This series of words, while representing the old connotation, is comparatively new in the documents, no recorded instance being earlier than the 12 cent. In Italy the corresponding word in the Frankish documents, that is, from the end of the 8 cent. on, is foderum. Previous to Charlemagne there is found not the slightest reference to the exaction of provender, because neither the Justinian Code nor the Langobard law mentions it explicitly, but beginning with the year 792 "fredum exigere" of the Frankish documents is for Italy changed to "foderum exigere," (50) and this foderum is also recorded as frodum (51) and forum. (52) These forms are by no means mere misspellings, but were actually in use, as is proved, for the first, by the forms froyre, froyrage, frourerius, recorded in Ducange, apparently from an intermediary frodrum, (53) and, for the second, by the OHG. vure, fuora "pastum." (54) Fodrum is referred to as "annona militaris," (55) so that we have in the change of the Frankish immunity for Italy a compliance with the old Roman institution by which annonae were paid instead of the veredi. There is a strange confusion of forms in the Germanic languages for "food" or "fodder." OHG. has not only the above-mentioned fuora, but also fôtar, fôtida, and the verbs fuottan, fôtjan, fotarjan "to feed." The Goth. records only fodjan "to feed," fodeins "food, nourishment," while the ONorse has both f´ðra and föða "to feed." The other Germanic languages have similar double forms. The documents show conclusively that at the end of the 8 cent. the current form in Italy was approximately foder, with probable phonetic variations, while the Goth. records only forms without the r. The latter can only be a back formation from the first, even as both forms exist side by side in the other Germanic languages. But the substitution of the "annonae" for the veredi, so characteristic for Italy, coupled with the substitution of foderum, frodrum, etc., for fredum on Italian soil, makes it certain that foderum is a transposed form for foredum, from veredum, while forum, which may have influenced this change, is due to a confusion with forum "price at which provisions are sold in the market." (56)

Thus it appears that the earliest forms in the Germanic languages are those derived from the current reda of the Romans, which is even older than the Christian era and may have entered the Gothic language before the age of migration. Another set is connected with the Visigothic rule in Spain, producing the root wairth- in Gothic and similar forms elsewhere. A third refers to the Ostrogothic and Lombard substitution of the "annonae," producing the stem fod-. In France, where the veredi gave way to the monetary commutation, the fredum, the Germans formed the word fridu, OSaxon frithu, AS. friðu, freoðo, freoð, ONorse friðr "peace." From this root the Goth. has formed ga-frithôn "to atone," freidjan "spare," from the OHG. frîten "to enclose, protect," while the French has stopped in frais at the meaning "expense."

In the Salic law the fine fredum is now paid to the fiscus, now to the judge, but there is one compound fine, fredo et faido, (57) which needs a thorough investigation, since the usual meaning of faida "blood feud" is here entirely out of place. The assumption that the blood feud played any part in Germanic law as a Germanic institution is incorrect, for, although Tacitus distinctly refers to such a custom among the Germans, the practice of it in law is amply accounted for by the Roman decrees, which countenanced it in certain cases. It has arisen from the legality of killing in self-defence, as laid down in the Lex Cornelia de sicariis, which has been of great importance in shaping certain later enactments, of which I shall speak at another time. What makes the derivation of the German feud from the Roman precedent a certainty is not merely the resemblance of the two, but certain verbal identities, which exclude every chance of accidental resemblance. In the year 323 it was enacted that one who led the barbarians treacherously, "scelerata factione," against the Romans, should be burned, (58) and in 391 it was specifically ordered to lynch the attacking highwayman without legal procedure, (59) and a few years later (397) a man joining a rebellion, "quisque sceleratam inierit factionem aut factionis ipsius susceperit sacramenta," was beheaded as a "majestatis reus," while his possessions were confiscated. (60) Factio is frequently mentioned in the Codex Justinianus (61) and in the glosses in the sense of "sedition," while factiosus is "seditious." (62) Hence the Lex Alamannorum, which has a caption "de eo qui mortem ducis consiliatus fuerit," exactly corresponding to the Lex Cornelia, quite correctly renders this in one redaction by "De factiosis." (63)

The Anglo-Saxons know the feud under the Latin name of factio, and here, too, factiosus is the king's enemy, the outlaw, the "majestatis reus." King Eadmund tried to abate the illegal feuds by determining that the murderer alone was subject to blood feud; that if a relative gave him protection, all the relative's property was forfeited to the king, and he himself became subject to the blood feud; that if a relative of the murdered person avenged himself upon any one else than the actual murderer, he became an outlaw before the king and lost all his possessions. (64) Thus we have here a mere extension and combination of the Roman laws. The murderer and he who privately starts a factio, to avenge a person's death, are equally outlaws, "majestatis rei, inimici regis," who lose all their property. It is obvious that AS. faehðe, which renders the Lat. factio, faidia, is identical with it, the first being derived from the second, and fah, gefah, fáh (mon), a back formation from this faehðe, which appears here as a translation of "inimicus regis," (65) is used by Aelfred for factiosus. (66)

In the Langobard laws the exclusion of the blood feud is introduced by the formula "cessante faida id est inimicita," a proof that faida is a strange word which needs glossing, but "inimicita" is identical with "inimicitiae factio" of the Anglo-Saxon laws, hence faida and factio are identical. (67) Again, the Langobard law reads "De faidosis et armis infra patriam non portandis," (68) where faidosus is the previously mentioned factiosus, and the chapter "De rusticanorum seditionem" (Roth. 280) is a close rendering of the Lex Cornelia, (69) but here the formula "concilios et seditionis facere" is identical with the "in concilio et in facto" (70) of the Genoese formula, as preserved in the 12 cent., where factum stands for factio. This factum is not an accidental change from factio, but a confusion with ex facto, in factum of the Roman laws, which Ulpian uses for "ex maleficio, ex delicto," while Modestin writes "ex peccato" for it. (71) This significance has not maintained itself in the later Roman law, but the Germanic laws use ex facto, inter facto, in facto to connote the fine for a misdeed, chiefly such as is connected with murder. The Langobard laws cited above have no need for the fredum of the Franks, because the composition for the faida includes the amount paid over to the fiscus "for the keeping of the peace." There is but one reference to fredum in Rothar's law, where it has the meaning of "refuge, asylum," which at once throws a light on the Gothic words from fredum, which refer to similar ideas. This special use in Italy is due to the importance of the churches and asylums "for the keeping of the peace." Within their walls the prisoner was free from the civil authorities. Hence fredum means "the enclosure of the peace asylum, refuge," and in this connotation it occurs among the Langobards as fraida. (72) In the Salic laws we find the combination as ex faido et fredo, to express the whole composition due to the court for a misdeed, but there is one text which still reads correctly in facto et freto, (73) hence the OHG. faida "feud" has arisen from factum "misdeed, feud." In the Bavarian and Frisian laws the identity of faidosus and factiosus is well preserved, the two texts keeping close to the context of the Lex Cornelia. (74)

The ex facto of the Romans has given rise to two extremely important groups of concepts in the Romance and Germanic languages, represented by the nouns misfactum and forisfactum. Missus was the technical term for a discharged soldier in the Roman Empire, (75) hence missum facio very early acquired the meaning "I discharge, dismiss (76) It is thus that missa "mass" developed from the original custom of giving the Eucharist at the dismissal of the church service, even as it was the usual expression in the Frankish courts for "discharge from observation of a duty." (77) Thus mis- came to be identical with ex "out," (78) the legal term ex facto was by the ninth century rendered as misfactum, (79) the prefix mis- thus acquired the meaning of "wrong, miss-" and was soon attached to prendere, (80) loqui and other words to give them a contrary or disagreeable significance. This mis- was very popular in the Frankish Empire, and not only are the French méfaire, méprendre the direct descendants of this misfactum, but mis- having been adopted also by the German population of France, the Goths, in their Bible translation, which was made in France about the year 800, adopted the legal term misfactum and literally translated it by missadeþs, while misfactor was similarly rendered by missataujands, and similar terms are found in all Germanic languages.

Before mis- took the place of "ex," foris had played that role among the Merovingians. In a Ribuarian law, which is an extension of the Lex Cornelia, it is provided that the highwayman or traducer may be killed, provided the slayer swears at court on the forty-second day that he killed the guilty man for an ex facto, that is, for a crime which makes a person an outlaw. (81) Here the ex facto has been changed to forfactum. If forfactum is the crime which outlaws, forfactotus would be the criminal who commits that crime, hence the title of the Ribuarian law, apparently of a later origin, has the corrupted form forbattutus, (82) which is universally used in certain Merovingian documents which deal with the killing of an outlaw. (83) As for- had the specific meaning "ex, out," the exlex, outlaw, was also known as the forbannitus, and outlawing, banishment was similarly designated as forbannum, (84) where for- corresponds to "ex" and bannum to "lex". If we now turn to the Carta Senomica in which ferbatudo occurs, we find that it is coupled with frodanno, namely "frodanno et forbatudo." We immediately perceive that this is a corruption of "in fredo et ex fadio" of the Salic law, which there was given as the whole composition for a misdeed, while here it is a mere legal formula, apparently not accompanied by the actual composition, for murder in self-defense. We have already seen that the Genoese formula of the 12 cent. for "being in sedition" was "in consilio et facto," where "in facto" grew out of "ex facto" of the Roman law. We have evidence that this formula is much older (85) and that "in consilio" was confused with "ex facto" producing the verb forsconsiliare "to plot against one." (86) This for-, which in French has survived in forfait, has ultimately produced the German prefix ver-, as in verwirken, AS. forwýrcan, etc., which are used as translations of forisfacere, even as misfactum has produced Goth. missadeþs. (87)

I have already pointed out that AS. fáh is a back formation from faehðe, but this shorter form is also recorded in Goth. faih, which has even better preserved the original meaning of faida "dolus," (88) that is of ex facto, hence bi-faihon "to take advantage of." This cannot be separated from ONorse feikn "misdeed," AS. fácen, OS. fêkn, OHG. feihhan "trickery," ONorse feigr, AS. faége, OHG. feigi "outlawed." All these words arise from the enormous importance which the Lex Cornelia has played among the Germans in France, in making them abhor the factio, which even in Rome led to the blood feud.





Endnotes