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
But whether the payment for homicide in the ‘Canones Wallici’ be the
coirp-dire of the Brehon Laws or not, if we may recognise in these rules
as to homicide the customs current in some degree on both sides of the
Channel, let us say from the fifth to the seventh century, we cannot
also fail to recognise in them evidence of influences at work which
have broken away partly from tribal usage, and which hail, not from the
primitive tribal instincts of Irish or Gallic tribes, but from the side
of Roman and ecclesiastical law, to which the districts alluded to had
long been subject.
We shall see more and more how foreign the tribal instinct of the
solidarity of the kindred, and the consequent obligation on the whole
kindred for the whole composition for homicide, were to Roman law and
Christian feeling, and how soon under these influences the disintegrating
process began in Gallo-Roman districts, causing the solidarity of the
kindred to give way.
The solidarity of the kindred is partly recognised in these canons, but
it is also partly ignored.
[Sidenote: The extent of the liability of the parentes of the slayer.]
The 12th canon states, as we have seen, that if the murderer had taken
flight his parentes had fifteen days allowed either to pay part and be
secure, or themselves leave the country. What part? The clause states
that if the murderer wished to return from his exile he might pay the
_half_ that remained, and thereafter live secure. So that it would seem
that the kindred were only liable to pay half, instead of the whole
coirp-dire of six ancillæ and servi. If, in the meantime, the murderer
was killed, presumably by the parentes of the slain, the slaves, or
whatever else had been received by the parentes of the slain from the
parentes of the slayer, had to be restored to the latter, the feud having
been satisfied by his death at their hands.
In the Brehon Laws as in the Cymric Codes, the solidarity of the kindred
was complete. As we have seen, under Irish custom the whole kindred of
the four nearest hearths were liable for the payment of the _coirp-dire_
for unnecessary homicide. But the fact that the payment of wergelds was
foreign to Roman law, combined with the claim of the Church to protect
from death criminals taking refuge at the altar, had no doubt in Northern
Gaul, as we shall find was the case in Southern Gaul also, already begun
to break up to some extent the tribal solidarity on which joint liability
for the payment of wergelds was based.
[Sidenote: The cleric who slays is to give himself up to the slain
person’s parentes.]
Public-domain text, read in full here on John Shaqi.
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