Chapter VII: Tribal Customs of the Tribes Conquered by Charlemagne (2)

This conjecture standing by itself on the evidence of these laws alone would be too hazardous to build upon, and it is not necessary to consider it further in this place. The matter of chief importance is that, all things considered, there seems to be fairly sufficient evidence that the wergelds of Tit. I. represent the ancient wergelds divided by three, and that accordingly we may take the wergeld of the liber in the two Northern districts of Frisia to have been three gold marks or 160 Merovingian gold solidi,[163] as stated in the Ripuarian laws.

[Sidenote: Division of wergeld among grades of kindred.]

With regard to the distribution or division of the wergeld amongst the relations of the person slain, the laws mention only the custom of the Middle districts, according to which two thirds of the wergeld went to the heir of the slain and one third ‘ad propinquos proximos.’ They give no information as to how the ‘propinqui proximi’ divided their third amongst themselves, or to what grade of kinship this class of relations extended.

Happily, however, Dr. Brunner, in his informing essay on ‘Sippe und Wergeld’ already quoted, has been able to supplement the meagre information given by the laws as to wergelds with further details gained from later local sources.

In his section (p. 25) on ‘Die Friesen zwischen Zuidersee und Weser,’ he gives an illustration of the way in which under later custom the payment of the wergeld was divided amongst the relations of the slain. He states that the North Frisian _tale_, _i.e._ the third share which the kindred had to pay, was known as the _mentele_ or _meitele_ (magzahl).

[Sidenote: Later example.]

In a legal document of ‘Westerlauwersches Friesland’ the _mentele_ of the kindred is described as 4 lbs. 5 oz. 6⅔_d._, and the _erbsühne_, or two thirds to be paid by the heirs, as 8 lbs. 10 oz. 13⅓ pfennig. The pound, we are told, is 12 oz. of 20_d._, so that here we have clearly Frankish currency and _silver_. The third and the two thirds together make a whole wergeld of 13 lbs. 4 oz. of silver. Now in the first place if, as we probably should do, we were to consider this wergeld to be stated in pounds and ounces of Charlemagne’s nova moneta, it would be not very far from treble the amount of the wergeld of the liber in Titles I. and XV. of the laws. And this, so far as it goes, confirms the Ripuarian statement that the ancient Frisian wergeld was one of 160 solidi.[164]

Let us now see how the third falling on the kindred was divided.

The one third of the _mentele_ of the kindred (moeg) was divided thus:--

lbs. oz. p.
(1) The _brother_, or if none, the _brother’s son_, or if
none, the sister’s son 0 12 0

(2) The _uncle_ on the father’s side (fedria) 0 9 0
The _uncle_ on the mother’s side (eem) 0 4 0
Or in default of these the _cousins_ of the slain,
or in default the cousins of the uncles.

(3) The _eftersusterbern_ or cousins descendants of
grandparents:
(_a_) On the side of the father’s grandfather 0 3 8
(_b_) On the side of the father’s grandmother 0 3 8
(_c_) On the side of the mother’s grandfather 0 2 5
(_d_) On the side of the mother’s grandmother 0 2 5

(4) The rest falls on the cousins--the eight stems which
descend from the great grandparents
The four stems from father’s side 0 7 12
” ” mother’s side 0 7 8
--------
4 3 6

This interesting illustration of the payment of a Frisian wergeld, though of later date than the laws, confirms the statement in the laws that in its division the immediate heirs of the slain took two thirds and the _propinqui proximi_ one third. It shows that at a later date the immediate ‘erbsühne’ was two-thirds, and the share of the kindred one third. And it adds the important point that the kindred who paid, and by inference shared in the receipt of the one third, were confined to the descendants of the great-grandparents, both paternal and maternal, of the slayer or of the slain.

III. THE LEX SAXONUM.

[Sidenote: Divisions of the Saxon tribes.]

In turning from the Frisian to the Saxon district, we have again to notice that, as in the Frisian instance, so in the Saxon, the territory over which the law had force was divided into several districts belonging to allied but separate tribes with their own peculiar customs.

The Westfali and the Ostfali and the Angrarii were the chief tribes with which the Lex Saxonum and the Capitularies had to deal. The ‘Saxones Bortrenses’ and ‘Septentrionales’ are also mentioned in one of the Capitularies, but these do not appear to be of much importance to our inquiry.

The stubborn resistance of the Saxon tribes to the Frankish conquest, and the sanguinary character of the Saxon wars of Charlemagne, may well have made a cleaner sweep of local custom from these districts than had taken place in others. And this may explain to some extent the disappointing silence of the Lex Saxonum upon questions of custom which might otherwise have been expected to afford useful and interesting points for comparison with the Kentish and Anglo-Saxon Laws. Moreover, the wergelds as stated in the text are, like those of the Frisian Laws at first sight so misleading that only a very careful regard to the changes in Frankish currency can make their amounts intelligible, and bring them into line with those of neighbouring tribes.

[Sidenote: Statement of wergelds of _nobilis_ and _litus_.]

Happily, in approaching the wergelds of the Lex Saxonum, we can do so, as in the case of the Frisian wergelds, with the statement of the Ripuarian Law in mind, that the Saxon as well as the Frisian wergeld was 160 solidi. And it is well that we can do so, for otherwise we might very easily lose our way.

The Lex Saxonum begins with a title ‘de vulneribus’ which describes the payments to be made for the different wounds inflicted upon a _nobilis_. Title II., ‘de homicidiis,’ next follows with a statement of the wergelds.

Qui nobilem occiderit, 1440 solidos conponat; ruoda dicitur apud
Saxones 120 solidi et in premium 120 solidi.…

Let him who shall kill a _nobilis_ make composition 1440 solidi;
the Saxons call ‘ruoda’ 120 solidi, and ‘in premium’ 120 solidi.…

Litus occisus 120 solidis componatur.…

The _litus_ killed is compounded for with 120 solidi.

Much controversy has arisen upon the two extra payments ‘ruoda’ and ‘in premium;’ but whatever they may have been, they need not surprise us. Though we may not be able to identify them with the ‘halsfang’ or the ‘wites’ and ‘bots’ of Anglo-Saxon laws, they were probably payments of something of the same kind, additional to the wergeld.

It is more important to remark the absence altogether of any mention of the ordinary ‘liber’ or ‘ingenuus’ between the nobilis and the litus, especially as in the title on theft the three classes are all mentioned.

According to Clause 2 of the Tit. II. of the Lex, married women had the same wergelds as men. Those unmarried were to be paid for with a double wergeld. And by Clause 4 a servus slain by a nobilis was to be paid for with 36 solidi.

By Clause 5:

Litus si per jussum vel consilium domini sui hominem occiderit,
ut puta nobilem, dominus compositionem persolvat vel faidam
portet. Si autem absque conscientia domini hoc fecerit,
dimittatur a domino, et vindicetur in illo et aliis septem
consanguineis ejus a propinquis occisi, et dominus liti se in hoc
conscium non esse cum undecim juret.

If a litus shall slay a man, _e.g._ a _nobilis_, by the order or
counsel of his lord, the lord shall pay the composition or bear
the feud. But if the litus shall do this without the knowledge
of the lord, he shall be dismissed by the lord and avengement
made on himself and seven others of his blood by the near kindred
of the slain, and the lord of the litus shall swear with eleven
[compurgators] that he had no knowledge of the deed.

[Sidenote: Value of the ox 2 solidi.]

Title IV. on Theft is interesting as, besides mentioning the _liber_, it fixes the value of the four-year-old ox at the date of the clause at 2 solidi, _i.e._ the old ox-unit.

VI. He who by _night_ steals a four-year-old ox, which is worth 2
solidi, shall be punished by his head.

Theft of bees from within another’s fence or of things to the value of two solidi by night from a house, or of things of any kind, day or night, of the value of _three_ solidi, was to be capitally punished. Theft of things of less value than three solidi was to be compounded for ninefold, and _pro freda_ the nobilis was to pay 12, the liber 6, and the litus 4 (? 3) solidi.

In Clause 6 of Title II. is the following:--

Si mordum totum quis fecerit, componatur primo in simplo juxta
conditionem suam; cujus multæ pars tertia a proximis ejus qui
facinus perpetravit componenda est, duæ vero partes ab illo; et
insuper octies ab eo componatur, et ille ac filii ejus soli sint
faidosi.

If any one commit murder with aggravation of concealment he (the
murderer) makes composition first _in simplo_ according to his
condition, of which payment one-third part is to be paid by the
next of kin of him who has perpetrated the crime, and two-thirds
by himself; and besides eight times (the wergeld) is to be paid
by him, and he and his children alone shall be in feud.

[Sidenote: Murderer pays two thirds and his kindred one third of wergeld, as in Frisian law.]

This clause is valuable as showing that, as in the customs of Frisia and most other Low German tribes, the murderer paid two thirds and his kinsmen one third of the wergeld in ordinary cases.

The murderer and his children alone had to pay the eight parts added for the aggravation of the crime by concealment.

That the Lex Saxonum is in some things at least a record of local custom is shown by the fact that, as in Frisia, varieties were recognised in the several divisions of the country.

[Sidenote: Local customs as to dower of wife.]

The payment for taking a wife, in all the divisions, was 300 solidi (Tit. VI.), to be paid to her parentes if with their consent. If with _her_ consent, but not with theirs, the payment was doubled. If she were seized without the consent of either, she must be restored to her ‘parentes’ with 300 solidi to them and 240 to her. Tit. VIII., however, shows that with regard to dower the customs of the several districts varied. Among the Ostfali and the Angrarii, if a wife bore children, she, the mother, retained the dower received on marriage for her life and left it to her children. Should she survive her children _her_ next heirs received it. If there were no children, the rule was _dos ad dantem_, _i.e._ it went to the husband, or, if he were not alive, to _his_ heirs. Amongst the Westfali, after a woman had borne children she kept the dower till her death. After her death, _dos ad dantem_, it went to the husband or the husband’s next heirs. Further, Tit. IX. states that as regards what had been acquired by man and wife together, amongst the Westfali the wife received half, but amongst the Ostfali and Angrarii nothing: she had to be content with her dower.

The final clause of the laws, which describes the currency in which the payments were made, is important. According to the best manuscripts it was as follows:[165]--

[Sidenote: Wergelds to be paid in solidi of two tremisses, _i.e._, value of the bullock.]

_Tit._ XVIII. _De Solidis._

(1) Solidus est duplex; unus habet duos tremisses, quod est bos
anniculus duodecim mensium: vel ovis cum agno.

(1) The solidus is of two kinds; one has two tremisses, which is
the one-year-old bullock, or a sheep with lamb.

(2) Alter solidus tres tremisses id est, bos 16 mensium.

(2) The other solidus, three tremisses: that is, the ox of
sixteen months.

(3) Majori solido aliæ compositiones, minori homicidia
componuntur.

(3) Other compositions are compounded for with the greater
solidus, homicide with the lesser one.

This was originally the final clause. But the following additions were afterwards made. In the Corvey Code:--

Quadrinis bos duo solidi. Duo boves quibus arari potest 5 solidi.
Vacca cum vitulo solidi duo et semis. Vitulus anniculus sol. 1.
Ovis cum agno et anniculus agnus, si super adjunctus, sol. 1.

The four-year-old ox, two solidi. Two oxen by which one can
plough five solidi. Cow, with calf, two-and-a-half solidi.
Year-old calf, one solidus. Sheep with lamb, if a year-old lamb
be added, one solidus.

And in the Codex Lindenbrogius:[166]--

Westfalaiorum et Angrariorum et Ostfalaiorum solidus est secales
sceffila 30, ordei 40, avenæ 60; apud utrosque: duo sicle mellis
solidus; quadrimus bos duo solidi: duo boves quibus arari potest
quinque sol., bos bonus tres solidi; vacca cum vitulo solidi duo
et semis.

The solidus of the Westfali and Angrarii and Ostfali is 30
sceffila of rye, 40 of barley, 60 of oats; with both: two siclæ
of honey a solidus; four-year-old ox two solidi; two oxen, with
which one can plough, five solidi; good ox, three solidi; cow
with calf, two-and-a-half solidi.

According to the original final clause, if it had been followed in the text of the Lex Saxonum the wergelds ought to have been stated in gold solidi of two tremisses, representing the bullock, or a sheep with her lamb. And the lesser penalties for wounds, &c., should have been stated in solidi of three tremisses, representing the ox of 16 months. These values in gold tremisses would then have been consistent with that of the full-grown four-year-old ox as stated in Tit. VI. at two solidi--_i.e._ the normal value of the ox before the change in the currency.

But, as it is, the text is not consistent throughout. Returning to the statement of the wergelds:

Nobilis 1440 solidi.
Litus 120 ”

we are struck at once with the excessive amount of that of the nobilis. But if the solidi were of two tremisses, as they should have been, then, translated into solidi of three tremisses, the amounts would stand thus:--

Nobilis 960 solidi, or 1440 bullocks.
Litus 80 ” or 120 ”

These amounts appear to be still far too large; whether regarded in cattle or in gold.

[Sidenote: The statement of wergelds seems to be in silver solidi.]

It seems probable that, in spite of the last clause, the wergelds of the Lex Saxonum, in the text as we have it, are described in Charlemagne’s _silver solidi of_ 12_d._--the solidi which at the moment he was trying at a ratio of 1:4 to substitute for gold.

Very nearly contemporary with the Lex Saxonum is Charlemagne’s _Capitulare de partibus Saxonie_, A.D. 785.[167] In this document no wergelds are mentioned, but other fines are described which may be compared with them. And it will be noticed that three classes are mentioned--nobilis, ingenuus, and litus.

In s. 19, for refusal to baptize an infant within a year of birth:--

Nobilis 120 solidi to the fisc.
Ingenuus 60 ” ”
Litus 30 ” ”

So again in s. 20 for illicit marriage, and in s. 21 for engaging in pagan rites:--

Nobilis 60 solidi.
Ingenuus 30 ”
Litus 15 ”

These fines were evidently payable in the silver solidus, for in s. 27 the penalty for a man remaining at home contrary to the bann was to be 10 _solidi_ or _one ox_. Obviously this is the value of the ox in silver solidi before they were made legal tender. Its gold value was only 2 solidi, as stated in Tit. VI. of the Lex. And, as we have seen, the value of the ox in the silver solidus of twelve pence was maintained at an average of about 8 solidi.

[Sidenote: Capitulare of A.D. 797.]

Twelve years later in date another Capitulare was issued, entitled _Capitulare Saxonicum_ and dated A.D. 797.[168] It was the result of a conference and contract between Franks and Saxons of the three tribes, Westfali, Angrarii, and Ostfali. According to s. 3 the Saxons agreed that whenever, under the laws, Franks had to pay 15 solidi, the Saxon nobilis should pay 12 solidi, ingenui 5 solidi, and liti 4 solidi.

Then follows a clause which is interesting as showing that the payment of wergelds still was a general practice. It enacted that when a homicide had occurred and a case had been settled in a district by the neighbours, the pacificators should, according to custom, receive 12 solidi for their trouble (_pro districtione_), and in respect of the wergeld (_pro wargida_) they should have sanction to do what according to their custom they had been used to do. But if the cause had been settled in the presence of a _royal Missus_, then it was conceded that on account of that wergeld the neighbours should still have their 12 solidi; and that the Missus of the King, for the trouble taken in the matter, should receive another 12 solidi, _ad partem Regis_. In clause 7, homicide of a _Missus regalis_, or theft from him, was to be paid for threefold.

Further, in Clause 9, the King, with the consent of Franks and Saxons, was to have power at his pleasure, whether _propter pacem_, or _propter faidam_, or for greater causes, to double the amount of the usual _bann_ of 60 solidi, making it 120 solidi, and to insure obedience to his commands by any amount up to 100 or even 1000 solidi.

Lastly, in the final clause is the following:--

[Sidenote: Wergelds payable in cattle &c. or in the silver solidi of 12 pence.]

Moreover, it is to be noted what the solidi of the Saxons ought
to be, _i.e._:

The one-year-old bullock of either sex in autumn, as it is
sent into the stable, for 1 solidus. Likewise in spring, when
it leaves the stable, and afterwards as it grows in age, so
its price increases. _De annona bortrinis_ let them give for a
solidus 40 _scapili_, and of rye 20.

_Septentrionales_ for a solidus, of oats 30 scapili, of rye 15.

_Bortrensi_ 1½ sicla of honey for a solidus. _Septentrionales_ 2
sicla of honey for a solidus; also of clean barley they give the
same as of rye for a solidus.

In silver let them make twelve pence the solidus. (_In argento
duodecim denarios solidum faciant._) In other things at the price
of estimation.

So that in this Capitulare of A.D. 797, issued just before Charlemagne became Emperor, there is the clear statement that the one-year-old bullock is still to be reckoned as one solidus, and the further statement that in silver 12 pence make the solidus. And this in a clause headed with the words: ‘Moreover it is to be noted what the solidi of the Saxons ought to be.’

The fact therefore seems to be that these Capitularies relating to the Saxons, and the Lex Saxonum, following upon the Conquest of the Saxons, date from the middle of the time when the change in the currency from gold to silver was taking place, and the silver solidus of 12 pence, first of Merovingian standard and ultimately of the _nova moneta_, was by law made equivalent for payments to the gold solidus of the Lex Salica of three gold tremisses or of 40 pence.

Now, having derived this information from the Capitularies, let us turn back to the laws.

[Sidenote: Destruction of eye &c. paid for with a half wergeld.]

In Tit. I. _De vulneribus_, the penalty for destroying another’s eye is 720 solidi, exactly half the number of solidi in the wergeld of the nobilis, and for both eyes 1,440 solidi--_i.e._ exactly the amount of the whole wergeld of the nobilis. These proportions are found in several other laws, and were quite natural if the payments were made in both cases in the _same_ solidi. But these wounds ought, according to the final clause in the law, to have been paid for in the solidus of three tremisses, while the wergelds should have been paid in solidi of two tremisses.

Clearly they are _not_ stated in different solidi, for if for a moment we take them to be so, then the two eyes of the nobilis would be paid for at a higher value than his life.

[Sidenote: The solidi must be silver solidi.]

Further, if we look at these payments for wounds carefully, it becomes clear that they cannot be _gold_ values. Three hundred and sixty gold solidi for a thumb and 260 for the little finger of a nobilis are quite impossible fines. The little finger of the Saxon nobilis cannot have been valued at more than the ordinary freeman’s wergeld under the Salic and Ripuarian Laws.

We conclude then that, in spite of the last clause in the law, these values, both for wounds and homicide, are silver values, and that the figures in the text have at some date or other been substituted for the original ones to meet the change in the currency.

Let us try to realise what the effect upon the wergelds of the Lex Saxonum would be of Charlemagne’s substitution of the silver solidus of 12_d._ for the gold solidus.

Up to this time the wergelds had been paid in bullocks valued in gold at the solidus of two tremisses, and the equation was one no doubt of ancient custom. Now the Capitularies made them payable in silver at 12_d._ to the solidus.

[Sidenote: Confusion in the currency.]

One result became at once apparent. In the Saxon district the value of the ox went up, as we have seen, from two of the gold solidi to ten of the new silver solidi--an excessive rise, no doubt, and one likely to startle everybody. As regards most debts the change did not matter very much. The debtor got the advantage. But as regards wergelds hitherto payable in cattle and in gold it mattered very much indeed. It meant that a wergeld of 100 head of cattle could be paid in silver at one third of their value. And Charlemagne’s advisers soon found this out. What if a Frisian or a Saxon killed a Frank? Was he to be allowed to escape with a silver payment of one third the value of the cattle? Certainly not; and so, as we have seen in the Capitularies of 781 and 801 enforcing the receipt of the silver solidus of 12_d._ for all debts, an exception was made of wergelds payable by Saxons and Frisians who killed a Salic Frank. These were still to be paid for, as heretofore, in the solidus of 40_d._ of the Lex Salica--_i.e._ the gold solidus of three tremisses.

This, so far as the wergelds were concerned, set the matter right when a Saxon killed a Frank; but it did not set it right in the ordinary case of a Saxon slaying a Saxon.

[Sidenote: The wergelds must be divided by three to obtain value in gold solidi.]

How could this be remedied but by altering the figures of the wergeld and the compositions for wounds, and inserting silver values instead of the gold ones? This seems to have been clumsily done, the other clauses in the laws being apparently left unaltered or only partially altered. But assuming that the wergelds as they appear in the present text of Tit. II. are stated in silver solidi of twelve denarii, let us divide them by three, so as to restore them to gold values in solidi of three tremisses.

The wergeld of the nobilis of 1440 solidi divided by three becomes 480 solidi of three tremisses. And if, following very common precedents, we take this wergeld of the nobilis, whether from his noble birth or natural official position, to be a triple wergeld, then the missing wergeld of the _liber_ or _ingenuus_ would be 160 solidi, as the passage in the Ripuarian laws so often quoted declared it to be.

[Sidenote: Wergeld of ‘liber’ then 160 solidi.]

The wergelds would then stand thus:--

Nobilis 480 solidi of three tremisses.
[Liber 160 ” ” ]
Litus 40 ” ”

or in the local solidi of two tremisses:--

Nobilis 720 solidi or bullocks.
[Liber 240 ” ” ]
Litus 60 ” ”

These then are the figures which, if we are right, were the original figures of the Title _De homicidiis_.

IV. LEX ANGLIORUM ET WERINORUM, HOC EST THURINGORUM.

We may probably follow Richthofen[169] in his conclusions that the Thuringians of these laws were the tribes settled with the Anglii and Werini in North Thuringia, and that they were promulgated under Charlemagne about A.D. 802.

[Sidenote: Wergelds of the Anglii and Werini.]

In the first title the wergelds for homicide are stated:--

Adaling 600 solidi.
Liber 200 solidi.
Servus 30 solidi.

These are evidently unaltered gold values.

[Sidenote: A half wergeld for destruction of an eye, hand, or foot.]

The rest of the first five titles relate to wounds, and we need only mention that the destruction of an eye, hand, or foot, or a blow causing loss of hearing, was to be paid for with _half_ the wergeld of each class, following in this respect the custom of the Frisian and Saxon tribes.

These five titles in the Corvey Manuscript of the tenth century constitute a whole under the title ‘Lex Thuringorum.’ The remaining titles are, in this manuscript, added to the Lex Saxonum, to which, however, they do not appear to belong.

[Sidenote: Triple wergeld of the Adaling.]

The triple wergeld of the Adaling of these laws may have been the result either of noble birth or official position, or both combined. The wergeld of the _liber_ of 200 gold solidi, presumably of three tremisses, seems to connect the customs of the Thuringian tribes of these laws with those of the Salic and Ripuarian Franks rather than with those of the Saxons and Frisians. It is worth notice, too, that, while in the Lex Saxonum and the Lex Frisionum the figures seem to follow a duodecimal system, in these laws the more usual decimal reckoning is retained as in the Lex Salica.

The fact that among the additional titles there is one ‘De alodibus’ connects still further these laws, notwithstanding their later date, with the Salic and Ripuarian laws which contain similar titles. And it is worth while, for purposes of comparison, to give it at length. (Tit. v.)

[Sidenote: The title ‘De Alodis.’]

(I) Hereditatem defuncti filius non filia suscipiat. Si filium
non habuit, qui defunctus est, ad filiam pecunia et mancipia,
terra vero ad proximum paternæ generationis consanguineum
pertineat.

(I) Let the son of the deceased and not the daughter receive the
inheritance. If he who has died had no son, to the daughter shall
go the cattle and slaves, but the land shall pertain to the next
blood relation of the paternal generation.

(II) Si autem nec filiam non habuit, soror ejus pecuniam et
mancipia, terram proximus paternæ generationis accipiat.

(II) But if he had no daughter either, his sister shall take the
cattle and slaves; the next of the paternal generation shall take
the land.

(III) Si autem nec filium nec filiam neque sororem habuit,
sed matrem tantum superstitem reliquit, quod filia vel soror
debuerunt, mater suscipiat, id est, pecuniam et mancipia.

(III) But if he had neither son nor daughter nor sister, but he
left a _mother_ only surviving, what daughter or sister should
have had, let the mother take, _i.e._ the cattle and slaves.

(IV) Quodsi nec filium nec filiam nec sororem aut matrem dimisit
superstites, proximus qui fuerit paternæ generationis, heres ex
toto succedat, tam in pecunia atque in mancipiis quam in terra.

(IV) But if he leaves neither son nor daughter nor sister nor
mother surviving, he who shall be next of the paternal generation
shall succeed as heir of the whole as well in cattle and slaves
as in land.

(V) Ad quemcumque hereditas terræ pervenerit, ad illum vestis
bellica, id est lorica, et ultio proximi et solutio leudis debet
pertinere.

(V) And to whomsoever the inheritance in the land shall come, to
him ought to pertain the coat of mail, _i.e._ the birnie, and the
avenging of the next of kin and the payment of wergeld.

(VI) Mater moriens filio terram, mancipia, pecuniam dimittat,
filiæ vero spolia colli, id est murenulas, nuscas, monilia,
inaures, vestes, armillas, vel quicquid ornamenti proprii
videbatur habuisse.

(VI) A mother dying shall leave her land, slaves, and goods,
to her son, but to her daughter her neck-treasures, _i.e._,
necklaces, buckles, collars, earrings, robes, bracelets, or
whatever personal ornaments she appeared to have.

(VII) Si nec filium nec filiam habuerit, sororem vero habuerit,
sorori pecuniam et mancipia, proximo vero paterni generis terram
relinquat.

(VII) If she had neither son nor daughter, but had a sister, to
the sister shall she leave the cattle and slaves, but the land
to the next of the paternal kin.

(VIII) Usque ad quintam generationem paterna generatio succedat.
Post quintam autem filia ex toto, sive de patris sive de matris
parte, in hereditatem succedat; et tunc demum hereditas ad fusum
a lancea transeat.

(VIII) As far as the fifth generation the paternal kin succeed.
But after the fifth, a daughter, whether on the father’s or on
the mother’s side, may succeed to the whole inheritance; and
then finally let the inheritance pass over from the spear to the
spindle.

[Sidenote: The alod included both land and cattle.]

As in the other laws so under these rules the alod clearly embraced both the land and the ‘pecunia’ and ‘mancipia’ upon it. Its object, like that of the similar clauses in the other laws and also like that of the Edict of Chilperic, seems to have been to protect the land in ordinary cases from passing over ‘from the spear to the spindle,’ while at the same time sanctioning inheritance by females even in the land of the alod when otherwise there would be danger of its passing away from the kindred altogether.

In certain cases the land of the alod was made to go to male heirs while the ‘pecunia’ and ‘mancipia’ upon it went to females.

Whether the word ‘pecunia’ in such cases should be translated by ‘cattle’[170] or the wider word ‘chattels,’ it must have included the cattle, and at first sight it is not easy to see how the rule would work which gave the cattle of the alod to a female and the land to a distant male heir. The cattle must in the nature of things have remained or be put upon land, and the awkward question arises upon whose land they remained or were put. And so we are brought once more to the practical question of the position of women in relation to the land. That in certain cases in default of male heirs they could inherit land is one thing; but this question of the cattle and slaves involves quite another.

[Sidenote: Male next of kin takes the land and chieftainship, but females may have cattle upon the land.]

When a sister received her portion or gwaddol under Cymric custom, and when she received so many cows for her maintenance from the chief of kindred, she must have had rights of grazing for her cattle in the family herd of her gwely. Till she married, her cattle would graze with the cattle of her paternal gwely; and when she married, with the cattle of her husband’s gwely. And so under the rules of this clause ‘De alodibus’ it does not follow that the distant male heir succeeding to the land of the alod was to evict her and her cattle from it. With the land he had to take also the responsibilities involved in the family holding. Clause V. states that to whomsoever the inheritance of the land shall come, to him ought to pertain the coat of mail, _i.e._ the birnie, and with it the duty of the chief of the kindred to avenge his kin and to see to the payment of wergeld if any one of the kin should be slain. Read from this point of view this clause ‘De alodibus’ becomes good evidence that, whatever changes may have been made as to female inheritance, the _land_ of the alod had not yet lost all its tribal traits. It had not yet become the ‘res propria’ of an individual possessor under Roman law.

V. THE SO-CALLED LEX CHAMAVORUM.

This document, according to most recent authorities, relates to a district between the Frisians and Saxons to the North and East, with the river Meuse to the South.[171]

[Sidenote: The Chamavi under Frankish law.]

Its real title seems to be _Notitia vel commemoratio de illa euva quæ se ad Amorem habet_, and it seems to be not so much a code as a memorandum of the wergelds and fines of a Frankish people settled in the district alluded to. Probably in date it may belong to the time of Charlemagne, but before his changes in the currency.

It is of some interest to this inquiry because of its peculiar position, as relating to a tribe or people under Frankish rule, and yet with customs of its own which have survived Frankish conquest.

The Notitia starts with the declaration that in ecclesiastical matters, as regards the _bannus dominicus_, the same laws prevail ‘as other Franks have.’

[Sidenote: Wergeld of the Homo Francus three times that of the ingenuus.]

And then it at once describes the wergeld, as follows:--

The wergelds of this law are as under. Whoever kills--

Homo Francus 600 solidi et pro fredo 200 sol.
Ingenuus 200 ” ” 66⅔ ”
Lidus 100 ” ” 33½ ”
Servus 50 ” ” 16⅔ ”

Then follows a clause (VII.) which states that if any ‘Comes’ be slain in his own ‘comitatus’ the wergeld is to be three times that according to his birth.

The _Homo Francus_ thus has a triple wergeld, like the Comes. But the _Comes_ may possibly be not _ingenuus_. He may be a lidus with official position, and so presumably, according to Clause VII., with a threefold wergeld of only 300 solidi.

In the next clause the Royal ‘Missus’ is put in the same position while on the King’s business. His wergeld is also to be trebled.

What, then, is the _Homo Francus_ with a wergeld three times that of the ordinary _ingenuus_ of the district of Amor?

The wergeld of the latter is the full normal wergeld of 200 solidi. The Homo Francus in this district was therefore very much above the ordinary freemen of other laws. He was evidently a Frankish landowner on a large scale, towering in social position above the ordinary freemen of the district.

The _casa_ and _curtis_ of the Homo Francus alone were protected by special clauses (XIX. and XX.), and of him alone are any hints given as to kindred or inheritance. Clause XLII., in the following few words, enlightens us as to his social position:--

If any Francus homo shall have sons, his inheritance in woods
and in land shall pass to them, and what there is in slaves and
cattle.

Concerning the maternal inheritance, let it go in like manner to
the daughter.

We must probably consider the privileged position of the Homo Francus as presumably the result of Frankish conquest. The great landowner may have been the holder of a benefice, or a tenant _in capite_ placed upon the royal domain with ministerial and judicial duties, and the triple wergeld may fairly be assigned to his official position.

But to return to the wergelds.

The payment _pro fredo_ seems to have been equal to an additional one third of the wergeld.

[Sidenote: Payment for the eye etc. one quarter the wergeld.]

From clauses XX. and XXXII. it appears that the value of an eye or hand or foot was one quarter of the wergeld, instead of half as in the Salic and Ripuarian Laws.

Theft was to be paid for ninefold with four solidi _pro fredo_.

The further clauses regarding theft in this border district of forests and cattle and mixed population are not quite easily understood, nor need we dwell upon them.

In c. XXX. the penalty for letting a thief go without bringing him before the Comes or centenarius was 60 solidi, as in the Ripuarian Laws.

VI. CONCLUDING REMARKS.

Before passing from the laws, the compilation of which seems to date from the conquests of Charlemagne, it may be well to note that, regarded from the point of view of the wergelds, the tribes whose customs have been examined in the last two sections seem to have belonged to the Frankish group with wergelds of 200 gold solidi, while on the other hand the Frisians and Saxons seem to have belonged to the other group with wergelds of 160 gold solidi.

This grouping of the tribes may not be exactly what might have been expected.

[Sidenote: The two groups of tribes with wergelds of 200 and 160 solidi.]

Geographically the Frankish group is sufficiently compact. The other is widely extended and scattered. Frisians and Saxons remain in their ancient homes. The Alamannic, Bavarian, and Burgundian tribes have wandered far away from theirs. But in their northern home they may have been once sufficiently contiguous to have shared many common customs and among them a common wergeld of 160 solidi.[172] Settled in their new quarters, the Rhine and its tributaries seem to have been the great highways of commercial intercourse and the connecting links between them. Immigrants from them all met as strangers (_advenæ_) in the Ripuarian district, and, as we have seen, we owe our knowledge of some of their wergelds very much to the recognition of them in the Ripuarian law.