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 system of wergelds was extended to the advantage of ultimately both
official and clerical hierarchies, and even from the Franks themselves
to strangers and to the Gallo-Roman population amongst whom they dwelt.
And the whole character and system of the ‘Lex Salica’ was so much like a
statement of crimes and the composition to be paid for them that it lent
itself very easily to the interest of the fisc.
[Sidenote: The Lex allowed a tribesman to break himself away from his
kindred. And the fisc gained by it.]
In the sixty-five titles themselves there is direct evidence that tribal
tradition and the solidarity of the kindred had once existed, and that
in spite of the edict the fisc was interested in their maintenance. Thus
by Tit. LX., _De eum qui se de parentilla tollere vult_, a door was
thrown wide open for the Salic tribesman to escape from the obligations
of kindred. To secure this object he is to go to the mallus with three
branches of alder, and break them over his head, and throw them on four
sides in the mallus, and declare that he withdraws from the oath, and
the inheritance, and everything belonging to the parentilla, so that
thereafter, if any of his parentes either is killed or shall die, no
part either of the inheritance or of the composition shall pertain to
him, but all go to the fisc. If we take this clause strictly it implies
and sanctions the general right of a kinsman of a slain person to share
in his wergeld. The share of the kinsman, who under this clause frees
himself from the liability to pay, and gives up his right to receive any
portion of the wergeld of a relative, does not lapse altogether, but is
apparently kept alive for the fisc.
This clause is not perhaps inconsistent with the edict which left the
receipt of wergeld still possible, though payment by the slayer’s kindred
was optional. And so long as the occasional receipt of wergeld was still
possible, rules for its division might reasonably remain in the Lex.
[Sidenote: Tit. LXII., ‘De compositione homicidii.’]
The same may perhaps be said of other clauses included in the original
sixty-five. Tit. LXII., _De compositione homicidii_, is the one which
deals with the division of the wergeld by its recipients, _i.e._ the
kindred of the person slain. According to the text of Hessels, Cod. I.,
it is as follows:--
Si cujuscumque pater occisus fuerit medietatem compositionis
filii collegant, et aliam medietatem parentes quae proximiores
sunt tam de patre quam de matre inter se dividant.
If any one’s father be killed, the sons are to take collectively
one half of the composition, and the other half is to be divided
between the parentes who are proximiores, both of the paternal
and maternal kindreds.
Quod si de nulla paterna seu materna nullus parens non fuerit,
illa portio in fisco collegatur.
Public-domain text, read in full here on John Shaqi.
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