The Frankish conquest was of another kind, and the Frank was hardly likely to care to meet the Gallo-Roman on equal terms.

Passing now from the position of the stranger who was recognised as a freeman, let us try to get a clear idea of the position of the freedman under the Ripuarian law, taking the cases of the Frankish freedman and the Roman libertus separately.

In Tit. VIII. the payment for slaying a servus is 36 solidi. In Tit. LXII., if any one makes his servus into a tributarius or a litus and he is killed, the penalty is the same—36 solidi, but if he chooses to make him into a denarialis (i.e. a freedman under Frankish law) then his value shall be 200 solidi.

The tributarius or litus has gained but one step up the ladder of Frankish freedom. But the denarialis, with nearly six times his wergeld, has as regards his wergeld reached the highest rung at a single leap.

Though, however, as regards wergeld he has done so, in another sense he has by no means done so. Under tribal custom he would not attain to full tribal rights till a kindred had grown up around him. So under Tit. LVII. the ‘homo denarialis,’ notwithstanding his wergeld of 200 solidi, is recognised as having no kindred.

And in full accord with this statement is the following clause in the ‘Capitulare legi Ripuariæ additum’ of A.D. 803.

So that more of tribal custom still prevails in his case than at first appears. Only in the third generation are full rights of inheritance secured to his successors.

If now we turn to the libertus under Roman law, Tit. LXI. states that if any one shall make his servus into a libertus and Roman citizen, if he shall commit a crime he shall be judged by Roman law, and if he be killed the payment shall be 100 solidi: but ‘if he shall die without children he shall have no heir but our fisc.’

Thus, as regards inheritance, the Frankish denarialis and the Roman libertus seem to be treated alike, notwithstanding the difference of wergeld.

Turning to another matter, the Ripuarian laws, being of later date than the Lex Salica, made provision for the wergelds of the clergy.

Tit. XXXVI. provided that the clergy should be compounded for according to their birth, whether of the class of servi, or men of the king or of the Church, or liti, or ingenui. If ingenui, they were to be compounded for with 200 solidi. Then the wergelds of the higher clergy are stated as follows:—

And there is a long clause De Tabulariis (Tit. LVIII.) providing that servi may be made under process of Roman law tabularii of the Church, so that they and their descendants shall be and remain servants of the Church, and render the proper services of tabularii to the Church, without any one having power further to enfranchise them. In case of their death without children the Church is to be their heir. These appear to be the ‘men of the Church’ whose wergeld was 100 solidi.

The Tit. LVI. De alodibus is as follows:—

All that need be remarked regarding this title is, first its close resemblance to the clause ‘de alodis’ in the Lex Salica and the confirmation given by the phrase ‘hereditas aviatica’ to the family character of the ‘alod,’ and secondly that it seems to belong to the time when female succession was favoured.

Whether the ‘hereditas aviatica’ included the whole alod or only the land of the alod, on failure of male heirs, females were now to succeed.

There remains only to be noticed the interesting addition to Tit. XXXVI. which enacts that if any one ought to pay wergeld he should reckon, inter alia:—

And this is followed by a final clause which is found only in some of the manuscripts and which is probably an addition made under Charlemagne:—

Thus our consideration of these laws ends with the fact that, before the disturbance in the currency made by Charlemagne, the wergeld of the Frankish freeman of 200 gold solidi or heavy gold mina was still, in the Ripuarian district at all events, a normal wergeld of 100 oxen.

V. THE ALAMANNIC AND BAVARIAN LAWS.

These laws have an interest of their own, but only those points come directly within the range of this inquiry which are likely to throw light upon the interpretation of the Anglo-Saxon laws.

Beginning at once with the wergelds, there are two distinct statements.

According to the ‘Pactus,’ which is assigned to the sixth or seventh century, and which is considered to represent customs of the Alamanni before they were conquered by the Franks,[124] the wergelds were as follows:—

And for women:—

These wergelds correspond very closely in some points with those of the Burgundian laws and should be compared with them.[125]

The wergeld of women was double that of men of the same class. In the Lex Salica and Lex Ripuariorum, women were paid for threefold.

In the Lex Hlotharii, s. LXIX., the wergelds are stated as follows:—