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 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the system of wergelds almost entirely superseded.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.
[Sidenote: Position of the freedman or _denarialis_ under Frankish law.
His wergeld 200 solidi.]
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.
[Sidenote: But till he has a free kindred, if he has no children the fisc
is his heir.]
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.
(s. 4) If a ‘homo denariatus’ shall die without children he
leaves no other heir than our fisc.
And in full accord with this statement is the following clause in the
‘Capitulare legi Ripuariæ additum’ of A.D. 803.
Homo denarialis non ante hæreditare in suam agnationem poterit
quam usque ad terciam generationem perveniat.
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.
[Sidenote: Wergeld of the _libertus_ under Roman law 100 solidi.]
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.’
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account