Tribal Custom in Anglo-Saxon Law: Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales'Seebohm, Frederic
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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 phraseology of the titles LXII. and CI. and the analogy of other
tribal custom seem to warrant the conclusion that here also the _three
proximiores_ on the paternal and the maternal side were originally not
three persons next of kin, but the three _parentillæ_, _i.e._, according
to Brunner, the descendants of the grandparents, the great-grandparents,
and the great-great-grandparents of the slayer on both the paternal and
maternal sides.
The next clause is the one which bears clearest marks of having been
tampered with. It makes no sense when strictly construed, but it seems to
contain two ideas: first that there may be a deficiency as regards the
second half of the payment, and secondly that the persons who ought to
make it up are ‘_those others who come of the paternal kindred_.’
The question who are intended by these words is one not easily answered
decisively. Nor is it one upon which we need to dwell. It is to be
regretted, however, that at this critical point the text is so sadly
confused. For it must be borne in mind that if no relative was liable
beyond those included in the phrase ‘the three proximiores’ then the
liability to pay and receive wergeld under Salic custom was restricted to
the descendants of the paternal and maternal great-great-grandparents.
And whether it was so in ancient custom is just what we should like to
know.
[Sidenote: Having cast the responsibility upon his kindred, the slayer
leaps over the fence.]
Be this as it may, the slayer has done what he could in throwing the
responsibility upon his kindred. He knows not, perhaps, whether they will
fulfil the obligation thus cast upon them. He has given up everything he
himself possessed, and now, in his shirt, ungirded, and unshod, he leaps
over the fence of the enclosure with a stake (‘palus’) in hand, to wander
about in suspense until it transpires whether the rest of the wergeld
will be found or not: whether those who ought to assist him, whoever
they may be, will help him in his need.
Clause 5 seems to state merely that the liability of the ‘proximiores’
is collective and not individual, so that the poorer in each group of
relatives are to be assisted by the richer, and we need not dwell upon it.
[Sidenote: If his kindred do not pay, the slayer pays with his life.]
Lastly, Clause 6 brings the slayer, after all his efforts and appeals to
his kindred, face to face with the final result. Four successive times
his co-swearers have brought him up to the mallus to hold him to his
faith, and now at last, if no one steps in to complete payment of the
wergeld, he must pay with his life.
Public-domain text, read in full here on John Shaqi.
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