Tribal Custom in Anglo-Saxon Law: Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales'Seebohm, Frederic
History
Tribal Custom in Anglo-Saxon Law: Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales'
Seebohm, Frederic
Anglo-Saxons; Law, Anglo-Saxon; Law, Medieval; Tribes -- Great Britain
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.
[Sidenote: Distinction between land under Salic and land under Roman law.]
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.
* * * * *
[Sidenote: Edict of Chilperic A.D. 561-584.]
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]
Public-domain text, read in full here on John Shaqi.
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