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
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.
[Sidenote: Distinction between persons living under Salic law and those
living under Roman law who were treated as 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.
[Sidenote: Strangers of allied tribes have wergelds according to the
law of their birth, but if they cannot find compurgators must go to the
ordeal.]
Public-domain text, read in full here on John Shaqi.
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